11 Oct 2015

A settlement that raised unsettling issues

From Mediawatch, 9:09 am on 11 October 2015

The New Zealand Defence Force recently settled a long-running defamation claim by a freelance foreign correspondent. It brought to an end a dispute that ran for four years and cost hundreds of thousands of dollars. Why did it take so long and cost so much?

In 2011, Metro magazine published an article by Jon Stephenson called Eyes Wide Shut - The Government's Guilty Secrets in Afghanistan. It began like this:  

The New Zealand Defence Force is proud of its record in Afghanistan. It has received widespread praise for its reconstruction work in Bamiyan Province. Its SAS troopers are admired for their skill and their bravery. But right from its first deployment in 2001, and continuing today, the SAS has been forced to become complicit in human rights abuses.

The article described a raid in an Afghan village in 2002 that killed three people. Fifty five others were detained and transferred to US forces, and some were later mistreated. The article said the public had been told New Zealand’s soldiers did not take prisoners in Afghanistan, but the SAS had played a role in many missions in which people were arrested. In some cases prisoners were handed to authorities with a reputation for torture.

The article won a Canon Media Award in New Zealand and an international journalism award in 2012.

picture of the Metro story published in May 2011

The Metro story published in May 2011 Photo: supplied

When it first appeared in 2011, the New Zealand Defence Force challenged the article's accuracy. Jon Stephenson said he had visited a base in the Afghan capital Kabul in 2010 where an Afghan commander told him SAS troops were taking and detaining prisoners. His visit to the base had also been reported by the Sunday Star Times the year before.

The NZDF put out a statement in May 2011 in the name of its then-commander, Lt. Gen. Rhys Jones, which said Jon Stephenson had not been on that base in Kabul and did not interview its commader. The same week, prime minister John Key told reporters Jon Stephenson’s claims in Metro did not stack up. But Jon Stephenson insisted he could prove what he had written was true and he asked the NZDF to change its statement. That didn’t happen, so he sued Lt Gen Jones for defamation in 2013.

The case goes to court

It was an extraordinary trial, featuring SAS soldiers giving evidence from behind screens to protect their identities. Some of them said they found it hard to believe Jon Stephenson had got onto the base in Kabul. The court also heard a New Zealand police inspector was asked by the SAS to get a statement from the Afghan colonel about whether he had been interviewed by Jon Stephenson. But during the trial in Wellington’s High Court, Lt. Gen. Jones conceded Jon Stephenson had been to the base to interview its commander.

Jon Stephenson’s lawyers were seeking half a million dollars in damages, but Hugh Rennie QC, acting for the Defence Force, told the jury in summing up that any damage to Jon Stephenson’s reputation didn’t amount to $10. The trial ended with the jury unable to reach a verdict about whether the disputed NZDF statement had defamed Jon Stephenson.

In June another judge gave the green light to another trial, but last week the NZDF settled with Jon Stephenson. A statement agreed by both parties said the NZDF and its former chief now accept Mr Stephenson did gain entry to the base and he did interview the commander as reported in Metro.

It added:

They regret that their statement may have been interpreted as suggesting that this had not happened.

The New Zealand Herald reported the NZDF spent $600,000 on the case but that doesn't include the cost of bringing witnesses to the trial in Wellington. It also doesn't include the cost of the payment made to Jon Stephenson himself, which is confidential.

At the time of the trial in 2013, it was also revealed that a defence order written in 2003 described journalists as a potential “subversive threat.” This alarmed the media and the defence minister at the time asked the NZDF to review what he called the "inappropriate and heavy-handed" reference from the orders.

Mediawatch asked the NZDF if that reference still exists in its military manuals. Mediawatch also asked if there would be a review of the process which led to defending Jon Stephenson's claim in court, and if it is taking any action to avoid liability for wrongly contradicting journalists’ reports in future.

A spokesman for the NZDF told Mediawatch:

We have nothing to add to the agreed statement issued on 1 October.

A chilling effect?

Metro's editor-at-large, Simon Wilson

Metro's editor-at-large, Simon Wilson Photo: supplied

Simon Wilson was the editor of Metro, which published Jon Stephenson’s “Eyes Wide Shut” article four years ago. He told Mediawatch he didn't know why the NZDF has suddenly settled. 

"It's cost a remarkable amount of money, and they must have known they had a weak case," he said.

"There is presumably a sense in some parts of the government including the Defence Force that you can bully journalists out of taking a strong line," said Mr Wilson.

It took Jon Stephenson a lot of time, money and effort to counter the Defence Force statement which contradicted his article, and which he believed damaged his professional reputation as a journalist. Simon Wilson said he hopes the outcome will show other journalists "they can take on the state and win  - if they get it right".