Television New Zealand has warned the country’s news industry operations - and those of individual bloggers and writers - would be curtailed if the courts find against it in a long-running defamation claim brought by Talley’s Group.
The state-owned broadcaster claimed in the High Court at Auckland that it took adequate care in reporting on food processing giant Talley’s, and it was important to both the country and the media industry that this role was protected.
Talley’s has sued over six stories broadcast by its Christchurch reporter Thomas Mead in 2021-22 critical of the Nelson-based conglomerate’s health and safety standards and misconduct in its management of workplace injuries.
Davey Salmon KC, acting for TVNZ, said in closing arguments yesterday that the broadcasters’ newsroom was one of the largest in the country, and if its usual journalistic practices were insufficient to trigger the responsible journalism defence then the doctrine would apply to no one – especially not smaller news operations or individual bloggers.
“This defence needs to protect journalism as it really is in New Zealand,” Salmon said.
Salmon said the responsible journalism defence was developed from case law in the United Kingdom to mitigate against lawfare waged by wealthy story subjects.
“The responsible publication defence arose because of the stress placed on journalists and journalism by the cost of litigation. The Russian billionaire defamation plaintiffs were choking journalism about them,” Salmon said.
“We are not meant to have that here.”
Salmon said if litigation run by wealthy parties against responsible journalism was successful it could cripple the Fourth Estate.
“There is a legitimate concern the way the complaint run by the plaintiffs sets up chilling factors for journalism that are worrying in a modern democratic society.”
Salmon directly addressed several of the consistent points of attack from Talley’s lawyers Brian Dickey KC and William Potters, starting with a headline-grabbing text message Mead had sent a colleague describing himself as a “baby-faced assassin”.
Salmon said Talley’s lawyers had a “long focus on a chatty text exchange between Mr Mead, a non-voting senior journalist with a young looking face, and a cameraman. He’s apolitical and he’s been very careful on any view”.
Salmon said personal text exchanges, particularly work-related, were often flippant. He said everyone in the courtroom – careful to exclude Justice Pheroze Jagose – would likely squirm were their private conversations laid bare after discovery.
“No one’s text messages would pass that test with anyone they work with,” he said.
Salmon also urged Justice Jagose to look beyond the forensic dissection of sentence structures used in Mead’s broadcasts, particularly a long examination by Talley’s lawyers of whether the use of “but” or “so” to separate contrasting views meant one side was loaded with negative connotations.
“If you get a powerful enough microscope, anything can become frightening,” Salmon said, using the example of a praying mantis with its fearsome mandibles.
“But it’s just another insect,” he said.
Salmon was also critical of Talley’s selection of witnesses used to bolster claims the company was making strides in health and safety and had been needlessly distracted from their good work by Mead’s reporting.
“We have witnesses from management in Talley’s. They all care about the company, that’s fair,” he said.
“They purported to give evidence about the people’s morale and motivation, whether they had been safety trained and so on. But what’s lacking is a single worker from a single factory floor.”
Salmon said: “In terms of people from the factory floor, it is remarkable that they’re all defendant witnesses.”
Talley’s have also claimed they suffered financial losses from the TVNZ reports – a requirement to sue for defamation as a corporate entity – partly accounted for by the time executives spent managing the response to, and fallout from, the stories.
“This case began with a suggestion that this was a company where, if you took these key executives away from their desk for an hour each day ... there must have been a cost. They couldn’t afford to be away from their desks,” he said.
Salmon waved to the public gallery of the court while continuing: “They’ve been here for the rest of the trial. Down the back, half of them. They’ve just stayed here day after day. I’ve seen the people who I cross examined, who apparently couldn’t spend time away from their desks”.
Both TVNZ and Talley’s have had a reasonable contingent of lawyers and executives present to support their colleagues and organisations throughout the five-week trial.
What appears to be the central argument of Talley’s of false information was a report by Mead that claimed workers were only aware of 10-15 emergency stop buttons for machinery at a vegetable processing factory in Ashburton, a number so low it was claimed to be unsafe.
Talley’s presented evidence that the factory had many more such buttons, with a report by former Police Commissioner Mike Bush claiming there were more than 150.
“The focus on the number of e-stops by Talley’s rather obscures the more important question of adequacy and function,” Salmon said.
Mead had relied on a then-anonymous source for his reporting, and the story did not definitely try to quantify the number of emergency stop buttons in the factory.
“He [the anonymous factory worker] is not saying there are only 10 or 15. He’s saying there would probably be 10 or 15 that he knows of,” Salmon said.
The trial, which has been running for five weeks, likely concludes today with Talley’s making their own closing arguments.
Matt Nippert is an Auckland-based investigations reporter covering white-collar and transnational crimes and the intersection of politics and business. He has won more than a dozen awards for his journalism – including twice being named Reporter of the Year – and joined the Herald in 2014 after having spent the decade prior reporting from business newspapers and national magazines.