As promised, here's a guy who actually knows what he's talking about. Steven Price is a fellow in law and journalism at Victoria University, and an accomplished journalist in his own right.
A journalist *and* a lawyer. Of course you can trust this man.
I asked him a few questions today, and here are his answers, for those of you who are still interested in the case.
I said yesterday that whether Clark had confirmed the "that won't be necessary" quote was immaterial. Price disagrees:
"Well, there is an argument (which the SST was going to run) that whichever particular words Doone was said to have used, it didn't make much difference: the guts of what the PM and the SST said was that Doone intervened inappropriately, and that's what he did. That is, it was essentially true, and even if a minor detail was astray, it didn't affect the basic truth of what the PM and SST said.
"[However,] I think it's worse to say that Doone told the rookie cop that a breath-test wouldn't be necessary than it is to say Doone merely said 'I'll be on my way'. The second doesn't involve any implication that Doone saw a sniffer and directly headed off its use. So it's a more defamatory statement.
"It will also be harder for the PM to argue the defence of truth if she got a fact materially wrong. Likewise, it would make it tougher for her to argue the defences of qualified privilege or honest opinion (i.e. fair comment)."
As for Helen's claim that she specified that the evidence was contested?
"There's a bit of a hair-splitting argument for Clark that goes like this: 'All I told the SST was that Doone was *alleged* to have said that phrase. And that's all they published. And he really was *alleged* to have said it.' Oskar Alley's brief shows he was pretty convinced from his other sources that police were discussing that phrase. Audrey Young (whose reporting on this has been terrific, I think) has written that the phrase may have been withdrawn before the final police report.
"There's room for the argument that it *was* being alleged during the investigations that Doone said it. The courts don't usually like such hair-splitting, and generally say that if you pass on a rumour, you're liable for anything defamatory in it - you can't duck responsibility by chucking in the word 'allegedly'. But it is sometimes possible to say that you passed it on in such a fair and balanced way ('Doone contests it, and I don't know who's right') - that the defamatory sting may be removed. This might depend on the tenor of the conversations, which in turn might depend on how good the evidence of those conversations is..."
Is it unusual for the suit to go all the way to the source, rather than the paper? Are sources generally liable, along with the publication, for defamatory remarks?
"Everyone involved in the publication of a defamatory statement is liable for it. And 'publication' has a really wide meaning in defamation law. For instance, if I gossip to you in the pub, I've 'published' that gossip to you. So the police sources, the PM, the journalist, the subeditor the editor and the publisher are all potentially liable in the Doone case. Usually, people sue newspapers rather than their sources because it's the media companies that have the money. Sometimes they sue both. Sometimes (as here) it's not initially clear who the sources are."
Thank you Steven!