Implausible Deniability in Dirty Politics Case

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*Updated with comment from Carrick Graham*

In the fallout from the Dirty Politics defamation hearing, how can the Food and Grocery Council and its chief continue to deny involvement in attacks on public health academics? Tim Murphy explains its stance.

The middleman has ‘fessed up. So where does that leave the two prominent players on either side of PR man Carrick Graham in his campaign of character assassination confirmed this week in the Dirty Politics defamation case?

Graham admitted in the High Court to making fake, offensive and defamatory claims on the Whale Oil website about prominent food, alcohol and smoking researchers who were labelled ‘troughers’ – and said he’d done it for his business and for ‘industry’. But his courtroom apology did not explicitly say which industry, or for whom.

One of his PR clients was the NZ Food and Grocery Council, which represents big food producers and distributors, and the council and its chief executive, former National MP Katherine Rich, had previously been defendants in the same defamation case brought by the three researchers to the High Court.

Rich and the FGC settled the case last year, making a confidential payment but with no word of an apology to the researchers. Former Whale Oil blogger Cameron Slater, who published the series of attacks on the three men, instead ‘consented to judgment’ of the court, effectively withdrawing his defence that the pieces were honest opinion and had qualified privilege in the public interest. His fate is yet to be decided by Justice Tracey Walker.

The case, taken by the University of Auckland’s Dr Boyd Swinburn, a nutrition and global health expert, Otago University’s Dr Doug Sellman, a professor of psychiatry and addiction focusing on alcohol, and former Māori health researcher Shane Bradbrook, stemmed from revelations in the Nicky Hager book Dirty Politics about contents of the Whale Oil right-wing blogsite in the early 2010s. The book was based on an extensive hack of Slater and Whale Oil’s IT system by a figure known only as Rawshark.

This week, after a four-year legal fight, Graham accepted he was paid for consulting work by the FGC, and wrote posts and comments against the men. He had them published on Whale Oil in relation to processed foods and sugar expert Swinburn and Sellman, but he did not link those with his FGC work, and in the past denied he had been paid by the council for such posts. And because of the FGC settlement and the Slater withdrawal, it is unlikely a complete chain of responsibility can be formally declared.

After Graham’s admission, the FGC explicitly denied paying for posts on Whale Oil against the trio. It did not say if it was aware, formally or informally, of what Graham was doing with the money it paid him.

Its communications spokesman did not reply to Newsroom’s questions on whether its use of Graham’s company Facilitate Communications or its settlement payment had resulted in Rich’s position being examined by the industry-led board of the council, or if the council had or would apologise to the three men.

How could the FGC plausibly deny even indirect involvement in the Whale Oil posts, given the weight of circumstantial evidence outlined in documents submitted to the court?

Invoices show the council paid Graham $365,000 between 2009 and 2016. But all invoices ‘discovered’ to the three plaintiffs and the court listed his services for the FGC in opaque wording – “develop support mechanisms for FGC strategies”, monitoring of and advice on industry issues and social media and the like. One line of one invoice said: “Liaise with third parties on FGC issues of interest including media issues relating to Fonterra crisis.”

The researchers’ lawyer, Davey Salmon, cross examined him at a High Court hearing last year on this item:

“At the time of this, there were multiple Fonterra-focused blog posts published by Whale Oil, do you recall that?”

– “No”

“It wouldn’t surprise you, though?”

– “Well, he commented on all sorts of things and I think he was doing something – 10 to 20 posts a day, so he had to find material on something.”

“Right, but some of that you might’ve been providing to him, you can’t recall?”

– “I have no idea.”

Graham said he had not even discussed the Whale Oil posts on controversial food industry issues with Rich or the council after they appeared online, as he expected she would already have become aware of them.

He claimed to have contributed some text or suggestions to Slater and Whale Oil because of his personal knowledge and convictions about issues in the food and tobacco industries.

However, the researchers were also able to glean that some of Graham’s communications about articles contained reference to the initials ‘KR or ‘KR Hit’  in the subject line. The court was told by the plaintiffs this week: “These included articles defending Fonterra, Coca-Cola and Frucor, who were members of NSFCC as well [an] article ‘Confirmed: Doug Sellman has gone mad’. The articles (or ‘hits’) were published on Whale Oil by Mr Slater, unchanged, under his own name.”

Asked in the cross-examination last year if he had commented on Whale Oil via a number of other named accounts, Graham said “I’ve written on various sugar, alcohol tobacco social media comments principally because I’m interested in them and I’m concerned at the efforts by certain individuals to try and exclude others from the debate”.

Salmon referred him to a bullet point in an invoice he sent the FGC. “‘Discussions and meetings with K Rich’ – you would’ve talked to her about that activity too because it was part of social media?”

– “I don’t recall at the time. I mean, I don’t recall exactly what I said to Ms Rich seven, eight years ago. It’s ridiculous.”

Later, Graham said: “Well, I’m sorry to burst your conspiracy bubble or that of the plaintiffs, but there is no grand plan to undermine them or counter them and these sort of proposals are just general public affairs type strategies by public affairs or PR companies, to companies about understanding what is being said about them or what is going on in the public arena. It’s pretty bog standard stuff.”

Then, he said of his “relationships with various companies” that “none of it involved the plaintiffs”.

Curiously, Graham’s court-directed discovery of his correspondence with the FCG dated only from the day after the Nicky Hager book appeared.

He was grilled by Salmon on why no earlier communications (which could have covered the period in which the Whale Oil posts against the men occurred) had been provided.

“Does that surprise you that your correspondence starts only after the publication of that book?”

– “No… I’ve got no reason to wonder why, just if it is, it is… I mean you’ve got to understand also that I’ve had various computer malfunctions. One was a computer that was burnt in a car fire, which I was involved in. Another one stopped working because I spilt some liquid on it and the third one unfortunately, it just stopped working and I’m not an IT techie and so if it doesn’t work, it doesn’t work. And I lost data as a result.”

Told he had been using Gmail servers at the time and his information would not have been lost because of the computer malfunctions, Graham said: “So your point is?”

Salmon replied: “You’ve invoiced a reasonable amount to Ms Rich and her entity but discovered including by listing as ‘now destroyed’, originally, communications about the subject matter of blog posts or any other issues until the day after the publication of the Hager book. Are you saying that you think there were no documents, or that any you had were destroyed?”

– “I just don’t recall.”

Salmon asked about the kind of communications Graham had had with Rich over these times over Whale Oil posts relevant to her industry. “I take it you’re saying you wouldn’t have written to Ms Rich saying ‘Look at this page’, because she was looking at it. And nor would we expect to see an email saying ‘I wonder who wrote that?’ from her because she knew you were writing it?”

– “No, not at all.”

“And are you saying we would not find any email or personal message or anything like that if your discovery was effected in which you have said: ‘I wrote this’ or ‘I wrote that’.”

– “No”

“We’d find nothing like that?”

– “Wouldn’t find anything.”

“And is the reason for that that it was already common knowledge between the two of you?”

– “No. I don’t know what Katherine Rich thought, but there were various; I drafted a multitude of articles, posts, commentary that I fed to all sorts of media, including Mr Slater.”

Graham added: “You’re going around in circles, sort-of, about Ms Rich and there is nothing there.”

Salmon: “And you can remember what you said to her about these issues?”

– “No, I can’t remember exactly what I said to her because it related to stuff that went back to 2012, or whenever it was.”

“But she knew you were writing things for Whale Oil, I assume?”

– “Well she knew I was talking to him, because she knew I had a personal relationship with him.”

“And writing for him?”

– “No. Occasionally I’d send materials to him. She probably knew that but I don’t know. You’d have to ask her.”

The researchers’ opening statement to the High Court hearing this week said their lawyers had intended to cross examine Graham on their conclusion that:

“The blog posts published between September 2013 and February 2014, which principally targeted Dr Swinburn and Dr Sellman, were published for the benefit of NSFGC, and Mr Graham procured those publications in the course of services he and [his firm, Facilitate Communications] were providing to FGC and for which they were being paid by NZFGC.”

When the case against Graham concluded on Wednesday, the FGC issued a public statement maintaining it had no involvement in the Whale Oil blog posts:

“NZFGC wishes to reiterate it did not pay anyone to write any stories on its behalf on Whale Oil, or any other publication. Nor was NZFGC otherwise involved in any such stories.

“This was made abundantly clear to Professor Sellman, Professor Swinburn and Mr Bradbrook throughout the court process.

“Their claim against NZFGC and its CEO, Mrs Katherine Rich, was settled on this basis as far as NZFGC and Mrs Rich are concerned.”

There are 10 directors on the FGC board of management. Its website currently lists Mike Pretty of Heinz Wattie as chair, with the following organisations providing directors: ad agency Results for Customers, the Real Leadership Agency, ad firm Twin Agencies, Nestle, L’Oreal, Mondelez, Unilever, Dairyworks, and Tim Deane of Goodman Fielder as immediate past chair.

Updated: Carrick Graham has been in contact to provide Newsroom with further explanation of his decision to apologise and settle:

“I believe that the disputes between myself and the Plaintiffs raised valid and important legal issues in terms of the intersection of freedom of speech, the need for robust public debate, and the intricacies of Defamation Law.

As much as part of me would still like to have fought those issues through to judgment, honestly, after five long-years of litigation I am just sick of it all. Someone else can fight those battles.

Consequently, when the Plaintiffs became agreeable to resolving matters in return for an apology containing wording that I could live with, and payment of a monetary sum that I found acceptable, I made the decision that that was a better outcome for me and my family, than spending the next two weeks in Court.

I have nothing to add, embellish, explain or to try to justify in terms of the apology that I agreed to make. It says what it says, and agreeing to it was an entirely acceptable price in order to resolve matters.

I do wish to note that I regard some of the media reporting on the nature of the trial and settlement as quite inaccurate and reckless, and defamatory beyond anything that I was accused of.”