Monday, December 31, 2012

Blasphemy Laws, Atheism and Offending Religion

Australia's leading human rights organisation HREOC at the behest of the Organisation of Islamic Cooperation (OIC) decided along with a whole bunch of others that we needed more laws, and internationally binding ones, to protect religion from criticism by enshrining such law into the charter and covenants of the UN. It was yet another attempt by the OIC to implement blasphemy laws internationally through a UN resolution so as to make it an offence to offend religion specifically to combat, what they term as being, "Islamaphobia". The first time was in 1999 and the latest push beginning in 2007 was fortunately again unsuccessful in 2011 but another attempt is being made.

The primary aim for the proposed resolution was to specifically enact through jointly agreed international law the prohibition of defamation of religion, limiting comment on religion to that being of a positive nature only. To negatively critique or offend religion, primarily Islam, was to be deemed an offence, internationally. It was correctly defeated but they'd gotten closer on this second occasion. It is troubling that organisations such as HREOC cannot perceive the actual threat to human rights the implementing of such laws would be. Some of the major problems are that it would equate attributes held by an individual, such as race,  physicality or gender with organisations or concepts and ideas such as that of a religion. Ideas and therefore religions cannot be defamed through debate, criticism, through not "believing" them, through not accepting them and/or choosing to follow another religion. Neither is it the case that race can be assigned to a religion. Many followers of a particular religion may be of one particular dominant race (many are not) but religions are inherently multiracial. So how is that so many consider it or entertain the idea that it is racist to critique religion, in particular Islam? Race and physicality, including gender are protected attributes in sections of law designed to protect an individual from attack and persecution on this level. It is not permitted to discriminate based upon a protected attribute. Essentially the OIC and human rights bodies like HREOC are saying religion should be a protected attribute. In modelling the law along the lines of Defamation we have a way to cease any criticism of religion through an individual's right to access that law and claim the offence as being an attack on their person and religion as a protected attribute.
Baleful Worship - Submission (detail)

Taking this further to its logical conclusion if we allow for a world where there exists the prohibition of defamation of religion one can outlaw any and all unendorsed religion, commentary of any kind on religion other than by experts in scripture, other beliefs, and of course this makes atheism completely illegal. Atheism and atheists can by their existence be viewed offensive to the religious.

As what is considered non-defamatory commentary by one person, country, religion can subjectively be determined to be offensively defamatory by another person, country, religion how such laws might operate on an international or local scale other than in dictatorial or tyrannical terms makes one wonder about its proponent's ultimate aims and thinking. Clearly the State (international community?) would need to dictate the definition of what might be deemed permitted or offensive in law and by extension what religion/s were permitted or offensive in law. The result would be that the State (international community) would need to enact as law the legally recognised religion/s of the land (or planet) otherwise people might accidentally offend by not belonging to the endorsed religion/s. Further to this by not belonging to an endorsed religion or by being atheist one will have offended not only religion at this point but will have also offended the State and will need to answer not only for having blasphemed religion but having committed sedition for being anti-the-state by being irreligious. Not such an inconceivable result.

In Defamation Law an aggrieved party only needs to state they are aggrieved to have been defamed. Religious vilification laws have worked similarly. The religious perceived a threat and felt aggrieved and so are defamed by an act, a comment or reference made about their religion or religious convictions. Framed to mirror Defamation law the UN proposition to enact defamation of religion laws stinks not only of the most sinister form of censorship but by extension in addition the proposed abolishing of an individual's right to freedom of thought, ideas and expression. In the Australian State of Victoria, we already have an introduction of such limitations in the form of the Racial and Religious Tolerance Act, introduced by the Bracks Labor government in 2001

The Victorian Act was used in the now notorious Catch the Fire Ministry case (this link to Saltshakers blog has an excellent brief synopsis of the case and the ultimate outcome for the parties). The outcome, following a successful appeal by the defendants and instruction to have the case reheard, was arrived at during a fresh Mediation Hearing, with both parties agreeing that robust debate on religion was permissible.  This is just a mediated agreement between two parties though. It means nothing in terms of the potential for the further use of this deeply flawed law. This law has gouged a deep trench through freedoms of all Victorians and attempts are being made to deepen and make this trench wider and permanent by using it as a model to pursue changes in the UN.

The Catch the Fire case took 5 years and hundreds of thousands of dollars to defend and presumably prosecute. The rational for which is overtly clear, protect religion from all forms of criticism and in particular the religion of Islam.

The right to pursue a religion must never entail that your religion or your conviction for it are exempted from examination, discussion and criticism by others. It is heartening the UN committee concluded

"48. Prohibitions of displays of lack of respect for a religion or other belief system, including blasphemy laws, are incompatible with the Covenant, except in the specific circumstances envisaged in article 20, paragraph 2, of the Covenant. Such prohibitions must also comply with the strict requirements of article 19, paragraph 3, as well as such articles as 2, 5, 17, 18 and 26. Thus, for instance, it would be impermissible for any such laws to discriminate in favour of or against one or certain religions or belief systems, or their adherents over another, or religious believers over non-believers. Nor would it be permissible for such prohibitions to be used to prevent or punish criticism of religious leaders or commentary on religious doctrine and tenets of faith.115"
International Covenant on Civil and Political Rights - General Comment No 34

The OIC will however continue to push their particular agenda to prevent criticism of Islam at the UN on an annual basis.

Saturday, December 22, 2012

The "New" Atheists are BAD okay!

In an article in the Herald Sun Newspaper, in Melbourne, Australia on 17 December 2012 self proclaimed atheist Rita Panahi complains that atheism as a "movement" is being over run by zealots.
(The online version of the newspaper article doesn't allow non-subscribers access. However, you can read the full article published earlier on 16 December 2012 here.) [Though no author is attributed it is the same article]

Panahi makes so many nonsensical claims in this article that can I hardly accept she is an atheist let alone one capable of "critical thinking". She describes atheism as a "system of belief", because she does not quite grasp that atheism is not a belief system, but a rejection of any belief system. It is as if she is saying that science should allow belief and reject empiricism. I am in fact unsure why Panahi thinks she is an atheist at all and it is almost as if she is confusing her politics with her position as, what appears to me to be, that of a tentative or confused quasi agnostic-atheist.

She describes Atheism as being formerly "a quiet celebration of reason". How quaint. She describes several contemporary robust critics of religion, including Richard Dawkins and Christopher Hitchens as, "aggressive"with the "aim to drive religion out of public life", for their consistent subjection of religious belief to logical argument and their rejection for the necessity of religion to form any part of our educational, political and public life. Yes? And, what is the problem you have with this? I'd ask Panahi. These aims are completely consistent with atheist theory, old or new. With a church, mosque, temple or place of worship of some sort on the street corners, hills and thoroughfares of our towns and cities religion obviously has a presence, if not an overbearing one, in our societies. Where it strictly does not belong is in our schools, government or official media; after-all, if religion belongs in any of these arenas, then which religion is it? and what becomes of those not of the chosen religion? And, yet our politicians declare their religious convictions as a means for gaining voter approval amongst other reasons and open our parliament with "The Lord's Prayer", some of our official and popular media place emphasis on religion holding a position of only good and exempt from examination or criticism, and religious groups press for a presence of their particular faith in the official curriculum. Its all harmless isn't it?

Atheists have the odd conference or two to allow for discussions of contemporary thinking and provide a forum for discourse and this is seen as controversial if not down right inflammatory towards religious groups. In the image below Muslim protestors turned up to the 2012 Atheist Convention in Melbourne. "Atheism is the cancer, Islam is the answer" reads one placard another declares "ISLAM The only monotheistic Religion" another references "Hell Fire". Amused atheist delegates began to chant in response "Where are the women? Where are the women?" Highlighting the distinct absence of females in this group and of course the poor position this religion holds on gender equality issues. To contrast if a bunch of atheists were to do a Pussy Riot protest in front of a mosque, synagogue, church or temple in Australia they'd risk being labelled racist, and inciters of hate against religion. Particularly if they did so in front of a mosque. I wonder if chanting might be all they'd receive in response to their protest should one occur.

Main Placard reads - "Atheism is the Cancer Islam is the Answer" 

Panahi by her argument would have us accept there need be no quiet reflection for the religions of the world whilst requiring a respectful silence in response from atheists. Panahi should realise is that she is complaining that atheists are no longer obscure but that they should remain respectfully uncritical of religions and avoid committing any offence to them by resisting testing the faithful with valid critical analysis and questioning. This is a call to censorship and the protective exemption of a particular section of society from critical analysis. It is a position which whether or not she realises favours current disturbing moves to implement blasphemy laws (via the UN). Under such laws simply declaring you are atheist can be considered offensive to a religious person or group because your atheism is a denial of their faith which holds the existence of a higher being sacred. A sacred being responsible for the presence of chosen peoples on planet earth. To allow criticism robust or not is apparently disrespectful of the "prophets of any religion".

In fact the call is for no cartoons, no jokes, no movies, no logic, no disbelief. To criticise Islam is to be guilty of Islamophobia and a crime against humanity according to the Turkish Prime Minister Erdogan.

Panahi has one point. The quiet atheist is invisible. In societies where to be openly atheist is to be labelled an "anti-Christ", a "blasphemer", a "heretic", or an "apostate" so it makes sense be "quiet" in your so claimed "celebration of reason"as it can mean self-preservation over persecution. In some Muslim jurisdictions we know apostasy is a crime punishable by death. Indeed Islam does not recognise atheism as the absence of belief but as another form of apostasy because for Islam one is born into their faith, as one is born with their skin or eye colour. Christianity believes atheism is a sin. Being atheist has not been and still may not be popular or safe. It has been challenging for people past and present to be openly atheist within their communities. As a young atheist from the late 1970s - 1990s I felt the flexibility to explore religion if I wished to do so but atheism was still shunned if not feared as something utterly sinister. Young friends asked me in horror "...aren't you afraid of the Devil?" As if I'd already been somehow possessed by the nastiest of fallen deities. If I'd been born elsewhere I may not have been so lucky in my youthful explorations and coming out an atheist.

Religions are and can be no more exempted from analysis and criticism than any other group or area of society. The argument that criticism of religion is harmful is a dangerous one because it is an unacceptable limitation on free speech, thought and expression.  

Why are we now seeing, hearing, reading more atheist views, ideas and literature? A number of possibilities come to mind. Not just through the horror of the attack on the USA. Islamic terror was alive and well before September the 11th 2001 though a defining point in history on a number of levels it arguably is. It became a last straw for well known critics such as the, in later life and post his death, much maligned Hitchens. He bluntly informed particularly the socialist left and those with leftist political bona fides of necessary home truths, you've been duped and you continue to declare your support for the intolerance you claim you fight against. He saw the hypocrisy and pointed it out without fear or favour to friend or foe. Tough love was required. The zealots, I'd argue in agreement with Hitchens, reside in the left, in denial and blinkered by their fantasy that religion is not to blame but the terrorist distorters of religion. That is similar to the argument of gun lobbyists who trot out the guns don't kill people kill argument following the latest mass murder spree. More guns it is argued is the answer. More religion is the same argument of the religious. Problem for both form of zealot is they've already demonstrated the redundancy of such a push because more religion or more guns has created the problem in the first place. Do the religious have the right to harm others in the name of their religion? Does the gun crazy US citizen have a right to hold onto his semi-automatic firearms in a country so awash with guns any person, good, evil or mad can obtain and use a weapon to kill to make their point.

As I see it these are the main conditions conducive to the existence of more atheists in our midst:
- The existence and gradual strengthening of the secular state - still way too infiltrated by religious symbolism and observance as discussed above.
- The rise of education and an educated middle class
- The rise of democracy contributing to prosperity allowing for better education, time for cultural pursuits and the exploration in and freedom of the arts.
- The rise of human rights advocacy and its application in democratic society's laws and legislation world wide. (of the type not hijacked by quazi-religious agenda)
- Recognition of the equality and human rights of women
- The WWW and the Internet where unimpeded by government control.

What can and will threaten this self-aware state of mind held by free thinking individuals is the push by human rights organisations, and their successful infiltration by religiously motivated political organisations such as the OIC (The Organisation of Islamic Cooperation) to pursue internationally binding blasphemy laws to enforce upon all, which would make atheism illegal. Making it a criminal offence to offend religion is an enormously backward step for all humanity. Panahi and friends do need to consider carefully what it is they are proposing when they ask atheists to quietly pursue a gentler(?) kinder(?) atheism in a manner that will not hurt the feelings of the religious. Or, what? Should be the next question by atheists from now on. "Or, what?" To be atheist may soon be enough to be deemed "offensive". What helps threaten our freedoms and rights and helps to instil and normalise the concept of a religious world at all cost are addled quasi-atheist commentators such as Panahi, and an anti-atheist media such as The Herald Sun. Both obviously find the person who constitutes more of a threat to be the one with an absence of belief rather than the one with a blind adherence to a faith.

Sunday, December 16, 2012

Is integrity our most important trait?

Consequences - detail
"If I could teach only one value to live by, it would be this: Success will come and go, but integrity is forever. Integrity means doing the right thing at all times and in all circumstances, whether or not anyone is watching. It takes having the courage to do the right thing, no matter what the consequences will be." Amy Rees Anderson - article in Forbes 28 Nov 2012
Ms Anderson was writing in Forbes for a corporate audience though I could see such an astute observation fitting in to a short piece I'd been thinking on about how integrity is central to our being with empathy its emotional realisation. 
Anderson's quote so clearly defines integrity. My piece was going to take a more philosophical path when I first found and saved the above quote. Then the latest massacre of innocents in the United States emerged and the horrific details numbed the senses. Most victims were small children, most were  shot over and over receiving multiple wounds from the type of weaponry and ballistics intended to produce devastation in the flesh and subsequent certain death. Death for these victims, these harmless babies and defenceless adults, one hopes at least was mercifully fast. A psychopath, an aggrieved outsider, with access to a powerful arsenal and the desire to use it to exact revenge for imagined harm must be the last straw.   

How do we know it? What is it? Is integrity within us and could we recognise it? If there is anything in life we may remember with regret perhaps it is because we remember we failed to act with integrity when we might have, could have or should have. Perhaps we did not go to the aid of a fellow student being bullied. Or, worse participated in the shameful behaviour because it put the spot light onto another. Perhaps we simply remained a by stander. There are levels of integrity, from not cheating on a test to risking death in the attempt to protect the life of another. 

Shielding of small children in danger with your own body and giving your own life attempting to defend them is acting with integrity of such selfless heroism it escapes proper description other than we can only be in awe of it. These teachers attempted to disarm their assailant, attempted to shield the children from the worst of nightmares. They acted with courage and honour in unpredictable circumstances.

The thing with integrity, it costs nothing and can cost everything all at once whilst remaining the right course of action. The citizens of the United States need to act with courage and honour by facing up to the truth. The right to bare arms and the proliferation of arms in private possession in the US is anathema to the modern state. They and their legislature now must do what is right, no matter the consequences, because it is the right thing to do and because "...integrity is forever". 

Tuesday, December 4, 2012

Thoughts on Jury Service

"You have been randomly selected from the electoral role for jury service..."


Two years ago...
A lifetime ago...before being sued and being witness to the debacle that is our legal system I would have welcomed a chance to perform jury duty as my right as a citizen. It is a valid service and we have a right to participate.

I do not think this now. I have no faith the system actually works and now even more so given it can't determine whom it should alert for jury service and whom it should first filter out. The system is entirely without sense.
I'm being too harsh you may think? Perhaps. But surely first they might apply simple cross referencing analysis of the initial random list against their own database? Information from which is largely made available publicly. The legal system through its own mechanisms and available information should be able to perform this filter. That there is not the skill (unlikely), imagination or inclination (more likely) to do so is to be viewed with some scorn.

The system is already aware of whom it has on file as the parties to a matter and all legal documents are registered and made public. With such rich data at their disposal surely such a determination is possible in 2012 so that persons with matters "on foot", that is they are involved in ongoing cases civil or criminal, are filtered out following random selection? No, for some bizarre reason this is not the case and instead persons already in or forced to be plagued by the system, as am I, must respond to this nonsense.

A thick brochure must be negotiated putting all the responsibility for getting it right onto the citizen. There is not one section concerning being already involved in a current legal matter. Why? Who knows, the system does not see fit to explain itself. So you need to find the section where they begrudgingly offer you the opportunity to share Your "excuse" for not being able to do jury service...
If your excuse isn't good enough you must undertake jury service! It further lectures.

"...complete the questionnaire..." it advises
"Section E" says "Complete this Statutory be excused from jury service..."

So I did.

Statutory declaration for excuse to be exempted from jury service 1
Statutory declaration for excuse to be exempted from jury service 2

Friday, November 30, 2012

You cannot be a follower and an atheist

Vanitas II
Often criticism of atheists is that they simply "believe" there is no God with the corollary assumption they'll eventually come around to belief in the existence of a greater power in the end. Atheism though isn't a belief system along the lines of a religion. Because you are an atheist does not therefore mean you are searching for the right belief system with which to belong, to become a follower, just a believer who does not yet know it and have somehow lost their way to God. 

The point of difference is no quibble over the word belief. To state a belief is not to present a point of fact based upon evidence and reason. To argue atheism is just another form of belief is in part a distraction but in the main is used as a counter argument to maintain religion and atheism within some form of equivalence of position. It is a redundant argument but one the religious seem happy to consistently present as proof of atheism's flaw. 

If we agreed atheism was a 'system' comparable to religion then perhaps we'd have a foot hold for comparison, but atheism is not 'organised' or a 'system' to compare with religion/s. It is a position of thought but not a system of thought unless you determine that reason is a 'system' and therefore a format similar to 'religion'. Atheism can be a form of self determination like religion but this says only that an individual is characterised as being religious or not. An atheist does not simply not 'believe' in a god or god system they instead use reason (not necessarily scientific proofs) to determine the absence of deities of any type and to explain the world around them. 

Atheism is in my assessment the default human position before imagination turns or is turned into superstition. Religions manipulate superstition into indoctrination and pressure to conform and comply. Events man made or occurring in nature become evil portents, confirmations of doctrine, dogmatic distortion of human behaviour follow and a world better explained by reason, science and the imagination and not a holy spirit, shaman or prophet becomes a dangerous place from which to be saved by a greater power. Religions are out of control human obsessions, fears and doubts, not forms of human enlightenment.

Organised religions are systems striving to survive, grow and dominate. If necessary to survive some prop up, direct and at their worst inspire evil where it might otherwise have may remained obscured. 

Atheists can make no claim for absolution to their actions because of what is written or spoken by an unseen all powerful anthropomorphous entity. An Islamic suicide bomber calls upon Allah and the Koran as his guide and justification for what he does. Madness exists regardless but religion can be a vehicle for its physical realisation.

A much more complex set of external and internal events and characteristics of a society are at play than the presence or not of atheism to have brought about a Stalin, a Pol Pot or a Hitler. Totalitarianism and despotism do not require atheism to emerge. The process of transformation into a religious like entity with strict belief systems and controls is what makes these totalitarians successful. Characteristics of which atheism is the antithesis. Though religions can and often are used to inspire and direct mass control in the manner of Hitler; who as pointed out in this essay by Demetrios Vakras, was "the perfect Christian" and not as claimed an atheist or pagan. See:  

Religion, not atheism, is the effective way to galvanise a population, organise and justify oppression, and inspire the control and dominance of 'enemies' internal or external. It is outstandingly successful and effective especially when it additionally taps into tribalism, nationalism and racism. Cruel acts perpetrated upon those who are not of the "right" or endorsed religion and because a sacred text supports such acts expose that religion to valid criticism. It is why Christianity is so determined to disown Hitler. It is why Islam is so determined to deny the existence of such passages in the Koran that support violent acts by followers upon "unbelievers" instead claiming the entire text is a message of "peace". A peace which upon closer inspection though is not of co-existence, but one of submission to Islam. If you submit you will have peace. Simple.

Religion is a simple enough formula, you worship a god, you follow his rules, you will be rewarded somehow in death and punished, damned, overlooked if you transgress. To the faithful it becomes defensible to, as part of their aspirations to conform act in the defense of what and who they worship by doing harm to others. Religion is used compellingly to jell populations into war or reinforce tyrannical control over ones own people, neighbours or opponents.

Atheism cannot prevent madness but can and does seriously threaten religiously inspired domination and oppression by replacing belief with reason which introduces the conditions for producing more free thinkers rather than followers.  

Friday, November 9, 2012

What ever happened to the separation of Church and State?

glass head sculpture with cancel symbols over mouth, eye brain and ear.
Censorship Australian Style 2012

"The Christian lobby says children as young as 11 are regularly accessing porn online. Research had also found that 84 per cent of boys and 60 per cent of girls had been exposed to internet sex sites accidentally." Michelle Gratten, 9th November 2012:

As a child growing up in the 1960's - 1970's I was "accidentally" exposed to porn, not through the internet of course which was only available widely in Australia by the time I was in my mid 20's. My father had a "collection" of porn magazines, hidden badly, we found them "accidentally" as Michelle puts it. When you are 5 you are not looking for porn, you are looking for secrets, lollies, treasures. You are at your nosiest as a little child and those who will remember know that curiosity takes you for a walk and you just have to follow. We were all very little and went through this "collection" with eyes ever widening, utterly transfixed amidst much giggling. Even when you are little you can't look away from some imagery. Colourful and intriguing? Yes, but harmful? No. In the years that followed New hiding spots for the "collection" were randomly discovered. Some of the imagery I encountered remains vivid to me and it taught me a little about the naked form in a way. Not in a disturbing way the Christian Lobbyists will be sad to know or find difficult to understand. Images are powerful but they can't alter the essence of who we are. We are more than the sum of our individual experiences which include what we are ingesting or digesting through seeing, hearing and reading. Statistic such as those quoted by The Christian Lobby, if correct, only tell us that children encounter porn (who'd have thought) but not that this is harmful. Statistics also tell us a significant percentage of sexual abuse of children is perpetrated by religious leaders such as priests or similar, nuns,  or officials belonging to various denominational religious bodies, which we know, without requiring statistical proof, is harmful to children.

Why the Christian Lobby is not concentrating more on addressing the sexual or physical abuse of children by Catholic, Anglican etc, nuns, priests and others belonging to the Christian Church realm is beyond reasonable comprehension. Abuse of children within these bodies existed prior the internet and still does. A form of Nanny cam lock on the Australian internet is not any sort of solution to protect children but represents a real and potentially damaging attack upon what  freedoms of expression, thought and access to information we do have in this country. Such an act of parliament would open the door wide to do so for any purpose deemed to be harmful to the public palate. Art, literature, music, poetry, thoughts, ideas, politics all could slowly be sucked into a sticky web of censorship for reasons of public protection. Political rivals labelled harmful etc. And, all in secret. Suddenly and without warning a site and or its content could be deemed harmful and blocked. Attacking the perpetrators of any internet visible crime such as child porn and shutting down that industry at its source is the solution. Finding and shutting down the physical criminals, the who and where they operate. Technically internet filters will be detoured around by correctly skilled and resourced criminal networks. Use of the internet to locate and target them using their own medium is the logical remedy. Still this does not address the ultimate aims of The Christian Lobby of course which deems all porn harmful. It isn't, it never will be and it isn't criminal though some forms of porn may be, normal adult consensual porn is not in and of itself evil, harmful or illegal.

The internet is of course a kind of unfettered filter in itself and mostly it is a valuable delivering in its warts and all way a summation of human generated content. Good, bad and ugly the public domain needs to remain visible to us, not hidden. The laws and processes to address the criminal aspects of the net additionally need to remain transparent and open to challenge when wrongly or unfairly applied. Just as with the physical world, open and transparent works best in the digital space. Secrecy in law supports suppression of information which conceals actions that may further suppress our natural freedoms and rights. Then we will have censorship and Government power over the individual is ensured to be lead out of balance. If Government is pliable, yielding and swaying to suit a Lobby or Faction with greater influence than the general public then the temptation for Government is to widen the ambit of legislation beyond its original scope. In order to curry or gain favour in tough political times a Government under the influence can be tempted to make changes that suit a few but damage the rights of many. This is never more the case when acceding to religious or cultural pressure when it is the case that human rights must come first and foremost before the religious or cultural. Bad legislation by weak Government leads to bad Government through corrupted decision making. Religious influence over Government decisions is undesirable any way you look at it. Religious causes that successfully apply pressure to produce legislation of questionable benefit outside of a religious criterion is religiously inspired cronyism and it is insidious as it will ultimately destabilise secular democracy. 

Barely concealed attempts to enact legislated censorship such as the internet filter bill must not take 5 years to fail. Though we can't blame the Christian Lobby necessarily for attempting to pursue their religious agenda by influencing our socio-political framework via their political sympathisers, that they are formally being give so earnest an ear by our Secular Democratic Government is of great concern. 

What ever happened to the separation of Church and State? 

It is more than of passing concern now that this Labor Government, since Kevin Rudd, are not just seeming to be but are full on emerging as more religiously reactive, sensitive, acquiescent and influenced overall.The Christian Lobby and the current Labor Government are obviously too close. It would otherwise never have taken 5 years to rule out this filter nonsense and if they were listening to public temperament at all, we'd have legally recognised same sex marriage in Australia by now. Clearly the Australian Government are not listening to what the Australian people want, it can't hear them as it is only a few are being provided their full attention.

Sunday, November 4, 2012

What does Defamation Law Cost - Part 2

"Newspapers, afraid of Britain’s strict libel laws, decided not to publish their suspicions, although several had conducted their own investigations over the years." 

This quote from a recent article on the Jimmy Savile case underscores a point contained in my immediate last post What does Defamation Law Cost? which was that bad laws protect bad behaviour and this needs to be pointed out loudly and repeatedly.

Threats of and actual legal action are financially crippling to defend. It is not as if it is any secret that defamation laws are used to silence critics through these means. This activity it seems is routine with defamation actions and when it succeeds it is an effective tool to further dissuade other potential critics from doing the same. Such criticism of legally sanctioned bullying is dismissed by the legal industry as so much sour grapes it seems or simply denied to be the case.  Take the Jacob Zuma matter in South Africa as a case in point. Fortunately Zapiro and his supporters stood firm. It would have been difficult. South African defamation laws take their lead and inspiration from UK's libel laws  just as do Australia's. 
Britain's "strict libel laws" are what the Australian Defamation Act 2005 and earlier iterations are based on. Prior to the 2005 reforms, which came into effect January 2006, the separate Australian States administered different versions of the act, it was administratively worse than it is now. Reform included in part enhancing the defences permitted for defamation defendants though did little to improve matters of balance overall. A defendant is considered guilty of defaming on a plaintiff's say so, regardless of truth and even though the act appears to support that truth is not actionable (see "Dancing in the Streets…" below). 

The defences that apply have to establish justification and/or establish why a the monetary liability of a defendant to a defamed plaintiff should be limited. The burden upon a defendant is considerable because establishing truth though perhaps not difficult is less important than establishing justification for making truth known. Even then if the system actually worked these steps could be followed by a justified defendant. But those who have experienced our legal "industry" know there are obstacles thrown at every turn to hamper and unduly lengthen the straight road that could be taken to reach resolution. 

If indeed it is the case that truth is not actionable why are so many barriers to establishing truth permitted?  It is a very rare event where there is found to be no defamation to answer. The statistics for why this might be the case, I would hazard a guess, are likely to be skewed as most defamation matters do not reach trial at all due to the burdens the law places upon defendants over plaintiffs, with the effect they either wipe out motivation, or finances or both. In the Zuma case the fortunate outcome after years of crippling attacks upon the cartoonist Zapiro and his newspaper employers (see above) was that Zuma recently withdrew the complaint in which he'd claimed millions in damages to his reputation. The tactic had been of course to affect the motivation of the defence by imposing so punitive a claim they would quickly backdown. Censorship has been dealt a blow in South Africa that they did not capitulate.  

What these defamation acts/libel laws variously demonstrate is they are relatively unconcerned with truth. Reputation good or bad is the protected element. In Australia's case the act itself helps to set up the ludicrous situation where circular reasoning establishes that it can be used (even in matters where the truth is clear). See if you follow: If a person is aggrieved by what another publishes, and claims defamation, then defamation has occurred, because that person is aggrieved. They need not present proof of falsity to do so. The PRIMA FACIE burden is all on the defendant. A plaintiff declares it defamatory, so it is considered defamation, that a criticism is true has nothing to do with it, it is the reputation which receives the protection of the law. The rest of the legal process is just about ensuring what level of remedy is owed by a defendant.

The Hon Justice Michael McHugh AC in his paper "DANCING IN THE STREETS – THE DEFAMATION TANGO", presented at the 2005 Australian Bar Association conference in Dublin just prior the alignment of the defamation act across all Australian jurisdictions, clearly notes... "In the common law States of Australia, truth alone provides a complete defence to a defamation action." just prior this sentence he notes "The plea of truth confesses that the matter is defamatory of the plaintiff but asserts that it is not actionable."

So what does that actually mean for the justified defendant? If the defendant in a defamation case demonstrates truth in what they've published, written or transmitted then they have confessed guilt that they have defamed the plaintiff. Furthermore as the current Australian defamation act confirms defendants must correspondingly rely upon and only upon the permitted defences for defamation to limit the "costs" that will be awarded the plaintiff. Eh!? A plaintiff it seems has the sympathies of the system more so than a defendant regardless of truth and any plaintiff with an interest in suppressing truth has the processes and the law in effect onside. This isn't balanced this is the privileged class weighting the law in their favour in order to retain status.

The imbalance is because:
a) the law is weighted to defend reputation (good or bad) by automatically presuming falsity of the claims made against an aggrieved plaintiff, And…

b) as McHugh writes "The imputation based approach has been criticised in that it 'fosters complex interlocutory skirmishing and distracts from the real issue.' Removing the imputation system is designed to reduce the complexity and cost of litigation, a result that, if achieved, would certainly be a positive development." [my emphasis]

Well unfortunately we do still suffer the "imputation based approach" so this criticism of the system remains. A litigious plaintiff will use the weapons of war made available to them and will launch countless spurious imputations in the attempt to detract from what was actually transmitted  by a defendant to increase and exaggerate the effect and ultimately claim more damages. This achieves the further aim to provoke fear of crippling financial damage so the defendant will back down quickly, and (as I say as a rort) to extort further financial recompense from a defendant by threatening "exemplary or punitive damages" if it goes to trial and they did not comply when they had the chance. 
This is an abuse on many levels but as the Australian act clearly states in s37 "A plaintiff cannot be awarded exemplary or punitive damages for defamation.". 

So why do lawyers for a plaintiff and even the mediation process attempt to compel the justified defendant to back down by levelling such threats? Attempts to convince a justified defendant they could face financial ruin are frequent and insidious. The "guilty" (defamation defendants justified or not are all considered guilty under the Australian act) it is determined will likely lose so must be warned of the consequences? I guess from experience I believe there exists a less noble reason for this tactic. If the act clearly states otherwise why are the plaintiff's lawyers, the system, and the mediation process constantly advising it could/may/will occur if you don't capitulate, apologise and pay up before it goes to trial? It is a blunt scare tactic. The system looks the other way and at least it appears there is no mechanism to limit such tactics. Other weapons at a plaintiffs disposal are to prolong interrogatory and defences processes so that the case drags on and on in perpetual concentric circles - logic and reason might suggest this is because the unjustified plaintiff does not want the case to get to trial. In any event these tactics are all designed to break the resolve of a justified defendant able to rely upon truth.

McHugh in the same paper goes on to defend the retention of the "presumption of falsity" in the Australian jurisdiction, adding; that a reputation is good, or not, is not the question to be answered. Essentially a reputation is presumed to be good and the defamer must first, if they claim truth, accept they are guilty of defamation, prove truth and then demonstrate justification of transmission, whether the reputation was good or otherwise upon release of  the information. Harm is measured in costs to a degree but it is not clear how this is measured. The question defamation law asks is does the transmission defame the person (could be a company or political entity) to a third party and was dissemination justified. I've no argument with the necessity that claims must be backed up by truth but the problem here is the law clearly marks the defence as presumed "guilty" in contrast to the plaintiff (and their reputation) which is without exception presumed "innocent". There is neither balance in this nor logic. The parties are presented with uneven ground from the outset. And though truth may be upheld, defamation according to the law likely will still have occurred. In the face of the assertion by the act that "truth is not actionable" then this is circular reasoning and is at best an unsatisfactory result in terms of justice.

So are the problems in the law or in the processes which under-pin it? 

As a brief an answer as I can muster I'll finish with the following experienced observation. 

In its current state, as administered and procedurally practiced, the Australian Defamation Act 2005 is easily wielded as a weapon of fear to extract censorship by threatening the very real consequences of ruinous litigation upon a defendant. Ultimately the worst excesses of British Libel laws are retained in the Australian Act and continue to operate within it as a disincentive to transmission of unfettered criticism, and free speech and this is a disservice to our country, state and community overall.

As long as defamation laws are weighted to protect reputation above all else I cannot agree with McHugh that there exists a "workable balance".

glass head model with circle and line symbol over mouth

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.