Facebook Google Menu Linkedin lock Pinterest Search Twitter

Advertisement

Environment

Jan 11, 2013

Uncharted legal waters as coal hoaxer mulls jail, fines

Anti-coal protester Jonathan Moylan's fake press release fooled the market this week -- but will the stunt land him in jail? Sally Whyte examines the precedents and finds Moylan is in uncertain waters.

Share

Environmentalist Jonathan Moylan wanted to put pressure on ANZ and coal backers through his fake press release on Monday. But the focus may end up being on the corporate watchdog.

Speaking to Crikey, Moylan says it took a “couple of days” after the press release temporarily wiped $314 million off Whitehaven Coal shares for the Australian Securities and Investment Commission to find him at his camp in the Leard State Forest near Maules Creek in New South Wales. His computer and mobile phone were confiscated but charges have yet to be laid.

Whitehaven Coal, ANZ and investors could all take civil action, according to Associate Professor John Duns of Monash University’s Law Faculty, but with the 24-year-old activist unlikely to have the resources to pay up, eyes will turn once again to the regulator.

Moylan says he’s now “well aware” of the possibility of 10 years in jail and fines of up to $495,000, but he didn’t know about the possible consequences when he sent the fake release saying ANZ had pulled $1.2 billion of investment from Whitehaven Coal’s mine at Maules Creek. Asked if he would still have acted, Moylan avoided the question.

“I’m not someone with hundreds of thousands of dollars,” Moylan said about the prospect of fines and damages. He has been in talks with lawyers but doesn’t have representation yet.

“We’ll see what happens if it comes. I’ve said all along that I’ve been prepared to accept the consequences. I just have to deal with it as it comes up.”

Whitehaven Coal’s biggest shareholder Nathan Tinkler has not commented on whether he plans to take action against the activist.

According to Duns, Moylan could declare bankruptcy to avoid paying damages: “You’d think there’s not going to be much satisfaction in suing him personally.” However, while declaring bankruptcy protects a person from having to pay out if sued, it does not protect them from fines that come as part of a sentence.

Duns believes the combination of media attention, the unlikelihood of results in a civil action and the ASX’s resistance to unravelling Monday’s transactions mean ASIC will be under pressure to make an example out of Moylan and his fake press release.

ASIC is investigating Moylan under Section 1041E of the Corporations Act, which deals with making false or misleading statements. The act states a person must not make statements that “have the effect of increasing, reducing, maintaining or stabilising the price for trading in financial products on a financial market operated in this jurisdiction”.

According to Associate Professor Keturah Whitford at the Australian National University’s College of Business and Economics, Moylan could be charged under Section 1041E, but could also face civil action from stakeholders under Section 1041H of the Act.

There isn’t an Australian precedent to foreshadow the likelihood of conviction or possible sentences. Whitford says it’s “hard to predict sentencing, but the extent of damage including losses to investors would be taken into account and the fact that he wasn’t personally profiting”.

Moylan says he wrote the press release by himself, but declined to say if anyone else knew what he was doing.

This is the third time in seven months the Australian stock market has seen share prices and trading affected by hoaxes. In July last year, David Jones stocks fell 5.4% on the back of a fake takeover bid and in October, trading in MacMahon Holdings was halted due to a bogus takeover bid.

“Market integrity is a fundamental case,” said Duns. “There’s been a couple of them and that increases the pressure on ASIC to take action.”

Charges haven’t been laid over the David Jones or MacMahon cases, so there is no Australian precedent. Comparisons can be made to American activist Tim DeChristopher — he was sentenced to two years jail in 2011 after making false bids on an oil and gas lease sale in Utah.

Moylan says it’s unlikely he will take similar action again, but that others will try to “embarrass and shame” corporations with more hoaxes.

Advertisement

We recommend

From around the web

Powered by Taboola

99 comments

Leave a comment

99 thoughts on “Uncharted legal waters as coal hoaxer mulls jail, fines

  1. drsmithy

    You are getting the act and the intent confused yet again.

    Not in the slightest.

    SO the act was deliberate, nothing accidental about it, it is whether the intent was for profit or for ideological reasons that is different but it is still a deliberate act.

    Nice semantics.

    The act of releasing the press release was deliberate. Its effect on the stock price, was accidental.

    SO if you don’t know about the profit you can’t draw the distinction.

    Indeed. Just like if the police never find out about the hitman you hired to drug your wife and push her in front of a car, they won’t be able to charge you with murder.

  2. Jimmy

    Drsmithy – “His statements thus far indicate that he neither intended, nor expected, an impact on the stock price.
    That’s “accidental”.”
    You are getting the act and the intent confused yet again.

    You yourself say “In the an alogy, the act is identical – Person A kills Person B. It is the act of killing that is analogous to market manipulation. In the ana logy, it is the intent behind the killing that marks the difference in how they should be (and are) treated by the law” SO the act was deliberate, nothing accidental about it, it is whether the intent was for profit or for ideological reasons that is different but it is still a deliberate act.

    “No, I would not, because the intent was market manipulation for personal gain.” “you would accept that as a defence because you wouldn’t know about the profit.” SO if you don’t know about the profit you can’t draw the distinction.

  3. drsmithy

    However as in both cases the act is deliberate your argument that one is “accidental” doesn’t stack up, Moylan deliberately issued the press release in the exact same manner as someone would of if the had of wanted to profit from it.
    His statements thus far indicate that he neither intended, nor expected, an impact on the stock price.

    That’s “accidental”.

    You can argue otherwise if or when evidence emerges to support your assertion. Until then, you’re just projecting your own beliefs onto his actions.

    And you say that this won’t enable people to avoid charge on market manipulation yet you argue that Moylan should get a lesser sentence for his market manipulation?
    Correct. Because the _intent_ was different.

    If someone can manipulate the market and make the profit far enough removed to ensure ASIC can’t find the link and use the same defence as Moylan ie I didn’t intend to make a profit and it was all political, you would accept that as a defence becuase you wouldn’t know about the profit.
    No, I would not, because the intent was market manipulation for personal gain.

  4. Jimmy

    Dr Smithy – “In the analogy, the act is identical – Person A kills Person B. It is the act of killing that is analogous to market manipulation.” Agreed.

    “In the analogy, it is the intent behind the killing that marks the difference in how they should be (and are) treated by the law” Agreed.

    However as in both cases the act is deliberate your argument that one is “accidental” doesn’t stack up, Moylan deliberately issued the press release in the exact same manner as someone would of if the had of wanted to profit from it.

    Your intent argument is where I compare killing your wife for profit to killing her out of honour, in an honour killing the persons motives are ideological, just as Moylans were but just because the killing fits one persons
    bel iefs it doesn’t mean they get a lesser sentence.

    And you say that this won’t enable people to avoid charge on market manipulation yet you argue that Moylan should get a lesser sentence for his market manipulation? If someone can manipulate the market and make the profit far enough removed to ensure ASIC can’t find the link and use the same defence as Moylan ie I didn’t intend to make a profit and it was all political, you would accept that as a defence becuase you wouldn’t know about the profit.

  5. drsmithy

    You are arguing that it isn’t the act of market manipulation that should be punished but the reason for it, […]

    No, I’m not.

    I’m arguing that the _intent_ behind an action is a key factor in how it should be considered by the law.

    […] that is where your analogy falls down – in your analogy the acts are different, one is accidental death the other is premeditated murder, in this case both acts are premeditated murder however one is for supposedly altruistic purposes while the other is for financial gain.

    No, this is where your desire to persecute leads you to twist and turn the facts and argument to meet your reuqired conclusion.

    In the analogy, the act is identical – Person A kills Person B. It is the act of killing that is analogous to market manipulation.

    In the analogy, it is the intent behind the killing that marks the difference in how they should be (and are) treated by the law – killing someone accidentally (especially when the victim bears a non-trivial level of blame for their own demise) carries a much lighter punishment than killing someone deliberately, and pre-meditated killing carries a harsher punishment still.

    This is why I state market manipulation by accident – what appears to have befallen Moylan – should be treated differently by the law than delberate market manipulation with malicious intent.

    As for the “spirit” again I come back to people seeking to exploit this “spirit”, setting up strategies to make themselves appear as though they are doing it for political reasons and having the gain 5 steps removed, you dismiss this as simply insider trading which it is, but if ASIC can’t make the link between the profit and the act then your “spirit” becomes a very good loophole.

    This is an absurd and irrelevant non-sequitur. No-one is suggesting the method of market manipulation be considered a mitigating factor. I dismiss it because it is ridiculous on its face. The treatment of someone caught insider trading will not change regardless of any outcome regarding Moylan. Should this ever reach court, it will be argued and resolved on semantics and minutiae – what a “person” is, what “manipulation” means, etc. Even if he is never charged, there is no new loophole to exploit, and no amount of disingenuous pontificating by talking heads will change that.

    And finally your argument relies on the “spirit” of the law and a very generous view of Moylan’s intent where as back in reality he clearly issued a false statement (deliberately and with premeditation) that blind freddy could of seen would of impacted the share price negatively, he even received a gain in free publicity which could be calculated by some advertising guru.

    Fortunately, Blind Freddy doesn’t run the justice system. My interpretation of his intent is based on the available evidence, as the courts’ will be. I am happy to change my views as more evidence comes to light. Let me know when you have some.

  6. Jimmy

    Dr SMithy – “At best you could compare knocking off your wife for the insurance to euthanasia.” – Or possibly more accurately an honour kil ling

  7. Jimmy

    Dr SMithy – You are arguing that it isn’t the act of market manipulation that should be punished but the reason for it, that is where your analogy falls down – in your analogy the acts are different, one is accidental death the other is premeditated murder, in this case both acts are premeditated murder however one is for supposedly altruistic purposes while the other is for financial gain. At best you could compare knocking off your wife for the insurance to euthanasia.

    As for the “spirit” again I come back to people seeking to exploit this “spirit”, setting up strategies to make themselves appear as though they are doing it for political reasons and having the gain 5 steps removed, you dismiss this as simply insider trading which it is, but if ASIC can’t make the link between the profit and the act then your “spirit” becomes a very good loophole.

    And finally your argument relies on the “spirit” of the law and a very generous view of Moylan’s intent where as back in reality he clearly issued a false statement (deliberately and with premeditation) that blind freddy could of seen would of impacted the share price negatively, he even received a gain in free publicity which could be calculated by some advertising guru.

  8. drsmithy

    I am aware of what the relevant law says. I am also aware that the “spirit” of the law is to discourage and punish insider trading, and similar behaviour centred on personal profit by deception and fraud. Thus, it is a poor fit for Moylan’s scenario.

    NO but anyone who issues a fraudulent press release with market sensitive information is manipulating the market, how can you not see that – please look at the section of the act.
    The point of this whole discussion is not whether or not his actions may have breached the act, but whether or not he should be treated equivalently to someone who deliberately manipulates the market for personal profit.

    You are arguing Moylan should be considered equivalent to someone who specifically seeks to manipulate the market for the explicit purpose of personal profit. This is the “pre-mediated murder” in my analogy.

    I am arguing Moylan did not specifically seek nor intend to manipulate the market at all, let alone for personal profit. This is the “accidental death” in my analogy.

  9. Jimmy

    Dr Smithy – One final thing here is the relevant section of the act as suppl ied by fellow poster Scott on another thread, please not it doesn’t mention anything about “personal gain” and if you could explain how he didn’t breach the rules it would be great;
    ““CORPORATIONS ACT 2001 – SECT 1041E
    False or misleading statements
    (1) A person must not (whether in this jurisdiction or elsewhere) make a statement, or disseminate information, if:

    (a) the statement or information is false in a material particular or is materially misleading; and

    (b) the statement or information is likely:

    (i) to induce persons in this jurisdiction to apply for financial products; or

    (ii) to induce persons in this jurisdiction to dispose of or acquire financial products; or

    (iii) to have the effect of increasing, reducing, maintaining or stabilising the price for trading in financial products on a financial market operated in this jurisdiction; and

    (c) when the person makes the statement, or disseminates the information:

    (i) the person does not care whether the statement or information is true or false; or

    (ii) the person knows, or ought reasonably to have known, that the statement or information is false in a material particular or is materially misleading.

    Note 1: Failure to comply with this subsection is an offence (see subsection 1311(1)). For defences to a prosecution based on this subsection, see Division 4. “

    And obviously given the context of the sentence “Ok Dr Smithy I give up Moylan had to intent to manipulate the market he simply wanted to issue a false press release that no one would take seriously and take no action.” Shold of read “Ok Dr Smithy I give up Moylan had NO intent to manipulate” so yes you are right I have no evidence to support this assertion.

  10. Jimmy

    Dr Smithy – “So let me get this straight. You’re arguing that anyone, who performs any action which the market responds to, who could in any way – tangible or intangible, demonstrated or imagined – to be considered to have “benefitted”, they should be thrown in gaol for a decade and fined half a million dollars ?”
    No, I am saying someone who deliberately issued a fraudulent press release with market sensitive information deliberately manipulated the market and therefore breached the law.
    I have posted the relevant section of the act as posted by Scott on another thread (if you search this site for whitehaven you’ll find it) but it has been stuckin moderation and nothing in there mentions anything about “personal gain” financial or otherwise.

    “Or are you trying to argue the only way anyone can raise attention about corporate behaviour is market manipulation ? Because if so that’s a pretty scary concept.” NO but anyone who issues a fraudulent press release with market sensitive information is manipulating the market, how can you not see that – please look at the section of the act.

  11. drsmithy

    I give up Moylan had to intent to manipulate the market […]

    You have no evidence to support this assertion.

    […] he simply wanted to issue a false press release that no one would take seriously and take no action.

    You do understand it’s possible his false press release could garner attention _without_ being considered market manipulation, right ?

    Or are you trying to argue the only way anyone can raise attention about corporate behaviour is market manipulation ? Because if so that’s a pretty scary concept.

    If you ever want to join the rest of us in reality please feel free to post again but otherwise let’s end it here because your unwillingness to acknowledge even the most obvious point, that issuing a fraudulent press release with market sensitive information is clearly market manipulation regardless of whether you you personally profit from it or not makes trying to have a rational discussion impossible.

    This is what’s happened in “reality”:

    Everything I’ve posted is supported by the available evidence.

    * Moylan _has not_ stated he intended to manipulate the market.
    * Moylan _has_ stated the plunge in stock price was not his intent, and that he apoligised to those who had been harmed.
    * No charges have been filed.
    * No arrests have been made.

    Meanwhile, nothing you’ve written about his motives, intent, expected outcomes, confessed guilt, or anything else, are based on _anything_ except your own (or someone else’s repeated) opinions and suppositions. Let us know when you have accusations based on evidence, rather than speculation and a sadistic desire to see someone’s life ruined.

    This is completely wrong – his intent was not to manipulate the market for “financial” gain which is completely different to “personal” gain (the attention received was the “personal” gain he received) which is why “why he should be punished as harshly as someone who deliberately and conspiratorily sets out to manipulate the market for personal profit” because he did deliberately set out to manipulate the market for personal profit, the fact that profit wasn’t financial (although if the hoax was as successful as you would have us believe it should have riased donations) is irrelevant.

    So let me get this straight. You’re arguing that anyone, who performs any action which the market responds to, who could in any way – tangible or intangible, demonstrated or imagined – to be considered to have “benefitted”, they should be thrown in gaol for a decade and fined half a million dollars ?

    Tell us, in your glorious corporatocracy, how anyone could be expected to make even the vaguest criticism of any publicly-listed company with that sort of consequence hanging over their head ?

  12. Jimmy

    Dr Smithy – One final thing here is the relevant section of the act as supplied by fellow poster Scott on another thread, please not it doesn’t mention anything about “personal gain” and if you could explain how he didn’t breach the rules it would be great;
    ““CORPORATIONS ACT 2001 – SECT 1041E
    False or misleading statements
    (1) A person must not (whether in this jurisdiction or elsewhere) make a statement, or disseminate information, if:

    (a) the statement or information is false in a material particular or is materially misleading; and

    (b) the statement or information is likely:

    (i) to induce persons in this jurisdiction to apply for financial products; or

    (ii) to induce persons in this jurisdiction to dispose of or acquire financial products; or

    (iii) to have the effect of increasing, reducing, maintaining or stabilising the price for trading in financial products on a financial market operated in this jurisdiction; and

    (c) when the person makes the statement, or disseminates the information:

    (i) the person does not care whether the statement or information is true or false; or

    (ii) the person knows, or ought reasonably to have known, that the statement or information is false in a material particular or is materially misleading.

    Note 1: Failure to comply with this subsection is an offence (see subsection 1311(1)). For defences to a prosecution based on this subsection, see Division 4. “

  13. Jimmy

    Ok Dr Smithy I give up Moylan had to intent to manipulate the market he simply wanted to issue a false press release that no one would take seriously and take no action.

    The point of this stunt was absolutely nothing.

    If you ever want to join the rest of us in reality please feel free to post again but otherwise let’s end it here because your unwillingness to acknowledge even the most obvious point, that issuing a fraudulent press release with market sensitive information is clearly market manipulation regardless of whether you you personally profit from it or not makes trying to have a rational discussion impossible.

    Finally – “his objective was not to manipulate the market, and in particular, not to manipulate the market for personal gain, which is the focus of the law (and harsh punishments) around market manipulation.” This is completely wrong – his intent was not to manipulate the market for “financial” gain which is completely different to “personal” gain (the attention received was the “personal” gain he received) which is why “why he should be punished as harshly as someone who deliberately and conspiratorily sets out to manipulate the market for personal profit” because he did deliberately set out to manipulate the market for personal profit, the fact that profit wasn’t financial (although if the hoax was as successful as you would have us believe it should have riased donations) is irrelevant.

  14. drsmithy

    Are you really this stupid or do you just see the world entirely through one prism and everything on the left must be good.

    I’m a little unclear on how being “Left” or “Right” has any bearing here. This is (I thought) a discussion about how a law intended to discourage and punish insider trading and other forms of market manipulation for personal gain should be applied to a situation where explicit market manipulation (and certainly personal profit) was quite possibly neither the objective nor intent of the perpetrator.

    The clear evidence of Moylans intent to manipulate the market is that he has admitted he released a fraudulent document to the media with highly market sensitive information – if his intent wasn’t to impact the market it would of been the worst hoax in history.

    So there isn’t actually any evidence of an intent on his behalf to manipulate the market in anything he’s said so far ? That is to say you’ve been lying about what he actually admitted to ?

    Because after having a bit of a look through the various news reports, I can’t actually find anything quoted from him about setting out to manipulate the market. Indeed, quite the opposite, the only relevant statement he’s made says the exact opposite .

    And again if his stunt didn’t affect the markets what public attention would he have got? If the papers hadn’t printed the story who would of known about the hoax?

    Unknowable and irrelevant. “Supposition”, as they’d say on one of those TV shows. You are assuming his intent based on your own beliefs which is, fortunately, not how the law works.

    I cna’t see how you can possibly argue that the actions of deliberately forging a document and releasing it into the public domain had on “incidental” correlation to the resulting market response, you need to remove your bias if you want to be taken seriously.

    I didn’t say it had an incidental correlation. I said the effect on the market was incidental to Moylan’s intent. Ie: his objective was not to manipulate the market, and in particular, not to manipulate the market for personal gain, which is the focus of the law (and harsh punishments) around market manipulation.

    You have yet to offer any reasoning as to why he should be punished as harshly as someone who deliberately and conspiratorily sets out to manipulate the market for personal profit – which is, after all, the primary reason laws around market manipulation exist – given the vastly different intents and outcomes behind the two scenarios.

  15. Jimmy

    Dr Smithy – Are you really this stupid or do you just see the world entirely through one prism and everything on the left must be good.

    The clear evidence of Moylans intent to manipulate the market is that he has admitted he released a fraudulent document to the media with highly market sensitive information – if his intent wasn’t to impact the market it would of been the worst hoax in history.

    And again if his stunt didn’t affect the markets what public attention would he have got? If the papers hadn’t printed the story who would of known about the hoax?

    If Moylan thought the media would do a thorough fact checking job then again the hoax could not have worked so it stands to reason that he knew (or at least beli eved to a point of certainty) that the shoddy journalistic standards were able to be exploited in the manner he did.

    I cna’t see how you can possibly argue that the actions of deliberately forging a document and releasing it into the public domain had on “incidental” correlation to the resulting market response, you need to remove your bias if you want to be taken seriously.

  16. drsmithy

    This is the issue there is clear evidence of Moylans intent to manipulate the market […]

    Where ?

    Until you can grasp the fact that getting ” public attention” hinged directly on him affecting the markets and there was nothing “incidental” about it […]

    No it isn’t because he knew he could exploit the shoddy journalistic standards in this country and his action were premeditated market manipulation.

    Please provide evidence for your claims.

  17. Jimmy

    Elizabeth – Maybe you could elaborate on what damaging practices Australian Banks performed, what support they received and how the actions of Australian Banks lead to the GFC

  18. Elizabeth Thornton

    Hopefully the media which happily printed this untruth, may do their best to illustrate the difference in treatment meted out to this young man, and support that the banks have received when they dealt in very damaging practises leading to the GFC.

  19. Jimmy

    Dr Smithy – “There’s nothing wrong with my logic, or argument, unless you have some evidence of intent to manipulate the market for Moylan’s personal profit.” This is the issue there is clear evidence of Moylans intent to manipulate the market however because it wasn’t for his personal gain you try to claim that the financial impacts were unintended, ie “If you accidentally ran into a drunk who stumbled in front of your car,” but he didn’t accidentally manipulate the market – he did it deliberately ie he “ki lled someone for political reasons”.

    Until you can grasp the fact that getting ” public attention” hinged directly on him affecting the markets and there was nothing “incidental” about it then I am afraid you will continue to live in a dluesional fantasy.

    And “To try and argue a hoax press release containing the kind of information that would never normally be issued in a public press release, whose impact was primarily driven by irresponsible media outlets and broken automated trading systems, should be considered equal to premeditated, conspiratorial, market manipulation, is absurd.” No it isn’t because he knew he could exploit the shoddy journalistic standards in this country and his action were premeditated market manipulation.

  20. drsmithy

    Dr Smithy – Your argument hinges completely around the premise that Moylan didn’t intend for there to be any impact on the companies share price when this is clearly untrue.

    No, it does not.

    My main point is that the kind of harsh punishment targeted at offenses like insider trading is a completely inappropriate reaction for his actions. This is especially true given that the majority of the “damage” was caused by actions of others outside of his control or influence.

    If it wasn’t his intention the prank would have had no impact and no exposure at all.

    Not necessarily true.

    To try and argue that issuing a press relase with market sensitive information wasn’t intended to be published and wasn’t intended to impact the share price is absurd.

    To try and argue a hoax press release containing the kind of information that would never normally be issued in a public press release, whose impact was primarily driven by irresponsible media outlets and broken automated trading systems, should be considered equal to premeditated, conspiratorial, market manipulation, is absurd.

    Worthy of note, again, is that some media organisations were suspicious and did try to verify the information, at which point they discovered the true nature of the information.

    Once you acknowledge the reality that his actions were deliberate and calculated your faulty logic of comparing him to someone who accidentally ran over a drunk doesn’t stand up, and the rest of you argument falls like a house of cards.

    There’s nothing wrong with my logic, or argument, unless you have some evidence of intent to manipulate the market for Moylan’s personal profit.

    Now, once you are prepared to accept the clear and fundamental difference between doing something to get public attention that incidentally happens to affect the market, and doing something explicitly to manipulate the market for personal profit, we might be able to divine why you think Moylan should be severely punished for an outcome almost entirely driven by the irresponsibility and greed of others.

  21. Jimmy

    Dr Smithy – Your argument hinges completely around the premise that Moylan didn’t intend for there to be any impact on the companies share price when this is clearly untrue.
    If it wasn’t his intention the prank would have had no impact and no exposure at all.
    To try and argue that issuing a press relase with market sensitive information wasn’t intended to be published and wasn’t intended to impact the share price is absurd.

    Once you acknowledge the reality that his actions were deliberate and calculated your faulty logic of comparing him to someone who accidentally ran over a drunk doesn’t stand up, and the rest of you argument falls like a house of cards.

    And getting noticed might be 90% of the battle but once you get noticed you need to articulate your message, this is where he failed,

  22. drsmithy

    No, we don’t. We don’t even have an arrest, let alone a charge, let alone a court case, let alone a guilty plea.

    In fact, I realised after posting this, we don’t even have the _offence_ he’s accused of yet.

  23. drsmithy

    Jimmy, OK you guys are inventing new metaphors and analogies and solving the same case over and over – but you’ve already got a guilty plea.

    No, we don’t. We don’t even have an arrest, let alone a charge, let alone a court case, let alone a guilty plea.

    I am still waiting to hear a good reason why this man should be crucified due to a series of circumstances almost entirely outside of his control, and almost certainly outside of his expectations and intent. I expect the neoliberal fan club at the Oz to champion the cause of big business over everything else, with a dash of “think about the mum and dad investors” bullsh!t in there to suck in the useful idiots, but I’m struggling to see why the random poster on Crikey can’t wait to see someone thrown in gaol for a decade.

  24. drsmithy

    Because the aren’t different – If I ki lled someone for political reasons is that a different offence to kil ling someone for profit?
    If you accidentally ran into a drunk who stumbled in front of your car, I’d most certainly expect you to be treated differently than if you conspired with others over the course of years to murder someone for profit.

    Yes it would if a precedent is set that political motivations are exempt?
    No it would not. “Doing something that happened to affect the market” (what Moylan has done) and “deliberately seeking to manipulate the market for personal advantage” (insider trading) are completely different things. Setting a precedent for one would not in any way set a precedent for the other.

    But what evidence would there be?
    At the very least, there would be a change in trading patterns and irregular money transfers between you.

    It maybe “bog standard” but by setting a precedent by letting Mo ylan off because his actions were “political” you simply open another avenue for the defence of insider trading, make it look like you were acting for political purposes and you get off, or at least a reduced sentence.
    No you don’t. The offense is not lessened because you happen to have done it in a creative way, or because someone accused of a completely different offense happened to have done something vaguely similar.

    Let’s just say the work colleague was the only one who had spare cash and he invested based on the info – insider trading you say but ASIC would have a hard time finding the connection given all the conversations were in person, ie no electronic record, and no one has met more than 2 other people.

    And, amazingly, not a single hippie needed to be involved in the execution of this conspiracy !

    Now let’s just say you were happy to split the proceeds of a Moylan style “prank” 5 ways knowing that you could claim “political” reasons and no one gets punished?

    Because the legal system does not work that way. You don’t get let off murdering your wife for her money because some other guy killed his wife in self defence. THEY ARE COMPLETELY DIFFERENT SITUATIONS EVEN THOUGH BOTH OF THEM RESULT IN A DEAD BODY.

    He has admitted his guilt, he has stated he is willing to accept the consequences – I don’t think the presumption of innonce applies after that – it is only a matter of what punishment he gets.

    To what actual crime has he admitted guilt ? Does that not require him to first actually be _charged_ with something ?

    Geting noticed is only half the point, getting your message out is the other, I doubt anyone in the general public could name the mine in question or environmental damage it is supposedl y going to cause.

    I’m not going to profess to be an expert on public protest, but I’d be willing to bet most in the field would consider “getting noticed” to be 90% of the battle.

  25. Hugh (Charlie) McColl

    Jimmy, agreed but I think those wider issues (the economy, climate change, politics the whole shooting match) are in a different field from the specifics of reporting for the stock exchange, or more broadly, the ‘markets’. A financial institution like a bank doesn’t actually do announcements for the market by ‘press release’. They report in a defined and totally predictable format – not the way it happened when Moylan had a go. This is why I find the response of the regulator to the actual practice of the media reporting on this false material so unsatisfactory. Basically the newspapers should be made accountable but no one seems to agree with me. I can’t understand why. And I guess nothing will change because there isn’t actually a ‘regulator’ and apparently no one thinks the media did anything wrong at all, ever.

  26. Jimmy

    Hugh ” what to do about the ‘publication’ of false information” it is a great question and it doesn’t just relate to what was published concerning Whitehaven but what get’s published about the economy, climate change, politics the whole shooting match.

    The only answer I can see is strong regulator with the power to investigate without the need for a complaint and force proper retractions and corrections.

    This does leave me open for impinging free speech but when people are so loose with their “rights” you could argue they don’t deserve them.

  27. Hugh (Charlie) McColl

    Jimmy, OK you guys are inventing new metaphors and analogies and solving the same case over and over – but you’ve already got a guilty plea. Come back to the harder question – what to do about the ‘publication’ of false information. You agree that the media has to lift its game but what does that actually mean? Media in this country are strongly adamant they will not be regulated by anyone – even ASIC. That is why no one, including you it seems, is pointing a finger in the direction of the loud-mouthed but seemingly unaccountable media outlets. How is it that there is no forensic examination of the turns of events in this case – even by those media that were not involved at all? Why is it a no-go zone?

  28. Jimmy

    Hugh – “Did Mr Moylan ever say he was “innocent”?” NO he hasn’t, he has admitted his guilt and his willingness to accept the consequences which I have previously given him credit, it is others on this site who have argued he shouldn’t be held accountable because it was the media’s fault.

    Dr Smithy – “. I, for one, am interested to hear why you think these two clearly completely different offenses (if, indeed, Moylan’s actions are even found to be an offense) should be punished – or even treated – identically.” Because the aren’t different – If I ki lled someone for political reasons is that a different offence to kil ling someone for profit?

    “Firstly, that still wouldn’t be any sort of excuse for insider training” Yes it would if a precedent is set that political motivations are exempt?

    “With evidence ?” But what evidence would there be? My associate’s trading pattern wouldn’t have changed to alert suspicion, there is no trace evidence of us having spoken for at least 8 years, I don’t even have a photo of the cricket side we played in.

    It maybe “bog standard” but by setting a precedent by letting Mo ylan off because his actions were “political” you simply open another avenue for the defence of insider trading, make it look like you were acting for political purposes and you get off, or at least a reduced sentence.

    Another example I could use is that a mate of mine has a brother in law who works in a exploratory mining company, he will on occasion discuss his work with my mate, my mate discussed it with me, I discussed it with my brother and my brother discussed it with a work colleague. Let’s just say the work colleague was the only one who had spare cash and he invested based on the info – insider trading you say but ASIC would have a hard time finding the connection given all the conversations were in person, ie no electronic record, and no one has met more than 2 other people.

    Now let’s just say you were happy to split the proceeds of a Moylan style “prank” 5 ways knowing that you could claim “political” reasons and no one gets punished?

    ” I know, but some of us still believe in the presumption of innocence” He has admitted his guilt, he has stated he is willing to accept the consequences – I don’t think the presumption of innonce applies after that – it is only a matter of what punishment he gets.

    “The point is to get noticed, which has been done quite successfull y” Geting noticed is only half the point, getting your message out is the other, I doubt anyone in the general public could name the mine in question or environmental damage it is supposedl y going to cause.

  29. Hugh (Charlie) McColl

    Naughty Jimmy, “…. Moylan can’t use the incompetence he deliberately exploited as a reason for his innocence”. Did Mr Moylan ever say he was “innocent”? I don’t think so. Verballing the suspect is not even allowed on “Law and Order”. Demoted to Deputy Sheriff.

  30. drsmithy

    But what has the coverage been about – the terrible impact the coal mine will have on the environment or that he will probably go to jail? To me his message hasn’t got out at all.

    The point is to get noticed, which has been done quite successfully. Far more successfully than, say, parking yourself with a sign in front of ANZ headquarters or a mine site would have.

    Yes they may investigate it everyday but given the number of people on here defending Moylan by accusing the whole system of being corrupt in the first place they don’t seem to be very successful.

    That’s a non-sequitur.

    And if the intent is what is important how do ASIC and the courts prove intent?

    With evidence ?

    Crazy, I know, but some of us still believe in the presumption of innocence. That means if yoru accuser can’t provide evidence to support their accusation, nothing happens to you.

    I played cricket for some time but about 8 years ago he moved interstate and then I subsequently moved about an hour away from our original town. It would be quite easy for me to find out his current address and get in contact with him leaving no electronic trail. How would ASIC link the 2 of us if he made money on me blowing up the stock?
    If I also ensured that I joined numerous left wing and environmental causes and associations and if he ensured he was an active trader for the next 12 months his trades would not look suspicious and I would appear to be the environmental warrior making a political point.

    Once again, you are trying to lay a contemporary anecdote over a bog standard insider trading scam. The suggestion that no-one has ever thought of this sort of thing before, just with a slightly different flavour, and hence that there’s somehow some new, never-before-considered angle that’s now suddenly open for abuse, is comically absurd.

    And I am sure there are people much brighter than me who can come up with much more sophisticated scams than that to expolit the “I was making a political statement” defence that you seem to think should be available.

    Firstly, that still wouldn’t be any sort of excuse for insider training, even if Moylan is never charged with a single offense (or is not found guilty of anything).

    Secondly, I didn’t say anything about it being an excuse. I said that Moylan’s actions present a vastly different scenario – legally, ethically and morally – than a premeditated and calculated attempt to manipulate the market for personal gain. I, for one, am interested to hear why you think these two clearly completely different offenses (if, indeed, Moylan’s actions are even found to be an offense) should be punished – or even treated – identically.

  31. Jimmy

    Hugh – I have never said the media were innocent, just that Moylan can’t use the incompetence he deliberately exploited as a reason for his innocence.

  32. Hugh (Charlie) McColl

    Jimmy, you, seemingly approvingly, quoted the Age on Saturday demanding that ASIC makes an example of Moylan. Isn’t the Age, or its parent Fairfax, one of the media outlets that published and thereby made possible the hoax bank announcement? Wasn’t that publication an incompetent, even facilitatory act? Has Fairfax apologised to the share trading public for the damage its incompetent fact-checking and non-existent publication protocols caused? I’m all for hunting Moylan down but he is actually a bit player in the much larger circus of insider-trading and market manipulation in which Fairfax seems to think it is merely an innocent bystander. Yes, go after Moylan with guns blazing but please keep some perspective or otherwise lose all credibility.

  33. Jimmy

    Dr Smithy – “Uh, the massive media coverage ? Seems to me it’s been quite successful at getting notice.” But what has the coverage been about – the terrible impact the coal mine will have on the environment or that he will probably go to jail? To me his message hasn’t got out at all.

    “This is a bog standard insider trading scenario, the kind that ASIC investigates on probably a daily basis. The excuse and method is just semantics.” Yes they may investigate it everyday but given the number of people on here defending Moylan by accusing the whole system of being corrupt in the first place they don’t seem to be very successful.

    And if the intent is what is important how do ASIC and the courts prove intent? I played cricket for some time but about 8 years ago he moved interstate and then I subsequently moved about an hour away from our original town. It would be quite easy for me to find out his current address and get in contact with him leaving no electronic trail. How would ASIC link the 2 of us if he made money on me blowing up the stock?
    If I also ensured that I joined numerous left wing and environmental causes and associations and if he ensured he was an active trader for the next 12 months his trades would not look suspicious and I would appear to be the environmental warrior making a political point.

    And I am sure there are people much brighter than me who can come up with much more sophisticated scams than that to expolit the “I was making a political statement” defence that you seem to think should be available.

  34. drsmithy

    Dr SMithy – “The “same thing” isn’t doing it as a political statement” No but it opens it up as defence, all they have to so is say their motivations were political, have an associate that is distant enough not links that are that easily spotted (say someone you played footy with 10 years ago and haven’t had contact with since) and wait until after the court case before they split the profits (and preferably get paid out in cash).

    This is a bog standard insider trading scenario, the kind that ASIC investigates on probably a daily basis. The excuse and method is just semantics.

    And no one here has been able to say what exactly the hoax achieved for his cause.
    Uh, the massive media coverage ? Seems to me it’s been quite successful at getting notice.

    Incidentally, whether or not it achieved anything for his cause isn’t really important. What’s important is whether or not he was trying to use deception to manipulate the market for personal financial gain. It is the _intent_ that matters.

  35. Jimmy

    Dr SMithy – “The “same thing” isn’t doing it as a political statement” No but it opens it up as defence, all they have to so is say their motivations were political, have an associate that is distant enough not links that are that easily spotted (say someone you played footy with 10 years ago and haven’t had contact with since) and wait until after the court case before they split the profits (and preferably get paid out in cash).

    And no one here has been able to say what exactly the hoax achieved for his cause.

  36. drsmithy

    And secondly what it to say the “dozens of bright people trying to think of a way of doing the exact same thing but making a profit out of it.” aren’t thinking “I will tank a mining stock on the premise of it being politically motivated AND I will tell an associate of my plan so they can make the trades, get the profit and we’ll split it”
    The “same thing” isn’t doing it as a political statement, it’s issuing a false press release with the explicit intent of manipulating the market for personal gain.

    If you have some information this was Moylan’s intent, I’m sure ASIC would be very interested to talk to you.

    Once again, there is a _vast_ gulf of difference between playing a hoax that just happens to put a brief blip in a stock price, and a calculated, deliberate deception to create a the same sort of stock price blip with the intent of deriving personal financial gain from it.

  37. Jimmy

    Dr Smithy – “Whoa there. That is a massive false equivalence.
    There is a _vast_ gulf of difference between a hippie making a political statement, and a bunch of professional stock traders manipulating the market for their own advantage.” “It’s like arguing someone who runs over a random pedestrian after having a fit behind the wheel should face the same sanction as the husband who murders his wife for her inheritance after years of planning.”

    Firstly your analogy doesn’t fit for it would be like someone killing their wife for “political reasons” compared to someone killing their wife for “profit” and I’m pretty sure both would get about the same jail time.

    And secondly what it to say the “dozens of bright people trying to think of a way of doing the exact same thing but making a profit out of it.” aren’t thinking “I will tank a mining stock on the premise of it being politically motivated AND I will tell an associate of my plan so they can make the trades, get the profit and we’ll split it”

  38. drsmithy

    I am not pro business at the expense of all others but in this case the breach of the law is clear – and one that he has admitted to – and as the Age said on Saturday if ASIC doesn’t make an example of him there are dozens of bright people trying to think of a way of doing the exact same thing but making a profit out of it.

    Whoa there. That is a massive false equivalence.

    There is a _vast_ gulf of difference between a hippie making a political statement, and a bunch of professional stock traders manipulating the market for their own advantage.

    The idea that the former should face a punishment even vaguely like the latter, even if the execution is similar, is absurd. It’s like arguing someone who runs over a random pedestrian after having a fit behind the wheel should face the same sanction as the husband who murders his wife for her inheritance after years of planning.

  39. Mike Flanagan

    Jimmy ;
    Thanks for your rebuttal Jim and it certainly makes legalese sense but Albanese’s sovereign risk comments in relation to the MRRT was also market sensitive. From Aristotle to Hume, Rawls and Dworkins we see much discussion about the equality of the individual before the law.
    Jim, I do recognise your balanced approach to Business and the markets, in fact I look forward to reading your insightful comments that are more entertaining and informative than much of the guff presented to us as facts from the overpaid journalist that the public have to endure.
    But I am afraid the cred of the many of the Age’s tea leaf readers and writers disappeared after the Symes family cashed the family jewel and particularly since the current Fairfax board and management turned it into the rag it is today.

  40. مكينSouthPacificSpunk

    Awesome, I sound so wise when I use caps.

  41. مكينSouthPacificSpunk

    I don’t know much about stock market and trading, and my friend said that it’s true that the modern trading system has become a bit like a casino but many of the traders, or small retail investors as Ms Robin calls them are retirees or mum and dad investors who set the automated price as some kind of protection because they don’t have the time to watch their stocks all the time.

    I don’t know about the argument that they don’t deserve sympathy because they are gamblers. There seems to be plenty of sympathy towards people who lost their money on the pokies.

    He seems like a nice young chap, and he did apologise to people who lost their money. I don’t know if he really had any malicious intent, but watching the interview with christine mitchmcconnell milne, she certainly sounds malicious.

  42. Jimmy

    Mike Flanagan “I could suggest your scales of justice seem to lack some balance.” Mike – If it can be demonstrated that there were breaches of the law in those cases then by all means ASIC should follow them up, however the difference is that in this case he made a fraudulent document which was issued in someone elses name and stated things that were factually & demonstrably inaccurate about something that was actually happening, in the mining companies cases they wer making “predicitions” which while most knew they were self serving and false they were only predictions and therefore held to a different standard.

    I am not pro business at the expense of all others but in this case the breach of the law is clear – and one that he has admitted to – and as the Age said on Saturday if ASIC doesn’t make an example of him there are dozens of bright people trying to think of a way of doing the exact same thing but making a profit out of it.

  43. joanjett

    Crap! You’re welcome

  44. joanjett

    @timnash geegee & pat are sheep goonies mate, don’t waste your cyberbreath & they drop off. Your welcome

  45. drsmithy

    Moylan’s guilt seems clear enough, […]
    Only if his actions broke the law, which is what we have courts to decide.

    The only people hurt by this event were speculators and gamblers relying on automated stock trading systems – ie: the people who are part of the problem with the modern stock market. It is difficult to feel any sympathy for them.

  46. Liamj

    How to defame a businessman: allege the businessman has a concience and loves his kids.

  47. Prefix

    I’m surprised none of the commentators on this case have considered whether Moylan’s actions are protected by the implied freedom of political communication. I’m no expert but it would seem there is at least a test case here that could go either way.

    (Though I suppose it’s not so surprising that the self-proclaimed champions of free speech in Australia at News Ltd haven’t looked at it from this angle.)

  48. Hamis Hill

    And, of course, the press release would never have been published at all if it had come from The Greens Party.
    So the AFR is at fault for failing to follow its normal stringent procedures to protect the public from untold damage.
    Stutchbury must be sacked!

  49. izatso?

    …. pirates, advocates for pirates ….. excuses for pirates, advocates for pirates excuses ….. parasitism declared. probity ? integrity ? HOAX ? publish the parasitical probity protocols NOW !! Bahahahah ….. you guys post smoke

  50. Mike Flanagan

    Jimmy;
    I could suggest your scales of justice seem to lack some balance.
    If we are to make Moylan a convict and dispatch him in leg irons to the colonies then there are a few more that should accompany him in the leg irons on bread and water.
    The dishonest paid advertising campaign by the mining industry against the MRRT puts a number of moguls and corporate bodies in the frame. That also had an effect on the casino euphamistically referred to as the ‘market’. ASIC will be busy.
    Furthermore the behaviour of the Coal Industry Association over the Carbon Tax is a fine example of fraud by those with money that may have had an impact on the same ‘market’
    And of course ASIC could consider the actions of our ‘illustrious’ finance sector in their lead up to the GFC.
    The principle of ‘criminal intent’ is certainly ‘old’ but ‘cobblers’ is dependant on the eye of purveyor but needless to say any law should be applied with balance to all.

  51. Tim nash

    GeeWizz

    “Cut off Moylans Dole for the rest of his life.”

    Moylan is a friend of mine and as far as I know he never has been on the dole. He was very serious about this and now I can see why, because of comments like yours.

  52. Steve777

    It seems to me that all that a media outlet in possession of the hoax email had to do was contact one of the named officials at the bottom of the document. Had they done so,there would have been no damage. And why is this sort of thing so damaging? Because market players act like a herd of some brainless prey animal on the veldt spooked by a lion. Because it is dominated by gamblers, not investors.

  53. Hugh (Charlie) McColl

    I beg your pardon. I realise that in a previous post I suggested that the MSM might be legally obliged to follow some probity protocols before ‘publishing’ any financial information (however you want to define that) into the public space.
    Of course, how unreasonable would that be? That newspaper publishers like, say, News Ltd, Fairfax or Crikey, are held legally responsible for the integrity of the (financial) material they choose to publish. Oh dear. That would be terribly inconvenient wouldn’t it? Shit yeah!

  54. Patriot

    Nothing uncertain about this at all. He is an eco-terrоrist who knowingly committed an act of economic sabotage. He should be thrown in gaol and left to rot.

  55. AR

    a person must not make statements that “have the effect of increasing, reducing, maintaining or stabilising the price for trading in financial products on a financial market operated in this jurisdiction”.” so all those foaming lunatics in shiny coats on the sacred floor and the well lubricated, post prandial hacks scribbling for the Fin & Oz biz scraps pf dead trees aren’t doing just this?
    Not infrequently with less probity.

  56. GeeWizz

    Cut off Moylans Dole for the rest of his life.

    That will stuff him…. the lazy dole bludger will actually have to go out and find a job rather than bludging off taxpayers and those evil coal mines.

    Perhaps we can get him working a job sweeping the chimneys at the local coal power plants that give him the lifestyle he takes for granted?

  57. Hugh (Charlie) McColl

    Jimmy, I suggest that ASIC throw exactly the same charge at the individual media ‘publishers’ as they throw at Moylan. Let’s hear the actual excuse of the MSM instead of assuming their innocence. There’s absolutely no satisfaction in fining or imprisoning someone like Moylan when the system appears to be set up to allow exactly the same thing to happen again. It can’t happen if the MSM has some protocols which they are legally obliged to follow.

  58. Brefney Ruhl

    Just goes to show. Stand in front of a bulldozer or even break a window in protest, you’ll get a fine and a good behaviour bond. Stand between a corporation and its bottom line and the government will throw the book at you.

  59. dazza

    “..How many prosecutions for captains of industry who strategically release information to manipulate the markets to their benefit?”

    http://www.youtube.com/watch?v=o1jUFNyZvHQ&feature=youtube_gdata_player

  60. مكينSultanofAustralisTerraNullius

    he seems like a sweet boy. let him go and punish christine milne for being such a vindictive person against the investors. somebody has to pay for the crime. you can’t say it’s people’s fault for not investigating it thoroughly, if that is the case there is no need to prosecute hoax and frauds, if we fell for a Nigerian scam or any other that is our fault for not investigating.

  61. zut alors

    Gavin Moodie’s 1.12pm post was spot on. This is the new age of journalism ie: reporting badly-written press releases without questioning the content.

    The journos are too busy writing opinion pieces these days, reporting the news is sooo 20th century. After all, fact-checking requires a little time and some research. And we’re all too busy for that in the 21st century…apparently.

    What a cheek to have the share price manipulated from the other side of the fence – doesn’t Moylan realise only those with vested financial interest get to play that game without charges being laid.

  62. Gavin Moodie

    I don’t think the analogy is very close, but yes, you should get a lower penalty for attempted robbery than for an executed robbery. And I suggest that in most circumstances most defendants would get a lower penalty for just attempting than for attempting and executing a crime.

  63. Jimmy

    Fractious – I am not preaching morals and ethics – Microseris asserted on another thread the small investors were fair game because they invested unethically – I just want Microseris to advise how they could of avoided such a fate and still pan for their retirement.

  64. Jimmy

    Gavin – I agree that the media should have checked the facts better but everybody knows that journalistic standards in this country (and elsewhere) are terrible and Moylan explioted that.

    If I successfully rob a bank because I knew the security guard was under trained and lazy should I get a lower penalty because I successfully exploited that and had he been a better security guard I would not have been able to execute my plan?

    So yes the security guard should be hauled ove the coals but it doesn’t lessen Moylans responsibility or culpability.

  65. fractious

    Jimmy – preaching morals and ethics under an article about the stock market? You’re a riot mate.

    Microseris “How many prosecutions for captains of industry who strategically release information to manipulate the markets to their benefit?”

    Precisely.

    From what I can se very little “damage” has been done, except to the reputation of the MSM and the “integrity” (bahaha) of the ASX. If Moylan is to be subject to criminal charges and civil suits as some form of ohbject lesson to others, shouldn’t those asleep at the wheel of the MSM organisations that publicised it further also get their arses kicked? Come to that, if what Moylan did was so wrong, shouldn’t those traders (like Morgan Stanley as Myriam Robin mentions) who made a handy million or fifty out of buying cheap stock and selling it high be made to give their grubby profits back? Or do “morals” and “ethics” not apply to those parties that profit off the back of an unlawful act?

  66. Gavin Moodie

    But the media are not an unwitting pawn: they are a competent actor in the episode.

  67. Jimmy

    Mike Flanagan – “Moylan’s intent was to highlight the culpabilit5y of the Coal Industry in their destruction of the common not to manipulate markets.” What a lot of old cobblers!! If he wanted to “highlight the culpability of the Coal Industry” there were plenty of other ways to do it without involving the market.
    His actions drew precious little attention to “culpability of the Coal Industry” as all the talk has been on the market impact.
    He knew what he was doing, he knew the impacts and to his credt he is apparently willing to take a lot more responsibility than any of his “supporters” on this website are willing too.

    Whatever happened to “Don’t shoot the messenger”?

  68. Mike Flanagan

    Boston theDog;
    How very true!
    How about the mens rea principle
    Moylan’s intent was to highlight the culpabilit5y of the Coal Industry in their destruction of the common not to manipulate markets.
    It is the incompetent press membersw who saw a unsubstantiated press release as a market impact and an opportunity to sell more advertising through increased circulation.

  69. Jimmy

    Gavin – “But the media is not a tool” Come on, if the media isn’t a tool why do people employ PR officers? Why does Murdoch keep his papers?

    Even if you treat the media like a human that doesn’t mean that Moylan didn’t exploit it, and when a “mastermind” exploits the weaknesses in an underling it is the mastermind who feels the full weight of the punishment, not the underling.

    Again this man came up with a plan, the plan worked perfectly so you can’t now push the responsibility for the consequences of that plan on the unwitting pawn, even if they should of known better.

  70. Gavin Moodie

    But the media is not a tool or a machine. It is an actor with agency and, I would prefer, responsibility.

  71. Jimmy

    Gavin – “Of course Moylan reached a big audience, but only because his media release was republished by the mainstream media.” Which was his exact intention – it wasn’t like he couldn’t foresee the papers would publish, he went to great lengths to ensure that they did.
    ” I suggest the mainstream media’s republication of Moylan’s statement was crucial to the extent of damage suffered.” Yes it was, just like a gun is crucial to the amount of damage the bullet does but do you hold the gun or the person who pulled the trigger responsible.

    If Moylan had of chosen not to use the gun (ie the media) but instead thrown his bullet at the victim (say by using a bull horn outside the ASX) then yes his damage wold be limited if someone else reused the bullet but in this case he planned his actions, the consequences were exactly as predcted so trying to blame the instrument is not going to work.

    Dazza – I would say No. The story I heard was they rang the number provided of the press release and spoke to Moylan pretending to be a ANZ employee who confirmed it.

  72. Gavin Moodie

    Of course Moylan reached a big audience, but only because his media release was republished by the mainstream media. I suggest the mainstream media’s republication of Moylan’s statement was crucial to the extent of damage suffered.

  73. dazza

    Is it true that the media actually rang ANZ to confirm the statement and when ANZ told this newspaper to forget it because it’s a hoax, the newspaper went ahead and printed it anyway?

  74. Jimmy

    Gavin – ” I suggest in Moylan’s case, the size and nature of the actual audience is important.” There was about 6m more shares traded on the day of the press release than either the preceeding or following day and more than $300m was temporarily removed from the companies value- I would say the extent of his impact was large

  75. Jimmy

    Microseris – So when you say in regards to your super you are “I am self funded. Ethically.” but you “don’t own shares.” I can only assume your entire super portfolio is in property as if you had money in the bank (like say the ANZ) then your money is being used to fund mines like whitehaven and who knows what else.

    I just hope all that property you own was built with ethical materials and that you don’t have any moral qualms about making it more difficult for first home buyers or profiting off people who can’t afford a house.

  76. Gavin Moodie

    If I issue a defamatory media statement to 200 people intending that it be republished to 2 million people but it doesn’t get republished then my defamatory statement was published to only 200 people and the damages would be modest. If I issue a defamatory media statement to 200 people intending that it be republished to 2 million people and it gets republished to 200,000 people then damages would be substantially higher than my statement being published to 200 but substantially lower than it being published to 2 million. In defamation and, I suggest in Moylan’s case, the size and nature of the actual audience is important.

  77. Boston the Dog

    I just like the imagery of those ASIC people “raiding” this bloke’s campsite near Boggabri!

    Wonder how they got there?

    Assault helicopter? Landcruiser? Cobb & Co coach? Horseback? Hiked?

    Shades of ‘Waltzing Matilda”?

    “Down came the Squatter a-riding his thoroughbred;
    Down came policemen – one, two, three.
    “Whose is the jumbuck you’ve got in your tuckerbag?
    You’ll come a-waltzing Matilda” with me.”

    Andrew Barton Paterson would be laughing.

  78. Microseris

    Jimmy, whilst I’m sure there is plenty of ethical investments out there, I don’t own shares.

  79. Jimmy

    SBH – I would think given that ASIC would need to see trading records for it’s investigations into suspicous trading it would always have had that power.

    And the difference with the dreamliner is whether the are demonstrably false and whether the person making the statement bel ieves it is true at the time of making it.

  80. SBH

    How does this stack up with companies making statements that can’t be true, like the saga followed in Crikey by Ben Sandilands of Boeing’s increasingly unrealistic ‘dreamliner’ deliver dates?

    And I don’t know about anybody else but when did ASIC, ostensibly an administrative regulator, get the power to sieze property. There are more any more government agencies that are given police powers and a number with quite extreme coercive powers which we wouldn’t give to police and that should be a concern for any citizen in a democracy.

  81. Bill Hilliger

    Its a case of Moylan plucked the mainstream media. They did his job for him.

  82. Bill Hilliger

    The MSM has clearly been shown up this time for not double checking the story of this financial magnitude; and last but not least of fanning the flame. There could be a case of the media aiding and abetting Moylans fake press release. The AFR has just demonstrated its integrity as a financial newspaper and that it cannot be taken seriously ever again on whatever they publish; and what they do print is best taken with a grain of salt. Meanwhile the next time something sensational is published let the reader be warned – do you own checking, don’t rely on journalists. Ha, ha, ha what a joke this is proving to be – the main joke is the tired and lazy MSM.

  83. Jimmy

    Gvin Moodie – You are totally ignoring “intent” you told “say, a couple of hundred people” with the express intention of them putting the story on the front page – therefore you may as well of put the story on the front page yourself.

    Microseris – I am still waiting for your morally approved investment list.

  84. Microseris

    It’s an absurd scenario where the enforcement of the law seeks to protect immoral speculation on the stock market but won’t protect the habitability of the planet.

    How many prosecutions for captains of industry who strategically release information to manipulate the markets to their benefit? As Katherine Murphy noted today in Fairfax, RMIT academics Cathy Greenfield and Peter Williams have found that finance journalism doesn’t simply report market trends, but participates in them, ”actively shaping public attention and categories of thought”.

    Due diligence by those reporting? Due diligence by the speculators?

    The new god is money. Amen.

  85. Gavin Moodie

    If I issued a press release I would have published my potentially defamatory statement about Brutus to, say, a couple of hundred people. If I confirmed and amplified that statement in calls from the media I may have repeated and perhaps exacerbated my defamation to 5 or 10 others. Damages would be higher than making my statement to my mate Les, but still modest compared to damages if my statement were published to some 100,000 readers.

  86. Jimmy

    Gavin Moodie – “If I say ‘Brutus is a traitor’ to my best mate Les, Brutus may have an action against me but the damages would be modest” And what if you issued a press release stating that “brutus is a traitor”? And if you then fielded calls to confirm the press release was accurate?

    The boy is in a world of pain and his actions did nothing for the cause.

  87. Malcolm Street

    “Market integrity is a fundamental case,” said Duns. “There’s been a couple of them and that increases the pressure on ASIC to take action.”

    Now *that’s* funny! Stock market with integrity, ASIC to take action!

  88. Gavin Moodie

    I suggest a better analogy is defamation. If I make a defamatory statement about someone to a mate the defamed person may have an action against me but the damages would be modest. However, if my statement were published on the front page of the Australian Financial Review the defamed person’s damages would be much higher.

  89. jesse mandrigorian

    “but there are still strong general deterrence factors regarding stock market manipulation.”

    haha, if this were true half the global financial institutions would be behind bars.

  90. Gavin Moodie

    I suggest a better analogy is defamation. If I say ‘Brutus is a traitor’ to my best mate Les, Brutus may have an action against me but the damages would be modest. However, if my statement is published on the front page of the Australian Financial Review, Brutus’ damages would be much higher.

  91. Scott

    Who do you blame…the wind that fanned the flames? Or the goose who threw the lit cigarette in the grass?

    You can rage against the wind if you like….but it seems the authorities believe the goose is easier to pluck.

  92. Jimmy

    Andybob – “The Court will not want to send a message that market manipulation is ok provided you do it for a just cause that you strongly believe in.” Especially as think that if they did there would be a flurry of people attempting to manipulate the market for a cause AND working in concert with like minded individuals who would profit – if only to fund the cause.

  93. Jimmy

    Gavin Moodie – ” He would have caused very little damage had the mainstream media not reported his media release as fact.”
    And Mark Chapman would of caused very little damage if the gun didn’t go off.
    The fact is Moylan loaded the weapon, aimed it and pulled the trigger, the fact that the weapon worked as intended doesn’t not mitigate his culpability.

  94. Andybob

    Lack of personal profit will be a mitigating factor regarding penalty, assuming Mr Moylan is convicted of an offence, but there are still strong general deterrence factors regarding stock market manipulation.

    The Court will not want to send a message that market manipulation is ok provided you do it for a just cause that you strongly believe in. The penalty imposed will include some component intended to deter others from similar conduct.

    Ultimately this kind of hoax prank can be self defeating. It removes focus from the coal companies and their conduct and makes the hoaxer’s conduct the centre of attention. Whether that conduct has the effect of alienating the public or not is the question. Here the debate so quickly swung around to the effect on ‘mum and dad investors’ (assuming that loss suffered by any other type of investor was immaterial) that it would seem the public is reasonably tolerant of this sort of thing. Whether they are sufficiently engaged to pay attention to the arguments against the development is the next question, I haven’t seen much discussion of the merits of Mr. Moylan’s objections in the MSM at all.

  95. Myriam Robin

    The people most hurt by the stunt aren’t in a position to sue, it seems to me. Whitehaven wasn’t hurt much. Its stock plunged and then rebounded. If anyone was hurt, it’s small retail investors who sold only to see savvy investors like Morgan Stanley pick up their stock on the cheap for an almost instant profit.

  96. Gavin Moodie

    Moylan’s guilt seems clear enough, but what penalty should he be given? He would have caused very little damage had the mainstream media not reported his media release as fact.

  97. Jimmy

    Yep the media was lazy but the results were exactly what was intended by Moylan so his guilt seems pretty clear.

  98. Limited News

    Hear hear Gavin, I was going to make the same point. The AFR was sucked in, judging by a Google cache I saw.

  99. Gavin Moodie

    Surely it is relevant that much of the damage was due to the media following its lazy habit of reporting press releases without doing even basic and simple checks.

Leave a comment

Advertisement

https://www.crikey.com.au/2013/01/11/uncharted-legal-waters-as-coal-hoaxer-mulls-jail-fines/ == https://www.crikey.com.au/free-trial/==https://www.crikey.com.au/subscribe/

Show popup

Telling you what the others don't. FREE for 21 days.

Free Trial form on Pop Up

Free Trial form on Pop Up
  • This field is for validation purposes and should be left unchanged.