An Open Letter About The Holocaust Denier Threatening to Sue New Matilda

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As most of our readers would know, New Matilda is a small, independent media outlet. But despite our modest means, we attract our fair share of legal actions.

The most recent threat is from a former reader, Kevin Charles Herbert, whose New Matilda account was deleted last week after he posted reader comments which sought to debate the Holocaust, and to promote Holocaust denial.

New Matilda’s new commenting rules are clear – we do not permit debate about the Holocaust on our site. There is a simple reason for that – there is no debate to be had.

Mr Herbert, a public relations professional from Ultimo in Sydney, acknowledges that he sought to debate the Holocaust, but refutes the claim that he sought to promote Holocaust denial. This, despite the fact Mr Herbert’s comment linked to a blog post entitled ‘Why I call myself a Holocaust denier’ (run by a man who describes himself as an anti-Semite, and unsurprisingly, a Holocaust denier).

Over the course of the last few days, Mr Herbert has delivered multiple legal threats against New Matilda.

We’re reprinting them below, for the following reasons.

1. We’re tired of receiving threats, and being bullied. So from now on, New Matilda will publish, verbatim, the contents of all baseless legal threats that we receive.

2. Our comments section has been an ongoing challenge for New Matilda. While the vast majority of our readers engage respectfully and responsibly, a small (admittedly shrinking) number of readers remain determined to use our site to grind whatever axe they see fit, subjecting New Matilda to significant legal and reputational risk in the process.

Publishing the emails, we hope, might focus a few minds.

We’ll also keep you posted about our legal battle with Mr Herbert. And if you want to help us pay for it (and other legal battles, past, current and future), you can subscribe here or donate any amount you like here.

The original story – and comments section – which sparked our latest shitfight is here: One Year On: A New Matilda Editor's Perspective.

Chris Graham
Editor

PS. For the sake of illustration, here’s a screenshot of Mr Herbert recently ‘not’ being a Holocaust denier on another forum. The pic is from my personal Facebook page, and speaking of defamation… please do not infer anything from the fact Facebook are pushing me ads about slippers. I'm only 42, I don't even own a pair of slippers, and I've certainly never googled them (I am, however, looking for someone to design us a logo).

 

 

Email Exchange Between Kevin Charles Herbert And Chris Graham


From: Kevin Charles Herbert
To: Chris Graham
Date: Wed, May 20, 2015 at 12:37 PM
Subject: General enquiries

TO: Chris Graham – NM

Please remove the following words " and promote holocaust denial' from the following statement by 3pm today, or I will seek legal advice as to those remedies available to me:

ED'S NOTE: The previous comment by Kevin Charles Herbert – which sought to debate the Holocaust and promote Holocaust denial – has been removed and his account has been deleted without notice.

I have no problems with the rest of the statement, but will not allow NM to defame me by publishing material which is patently untrue.

Yours Faithfully
Kevin Charles Herbert


From: Chris Graham
To: Kevin Charles Herbert
Date: Thu, May 21, 2015 at 10:23 AM
Subject: General inquiries

Kevin,

Thanks for your email.

I had the comments hidden late yesterday, to give me some time to respond.

However, notwithstanding your legal threat, I'm planning to 'unhide' the comments later today.

Your original posting linked to a website with a headline 'Why I'm a Holocaust denier'. Truth, of course, is a complete defence to a defamation action. So I wish you luck with it, and rest assured, it will be vigorously defended.

More broadly, the sort of views you peddle are not welcome on the New Matilda website. Please don't return.

Regards
Chris Graham


From: Kevin Charles Herbert
To: Chris Graham
Date: Thu, May 21, 2015 at 1:30 PM
Subject: Paul Eisen is not a shoah denier

Chris,

Should you be so commercially stupid – let alone journalistically unethical – to repost your defamatory remarks, I can guarantee that your claimed $55K in legals costs will receive a substantial boost.

For the record, Paul Eisen's 'Why I'm a Holocaust denier" is a darkly satirical piece on how the Shoah has been hijacked by the global Zionist movement, and DOES NOT, I repeat DOES NOT, deny the Shoah in any way shape or form, as so clearly explained by Eisen in the following section of his article:

"HOLOCAUST

It’s always worth defining your terms. Not that it does that much good – the inquisitors will see what they want to see and claim what they want to claim. But for the record here’s what I do and do not question. First, what I do not question:

Ø I do not question that the National Socialist regime brutally persecuted Jews.

Ø I do not question that Jews in Germany were discriminated against, violently assaulted, dispossessed, imprisoned in camps and expelled and that many Jews died as a result.

Ø I do not question that Jews in countries occupied by Germany or within the German sphere of influence were pitilessly assaulted, dispossessed and subjected to brutal deportations, many to forced labour camps where many hundreds of thousands died.

Ø I do not question that many Jews were executed by shooting in the East."

May I respectfully suggest that you take legal advice from an experienced defamation lawyer before deciding whether to repost your clearly defamatory original statement.

I have deep pockets Chris, and the courage of my convictions.

Further, based on your fatuous & highly offensive (above) message, I will now demand that NM print a Home Page apology for it defamatory statements re myself.

Yours faithfully
Kevin C Herbert


From: Kevin Charles Herbert
To: Chris Graham
Date: Mon, May 25, 2015 at 12:04 PM
Subject: RE: Paul Eisen is not a shoah denier

Chris,

Further to the last paragraph of my below 21 May last email, I am meeting my legal advisors this afternoon, to discuss what legal remedies are available to me following your recent defamatory statements concerning my alleged denial of the German Nazi socialists genocide against European minorities between 1939 & 1945.

As the ex son in law of a Polish Jewish survivor of Auschwitz – a man whose 4 siblings & parents perished in the Lodz ghetto & Auschwitz – I take great offence at your putrid allegations.

You'll be hearing from me shortly.

Yours faithfully

Kevin C Herbert


From: Chris Graham
To: Kevin Herbert
Date: Mon, May 25, 2015 at 1:42 PM
Subject: Re: Paul Eisen is not a shoah denier

Kevin,

You are, of course, welcome to seek whatever legal remedy you feel appropriate. But here are the facts.

The New Matilda rules on our commenting forum are crystal clear. You have engaged in debate on them before, so you were clearly aware of those rules. Those rules exist – as you know – to reduce our exposure to legal action, and to ensure that our readers engage in reasonable public discussion.

You chose to ignore those rules, thereby exposing New Matilda to legal risk. You did so knowing that it would likely result in your account being deleted.

In the process, you linked to an article headlined 'Why I call myself a Holocaust denier'.

On this basis, I deleted your account, and posted an explanation of why your account was deleted. This was subsequently removed immediately after your first legal threat, and remains removed. You initially indicated that the removal of the words was all you sought, but after I replied to your email, in terms that you now describe as 'putrid', you then decided that mere removal was not enough – an apology was also in order. When that was ignored, you decided legal action was warranted.

As it stands, you are now relying on the claim that Paul Eisen is not a Holocaust denier, even though the headline on the piece you linked to was, 'Why I Call Myself A Holocaust Denier'. A piece, mind you, which is 3,725 words long, and which, 2,935 words in, suggests 'Actually, I'm not really a Holocaust denier… I just don't think it was as bad as people say'.

As I mentioned earlier, any legal action will be vigorously defended.

Regards
Chris Graham


From: Kevin Herbert
To: Chris Graham
Date: Mon, May 25, 2015 at 4:23 PM
Subject: You need legal advice

Chris,

That loud whirring sound I can hear is you back peddling furiously.

May I respectfully suggest that you make no further admissions in support of my already strong case against you, as you have below.

Get some advice from a defamation lawyer or this episode could be a very costly lesson for you.

Regards

Kevin Herbert 
KHA | Public Affairs Consultants
PO Box 287 Broadway 2007


From: Chris Graham
To: Kevin Herbert
Date: Mon, May 25, 2015 at 5:15 PM
Subject: Re: You need legal advice

Kevin,

Thanks for the advice. We've actually done that (i.e. sought our own legal advice).

The broader issue at stake here is actually a really important one – what constitutes Holocaust denial? The initial advice I've received, is that it is precisely what you engaged in on New Matilda, and on multiple other forums. Obviously that's a matter of opinion, and one that I think we both agree requires some legal clarification.

So just to be clear, we have no intention whatsoever of offering you any apology, nor any clarification. I'll await your further correspondence.

Regards
Chris


From: Chris Graham
To: Kevin Herbert
Date: Mon, May 25, 2015 at 8:25 PM
Subject: You need legal advice

Kevin,

Further to our earlier correspondence, we've received some additional legal advice.

I'm writing to notify you that the original comment published by me will be republished tonight.

As you know, New Matilda is often the subject of legal threats. We are a small, independent media outlet and, obviously, are vulnerable to expensive litigation. However, our business model relies on resisting precisely the sorts of threats you have made.

With that in mind, overnight we will be publishing a story which details (verbatim) our email correspondence, so that it may be better understood by those who seek to do our organisation harm that New Matilda will not be intimidated by baseless legal threats, no matter the 'depth of the pockets' (to quote your earlier correspondence) of the people making those threats.

As noted earlier, you are not welcome at our website and any attempt to re-establish an account will be blocked. Your original account was deleted before I checked whether or not you were a paid subscriber. If you were, and would like a refund, please let me know.

Finally, as I've said all along, any legal action you may launch will be vigorously defended.

Regards
Chris


From: Kevin Herbert
To: Chris Graham
Date: Mon, May 25, 2015 at 8:26 PM
Subject:  RE: You need legal advice

Chris,

You’re right, it does need clarification.

So let the clarification begin.

Cheers
Kevin


Chris Graham

Chris Graham is the publisher and editor of New Matilda. He is the former founding managing editor of the National Indigenous Times and Tracker magazine. Chris has won a Walkley Award, a Walkley High Commendation and two Human Rights Awards for his reporting. He lives in Brisbane and splits his time between Stradbroke Island, where New Matilda is based, and the mainland.

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