Thursday, January 26, 2012

Burden of Proof

The Good Wife episode 2 "The Death Zone" (season 3) aired last night on Australian TV. 

If you need anymore straightforward a contrast between UK Libel laws and US equivalent laws you need not go past this line from the UK Council character, the evil Mr Thrush, who taunts  "Do you know the key distinction between the libel laws in you country and mine? The burden of proof is reversed." 

Australian Defamation law with some variations pretty much slavishly follows the UK model. 

What will not quite be clear to those unaware of Australian/UK Defamation laws, though hinted at in this episode, is there is a further noxious element to this reversal of burden of proof. That though the initial burden may be met and truth demonstrated, one can still be found to have defamed the aggrieved complainant because a reasonable person may be caused (by the writings or statement) to think less of him, the aggrieved party.

So there is even more burden on the defence to establish, not only truth but as well demonstrate there is a pattern of behaviour which can then be shown contributes to a "Duty to Inform" and, as inThe Good Wife episode, that there can be a successful defence mounted of "Qualified Privilege".  

Under the Australian/UK model who benefits?
The lawyers and a judicial system constructing and perpetuating processes intended to elongate, protract out proceedings until one or other party is financial exhausted? Huge payouts can be awarded/claimed with essentially no limit on the amount of money an aggrieved party can claim as proper damages. This along with the unwieldy and glacial moving as well as expensive legal processes are aspects used as a bullying tactic to scare and cow critics into immediate acquiescence to follow whatever ludicrous apology and other recompense demanded to avoid a defamation proceeding.

Once commenced the case will envelope and take over your life and finances, the whole process therefore it would seem is weighted to benefit the rich and connected and well resourced such as wealthy individuals, corporations, governments, states and monarchies.

The English legal system model which Australia follows is patently undemocratic, a product of protections based upon lese-majeste laws (meaning "injured majesty") where offences or libels against the crown (European, including UK, monarchies) are treated as a form of treason and a way to silence dissent of course. In modern situations these laws are used with "Chilling Effect" (silencing dissent) to limit criticism of not only monarchs and states but those with wealth, connection or some business reputation viewed as immune to criticism.

A system allowing such abuse has my complete and utter contempt and as I am experiencing it I feel very qualified making such blanket accusation. There is little equality or egalitarianism in a system, legal or otherwise, which prevents both parties meeting on an equal basis. 

Those in my (and my partners) situation are treated as undemocratically now as when lese-majesty laws flourished prior to and during feudal Europe and England. 

As Alicia exclaimed in "The Death Zone" in exasperation "You have got to be kidding!"

For all the background on my defamation case read other posts in this blog and go to

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About Leeanneart

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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.