One of the main paradoxes1 with regards to defamation law is that defamation only happens when a complaint has been made. No complaint, then no tort. Converging criticisms of an individual by several critics can exist at the same time but only the one complained of by a plaintiff is considered defamatory. Who and how many people read an article can be used to amplify the hurt of a plaintiff. In our case, articles were posted online and are considered newly "published" upon being viewed or "downloaded". Free speech and the right to criticise does not mean critics are free to lie. My criticism of defamation law should not be misinterpreted to mean this. As it has been previously put I go as far to say that defamation law exists to prevent a reputation from being damaged by the truth! In Australian defamation law, the truth remains defamatory even when it is proven to be true. A plaintiff can still prevent the truth from damaging their real reputation which is in reality a lie, though they do not get compensated for the damage done by a defamation that is true.
- Defamation occurs when and only when a "victim" sues. Prior to this the law is mute on any "offence".
- Defamation defences simply limit punishment regardless of truth if it is determined there was no "excuse" to impart it.
- Defamation law is bolstered by punitive underpinnings such that it can through fear or reprisal engender censorship and self-censorship.
- Defamation law is routinely misused to extort punitive monetary back-downs by a critic to avoid threats of court sanctioned persecution by a plaintiff with greater resources than a defendant (though sometimes this is the other way around).
- By reason of the above defamation law is designed to achieve an outcome through exertion of fear of financially punitive and damaging claims.
- Defamation law makes it simple for plaintiffs to utilise it for to achieve a collateral purpose such as prevent something from becoming too well known.
- Defamation law allows plaintiffs to pick and chose who they claim to be defamed by.
Another of the paradoxes of defamation law is that it brings out the best human traits in some, but also, exposes the worst of human traits in many. We do have reason to admire many people and they know this. Brave and true to their convictions and values they will stand for us and themselves in part. They exemplify the notion of displaying courage in the face of adversity. Others have run screaming in the other direction or ducked out of view trying to hide in the shadows, but we still see them. Is this reaction the fault of defamation law? Yes and No. Yes because of the above, defamation law is no picnic, and no because people are subject to their own fears and weaknesses as well as wary of threats which are real.
Dawn Tan is a graphic designer who exhibited at Guildford Lane Gallery within a group show "Youngbloods Fully Six". Tan reported with strident emphasis on how terrible was her and the group's experiences due to the antics of Robert Cripps which included;
- that he was "a big scary meanie",
- changed their contract agreement arbitrarily,
- obsessed about his dog ordering that no one was to go near it though it hung around them during set up,
- yelling at them whilst they used the gallery equipment,
- prevented them installing their artworks appropriate to the medium, and
- preventing them posting any qualifying artist or contextual documentation alongside their art works,
- upset her so much she left the gallery crying all the way to the train station initially thinking she'd not exhibit at all. (Fig 1)
Tan's online reportage declares at the end...
"…We are all in this together and you are not alone. I think we should all stand up against him, spread the word and not let him carry on with his crazy antics."
Tan made other very strong claims about Cripps and insisted that someone must stop him from doing more harm. One of the claims Tan makes is redacted intentionally in the attached image (Fig 1) to protect us from the punitive aims of defamation law….another of defamation law's paradoxes because…We would be sued and forced to prove what Tan had claimed, not Tan herself! This and the other claims made in her long blog posting, as pictured, was available and online from October 2010 until July 2013 when my co-Defendant, Demetrios first contacted Ms Tan. He politely wished to check with her the details on what had happened during her show as circumstances which though different in detail broadly mirrored our experiences in terms of Cripps' behaviours and that we too had written about them on our websites. But, as he warned her, now we were being sued by Cripps. Tan quickly pulled her page (Fig 2), as we might have expected, but what we didn't expect is that she also refused direct communication with us by not responding at all. The only communication came through her husband/partner who made contact (by phone) to relay she was very scared and got most of the information off our websites, despite the fact her complaints detail Cripps' hindrances of her own show, and that she had left the gallery crying. Tan's husband further attempted to appeal to our sympathy that, after all, she "was just starting out"…the conclusion being that we are expendable.
The false bravado of (pseudo) artistic folk like Tan (Fig 1, Fig 2 and Fig 3), declaring strength and indignation which disappears when reality knocks, appalls but does not surprise us. We have encountered this many times. We have at time debased ourselves, we feel, resorting to grovelingly requesting people, like Tan, to not ignore or set aside but instead face their fears and stand up for what is honourable, right and true. Witnesses do after all have privilege so fear is a demon of their own making and it is their own demons they submit to in the end. Thirtyseven "brave" people just like Tan inserted comments to her blog posting (Fig 1) in support for her courage to stand up for and speak out for what is right. "Good for you" many state. A Jacinta Moore (Fig 4) confirms she was on the receiving end of Cripps' antics too but to date declines to respond to our request to elaborate. One commenter notes how it was Tan's tweets about Guildford Lane Gallery and the treatment by Cripps which first alerted her to seek out the blog posting. (Fig 1)
Significantly Tan's "article" and tweeting had been available from October 2010. Cripps served us with a writ on April Fool's Day 2011. Why did he choose to sue us and not Tan? And, why did he choose to sue us so late? Our "articles" were online from September - November 2009 - updated in my case in April 2010. What are Cripps' motives for suing at all? - see defamation law points above to select the probable answer/s.
Cripps is suing us claiming that his business failed because we wrote about him.
However, we wrote about our experiences with Cripps, others with a similar experience of Cripps also wrote about their experiences (such as Dawn Tan and others). Others still relayed their experiences, which are equally as bad, orally. Artist after artist suffered a bad experience and relayed their experience to others. Cripps destroyed his own reputation because of his own poor behaviour and is suing us in order to profit from being a prick. His use of defamation law is a business decision, one he intends to use to paper over his extremely poor business acumen and conduct.
Other people who have experienced Cripps' antics personally or those who directly witnessed his treatment of us, such as Paul Carter and Cripps' numerous staff and volunteers working at his failed gallery have chosen not to come forward for two main reasons, that I can ascertain.
- The fear already mentioned, or
- due to their stronger devotion to self-preservation.
If people fear the law or Cripps' reprisal or threats (I'll sue you if you complain, you'll be sacked, given a bad report, will never get another job in this industry again etc., etc) this is understandable, but fear alone is not the only explanation. Not wishing to be involved in unpleasant matters is one we've heard and is an incredibly weak excuse. Not wishing to be professionally exposed is another weak excuse if one has any respect for the profession or others who engage within it. Those of course who continue to personally support Cripps must see his actions as warranted and necessary or why else would they support him? They must simply agree he has a right to behave as he has with artists like us, declaring us racist and getting away with it, due to the continued silence of those who witnessed it. They must agree with his declaration that our exhibition was racist and that his further actions to prevent us access to the gallery we had hired was warranted. They might instead provide support out loyalty to him as a friend? Or, are their fears born of other associations that compel their silence? Perhaps the silence or compliance is out of a duty born of mutual benefit, to him as a provider of services and an income that will enhance their own professional standing, relationships or performance careers?
Ultimately for them it is a question of one's courage and conviction to one's values. For the Dawn Tan's and Paul Carter's of the world it is clear such conviction collapses where there are concerns for self-preservation. It is their lack of action that illuminates and defines the point. Self preservation is their defining value system. I wish them well, they will likely have more success in this world than I will. I do though hope they have imprinted upon their memory the reality that they lacked courage when it truly counted, and see the visually telling metaphor of them wildly running in the opposite direction whilst someone they could have helped was left dangling over a precipice.
|Note 1 - Paradox Definition|
|Fig 1 - Dawn Tan Guildford Lane Gallery awful exhibition experience as part of Youngbloods Fully Six exhibition 2010|
|Fig 2 - Dawn Tan removes blog posting of Guildford Lane Gallery exhibition experiences after being contacted by us in 2013|
|Fig 3 - Dawn Tan on "Do not have your show at Guildford Lane Gallery!" and Cripps' propensity to lock access to the front gallery entrance and on "the boss" being a "big meanie". This link is still extant at http://www.flickr.com/photos/handmadelove/5079989981/|
|Fig 4 - Demetrios Vakras attempts to contact Jacinta Moore ("BawkBawk") who was a recipient of Cripps' "antics" and who commented on Tan's blog above in (Fig 1).|