Australian Defamation Law Vs the Muscular Citizen

Silence, 2011

A SLAPP is intended to, censor and silence truth.

My partner Demetrios Vakras and I, both artists, are currently experiencing the expensive, contradictory and labyrinthine qualities of current Australian Defamation Law. My research to better understand and defend our legal position led me to the State Library of Victoria transcript of a 2005 Redmond Barry Lecture by publisher Morry Schwartz, "A Balancing Act: The Rightful Place of Defamation Law in Open Society". For this post heading I borrow from a portion of the lecture where Schwartz points out how we in Australia have no legislated right to freedom of speech and how within the context of an "open society..." this undermines the type of "...questioning that makes for muscular citizenship." 

As artists predominately in the Surrealist genre my partner (in particular) and I represent a continuum within the Surrealist ambit of challenge to and criticism of societal structures and mechanisms that make up our socio-political and religious belief systems. It is from within what is supposed to be a free thinking secular democracy that we make our observations and point to contradictions through the vehicle of our visual art and writings.  As Schwartz stated in 2005 we as citizens have a responsibility to question matters "of freedom and democracy". (See the full transcript here)

In 2009 Demetrios and I held a joint exhibition, Humanist Transhumanist, launched with accompanying self published Catalogue. Though much of the exhibition was of the "chance meeting of a sewing machine and umbrella on an operating table" (as was once remarked by Lautreamont), another part sought to reaffirm Surrealism's gritty tradition of challenge and revolution. In our exhibition and our accompanying publication are critiqued the four super religions of our time: Christianity, Judaism, Islam and Hinduism with strong human rights and socio-political commentary. We challenged the view and assertion that religions represent peace and are just and necessary systems of belief to control human conduct. Our arguments and imagery provide contrast to this mainstream view. We provide reasoned conclusions that religions are not peaceful, are unjust, are gender biased and utilise supporting quotes from the Bible and the Koran. The challenges we make were not undefended nor ignorant statement. 

The night of our opening the Director of the Gallery unexpectedly made a scene, publicly declaring the show and us "racist", and ordered us out of our own exhibition. Upon another return to the gallery he again publicly repeated this charge of racism. Efforts to ascertain what he thought was "racist" revealed he thought only the criticism of Islam was "racist" and that he was "... against the Jews' state in Palestine". This conflict was not mentioned in any of our literature and the contradictory nature of his own statement was completely lost on him. 

He denied ever misrepresenting our work and he further refused us entry to support our exhibition, going so far as to threaten that he would call the police to evict us simply for entering to photograph (document) the show. We had to abandon it entirely until take down some 3 weeks later. 

When this occurred, July 2009, we accepted we may have to put a bad experience behind us, legal considerations were rationally beyond our means and energies. We instead posted each our own account of the experience to our respective art websites. This Gallery Director is suing for what we write, claiming that it is all injurious falsehood.

These website pages and links to them have been pulled by successive web Host providers who caved to legal threats by his lawyers to make them a joint defendant in the defamation case against us. In the latest attack on our websites our entire internet was pulled by Telstra, see the posts immediately prior this one. This "chilling" has dogged us for several months and will no doubt continue. We have now yet again made alternative hosting arrangements and have reinstated our pages and our websites. (see below)

The intention for writing these accounts and maintain them is to counter the claim of the "racism" attack on our character and our art work and art practice spanning some 30 years in the case of Demetrios who has been challenging religions since the early 1980's in his art and writings. To critique religion isn't illegal or menacing it is the nature of secular democracy that we critique it and the systems which do, or are seen to, under-pin or contradict it. Not a novel occurrence. However, now in Australia to critique Islam has been declared "racist". In Australia, it seems, Islam is immune from the same criticism levelled at the other major religions. The result is a mussel of any criticism of not only Islam but a flow on to other religions seeking the same immunity.

If it is the case that to critique religion in Australia is now to be a "racist" then what limited free speech we currently enjoy is under serious threat. To remain silent or be compelled to silence because your argument is not palatable for some is not an acceptable outcome for any society claiming to be free thinking and progressive.

Even with truth as our defence our fate at the hands of the Australian court system and its handling of defamation matters is frighteningly unknowable. It appears to us one we are alone and fairly impotent to alter or affect the outcome, so we will continue to tell our story and hope someone is listening. 

http://leeanneart.com/guildfordlanegallery.html

http://vakras.com/exhibitions.html#exhibitons_in_2009

Domain Name Hijacking and Telstra, the new Internet Police

leeanneart.com not available 15/10/11

Last Thursday our internet was cut off by Telstra and we thought that this in itself was bad enough.

Not so.

Sometime under the cover and distraction of Telstra’s removal of our internet connection our Domain names were hijacked (stolen). Read about domain name hijacking via the links at the end of this post.

leeanneart.com & vakras.com were taken by unknown persons and were no longer in our control or ownership. If we had still had internet access when our domains were hijacked we would have been alerted.  Our sites associated with these domains were hosted (stored) on our server which connected our sites to the WWW. When we were cut off by Telstra our sites disappeared from the WWW. 

If we had not first been disconnected, then the hijacking of our domains would have made our sites disappear from the WWW instantly. Because of the nature of the hijack we would have been aware of this the moment that it occurred. 

Under the cover of our lack of internet it was likely that the perpetrator held the expectation we would fail to notice in time to retrieve them, or felt that we would not have understood what had occurred. 

Who knew of our lack of internet? That Telstra had disconnected us? When to strike so that they could steal the domain names? Who might benefit from this?

All interesting questions. 

There are protocols and processes to secure domain name ownership. Through impersonation and deception or by the application of technical knowledge (hacking), or because of flawed security procedures these protocols can be breached, as has happened in our case. It is only through timely discovery and persistent, dogged follow-up that we now have both domains back under our ownership.

Fortunately we did discover the theft fairly quickly and alerted every authority we could. Melbourne IT, the domain name registrar, could not do anything over the weekend when we discovered this late Saturday morning15 October 2011.

The type of action Telstra have taken against us, described as "excessive", the timing of Telstra's actions, the consequences which have flowed from Telstra's actions, and the question of who stood to benefit from them, are all in question.

The Victoria Police Fraud Squad are actively investigating.

http://en.wikipedia.org/wiki/Domain_hijacking

http://www.icann.org/en/announcements/hijacking-report-12jul05.pdf

Addenda to "The SLAPP"

Consequesnces 2007

Telstra (ISP real name now uncensored) has removed our interent access and static IP.

Demands were made to Telstra by Mr Cripps via his lawyers that we were to remove not just references to the 2009 exhibition debacle but our entire websites or Telstra would become a respondent in the Defamation matter brought against myself and Demetrios Vakras by Mr Cripps.

We had already acted reasonably and had under protest censored all the sections of our websites as per the demands made by Cripps, Cripps' and Telstra's various lawyers (all "BIG" company legal firm as per their own claims) sent to monster us.

We drew the line at removing our entire sites voluntarily. The removal of our sites and our internet access should constitute an outrage. We view this as unreasonable, unethical, bullying and harrassement by litigation. Without proof, without deference to innocence, without ethic, reason or the application of logic we are harrassed off the internet just as we were kicked out of our own exhibition in 2009.

Telstra'sresponse is that anything that exposes them to liabilty must be dealt with in this manner. Nothing was stored on their servers. They claim they can do this and indeed they have done this. They can do it to anyone. If you don't like what someone says just threaten Telstra or any ISP. Use the standard method, you are frightened, threatened, defamed and you will get what you want relatively cheaply in this country.

Cripps and his kind can merely threaten to make Telstra a respondent and Telstrasimply rolls over and exposes its belly to exhibit they are no threat.

Telstra disconnected us at 10am this morning.

At about midday we received a call from Telstra business customer service(sic) to ask how we "...were enjoying our plan"? I suspect our feedback will not "...be recorded and utilised for training purposes".

The following sites are currently gone from the internet:
www.leeanneart.com
www.vakras.com
www.phantastart.com
www.daimonas.com
www.phantastsurreal.com
www.humanisttranshumanist.com

Dark Days and the TELnoone Censorship Menace

TELnoone or we will sue!

Is electronic censorship by our service providers, following absurdly risk averse conservative standards, a growing and sinister censorship menace not simply to the internet but to the entire concept of a modern, open society?

In modern Australia we delude ourselves that we have openness, transparency, freedom of opinion, freedom of conclusion and a basic right to free speech. There is a postcard on display in my workplace, one of those free ones with a funny quip or pithy statement which announces..."Everybody has the right to complain!" It is amusing and because we do assume it is the case we immediately think "Yeah, damn right I do" as we read it.

The reality is you do not have the right to complain, not publicly.

If you disagree and think we do have these rights as natural provisions then think on how transparent, open and free you find the following.

The webpages listed below have been censored by Telnoone (1) an ISP I cannot name because they have threatened me that by doing so I will bring their "brand into disrepute" and that this will result it a shut down of my internet. They have informed me of this threat in an email today.

Since 4pm last Friday 7th October, I and my partner have attempted to fight against their first demand "...to remove the following articles and associated links by 4pm Monday October 10..." I've only altered the company name to "protect" it as per their demand.
(1) Telnoone is not the real ISP name it is the enforced censored version. I take no responsibility for any inference made by any reader further to that. I have not named the company in question.

Dear Lee-Anne, 

It has been drawn to our attention that content hosted using your Telnoone Business Broadband service has breached our Acceptable Usage Policy as it could result in Telnoone incurring a liability to another person.

We therefore require you to remove the following articles and associated links by 4pm Monday October 10:

http://www.vakras.com/guildford_lane_gallery.html

http://www.vakras.com/exhibitions.html

http://www.vakras.com/links.html

http://www.leeanneart.com/guildfordlanegallery.html

http://www.leeanneart.com/events.html

http://www.humanisttranshumanist.com/

http://www.vakras.com/demetrios/reviews.html

http://www.vakras.com/demetrios/pages/exhibitions_archival_works.html

Failure to remove these articles and the associated links by 4pm Monday October 10 may result in your Telnoone Business Broadband Service being suspended or terminated without further notice. Please note that this will mean that all traffic using this service will cease.

Our Acceptable Usage Policy can be found at: Link removed as it would expose the company.

We obviously did not succeed. At this point we are forced, under duress, to censor these pages to protect our access to the internet. If I could show you the "acceptable use policy" in question you would find it broadly concerns, spamming with email, sending trojans over the internet amongst the listed breaches.

The ISP in question has been threatened with being included as a defendant in a defamation action brought against myself and my artist partner Demetrios by a Melbourne gallery director. This is why TElnoone claim they could "...incur a liability to another person". I as well cannot name the litigious gallery director(sic) because that will expose me to further legal retribution. The law doesn't like it when you talk about the legal(sic) actions being taken against you. This is despite the fact it is a matter of public record with the Supreme Court of Victoria, SCI01484 of 2011. Legal types reading this might also like to know we have brought a VCAT action agains this person see VCAT case number C5251/2011. 

The "articles" (webpages) which Telnoone claim breach their "Acceptable Use Policy" describe an experience where my exhibiting artist partner and I were accused of being racists at our own art show opening by the Melbourne gallery director who cannot be named. This all happened in a public setting in-front of remaining guests at the opening night event (we didn't know anyone by that stage - it would have been nice to have their support now). He kicked us out and would not allow us entry (unmolested) to support our show again.

Any form of reasonable negotiation or use of reason to argue against the charges he brought against us and our art work publicly was rejected. Any recompense or remote chance of an apology was a pure fantasy. We cut our very expensive losses at the time and wrote reviews on this show and our experiences within our own art websites. It was too expensive a proposition to simply ignore, too big an outrage, too offensive and unprofessional an act to leave unaddressed in silence.

We were given advice at the time in 2009 not to take expensive, stressful legal action, we should have ignored that advice. It is our only regret that we took this advice.

We are not sorry to tell the truth and we are not about to deny our right to speak it, write about it and paint it. We do not regret our actions or where it has brought us because it is the truth. It is never ok to give in to bullies and belligerence yet this is what we are being asked to do at every step.

What keeps us so silent in the face of such offensive threats to our freedom to speak out, to complain and tell the truth?

Dark days indeed.

The "SLAPP"

consequences, 2007

At approximately 4pm Friday 7th October 2011 Australia's leading telco, Telstra, informed us we had until 4pm Monday 10th October 2011 to remove a swathe of our websites or they will cut off our internet.

Our websites will be removed in their entirety.

Robert Raymond Cripps and his lawyers have threatened Telstra with repercussions if they do not act against us.

We have no choice other than to fight what is essentially a SLAPP.

For those unfamiliar with the term it means "A strategic lawsuit against public participation (SLAPP) is a lawsuit that is intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition."

It is more commonly used by large corporations to silence the voice of a smaller less well resourced opponent such as protestors, bloggers...individual critics of any type. The usual characteristic of the recipient of the SLAPP is they are individuals or very small organisations.

This system of manipulation of the law is effective if it works. Silencing a protestor, removing evidence of criticism combined with waiting until the "weaker" opponent's funds or support mechanisms are gone has its advantages to the larger more well resourced complainant.

Cripps has finances and legal connections along the lines of the better resourced. His strategy is to defeat us by removing our ability to defend our position legally. Lawyers are costly, the legal system is costly full stop. The legal processes are very, very slow, plodding. These actions make a plodding process move glacially slower. Lawyers and defences to further challenges need to be maintained. Matters, we discovered, do not go through to the courts in a straight line. It may seem naive but it is more astonishment that the processes do not have logic or relative fairness behind them. Rather it becomes apparent that the more a defendant wishes to see the complaint addressed in court, the more the complainant attempts to have it pushed further aside and outside of the ambit of influence by the court.

The result is costs, delay and further entropy of finances. Individuals with meagre financial resources are hardly equipped to engage on a level that can be considered equal. All this motivates the defendant more, perhaps an underestimated side-effect.

In other words what he and his legal team are doing may, indeed it usually does, work (it may not be ethical in the real world but it is legal) but not yet.

Following posts will include the claimed defamatory content Cripps wants suppressed before we even have a chance to defend the truth in a court of law.

He sued us initially for 180k now it is 100k. For a conclusion outside of court according to his demands, we would have to pay this and more (remembering this doesn't address other costs), take down our pages and agree to never mention, write or reference the claimed defamatory content again.

Not going to happen. Not now, nor if the SLAPP and Chilling succeeds. 

At every opportunity I will continue to warn and establish the truth about the experience I and Demetrios were subjected to by Robert Raymond Cripps at his Guildford Lane Gallery.