Friday, September 23, 2011

How Australian Defamation Laws Chill

"In practice, defamation laws are frequently used as a means of chilling speech. A threat of (costly) defamation proceedings and damages, whether or not a plaintiff's claim is likely to be upheld by a court, is often used to silence criticism not only by a particular person or group but also as a threat to others."

Secrets prologue, 1997, oil on canvas, Lee-Anne Raymond

This is Australia 2011, and I am being sued for defamation. What have I learnt?

I have learned freedom of speech as most modern democratic citizens may understand it is not a right of citizens in this country. Indeed laws governing defamation in Australia are weighted against any critics who may publish or publicly present unfavourable or critical opinion, argument and ideas, be they; artists, authors, journalists, publishers, newspapers. Australian defamation law, the way it is framed, even following the unification of the 2005 act, effectively "chills" free speech.

I have learned what is meant by the term "chilling speech" as the direct quote above from Electronic Frontiers' FAQ regarding defamation law defines, it is of course to censor speech. Within the same FAQ is discussed ways to; minimise risk (of action being brought against you, should you be one at 'risk'), dealing with threats (of legal action against you) and, the defences you can employ should you be facing action. All very informative and I have to thank this and other organisations for sharing and making accessible this information online.

Within this particular FAQ I noted the heading of one section which struck a cord, "Defamation and Safe Speech". A tips section for how to say what is needed but not expose yourself to a charge of defamation. Personal and societal ethics and values aside the existence of helpful tips like this make me cringe in horror. It is saying couch the truth because they will come after you if you do not fudge it. This underscores that there is no freedom of speech, not only under our system of law, but in addition, within our conceptual grasp or perhaps societal character (Government ministers enjoy the privilege of a kind of technical parliamentary free speech). We are as a country governed by a secular democracy that is cowed into expression of only flaccid and inoculated "safe" forms free speech.

What does this mean?

As a person no longer simply at risk of being sued for defamation this is moot. Now that I am being sued I know personally about the chill and its insidious effect. My website host were threatened and the page on which I wrote an account of unprofessional practice of a gallery director back in 2009 was pulled down. My partners similar account as well was pulled down. This is the chilling effect. We are not celebrities, rich, influential, nor associated with a publication, our pages being pulled meant no discussion or opinion could be conducted about what was or was not defamatory, nor even available for anyone to have reported the matter.

A reference placed on another page to inform others I was being sued to explain why the link was unavailable was further to this taken down after an additional threat was made to my host provider. Does this mean I do not have the right to convey to a third party that I am being sued? The lack of clarity is universal. I believe I do have a right to inform my, audience (website visitors) that I am being sued and the page you are attempting to link to is down because of what I wrote about a poor experience with this gallery director in 2009. The public writ itself names Robert Raymond Cripps as the Plaintiff vs Demetrios Vakras and Lee-Anne Raymond the Defendants. It is a matter of public record. I must as well, apparently, take care not to too fully explain the context nor circumstance which has led to my being sued, even though this as well is a matter of public record.

In my experience of the law it seems I may discuss or comment only if I am enjoying the rights of parliamentary privilege (doubtful that will ever happen), or as a witness before the court, or a reporter of statements made under privilege in these contexts. As I am neither a parliamentarian or a reporter of my issue or yet a witness to it in court I apparently have no right to provide my audience with information surrounding my being sued. To the rational and logical thinker this is Kafka's, The Castle, a reality in which one must obey pre-prescribed rules and laws which have no rational explanation. As my partner observed, the legal system acts an awful lot like a religion. One is expected to simply "have faith" in the various proclamations and protocol however irrational, ridiculous or inconsistent.

Effectively without proof or conviction I am expected to accept being gagged by multiple threats of further legal retribution by the plaintiff in this matter. I do not accept this is the spirit of the law and, unlike the plaintiff, I take responsibility for my actions and restate the exhibition with his gallery was a disaster at the gallery director's hand. Declaring the show and my partner racist, barring our attending our own show, causing us personal and professional damage from which we are still recovering is no small event. In addition it was a public event and these matters played out in public at our expense. These are the reported facts behind the case and which he claims defame him. Defamation is considered proven if what was disseminated was out of malice (untrue) and caused the complainant's reputation harm. The truth we fully support with evidence. The plaintiff's reputation, good or bad is subjective. However, as our experience with the plaintiff is one shared by others prior to our showing at his gallery it would seem any reputation he had is self-earned and pre-existed our exhibition and commentary.

The penalties, if a ruling (if we ever get to court) is found against you, are indeed odious and severe. Laws are meant to work by modifying behaviour (seen as poor) and gain compliance (good behaviour). I argue that the penalties alone are a form of chilling, preventing free speech. In addition though it is how defamation law in particular is framed in law which is most concerning, as the laws assist to amplify the chilling effect and mussel fair and rigorous criticism.

To elaborate as discussed the cost of responding to the litigation alone represents a burden of such a punitive like nature that one, as an individual defendant becomes pauperised or cowed by this real threat before a matter is even heard in court. I maintain the law *By law, I mean our justice system*, works against individual citizens in this arena. This is not just because the threat of financial devastation is so real, but in reality the law is so badly framed that it appears to hold the defendant as guilty and as having defamed regardless of the court outcome. All that is decided upon is how valid are the defences for the defamation. This means defamation is assumed but perhaps there was a valid reason to do so.

I maintain to be silent is acquiescence, and this can and will be construed as an admission of guilt.
Is this a demonstration of the law working?

What really is chilling is that the law (justice system) may not care if it is working or not.

Post Script:
With different hosting arrangements now in place the pages are available and my professional art website now remains intact.

View the catalogue for Humanist Transhumanist Exhibition

About Leeanneart

My photo
Melbourne, Victoria, Australia
We are first and foremost human with a responsibility to the humanity within us and not to any faith, political, apolitical, social or societal group, union or faction. We are responsible for our own reputation, and for what deeds we do and what achievements or otherwise in life we enjoy. The rest is nonsense.