Houston, we have a problem!
Well not quite Houston, because if we were in Houston we would fall under United States law and there would be no problem. The problem we have is in Bridgetown – and perhaps more precisely, Whitepark Road.
Last Friday evening I received a letter by email from attorney Satcha Kissoon, followed minutes later by a faxed copy, threatening legal action if we published a story about a complaint from a customer of one of his clients over a problem with a cellphone. What struck me was that over the past year or so we have received three such letters from lawyers over some matter a reporter was investigating.
It appears to me, therefore, that some lawyers believe they can intimidate journalists or news organisations into not touching some matters, using a bastardised version of what is commonly referred to as prior restraint – usually a pre-emptive strike in the law courts that blocks publication. This is seen by some as an effective counter to the more common practice of seeking redress (damages) after an item has been published.
Interestingly, it was the letter from Kissoon that brought the matter to my attention in the first place, and the implicit threat in it that led me to direct the reporter to pursue the matter with vigour. Our news agenda will not be set by anyone outside of our newsroom and we will not simply discard a story because an individual claims an allegation is not true.
Investigate
We will investigate and if the results of those investigations lead us to the point of publication in the public interest, then that is what we will do. If after we have published, any party believes we have defamed them, then they have every right to take legal action – and we respect that right.
Notwithstanding the fact that the name of the company involved had already been made public via other media, I have determined after some consideration not to identify it or its owners in our publication – and it had nothing to do with Kissoon’s letter. After discussion with the customer making the complaint, and a witness who was in the store during some of the exchanges, the customer asked that he not be identified because of his job and the need to protect the identity of a third party who had given him direction.
I have always held the view that there is a high degree of unfairness in any situation in which one individual is able to anonymously attack another who is identified – unless there is some overwhelming public interest involved. In this instance, there was no such overwhelming public interest, so Kissoon’s client was reasonably safe.
But his letter remains a point of great offence. Here’s what he wrote:
“I act for … Limited (“the company”). The company instructed me a short while ago that they were contacted by a reporter from your newspaper, Heather-Lynn Evanson, with whom I have since spoken.
I understand that a report was made to the Nation that the company had sold . . . a ‘stolen phone’. The company’s suppliers are out of the USA and a preliminary investigation revealed that this was not the case. The company however indicated to Mr. . . . that they would repay him the cost of the phone, compensate him for his inconvenience but would need the phone to conclude the investigations. Mr. . . . has refused, seemingly bent on defaming the company as his own singular goal. He has seemingly ignored the advice of his lawyer . . . on this issue.
The company categorically disputes the allegations made by Mr. . . . and intends on pursuing him for damages for defamation in the event that this untrue story is published.
You are yourself urged to refrain from publishing the story as publication of the same may also cause exposure in liability to your newspaper for damages for defamation as well.
Kindly let me have your response and assurance that this untruth will not be published.”
And I responded: “I thank you very much for the courtesy of your email and take it that it is meant as an explanation/response to any questions which my reporter might have asked of your client.
“Please be absolutely clear that we will treat this story with the same standards as we would any other story of its sort, and will not run away from the investigation and/or publishing of the results of that probe because a lawyer might choose to engage in an act of attempted censorship.
“Under the circumstances therefore, if your client wishes to make a more complete response by sitting with our reporter, then we will offer every facilitation.”
For the record, here’s what one United States authority says about prior restraint: “A prior restraint is an official restriction of speech prior to publication. Prior restraint refers to an unconstitutional attempt to prevent publication or broadcast of any statement, which is a restraint on free speech and free Press prohibited by the First Amendment to the Constitution.
“The ban on prior restraint allows publication of libel, slander, obvious untruths, anti-government diatribes, racial and religious epithets, and almost any material, except if public security or public safety is endangered and some forms of pornography. The theory, articulated by the US Supreme Court in Near v. Minnesota (1931), is that free speech and free Press protections have priority, and lawsuits for libel and slander and prosecutions for criminal advocacy will curb the effect of defamation and untruths. Blackstone’s theory on this subject held that liberty of the Press depended on having no prior restraints on publications, and not in freedom from punishment when criminal matter is published.
Pentagon Papers
“In 1971, the Nixon administration went to court to stop publication of the Pentagon Papers, a series of accounts based on a stolen, classified document entitled, The History Of US Decision-Making On Vietnam Policy. The court in New York Times v United States concluded that a prior restraint on publication of excerpts from the Pentagon Papers violated the First Amendment.”
What would possess the principals of a business or their lawyer to believe that we should not publish a story when an individual buys a phone from that company, travels to the US with it, puts in a SIM card from service provider T-Mobile, gets no service, calls the provider and is allegedly told the phone has been blocked since it was reported stolen since January 30, and that if he had turned up at the store with it, he would have been arrested?
Why is it not a legitimate story to pursue when the customer reports that he became suspicious when a part of the “settlement” was the requirement that he sign a non-disclosure agreement about the whole matter?
Perhaps rather than attempting to intimidate us, a better course of action would have been walking his client through a dispute resolution procedure that’s customer friendly and offers greater utility.
