Stephen Franks on Defamation

Stephen Franks is asking for donations to help Judith Collins with her defamation case against Andrew Little and Trevor Mallard. He believes it is a matter of principle and because he believes that Mallard and Little have become scofflaws:

Why support a defamation action?

For simple reasons:

  • Passionate belief in freedom of speech;
  • That freedom will not survive if abusers of the freedom face no cost;
  • Licencing and other preventative powers to protect reputations will be abused;
  • Governments would abuse general powers to punish for lying after the fact. They’d call unfashionable or unwelcome free speech lying;
  • After the fact defamation lawsuits, where truth is a complete defence, are a safe and sufficient deterrent and a remedy for calculated lying.

I do not know whether Trevor Mallard and Andrew Little (both of whom I respect) made false statements about Judith Collins. If they were false I do not know whether they were calculated, reckless or just careless. That will be for a court to determine. But I do know they are scoffing at defamation law. They might fairly complain that they’ve been mislead into that – our indulgent and indulged court system has effectively made many rights unenforceable for all but the rich (and the very poor who can get legal aid).

Perhaps only mugs now worry about accuracy in political mudslinging.  Defamation law was wounded when judges changed the law so that politicians became fair game for careless falsehood. David Lange was deprived of his right to vindication by that judicial activism. Journalists rightly hate defamation law nevertheless because it provides no protection against those who file baseless gagging actions, relying on a publisher’s fear of uncompensated legal costs even with complete victory.

But flaws can be readily repaired. Until then I support defamation law because the alternatives are worse.

He explains why it is very important to fight “casual liars”:

Defamation law is the safeguard against false coin in the competitive marketplace of ideas. A Gresham’s law may apply in public debate, where unpunishable recklessness, and scandalous accusation would crowd out sober truth.  An assumption that usually you can trust what someone is telling you, and particularly your leaders or would-be leaders, is a vital element of social capital. New Zealand is currently a high trust country according the the World Values Survey.

High profile defamation cases remind casual liars they could pay a price help to preserve our trust in the honesty of others until proved otherwise. So proceedings that keep open the threat of a cost for reckless allegations are in the public interest.

Contesting for power and influence with words instead of force was the shining goal of the thousands who’ve died for free speech. I’d rather pay money to protect that freedom than the coin they paid.


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  • Mediaan

    Gosh, Stephen Franks is a high-quality brain. I appreciate this comment and was informed by it. Shouldn’t we have him in a top influential position? Too good to waste.

  • Pete George

    There does need to be a way of addressing deliberate and repeat lying
    for political gain. Defamation law is far from ideal but it’s one of a
    limited number of options currently available.

    More effective would be more public and media insistence on political honesty.

    And more party and blog insistence on honesty would help too.

  • Ford

    judith collins..aww da poor widdle victim..doodums

    • Johnbronkhorst

      Dick head ford and hipocritical. If some one told blatant lies about you, that cost you either your reputation or money, you would be the first in line for deformation action.

      • Ford

        sticks and stones fuckface

      • Ford

        as far as defamation,character assassination  and costing shitloads of money you obviously havent been through the family court system

      • She’s given them credence by taking the action – it hasn’t cost her anything in her reputation or money – though the lawyers sure with make plenty – so sh’e costing hersle the money.  So easy to treat this stupidity with the contempt it deserves – not follow the age old “methinks thou dost protest too much” or “no smoke without fire”

  • Ford

    another ACC privacy fuckup

    • Magoo

      All the more reason for less government and the privatisation of ACC. Yet another in a long, long line of government fuckups.

      • Privatisation is NOT the answer – they need to be reminded they were not set up as a insurance company and stop bloody trying to behave like one.

      • Richard McGrath

        Agreed. What’s so special about accident insurance that it should be different from other sorts of insurance – which exist in the private sector.

  • MrV

    An easier system is just to never believe Trevor Mallard or Andrew Little, period.

    • Gazzaw

      Who ever did MrV aside from the tossers over at the stranded?

  • Stephen Franks is absolutely correct in everything he says, but, Collins is a disappointing candidate to champion. As I said in the comment to his own thread, it was Collins who has taken away the right of a journalist to protect his source from SFO, so destroying a bastion of free speech. And as I have

    also blogged, just one week ago she stated she’d have no problem putting an extra 50% on alcohol excise taxes: a tax on choice, is a tax on freedom, period, and she’s in a party that is supposed to stand for limited government. I enjoy a drink, and do so responsibly, yet she would want to price it out of reach to stop those few who don’t drink responsibly. When I call National the National Socialists, it’s often Collins I’m thinking of. 

    • you’re so sorrect – there is not difference between our two major parties these days other than the cast in the play…..Not sure how we define the difference – one is nanny state so maybe the other should be called mummy state?

      • Richard McGrath

        Neil, there is no difference, between red and blue, they both believe the individual should be sacrificed to the collective, that people can’t be trusted to run their own lives, that they don’t deserve to be left alone to manage their own affairs. That privacy, free speech and choice shouldn’t exist, that the state should decide what people want. That in a nutshell is the raison d’etre for political parties like Libertarianz, who find the nationalising of people’s lives abhorrent.

    • jay cee

      national socialists huh? are you calling frau collins a nazi? seems apt. 

    • Richard McGrath

      Spot on, Mark. No Tory government has ever stuck to anything approaching a free market agenda; perhaps Bolger’s strayed close when Richardson was there, but Spud bottled out and later became an unashamed state-tit-sucker.