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Blogging, Harassment and Freedom of Speech [UPDATE]

Peter Aranyi has written a thought provoking post on a recent court case between two bloggers.

Is this what we want? Internet ‘take down’ and indefinite gagging orders?

Well worth reading, to think about the principles of the issue, not the specifics.

UPDATE:
Added the "t" to thought above, and the second part of the last sentence, ie the bolded content.

Comments

  1. The danger in linking to this post to draw attention to the principles behind freedom of speech, and the impact (intersection?) from defamation and/or harassment is that some people will be focused on the actual details of a specific story, and not look at the bigger picture.

    PRISM or Wiki-Leaks or looking at the recent threats to your own personal safety from that random poster a couple of months back might be safer topics :)

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  3. Hi Scrubone,

    I have to disagree. The interpretation given is that it was serious, but having been the target of some very aggressive private comments directed to me last night just for posting the above, I think there is a lot more to this that is not being admitted to.

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  4. I'm not going to be up with the issues on this topic...but...if we have concern for school age youngsters being bullied by texting etc then it seems reasonable that adults should not be personally made objects of lies and scandal on issues of their personal life not should anyone be threatened, or those close to them threatened, with 'actions' to hurt them.

    I think what concerns us is the quick way many individuals or groups of individuals may response to discussions which involve public aspects of they way they live their lives as 'offensive'. I could give examples but that would detract from the point I'm making. Rather then free discussion of things that concern the public good are limited and shut down through 'offense'

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  5. One day I'll check my typos!

    GK Chesterton said something like liberalism which removes limits in order to make us more free always lets tyranny in the door.

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  6. Hi Lindalee,

    I totally agree with your Chesterton reference. It's like people stop knowing how to act properly and with restraint, and so greater and greater laws need to be enacted.

    This case disturbs me on multiple levels now, much more so than when I first posted.

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  8. Assuming what the Judge encountered was clearly personal malicious bullying...any fair minded person could agree?

    What is problematic is if said malicious bullying relied on the subjective feelings such as anxiety and distress. How do you legislate for the ever moving rating of anxiety and distress...or feeling offended....or 'inciting' someone?

    Its a murky area. I hope that the issues that made the judge act were actually clear actions which were indisputable...such as someone saying 'You have been struck off by your professional body' and you weren't. That is different to saying 'You should be struck off by your professional body' (because you aren't 'in my opinion' someone who should belong to it).

    There is a lot of malicious attempts to silence critics in the open forum in order to create a climate of fear of prosecution and singling out. Only an absolute right to free speech can protect everyone.

    I think its new territory but some are having a go.

    In what way is 'defamation' different to an open forum criticism? I think that is what I'm trying to work out.

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  9. Now this sort of thing is a worry...

    Almost two years ago — exactly a week before Anders Behring Breivik’s massacre in Norway — U.S. Secretary of State Hillary Clinton and Secretary General Ekmeleddin Ihsanoglu of the Organization of Islamic Cooperation (OIC) launched what they called the “Istanbul Process”. Their initiative was a joint project of the OIC and the USA, and was intended to bring Western nations (especially the USA) into compliance with UN Resolution 16/18, which aims to “[combat] intolerance, negative stereotyping and stigmatisation of, and discrimination, incitement to violence, and violence against persons based on religion and belief.” The eventual goal is that member states of the UN will be required to pass laws criminalizing such “stereotyping” and “discrimination” based on religious belief. I don’t have to tell you that the intended primary beneficiary of Resolution 16/18 is Islam, and that all the attempts to implement the resolution are being pushed by the OIC and its Muslim Brotherhood-influenced allies in the governments and NGOs of major Western nations.

    http://gatesofvienna.net/2013/06/the-istanbul-process-continues/

    Whatever we think...the UN and EP are trying one way or another to respond to pressure to criminalise what we would call criticism.

    Hmmmmm

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  11. It gets very murky.

    Especially when internal judicial decisions of a so-called sovereign nation could be dictated to by international governing bodies.

    No doubt our judges are aware of which way the wind blows.

    I think it is open to abuse. I think the information has to be very clear cut. But at the same time there has to be protection for minors dealing with social media.

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  12. I used to belong to an online forum of mothers a number of years ago, and in my experience, women, when they feel they have been wronged, can be really vicious. That is what I am personally seeing here, having read a number of the posts in question on the Google Wayback Engine.

    Scrubone, I've seen that post with the bank account details. It looked like a scanned document with a personal declaration and a signature. Unless the blogger in question is a spy with incredible connections, some one would have had to have given her that piece of paper. She implies in the post that it's a matter of public record given to her, rather than something she managed to source through nefarious means. The date of that post is also after a period of what looks like to be intense provocation, so posting it is in line with the way women will act when under pressure.

    Was it nice or wise to post it? No. However, lost in all of this is a good point - why are people who have money fundraising? That question probably has a very simple answer, and could have been given to counter any issues that might arise from how the post made them look.

    Also, would rather not re-litigate the specifics of this case in this comment stream. My typical way of proving my points is to link to pieces of evidence that support what I am saying. I have held off doing so in this comment, but can't promise that I will continue to do so.

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  14. Scrubone, can i see the judgement? As far as I can tell, I have only seen snippets, rather than the whole thing.

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  15. Hi, it's on the kiwiblog post.

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  16. Thanks, I'm reading it now.

    I didn't think it would be possible to be even more disturbed, but this judgement looks like it has effectively killed free speech in NZ.

    It's also very cursory in it's treatment of the bank statement. The "how" of procurement is not considered important enough to be investigated - the only standard is the amount of distress that it caused and it's link with a pattern of behaviour.

    I'm quite horrified with what I'm reading, especially the bits about lawyers being a kind of protected species. Who knew? All those people making jokes about lawyers might need to be more careful in the future.

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  17. Lucia,
    Regarding the women feeling wronged if you haven't read the following article
    http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10813552

    Notable -
    Brown may or may have had an affair with Michael Laws.
    Sperling was Laws girlfriend.
    Flannagan was Brown's lawyer.

    There are two court cases. The First is Brown v Sperling [2012] DCR 753 . The second is Flannagan v Sperling

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  18. "I'm quite horrified with what I'm reading, especially the bits about lawyers being a kind of protected species. Who knew?"

    Yes, I found it chilling too, Lucia Maria.

    Now, just as an exercise in imagination, pretend you were reading that judgement the *day after it was issued*, having been sent it directly by the successful applicant with a request that you 'remove material' from your blog.

    Because that's my context.

    - P

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  22. Right, I was just going to ask DS to identify themselves, and they've gone and deleted all their comments.

    Peter, yeah, I'd be worried. Amazing you're so calm! I've only ever removed material once in all the years I've been blogging, and that's because GayNZ threatened me with legal action. They took offense to me copying a small post in it's entirety, and even though I attributed and linked back to them, they still got really uptight. Some people just don't get the Blogosphere.

    Hi John, yes, I read that article soon after it came out. What a tangled, web, huh? I also remember allegations around Laws, but didn't take a whole lot of notice, because I'm not really that interested in him.

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  23. "Peter, yeah, I'd be worried. Amazing you're so calm! I've only ever removed material once in all the years I've been blogging, and that's because GayNZ threatened me with legal action. They took offense to me copying a small post in it's entirety, and even though I attributed and linked back to them, they still got really uptight. Some people just don't get the Blogosphere"

    The difference here of course Lucia Maria is that Peter Aranyi released from his moderation queue 3 separate comments written by Jacqueline Sperling stating that Madeleine Flannagan is a pain drug addict and and that she, a barrister and solicitor, had committed perjury. No attribution or link to any evidence. I saw the comments myself and I see them cited in the decision of the learned Judge.

    I don't think Madeleine's issue with Peter doing this was a failure on her part to get the blogosphere, especially not when such false comments had reportedly caused her financial loss and have been found by the Court to be false.

    Poor Peter Aranyi being asked privately to remove the defamatory material he had chosen to publish on 3 occasions, it must have been horrible for him being asked. Madeleine should have just let herself be ruined so he could enjoy his freedom of speech. I totally understand your sympathising with him Lucia Maria, it sounds so exactly like your experience of Gay NZ doesn't it?

    I recommend the following reading in addition to the scriptures and teaching of the Catholic Church you've already been referred to:

    Why defamation is not freedom of speech by Mdeleine Flannagan herself.

    Harassment and Defamation are an abuse of freedom of expression by Brendan Malone who tells things as they are in the real world, as opposed to Peter Aranyi's imaginary pretend "my context."

    PS. Is anyone else not troubled that Jacqueline Sperling blogged about how much she liked Peter Aranyi's imaginary pretend version of events? Given the minimisation and victim bashing going on there (and here) one shouldn't blame her.

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  24. Lucia,

    I've read the first case (Brown v Sperling) where the Judge talks about a very high standard. I've yet to read the second, but given that it was undefended I'm hesitant to read too much into it. I think there are two points
    1) Judges need to have the power at some point to stop the publication of material. Some people may disagree. Some would agree.
    2) In this case the judge was correct in issuing a gagging order.

    The problem with arguing about the second point is that the case was uncontested. An argument without hearing the other side is always persuasive.

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  25. "Brown may have had an affair with Michael Laws."

    Hi John, yes, I read that article soon after it came out. What a tangled, web, huh? I also remember allegations around Laws, but didn't take a whole lot of notice, because I'm not really that interested in him."


    Brown did not have an affair with Laws.

    The tangled web is the malicious gossip being spread and endorsed on this blog.

    "There are two court cases. The First is Brown v Sperling [2012] DCR 753 . The second is Flannagan v Sperling"

    Not accurate:

    1. Jacqueline Sperling has blogged about a relative of hers taking a Restraining Order against her.
    2. Jacqueline Sperling has blogged about the existence of a Protection Order against her.
    The judgments referred to above show the existence of:
    3. BS v Sperling (2010) resulting in another Restraining Order against her which was extended in:
    4. The second BS v Sperling case earlier in 2013.
    Then there is:
    5. Brown v Sperling and
    6. Flannagan v Sperling

    That is 6 Sperling cases involving her allegedly abusing other people.

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  27. Hey John,

    The problem as I see it, given that I agree no 2 could be necessary at times, is that there is no test for truth or provocation - the test is just distress, and that is judged by a person who spends very little time interacting online.

    And, the provocation defence for murder was removed a while back, so I think there is this tendency to ignore provocation as reason why someone might act a particular way, or this case, publish particular material. Only a saint is immune to provocation, in other words, there but by the Grace of God go I.

    I think anyone that rules on internet stuff should spend a minimum of six months on KiwiBlog in the comments (as an example) to get an idea of what the Blogosphere is actually like.

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  28. @anonymous Scalia : Hi. That's a nice pseudonym you're wearing tonight. Perfect for attacking someone else's integrity by name.

    In my eyes, anonymous Scalia, you will always be identified by your timeless February 2011 post: Vote for the Hottest Kiwi Female Blogger of 2011. That's in no way meant to decry the quality of your work in the FOUR scintillating posts you've contributed to the sum of human knowledge on your blog since then.

    Given your alleged concern for the applicant in this case, I'm surprised you would repeat the defamatory(?) remarks as you have. I don't think she would thank you for that.

    You're incorrect in fact in your assertion "Peter Aranyi released from his moderation queue 3 separate comments written by..."

    No, actually, anonymous Scalia, I didn't. At that stage, as a commenter with more than one 'approved' comment on The Paepae, the blogger's comments appeared without moderation. (You may see that as a fine distinction, but it is a distinction nonetheless.)

    I count only two references to The Paepae in Judge Harvey's decision. (I'm open to correction.) One of those [43] was to a comment removed within minutes, following intercession by the applicant. I completely agreed with her that it 'crossed the line'.

    In fact, that comment - and some of the vile, hateful stuff being flung at the blogger (mostly anonymously, so you'd fit right in anonymous Scalia) - led to my closing the comment stream.

    The other [51] was general in nature, but, as I understand it, read in context (by the applicant and others) with material posted elsewhere, to obliquely refer to an [alleged] disparity between affidavit evidence (the bank printout referred to above) and statements made in fund-raising efforts. That comment, which *could* be read to allege dishonesty, but could also be read as merely saying *things had changed* since the affidavit was sworn - has since been moderated at the applicant's request. Fair enough.

    I join you, anonymous Scalia, in recommending Brendan Malone's 'The Leading Edge' blog — specifically his post: Harassment and Defamation are an abuse of freedom of expression and the discussion following.

    A little in the manner of Brendan's friend and colleague Matt F. at The Paepae, I replied to his post ('right of reply', anonymous Scalia — look it up), responding to his critique and asking a few questions of my own.

    Brendan was gracious enough to reply to me overnight last night, and I submitted a further reply today just before lunch which, last time I looked, hasn't appeared so far (perhaps for technical reasons?)

    Even though Brendan and I don't see eye-to-eye on all points -- indeed, we see some aspects of the issues *very* differently, we're not slagging each other off with vacuous allegations and character attacks.

    And bless him, like me, Brendan Malone is speaking in his own name. I respect that.

    @Lucia Maria : I'm sorry you seem to be getting a dose of vitriol. I said in my post which you heinously linked to above:

    "The blogger copped a great deal of vile abuse and bullying herself, and suffered gross character assassination (mostly anonymous) elsewhere on the internet. It’s hard to overstate the ferocity with which some who claimed to be upright god-fearing citizens attacked, spat at and pilloried the blogger, dredging up her past and publishing the nastiest of NASTY tirades against her — let me stress again: anonymously — in what can only be seen as a protracted effort to discredit her."

    Yeah. Kinda proven here too, huh?

    - P

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  29. "The problem as I see it, given that I agree no 2 could be necessary at times, is that there is no test for truth or provocation - the test is just distress."

    Wrong. Read some commentary. Read the Harassment Act.

    Common law shows the lawful purpose defence pretty much mirrors the defamation law defences of truth and honest opinion. Law 101: you can't get a ruling without possible defences being considered.

    That the learned Judge considered every one of Jacqueline Sperling's claims to be being bullied, provoked, the victim, her claims that Madeleine Flannagan was and did all the things she claimed and he found them to be false, without merit, lacking substance, nada, zilch. Her claims to be the provoked victim where found to be not credible. Read both cases more carefully.

    BTW the Judge is a blogger who is one of the commonwealths most eminent internet law experts, your assessment of his inexperience online is without basis in fact.

    Did you hear Canterbury Law Professor Ursula Cheer on National Radio about the implications for freedom of speech of this case? http://www.radionz.co.nz/national/programmes/ninetonoon/audio/2559166/law-with-ursula-cheer.asx

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  30. "@anonymous Scalia: Hi. That's a nice pseudonym you're wearing tonight. Perfect for attacking someone else's integrity by name.
    ...
    And bless him, like me, Brendan Malone is speaking in his own name. I respect that.
    ...

    "

    Hmm.

    @anonymous Scalia:
    @Lucia Maria:

    Something about these two salutations is different.

    What is it?

    Lucia Maria and Scalia are both anonymous pseudonyms used by each of us for blogging purposes for years, but I get anonymous put in front of mine and she does not.

    Both of us are being highly critical of other people's reasoning, but I get anonymous put in front of mine and she does not.

    Why would Peter Aranyi (hypocritically) attack someone else's integrity by calling them a name that applies equally to the other person he was addressing?

    Hmm.

    Home truths hurt perhaps?

    When I call your contradictions and spin out it is vitriol and attacks on integrity.

    When you use ad hominems and distort the truth about someone else's intergrity what's that?

    There were 3 comments. Two about pain killers, one about perjury. I read them. Peter Aranyi moderates comments. The defamatory comments were queued in moderation, Peter Aranyi chose to release them from the queue. They stayed online and were only removed when the applicant complained for which we are all supposed to go boo hoo for Peter Aranyi and ignore the rest of the facts.

    I'm starting to feel why you can't distinguish between Jacqueline Sperling and Scrubone's blog posts now.

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  31. @anonymous Scalia

    "The defamatory comments were queued in moderation, Peter Aranyi chose to release them from the queue."

    Repeating it doesn't make it true, anonymous Scalia. Those statements are not true. Ask the applicant.

    When she telephoned me about the 8/7/12 comment (the one I described as 'crossing the line', I was away from my computer (at Auckland airport, in fact) and HAD NOT seen it. I was able to 'unapprove' it via the WordPress app on my phone shortly after her call.

    On my return that afternoon I closed the comment stream, placing this note in the last comment (it's still there):

    Update: I’m CLOSING comments on this thread, and I’ve moderated a few (including my own) to avoid the law of unintended consequences. I said right at the beginning that I didn’t want to re-litigate the case here.

    I’m sorry, it’s just gotten too blistering. Some commenters, including but not just Jacqueline, are swinging pretty heavy clubs and people’s reputations are being potentially affected and genuine ‘distress’ caused by unsubstantiated allegations. That’s not what this blog is about. Enough is enough.

    Feel free to email me (address here) if you have any queries or concerns or if you want to comment to me directly. No-one has threatened me.
    - Peter 8 July 2012


    You and anonymous Scrubone malign and attack me as untruthful and a 'hypocrite' etc from behind your cowardly little pseudonyms. Don't you realise your hateful behaviour is confirming the allegations against you?

    - P

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  32. Lucia,

    I think that if both parties turned up to a court the judge would get a pretty good idea of what was going on.

    In Brown V Sperling, Sperling represented herself. In this latest judgement she didn't turn up. I'm not surprised judgement went against her.

    You mention provocation, but Sperling didn't. I suggest that if she had turned up and said "It was heat of the moment, I was provoked and egged on" then things would be different.

    If I can draw an analogy. Father lends son some $. Father marries a new woman. Father dies. New Woman sues son for return of $. Son goes to his blog to say he has already paid the $ back.
    However Son does not turn up to court. New Woman submits affidavit from herself saying Father had complained bitterly about money. New Woman will always get judgement.

    If we were to look at this with the same glasses on, there could be cries of horror that enforcing an already paid debt is terrible. Or talk about the court interfering in personal finances.

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  34. Jeez, can you lot take your personal rubbish back to your own blogs? Lucia rightfully asks: where to from here? And I for one am much more interested in that question than all the mud slinging between Peter A, scrubone & Scalia.

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  36. Well, having worked out Lucia's issue I've decided to delete my comments here - she's right, we should be debating the principles, not the case.

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  37. Maybe (and I am not privy to or concerned with those private conversations), but I dont think that extends to the acrimony going back and forth between the third parties which is obviously spilling over here from both Halfdone and The Paepae. I don't see the need to air dirty laundry here.

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  38. My 11:20 refers to scrubone's deleted post.

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  39. Hi John,

    I think you're possibly right in what you say in your 3rd paragraph about provocation, and from that perspective it would have been good if at least some attempt was made at a defense. From what I understand, an affidavit was given to the court, but Sperling didn't turn up to defend herself in the first case, while as in the second there was no defense at all.

    Even so, the stress involved in having to defend oneself against accusations of harassment would be enough to stop many people from saying what they'd like to say online and should freely be able to say (not implying here that Sperling should have been able to say everything she did, for those that are watching).

    So, while I'd like to believe in the reasonableness of the whole process and the people involved, history shows that such trust is misplaced, especially when virtue starts to disappear in a population. It normally happens in increments and affects the people on the fringes that most people don't care too much about because they think they won't be next.

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  40. Scrubone,

    You say you want to talk about the principles and not the case, and yet 10 minutes or so after you made the comment above, you emailed me asking why I did what I did with my posts. I don't respond well to emotional manipulation or being treated like a cult member who's gone rogue. We don't know each other that well. I'm quite happy with public communication for now, even if you are not.

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  41. Ciaron, good call.

    However, I will except Peter A, as he is being attacked here and has the right to defend himself.

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  42. Lucia,

    In the Brown V Sterling paragraphs 190-194 make it clear that whilst Sterling did not turn up at court she did file an affidavit in her defense.

    Paragraph 7 of Flannagan V Sperling says she didn't even do that in Flannagan V Sperling.

    With regards to your comment about stress arising from having to defend complaints, it seems to be a clear fact that Sperling made such a complaint to the Law Society about Flannagan, and Flannagan suffered stress from defending the claim.

    Even if this is a landmark judgement people have been filing frivolous cases about defamation and seeking gagging orders for years. In my opinion Winston Peters has been doing this to journalists for years. Also in my opinion WhaleOil threatens this course of action against those who disagree with him.

    In my opinion all this judgement is is a judges only response to hearing one side of the argument - which is to agree with it.

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  43. Actually I just remembered this article I saw today -
    http://www.nzherald.co.nz/crime/news/article.cfm?c_id=30&objectid=10893053

    Two neighbours, one claiming the other had harassed him. This is a defended hearing and the allegations are pretty 'out there'. Staring over the fence, leaving headlights on full beam for hours at night, making noises during night. Whatever the judgement is I suspect that it will give a clearer indication of what constitutes harassment and what remedies are avaliable.

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  44. Hi Lucia Maria,

    I hope this isn't verboten (delete it if so, no hard feelings) but I mentioned last night I'd continued my conversation with Brendan Malone at his website 'The Leading Edge'.

    Apparently my reply was lost in the ether.

    I've posted a new (Improved! Low fat!) comment tonight ... and it is in place (#8) for those who are interested.

    URL here: http://theleadingedgeblog.com/harassment-and-defamation-are-an-abuse-of-freedom-of-expression/

    - P

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  45. Peter, it's a very good comment. I think your position is very well explained and I enjoyed reading it.

    I liked especially how you said you agreed with the two blog titles (Harassment is NOT freedom of expression and Why Defamatory Speech is not Free Speech), because I agree as well.

    And that bit about no [3]. Ouch!

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  46. Lucia, I have not emailed you since 11:27pm last night.

    My comment above is time stamped 11:18 AM, June 26, 2013.

    I really don't know what to say.

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  47. Hi scrub one, that's a relief! Sorry about that. Will be able to give better replies later on - no power at home, am commenting from my phone.

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  48. Lucia, not that it will bother you much, but you have done something that I and many others would never have expected of you here. Really, really shocked and disappointed.

    Given a robust Catholic outlook, I would think now that "penance" is the word of the day. I'm sure I'm not the only one who now sees NZ Conservative as no longer being on a list of places to link to or visit.

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  49. That's your perogative, Glenn. No hard feelings on my part.

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