Mediawatch: Talley's vs TVNZ in defamation confrontation

Analysis - Successive governments have dodged the issue of how the media should be held to account, leaving us with outdated and fragmented systems for standards and complaints.

But the issue erupted recently when the Broadcasting Standards Authority advised The Platform it could consider public complaints about its online output.

That sparked calls to roll back the Authority's authority - and one MP drafted a bill to scrap it.

Those who reckon we don't need an official broadcasting watchdog point out we already have laws protecting privacy, copyright and other things - and criminalising harassment and bullying.

And if someone on air - or online - lowers your reputation in the minds of right-thinking New Zealanders without good reason, you can sue them for defamation if you think you can prove it.

News organisations don't often end up in court for that, but when they do it's big news. Reputations are at stake - and possibly lots of money too in damages.

Thirty years ago the country's largest-ever payment followed scurrilous claims in Metro magazine's gossip column - all about a journalist at a rival publication.

Ten years ago, foreign affairs reporter Jon Stephenson sued the chief of the New Zealand Defence Force (NZDF) for statements that wrongly cast doubt on his reporting about New Zealand soldiers in Afghanistan. After a full jury trial, a second was about to begin when the NZDF settled for an undisclosed sum and a statement of 'regret.'

Last week another defamation case concluded, but this time the plaintiff was not a person - and was not seeking damages.

The result may not be known for months, but it could change the way controversial claims about big companies are handled by newsrooms, and - depending on the outcome - how defamation law is deployed by those on the end of investigative reporting.

See you in court

Over five weeks, lawyers for food giant Talley's went toe-to-toe in the High Court with TVNZ and its lawyers, led by Davey Salmon KC, who also acted for Stephenson 10 years ago.

Talley's sued TVNZ over six 1News reports in 2021 and 2022 - and also, unusually, sued Christchurch-based reporter Thomas Mead individually as well.

The series alleged problems with hygiene, health and safety at two Talley's plants.

"To the public, the company presents a spotless image of staff producing frozen vegetables with a smile on their face, but 1News can now pull back the curtain of a different side to its Ashburton factory," Mead told viewers in July 2021.

Whistleblowers - some of whom spoke on the condition of anonymity - told 1News about problems at two plants and shared photos of dirty equipment and apparent hazards.

Other reports investigated workers' injuries and allegations that workers' claims had been mismanaged by the company.

TVNZ also reported a leaked email telling Talley's staff not to talk about an incident where emergency services were called to free a worker's hand trapped in a machine.

Mead also told viewers an invitation to tour one factory was withdrawn at the last minute. Instead, senior Talley's staff urged TVNZ not to air the allegations and the images.

"Discussion turned to intimidation," Mead reported.

Anonymity and privacy

Before the trial, Talley's went to court to try - unsuccessfully - to force TVNZ to reveal the identity of some of its sources and further details of their allegations. It said this would have allowed it to assess whether the sources had sufficient understanding of the safety issues that concerned them.

"I made them a promise, and I have kept it," Thomas Mead told the court, insisting TVNZ protected their identities because they feared retaliation from Talley's.

In court, Talley's lawyer Brian Dickey KC said TVNZ could not produce any evidence that any workers had faced any actual retaliation. He alleged the anonymous sources were wrong and one had tried to extort the company.

Dickey even called one report by Mead "a hit piece", and said TVNZ's presentation was overly emotional and its reports displayed "animus" against the company.

TVNZ insisted the reports were accurate, verified and - crucially - in the public interest, and losing the case would set a dangerous precedent for journalism.

Talley's told the court it didn't want damages, just an acknowledgement that it had been defamed and had suffered losses because of the reports.

In this case, the lawyers weren't seeking to sway members of a jury - only Judge Pheroze Jagose. He said his decision may not be released until Easter next year.

"It was probably best that it was just a judge-alone (trial) because it's mind-numbingly complex when you get into the depth of detail and the layers of what's being argued," Tim Murphy, Newsroom co-editor, told Mediawatch.

To win the case, Talley's must show it suffered pecuniary loss.

"This adds a level because they have to show their business has been affected in a way that has cost them money," said Murphy, who watched the trial from the press bench.

"They need to show that not only has there been loss immediately after or in the time frame of these pieces in 2021 and 2022 - but also that the particular statements in each story that they're suing about - called 'imputations' in defamation law - then led to the loss.

"They said it couldn't be specified to a dollar figure - but in their view it was obvious and inarguable that the TVNZ coverage had cost them financially."

Talley's said contracts with Countdown (now Woolworths) and Hello Fresh were affected.

"They also had the cost of an independent inquiry by former Police Commissioner Mike Bush, and the cost of a PR firm to handle all of this - and then costs of their management time diverted from their factories and so on," Newsroom co-editor Tim Murphy told Mediawatch.

"They also said they had opprobrium for their staff in the community, and they said that was a cost because it can affect morale and productivity."

What are the stakes?

"From past defamation cases that went a long way - even if they didn't get to trial - both parties will have spent millions in legal costs to this point," Murphy told Mediawatch.

"Talley's have also gone for 'indemnity costs' so there could still be a substantial amount [to pay] for TVNZ should it lose."

"Both parties (in court) painted this case as having a very big impact should it go the other way."

"TVNZ's view was that if… a company can succeed with that level of loss, then it will open it up to all sorts of companies. Davey Salmon, their KC, said that it would be inviting Defamation Act cases from corporations who have effectively suffered no loss.

"Talley's were of the view that if TVNZ won this, then it was open season on companies and corporations… and that no company would be able to withstand reporting that is in error or biased."

Murphy's predecessor as New Zealand Herald editor, Dr Gavin Ellis, appeared as an expert witness for TVNZ. Ellis told the court TVNZ appeared to have verified sources and cross-checked key claims and sought independent views. He also believed Talley's was given a reasonable amount of time to respond to allegations.

He also backed TVNZ's decision not to surrender notes - or even redacted versions of transcripts from interviews with anonymous sources to protect their confidentiality.

"There were pretty good levels of both cross-referencing and validating. There are other aspects of the case with vulnerabilities and some of those were from at least one of the anonymous sources," Murphy told Mediawatch.

"The need to be able to offer and guarantee anonymity and protection of identity in all respects is vital for that public interest function that journalists have."

TVNZ argued that in the Court of Appeal, and won the right to continue that protection of those sources.

But TVNZ recently had to changes its own policy after revealing too much of a vulnerable source itself in a recent documentary.

The jeopardy of brevity

Editors and reporters elsewhere were watching what Murphy described as a journalistic investigation, investigated.

The planning, decision-making and personal communications at TVNZ was scrutinised closely in court, as well as the reporting seen by the public.

One 1News broadcast in 2021 kicked off with host Simon Dallow saying: "a whistleblower tells 1News" Talley's Ashburton plant was an "accident waiting to happen".

In court it emerged that the anonymous source in question had not used those precise words, though Mead himself had put those words to the source during a conversation.

"[TVNZ] made claims that - when they were examined in microscopic detail - didn't match what the story itself said. This is what lawyers do if they get this chance. They examine to that level and nuance," Murphy said.

"Often in journalism if you get a clear affirmative to a question like that, then it's fair to paraphrase it and say the person agreed it was 'an accident waiting to happen'. But in this case the answer… was very discursive."

Talley's also said some of TVNZ's presentation was inappropriately emotive and Brian Dickey KC seized on individual words and phrases to allege TVNZ and Mead had taken against Talley's.

Murphy noted Talley's objected to reports that would "present anonymous source allegations, give Talley's response and then end with a 'but'. The company questioned why his summaries never raised a qualification like 'but' about the claims made by a source."

"It alleged the technique undercut what Talley's had said - and that there was a sort of default over-weighting of the critical view of them," Murphy said.

Salmon claimed Talley's was over-analysing the reports' wording and amplifying their importance.

"News does not need to be presented in the austere form of a court judgment to be responsible. If it was, it would not be read or watched and it would not inform," he told the court.

Will this change the way big stories are done?

Summarising complex things to make them easily understood in a three-minute TV news bulletin - or shorter - is a challenge.

Could this case prompt a move away from paraphrasing to make stories more engaging and comprehensible - and towards a drier, longer and a little less simplified style on television?

"In the quiet moments, all of those involved at TVNZ will see that there needs to be a tighter, clearer, more precise and weighted use of language and words - and images as well - in the bringing-together and presentation of these kinds of stories," Murphy told Mediawatch.

"It's no bad thing in a way for all the media to be given a sharp reminder that precision extends to every element of an investigative story and its presentation. The captions, the summary, the pull-quotes, the scripts, the promos of stories are all subject to this sort of scrutiny."

Chilling effect?

Bryce Edwards of the pro-transparency Integrity Institute said this was an example of "the rich and powerful [using] these laws as legal weapons to silence critics, discourage investigative journalism, and shield themselves from scrutiny."

"It put the very right of the media to hold power to account in the dock," Edwards said.

"I think it was quite clear through the whole case that there was sort of a power play," Murphy said.

"The power of a big corporation with rich-lister family backers drawing a line in the sand and saying: 'We've had power of the media thrown at us unfairly - so we're going to exert some power back other way.'"

And while the media don't end up in court often defending defamation claims, we don't often know if media might be swayed by threats of defamation action from those with financial and legal clout. Or if they are deterred from publishing stories that could result in the kind of lengthy and potentially costly court case TVNZ has just faced.

"While there are many times where lawyers' letters - or even perhaps injunctions to delay material being aired or published - occur, there are also many times where media companies have ploughed," Murphy said.

"I don't think the balance in the defamation setup we have is as yet favoring organisations or companies or the wealthy as much as elsewhere. We do have a defence of responsible publication in the public interest. But the key word there is 'responsible'."

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