A few weeks ago I did an interview with journalist Mark Day of The Australian newspaper with his story being published on the 21^st May 2012. He makes a statement of fact that one of my posts is defamatory yet provides no credible evidence to support the claim. Although he does say the rumour has been “rigorously checked out by senior journalists employed by several newspapers” and “no evidence” has been found.

The post in question is the Bill Shorten post titled “Has Bill Shorten gotten one of his staff members Pregnant? Shorten calls the lawyers.” (Click here to read the post)

Below is the Mark Day story in full. Under fair use policy I am only meant to use a small part then put the link back to the website. But given that Mark Day has had a swipe at me and my site and in the interests of defending myself the whole story is below.

Web tangled, no scuttlebuts about it

by: Mark Day

From: The Australian

May 21, 201212:00AM

THE role of news organisations is to deliver news, and most of the time that’s exactly what they do. It is rare that stories raise more questions than they answer, and this put the recent reports about the Minister for Employment and Workplace Relations, Bill Shorten, and his wife Chloe firmly in the curious basket.

After a little digging it is clear that, in spite of thousands of hours of research, hearings, evidence, academic papers and the reports of the Convergence Review and the Finkelstein inquiry, we still have a major disconnect in the way the law operates when it comes to reporting in newspapers and on the internet.

Come with me and let’s walk on legal eggshells as we look at the Shorten matter from the standpoint of an ordinary reader taking ordinary meanings from published words.

A week ago, the Melbourne Sunday Herald Sun, along with other mastheads in the News Limited Sunday stable, published a story saying Shorten and his wife had “gone public today about rumours regarding their private lives”. It was hardly tucked away: the story was the paper’s splash, under the heading “Our love is strong” and it appeared across Pages 4 and 5 running to almost 1800 words. It would not have been out of place in New Idea as Mrs Shorten spoke of bringing up kids, relations with her mum, dance classes and the sometimes torrid aspects of public life.

The story said the high-profile couple — he a potential prime minister; she the daughter of the Governor-General, Quentin Bryce — had been the subject of “a hurtful political smear over the past few weeks” and they had “called for an end to the ugly personal attacks sweeping politics”.

It added: “Mr Shorten, who has taken legal advice over the slur, said he did not want to comment on the specific details.”

I am confident most people reading the story would have concluded that whatever the rumours were, they were wrong. In fact, inquiries have convinced me the reports, which have been doing the rounds for months rather than weeks, have been rigorously checked out by senior journalists employed by several newspapers based in Canberra, Sydney and Melbourne. They have not been published because in each case no evidence to support them could be found and, further, evidence of their falsity was revealed.

At the same time, the average reader might also have recalled that the previous Friday, May 11, Daily Telegraph columnist Piers Akerman wrote of a discussion with a senior minister during the budget lock-up in Canberra. Akerman detailed rumours allegedly attached to the minister but did not name him. He wrote that the minister was clearly distressed and that false and malicious rumour-mongering was a high price to pay for a public life. His commentary was made in the context of current politics where gossip, scuttlebutt and innuendo in relation to the Thomson and Slipper matters seem to be an increasingly appreciating currency.

The thought that there may be a link between Akerman’s comment and the Sunday Herald Sun story may well have caused a curious reader to enter a few words into Google’s search engine. Anyone doing that would immediately see a link to websites giving detailed accounts of a rumour concerning Shorten.

The matter on the websites is defamatory because it is not true. It is tempting, at this time of debate about how the media should be regulated, and by whom, to see this incident in the context of mainstream publishing versus the web. Standards applying to newspapers are non-existent when it comes to the internet, and there is a strong argument that whatever the shape of future regulation, it should be platform-agnostic.

This is recognised by the reports of both the Convergence Review and Finkelstein.

But it misses the point here. It is defamation law at issue here, and the divide between mainstream and cowboy is just as wide as it has been since the days of the scandal sheets that circulated on the streets of London and New York a couple of centuries ago.

Most websites and blogs that carry such rumours are unsigned and therefore anonymous. What is unusual about one of the website blogs carrying details of the Shorten rumours is that it also carries the name, email address and telephone number of its author and moderator. I called him, but decided not to name him and publicise his site. When I spoke to the originator of the site he told me no action had been taken to ask him to remove the material, to threaten legal action or move to take down his site. He said: “They won’t come near me because I get the facts right.”

An equally likely answer lies in a later response. I asked: “If you were sued and lost a defamation action, do you have any assets?” He replied: “Not really.”

That’s the nub of it. Any action would probably be successful, but also fruitless, whereas if the information appeared in a mainstream publication, the rewards could be put to use constructing, say, a tennis court or swimming pool.

Put another way, if you look for an answer as to why mainstream publications tread warily on these matters while cowboys heed no caution, it lies in the comment of a newspaper executive who said: “We’ve got money and they don’t.”

In my view this is not a satisfactory state of affairs, but it is one that has existed for many years without redress. In past eras, scandal sheets might have served the same purpose as today’s cowboy websites, but their impact was minuscule when compared to the reach and accessibility of the web.

At this stage it is probable that Shorten is ahead of the game. He clearly decided to bat away the rumours and used the mainstream press and the massive reach of the News Sunday mastheads to firmly signal that they are false. But he hasn’t snuffed them out and probably never will, because embedded in the psyche of human beings is a willingness to embrace gossip, the salacious and the secret.

While ever there is a will for someone to invent a scandal, there will be ways to spread it.

End of Article (Click here for the article)

I have highlighted the key parts above as I see them.

“have been rigorously checked out by senior journalists employed by several newspapers based in Canberra, Sydney and Melbourne.”

This type of so-called evidence would not hold up in court. All the media knew the former federal politician Gareth Evans was having an affair with another politician Cheryl Kernot for 5 years but no one wrote about it. It never came to light until 2002 when it was revealed by the Bulletin and Nine Network correspondent Laurie Oakes. (Click here to read) So just because journalists are not writing about it means nothing.

“The matter on the websites is defamatory because it is not true.”

Once again where is his evidence to support that. I did not say in post that Bill Shorten did get one of his staff members pregnant. What I stated was that was the rumour going around. It certainly became a public interest story when Bill Shorten did the interview with the Herald Sun and denied the rumour but did not say what the rumour was. He could not sue me on that basis even if he wanted to.

“Standards applying to newspapers are non-existent when it comes to the internet” and “It is defamation law at issue here”

Bloggers and journalists on the internet are just as liable for defamation law as any news organisation including the newspapers. Last year TV book show celebrity Marieke Hardy paid $13,000 in relation to a defamation lawsuit. She alleged on her website that Joshua Meggitt had been running a blog defaming her which was not true. Hence the $13,000 payout. (Click here to read more). So much for Mark Days comment “Standards applying to newspapers are non-existent when it comes to the internet”. And Mr Day does not seem to understand defamation law.

“They won’t come near me because I get the facts right.” and An equally likely answer lies in a later response. I asked: “If you were sued and lost a defamation action, do you have any assets?” He replied: “Not really.” and “We’ve got money and they don’t.”

Based on that Mr Day is saying as long as you tell people you do not have any assets you will not be sued. He is also working on the premise that people only sue for the money. The problem being is that most people do not sue for defamation motivated by the money, they are seeking to repair their reputation. The money factor is almost an afterthought and more about teaching the defamer a lesson. Although some who do sue are clearly just chasing the money.

Whether or not Mr Shorten did get one of his staff members pregnant at this stage in unknown although my personal opinion is that it is true based on Mr Shorten behaviour which is odd in the extreme to deny a rumour without saying what it is.

But in the same post I said this about Bill Shorten “The reality is Bill Shorten is a grub from start to finish. As minister for employment and workplace relations he has been up to his neck in corrupting Fair Work Australia.” Which is true and the evidence is a mile long. Surprisingly Mark Day makes no mention of that in his article.

Under normal circumstances I would suspect that Mark Day has done a deliberate hatchet job on me and my site. But I have spoken to a number of people in the media and they have asked me how I get away with writing what I do which I find strange coming from people in the media. The answer is simple, I get away with it the same way other media get away with accusing people of being criminals. I make sure I have the evidence to support it.

Reporter Kate McClymont of the SMH recently wrote a story titled “The full Monte: this cheat wants to be mayor” about  private investigator Frank Monte which starts off “Almost 25 years after this PI started ripping off clients, he’s still at it.” (Click here for the article) And many journalists write make similar allegations about people all the time yet no one asks them how they get away writing what they do nor should anyone ask me. If I get serious allegations wrong about people I am in a lot of trouble and so I should be. That’s why I make sure I get it right.

Mark Day correctly points out that my name and contact details are on this site. I do not hide from what I write and say. I stand behind it 100%. I have never been sued for defamation nor do I expect I will. What I write is very much in the public interest.

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