Jock Anderson on defamation

Jock Anderson writes at NBR about the result of the defamation case between Jon Stephenson and the NZ Army.

Lawyers say the one constant about defamation is that it is a two-edged sword.

Defamation trials do not always deliver a clear-cut result for one side or the other.

Zealous freelance reporter Jon Stephenson might do well to reflect on that as he ponders his next step in a public skirmish with defence force head Lieutenant-General Rhys Jones.

A hung jury was unable to agree this week on whether General Jones defamed Mr Stephenson by challenging whether the reporter went to a base in Afghanistan and spoke to a commander he claimed he did in his subsequent stories.

Before being discharged, the jury told the trial judge they were unlikely to even reach a nine-to-three majority verdict.

Jurors were clearly split on whether Mr Stephenson was defamed, or, if he was, how much money ? if any ? he should get.

Mr Stephenson, who says the case was not about the money, wanted $500,000 damages.

General Jones?s lawyer Hugh Rennie QC suggested an appropriate sum ? if any ??was $10. ?

This is the problem with defamation. People rush off to court to protect their “reputation” and then find out that no one but them values it as highly if at all.

In the course of the trial General Jones ? himself effectively on trial ??conceded Mr Stephenson had entered the base and conducted the interview.

In some people?s minds General Jones? concession would have been enough to satisfy honour and reputation all round.

Mr Stephenson himself says he is delighted by General Jones? concession because the point of his defamation action was to hold the defence force to account for saying things about him which were not true.

In that case a contribution to Mr Stephenson?s legal costs ? the sum of which he has been coy about revealing ? would appear fair.

But any attempt by Mr Stephenson to issue new proceedings so he can have another bite of the cherry might be seen as a bridge too far, or even interpreted as rubbing the general?s nose in it.

Mr Stephenson does not appear to have suffered any financial loss as a result of the general?s comments. His work continues to appear in media sympathetic to his reporting.

It might be time for an honourable, and less expensive, withdrawal.

I suspect that Stephenson may have another crack. He is falling for the trap of playing to win. The General, being the canny old soldier he is was playing to not lose…and in that he succeeded.

Sparring with someone who is playing to win when you are playing to not lose seriously discombobulates them, often results in their unhinging and ultimately their failure because they can never get that which they seek…winning. All the while you do, by not losing.

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