"We are good. I will book the ad into next weeks Mercury for Jan 11, 12 and 13. The attached copy is the one approved to run so please not that we will not accept any variation to this copy without it going through the same approval process."the following slightly altered advertisement will be published
The correspondence between myself and the Mercury is hardly confidential nor does it contain any material that could be the subject of copyright. While I have omitted the names of Mercury employees, the relevant email exchanges are reproduced below.
30 December 2010 10:31AM
Good Morning Paul
I'm aware that you spoke to ................. last night regarding the advertisement that you were expecting to be inserted in the Mercury this week. As a result of legal advice we are not able to run the ad. I believe you are under the impression that this ad was previously approved by ........... What seems to have happened is that when you sent through the 'Kids' copy as a replacement to the original ad, the issue of approval what not addressed at that stage as we were now in a position of running a previous ad which had been passed as suitable to run.
I am aware that the ' pre-commitment ad' was a late change in copy to that which was submitted to Michael on 15 December. We take responsibility for running a different ad to your later instructions and we will credit your account with the full amount. This does not change the fact that the ad you requested to run would still have been subject to approval at that point. A further development in this has been that in response to a copy of the ad that you sent through to them, Clubs NSW have contacted the Mercury and informed us of their intent to sue for defamation if the ad were to be published so we have a responsibility to ensure that we act on the legal advice we have been given.
............. will be back in the business from next Tuesday and until such time as you speak with ..........., we will not be placing the pre -commitment ad in the Mercury. In the meantime can I please request that you do not contact ............... as she is on annual leave and is also outside of any decision making process with regard to your advertisement. In .......... absence please direct any further correspondence to me but I need to reiterate that no further decisions will be made unless directed by the General Manager, ............
4 January 2011 11:41AM
Thanks for your email of 29 December. As you may know, I have been in Los Angeles relating to the unexpected death of a close relative so between emotional family sessions it is difficult to respond as quickly as I would like. I arrived about an hour ago.
The version of the facts you relate is incorrect. At no time did I send the "kids" copy as a replacement for the pre-commitment ad. Nor was the pre-commitment ad a "late" change in copy. It was the orginal copy. There was only one ad I wanted published in Decmber 2010 and that was the pre-commitment ad. You acknowledge my instructions yourself, in your email, that it was the pre-commitment ad that I wanted to be published.
The Kid's ad had run ran earlier this year. That ad was published, over 9 months ago after what seem to be similar threats were made by ClubsNSW. The ad was published and payment made. The service given by the salesperson at that time was excellent. No legal action was ever taken by ClubsNSW as a result of that ad despite those threats. There was no reason to re-submit the Kid's ad that had been through a rigourous process.
With respect to the pre-commitment ad, I am informed that ClubsNSW themselves passed the pre-commitment ad to another news media, effectively publishing the advertisement themselves. As ............ will confirm, even she was of the impression that the pre-commitment ad had been published when I called her after being told by a writer from The Australian that the kid's ad had been published instead of the correct, pre-commitment ad. At no time did I provide a copy of the pre-commitment advertisement to The Australian.
At no time did I ever write, state or even imply that I wanted to repeat the Kid's ad. Again, that campaign had finished months before. In fact, I stated to ............. that the Kid's ad had worked well and hoped that this ad would work as well. As ............ is aware, I telephoned several times to enquire about the status of the pre-commitment ad.
As to the substance, the pre-commitment ad, in part, relies upon facts published in your associated newspaper, the Sydney Morning Herald. In other respects, it simply restates publicly available information published by the Productivity Commission, the relevant Minister outside of Parliament and facts that can be easily corroborated. Where appropriate, it clearly expresses only my opinions. It is not remotely defamatory. No reason has been provided upon which your opinion is based other than a threat from ClubsNSW who (as stated above - based upon information given to me) had already passed the advertisement on. ............. concern expressed to me that clubs were advertisers with your paper could indicate that loss of revenue was the real concern rather than any legal matter.
I again seek publication of this advertisement for which I have already paid.
4 January 2011, 5PM
............... will be back in the office tomorrow. He was due to be in today but unfortunately he is off sick. As you refer in detail to your previous discussions with .......... I feel that it is better for you to speak with him directly. As I stated previously I believe that there has been a genuine misunderstanding relating to the creative which we ran. In order for us to consider carrying the 'pre-commitment' ad there would need to be changes to the content. This would involve the following:
1) Removal of the photo of Peter Newell
2) Taking out the first sentence 'Peter Newell is Chairman of Clubs NSW' and instead leading with 'Clubs NSW should be telling their members truths about pokie gambling pre-commitment.
3) Delete 'Mr Newell' from the opening sentence of the last paragraph. Instead the copy should read : 'Problem gamblers lose $800 million annually at clubs incorporated under the Clubs NSW banner'
The above recommendations have come from our legal advisors following your request for further information and they would need to review any future amendments. I hope that this gives you the direction that you are seeking.
5 January 2011 9:46AM
With respect, your request to remove Mr Newell from this advertisement has no legal basis. It is significant that your email does not state nor even imply that the advertisement defames Mr Newell in any way.
The non-defamatory nature of the advertisement is underlined by the fact that the first two alterations you seek were part of the "Kid's" ad that had already been published by the Mercury earlier this year. This ad was subject to Fairfax legal advice and was approved. No event has occurred since that time that should change this approval. Furthermore, while the solicitors for ClubsNSW threatened legal action with respect to the "Kid's" advertisement, both Mr Newell's image was published and his chairmanship of ClubsNSW noted in the "Kid's" ad without ClubsNSW or Mr Newell taking any action other than threats.
With respect to the matters you raise;
1. Mr Newell is a high profile public spokesperson whose identity and image is well known. He is the former editor in chief of your newspaper. Use of his image is, in fact, facilitated by ClubsNSW. The photograph used of Mr Newell is taken from the media section of the ClubsNSW web site where downloads of the picture used is made available.
2. Mr Newell is, in fact, the chairman of ClubsNSW. What the advertisement states is the truth. It is not defamatory to name him as the chairman of ClubsNSW. As chairman, he is the ultimate spokesperson for ClubsNSW. In fact, Mr Newell has spoken on the matter of pre-commitment in his position as chairman in the media. Mr Newell has written a letter to club members on pre-commitment in his capacity as chairman of ClubsNSW. He has personally identified himself with this issue.
3. The advertisement is clearly stated to be my writing and my opinions and it is Mr Newell in his position as chairman of ClubsNSW that I am addressing. I am not addressing Mr Newell in any personal capacity. That is made truly clear by the first sentence of the advertisement. He is the leader and ultimate spokesman for the corporation he chairs. The action I seek is for Mr Newell to state certain well documented truths about pre-commitment.
The pre-commitment advertisement is nothing more than fair comment upon Mr Newell's publicly expressed views in his capacity as chairman of ClubsNSW for which I have paid in full.
It would appear that your suggestions are in response to threats being made by Mr Newell or ClubsNSW. This seems hypocritical for Mr Newell or ClubsNSW to be concerned about publishing a image of a high profile person in support of advocacy. ClubsNSW published the image of former Treasurer Egan (in support of a campaign to resist higher taxation) where actions taken by Mr Egan on behalf of the government were written to be clearly personalised to Mr Egan. A copy of the earlier ClubsNSW promotion is attached. The pre-commitment advertisement takes no such stance.
Finally, the language of the pre-commitment advertisement is, not only, non-defamatory but moderate in comparison with reports of the advertisement already published, particularly Mr Newell's own words.
It is disturbing that you alleged that I sent through the "Kid's" copy as a replacement for the pre-commitment advertisement when the written record does not bear this out. I again call upon you to run the ads for which you have already accepted payment.
5 January 2011 11:31AM
The following email was sent by the Mercury apparently to seek a legal opinion.
We spoke last week concerning a potential defamation issue with an advertisement that a client wanted to place.
I have attached the response email from our advertiser Paul Bendat. If you scroll down you will see the recommended changes that I sent through to him following our phone discussion. Can I please ask you to respond in writing to me regarding Mr Bendat's comments as I want to be able to forward him your email and keep the discussion on a purely legal ground as he is still pressing hard to get the ad inserted
If you want to give me a call later to discuss please do so. I have attached the ad again for your reference.
6 January 2011 10:16AM
Below are the changes that are required to the pre commitment ad in order for us to run it in the Mercury. Can you please advise if you require us to insert the ad, based on these changes being made, so that I can book it into the Mercury early next week.
I confirm my advice that the pre-commitment advertisement is capable of defaming Peter Newell. It is capable of implying that he his either lying to or deliberately concealing the truth from his members about pokie gambling pre commitment. It may further imply that, for poker machine profits, he is prepared to tolerate problem gamblers going bankrupt, facing family breakups and suicide. It is disingenuos for Mr Bendat to say that the ad is not a personal reference to Peter Newell. If however Mr Bendat insists that the ad should include the photo and reference to Mr Newell the following changes should be made:
1. Second sentence first par should be amended to read.."His members should be told these truths about pokie gambling pre-commitment"
2. the final par should read."Mr Newell, embrace the Productivity Commission's full pre-commitment reform. For the good of your members,for the good of New South Wales".and the rest of the par deleted.
6 January 2011 11:19AM
Thank you for your letter.
While, technically, you suggest no alterations to the final paragraph, I take your comments relate to the penultimate paragraph. The two sentences of concern are:
"Mr Newell, problem gamblers lose $800 million annually at your clubs. Pokie losses result in bankruptcy, family break-ups and suicide."
To accommodate your concerns, I have amended these sentences as follows:
"Problem gamblers lose $800 million annually at NSW Clubs. Pokie losses result in bankruptcy, family break-ups and suicide"
The basis for these statements are:
1. The following report in a Fairfax owned publication, the Sydney Morning Herald on 10 March 2010 stated that "problem gamblers add $800 million to club coffers"
This finding was based upon written statements made by ClubsNSW itself. I would be prepared to reproduce the SMH headline if this is more acceptable. It should be noted that the Productivity Commission's finding was that the national average was nearly double Clubs NSW own estimate. I have used the far more conservative ClubsNSW estimate.
2. The second sentence paraphrases the Productivity Commission's own finding on page 16 of Volume 1 of its report on gambling where it states:
"The harms from problem gambling include suicide, depression, relationship breakdown, lowered work productivity, job loss, bankruptcy and crime."
There was insufficient space to reproduce all of these harms. None of the resulting harms from problem pokie gambling are mis-stated.
I have revised the advertisement in accordance with these alterations and have attached an amended pdf. It would be great if the ad could be published Tuesday to Thursday next week.
I made an unintentional error in the pdf attached to this last email. This error was corrected in the advertisement reproduced above.
My final email was to thank the person at the Mercury who persisted so that the advertisement would be published. After all, the point of the advertisement is to ensure that more facts are known about the coming pre-commitment reform. Without her assistance, this might have never happened.
It seems extraordinary that the chairman of ClubsNSW and a former newspaper editor should be so resistant to having his photograph published.