Saturday, December 28, 2013

Defamation law is the DE-Formation of Law

As it is currently framed Defamation Law is a law designed to enable censorship, where it normally would not be permitted to exist, by preventing the imparting of information. Understanding this is critical to understanding why it is a threat to a foundational element of our rights and freedoms.

The right to receive and impart information.

Book Devourer an exquisite corpse by LRaymond and BDumaine
Book Devourer - exquisite corpse - L.Raymond & B. Dumaine Fig.1
We may live in a secular democracy (Australia) but our right to "freedom of expression" as it is termed is consistently tested and undermined by external and internal pressures. Defamation Law is one of these pressures. From within it prevents the imparting of information on grounds that a reputation may be diminished. From without Defamation Law presents a chink in the armour of secular democratic values to be undermined by religious or opportunistic internationals or trans-commercial interests.

In one such example HREOC - The Human Rights and Equal Opportunity Commission (Australia) assisted in both an internal and external attack on our rights and freedoms. By unreasonable means via its "Combating the Defamation of Religions" report it attempted to assist to institute blasphemy laws world wide, laws intended to undermine our freedoms from within. HREOC participated in an externally driven attack sponsored by the Organisation of the Islamic Conference designed to prevent any criticism of religion, primarily criticism of Islam, by using as its template English (British) Libel Laws upon which the poorly framed Australian Defamation Act of 2005 is based. The aims of the OIC and HREOC was to outlaw all criticism of thought and ideas critical of or antithetic to religion/s by utilising and aligning the framework of Defamation of Religions with (British) Libel tradition. It very nearly succeeded. Why Australians were not more concerned about such an attack on their rights, which were indeed under threat too, is a fair question to ask.

Freedom of expression, as it is currently termed in Australia, is a verbal underplay of the importance of what is referenced, and a diminishing of what should always be termed the Freedom to Impart and Receive Information or Freedom of Speech. How it is believed to work is that however much an individual, or public, or private entity, may wish to suppress information about their actions and deeds this aim will be balanced by the right to freely receive or impart information without fear or favour. This  however, is not the case. Any purported balancing of the ambition to suppress any and all negative information and the imparting of information is instead neutered by Defamation Law. The OIC, and others like HREOC recognise this is the weakness inherent within Defamation Law and attempted, and perhaps will again attempt, to exploit it. Suppression of information, in what ever form and for what ever reason, is what Defamation Law is ultimately framed to achieve. It was an almost perfect fit.

Absurdly the "objects of the act" (s.3 (b).) of Defamation Law and its proponents proclaim it is framed to preserve the right to receive and impart information by not unduly limiting these rights. How so? By limiting that which it proclaims it protects? With a self negating paradox the law and its advocates uphold a farcical contradiction no one within the legal industry will duly recognise. A criticised individual need only claim they are aggrieved by the information imparted about them, their deeds and actions, to achieve validation and representation under the law. Their grievance makes it defamatory to impart material that they would rather was not shared and the law allows for it to be quashed, hidden, pulled from the internet/publication, apologised for and compensated. Deep pockets assist the aims of those interested in securing censorship of their actions or protection from criticism of their ideas with the added inducement of significant monetary compensation for all concerned except the plaintiff(!).

As PILCH points out the law defines defamation as:

Material will be defamatory if it could:
  • injure the reputation of the individual by exposing them to hatred, contempt or ridicule;
  • cause people to shun or avoid the individual; or
  • lower the individual’s estimation by right thinking members of society.
For a defamation action to be successful, three elements must be satisfied:
  1. the information was communicated by the defendant to a third person other than the plaintiff (publication);
  2. the material identifies the plaintiff (identification); and
  3. the information/material contains matter that is defamatory, regardless of whether the material was intentionally published or not (defamatory matter).
PILCH's definition itself makes no distinction about the truthfulness of bad actions being defamatory. As PILCH imputes any information imparted can be considered defamatory and the defamed has a right to have such information suppressed.
There is not much in the way of the protection of one's right to impart information is there?
The OIC's intention was to utilise the various interpretations of libel/defamation law world wide to prevent criticism of religion/s by adapting a charter that would align "Defamation of Religions" to the concepts above and to acts of a criminal nature. HREOC in their report were only too happy to assist such aims.

HREOC's "Combating the Defamation of Religions 2008" Fig.2

Significantly the elements of "defamation of religion" were being technically aligned to and identified with defamation law. The assertion being that one's religion defines the individual holder of that faith, and so, to critique a religion, is to diminished and expose the individual, the faithful, to... "hatred, contempt or ridicule…" to "lower the individual's estimation…" and thus "injure the reputation". Here is how it would work. By critiquing a particular religion the critic "identifies" the faithful, the individual followers, of that religion with that criticism satisfying the three elements confirming defamation has occurred as criticism was: 1. communicated to other parties 2. criticism of religion identifies individual followers with religion 3. critical commentary causes one to feel injury and therefore defamation has occurred. All very circular reasoning designed to deploy a net of censorship so no ideas or actions may be critiqued.

As one who is enduring a defamation lawsuit I recognise defamation law as a law that is aimed to achieve censorship. If you want to prevent information being imparted you sue, just like Cripps has done with me and my co-defendant. The first legal letter we received charged us with committing a criminal act for which we could receive 3 years "imprisonment". The letter aligned itself to the concepts being discussed above, that is with "Defamation of Religions" by making specific reference to 474.17 of the Criminal Code 1995. This same section is quoted in the HREOC submission "Combating the Defamation of Religions 2008"!
"2.4.2 Section 474.17 of the Criminal Code 1995 (Cth) 
Under s 474.17 of the Commonwealth Criminal Code 1995 (Cth) it is an offence to use a carriage service (which includes the use of the internet or e-mail) in such a way that reasonable persons would regard as being menacing, harassing or offensive."

Williams Winter acting for and representing Robert Cripps in February 2011 Fig.3
Williams Winter letters of demand
And, so Defamation Law brings about the DE-Formation of Law. A law that serves the legal fraternity and those who can afford to engage it and/or for aim$ other than the good proclaimed is intended by the law, making it a law not worth the paper it is drafted to.

Defamation Law must undergo reform or simply go.

As Defamation Law is practiced it manifests itself in contradiction to its claimed purposes and it functions simply for the suppression of information, for the suppression of the criticism of ideas, for the suppression of the right to hold an opinion (which the dictionary defines as "a view or judgment formed about somethingnot necessarily based on fact or knowledge" which the Australian legal industry - judge$ included - ha$ decided mean$ $omething different, that does not square with the definition of the word opinion. Opinion as judged through the prism of Defamation Law becomes a thing that must be supported in fact, which is a perverse manipulation in itself by a $y$tem protective of it$elf above all, not the public good it claims to serve. There is no balance here, no protection of freedom of expression, instead it is a law designed to place "unreasonable limits on freedom of expression".

Defamation Law might eventually implode due to the manipulation and exploitation of its self designed weaknesses or it might undo all of our hard won freedoms. At the moment the law is doing a pretty good job suppressing our rights.

Further reading

Australian Defamation Law Vs the Muscular Citizen
This posting discusses arguments presented, and a review of, a 2005 Redmond Barry Lecture by publisher Morry Schwartz. My blog post title and discussion takes on the ideas raised and incorporates the quote "muscular citizenship". The blog discusses Defamation Law and the way it can be used, as in our experience, to erode rights unless a "muscular citizen" acts.

Attempting the Destruction of the Secular Muse
My counter argument to Robert Cripps' multiple declared claims the entire Humanist Transhumanist exhibition was "racist" purely for the elements critiquing Islam. Even though criticism of relgion/s formed one element only within a presentation of Surrealism consistent with its historical definition (see fig 4). Cripps claim was the entire exhibition was racist and due to any criticism of Islam and Islam alone. Cripps' epic misunderstanding of Surrealism was duly noted to him by us at the time, which he ignored and continued to dismiss, due to what I could and can still only conclude to be his complete ignorance of the genre and contempt of us.
Surrealism defined - taken at the National Gallery of Victoria by Demetrios Vakras (Dec 2013) Fig.4
ARTLEAKS-Artists exhibition critical of religion declared racist by gallery owner- ARE THEN SUED FOR WRITING ABOUT IT
A reportage to an arts community (like an online union for artists and arts workers) on the facts of our being sued and by whom and on what grounds.

Petition Calling for the Reform of Defamation Law - our petition calling for the reform of Defamation Law

This blog post asks the question is it racist to criticise religion and argues to contend that it is racist damages our hard won freedoms. Comments contained in this blog independently confirm Robert Cripps did claim the exhibition was racist. Comments that confirm his action, that convey truth, but that (according to Defamation Law) now in their imparting defame him because they may make others think less of him and so are defamatory?

So any truth makes Cripps look bad, and that since the truth defames him, then ALL evidence is "invalid" because it is defamatory! So no evidence can ever be produced without that evidence defaming Cripps.

Such action by our plaintiff and his crack legal team suggests that this is the latest in a long line of last ditch attempts to quash his difficult critics (us) by complaining that our resistance to censorship makes us more "worser" more "guiltier" defendants.

The whole legal affair has more than a little of the sense of the ridiculous about it and it has developed to become an epic absurdity. So at odds is our experience with the law's self-proclaimed good intention to protect the imparting of information that it cannot be perceived to have worth at all as it fails all such claims.

Addenda - 3 January 2014
From HREOC's "Combating the Defamation of Religions" page - HREOC supports religion = race identity arguments and states the criticism of religion can be said to constitute vilification and hate of a group of people on racial grounds. A concept rejected by Justice's Nettle et al in the Victorian Supreme Court of Appeal 2006 -

 "Appeal judges ruling in the Catch the Fire case in Victoria, (Catch the Fire Ministries Inc & Ors v Islamic Council of Victoria Inc [2006] VSCA 284 (14 December 2006): point 35 of the finding reads "The third difficulty with the Tribunal’s reasoning, as I perceive it, is ... the Tribunal’s failure to observe the distinction between hatred of beliefs and hatred of adherents to beliefs..."). The judges set aside a finding of vilification (made by justice Higgins VCAT) on the grounds that the criticism was of an idea (verses from the Koran), and not the individual(s) who held those ideas, and that it was not the intention of the law to protect ideas. In the current defamation act there is no such protection to criticise an idea, although the option remains that an appeal to the High Court will remedy this. Unless the law intends that an idea is legally protected from criticism, then criticism of an idea held by any individual cannot be considered defamatory of the individual holding it."

Sunday, November 10, 2013

Is That Your Lovely Bottom?

In June 2009 at the opening night event of an exhibition of my work in an art gallery in Melbourne, the Director of that gallery, Robert Cripps, approached a woman viewing a painting picturing a rear facing female nude and asked her 
"Is that your lovely bottom?"
This was not a question asked by someone with insider knowledge expecting that the woman was actually the model for the work, but a straight out sleazy pick up line, delivered poorly and in inappropriate circumstances. The painting was one of mine and the woman Robert Cripps asked this question of was my manager from my place of work.

Several things are wrong with this picture. A male asking a woman such a question has obviously checked out that woman's bottom and made a distinct comparison. Clumsy and dumb, not complimentary as the deliverer assumes. It is intrusive and sexual objectification in the classic sense. And, worse, it was not only intrusive and embarrassing for my manager, and mortifying from my perspective, it was not just in poor taste, it was unlawful, which I will cover. 
"Is that your lovely bottom?" - digital collage - 2013

Not unexpectedly the relationship with my manager hit some issues as a consequence of this event. It created an awkwardness and a distance not previously present between us that I can only put down to this event. She had gone to see the art and to support a co-worker she supervised and had experienced sexual harassment in doing so. Though this was not as a consequence of my art work per se, the implication for it being used as a pretext for the making of such an intrusive enquiry is pretty clear. The experience she had of viewing my art work came to be associated with an unpleasant and sleazy encounter in her mind and understandably so.

Cripps had as well inappropriately questioned me, during the installation of my work and the work of my co-exhibitor Demetrios. Cripps pointedly asking me had I modelled for any of Demetrios' works? We had been rearranging the pieces together and I laughed out loud at the time at such a suggestion, mainly at the blatant simple mindedness of it, and informed him firmly no we use professional life models. It was a ludicrous question and one I had been unprepared to receive from anyone let alone the Gallery Director. Demetrios asked me later what was all the hand cupping motions Cripps had been making whilst talking with me, at the other end of the large gallery space? Cripps, I explained, was enthusiastically telling me at that point he loved "all the soft flesh", and the cupping motions he made at the same time were to emphasise the shape of the bottom of one of my female nudes. It was a low point for us in terms of our opinions of this Director who'd by then already demonstrated unreliability and unprofessionalism in other ways. Later when the hanging was completed I checked with Assistant Gallery Manager, at the time, Stacy Jewel, to confirm if everything in her opinion was in order, and whether she knew if Robert was happy, overall, with the presentation? Her reply was an emphatic "Oh Robert, will love it, he will love all the flesh!" This stunned me to a silent nod and a bit of a weak polite smile. It was before the "lovely bottom" incident but was another example of the tone set within this gallery by a director not particularly interested in the art or of the ideas that have inspired it, but more interested in who appears naked in the art.

There is more to it than that though, these are not simply acts of general inappropriateness or a lack of artistic qualification by a person incapable of taking the work seriously or behaving professionally around it, it is more serious because, where and under what circumstances these acts took place, actually constitutes sexual harassment in the workplace which is unlawful. 

Examine the following from HREOC's website
"In what circumstances is sexual harassment unlawful? 
The Sex Discrimination Act makes it unlawful for a person to sexually harass another person in a number of areas including employment, education, the provision of goods and services and accommodation."

My work manager attended the art show at my invitation. The person asking her the intrusive questions, as she worked out, was the Gallery Director, Robert Cripps. His actions as well put me at risk by making me a party to an unlawful act due to my having an agreement with the gallery. Witnesses to such conduct are by law considered party to it if they choose to ignore it, which was our situation when I was informed about the "lovely bottom" encounter. 

(According to Section 105 of the Sexual Discrimination Act 1984, we have legal duty to "not permit" Cripps to act in this way, because "for the purposes of this Act, [we could] be taken also to have done the act." (

SEX DISCRIMINATION ACT 1984 - SECT 105 - Liability of persons involved in unlawful acts
Cripps' questions of me as a client of his gallery constitutes "circumstances [for] unlawful sexual harassment". Cripps' staff and volunteers are protected as well by the act should they have ever experience forms of unwanted, uninvited, non consensual inappropriate proposals of a sexual nature, insults or taunts of a sexual nature, or repeated requests to go on dates…HREOC's advice is quite clear. All of this taking place in an "employment, education, provision of goods and services…" context is unlawful.

"Sexual harassment is not interaction, flirtation or friendship which is mutual or consensual. Sexual harassment is a type of sex discrimination. The Sex Discrimination Act 1984 (Cth) makes sexual harassment unlawful in some circumstances."
How many others did Cripps asked these types of questions? What was his conduct towards his staff and volunteers, who were largely female? The full answer is unknown to me however it goes to reason he did likely utilise any opportunity that may have presented itself. 

Robert Cripps' actions, subsequent to his inappropriate comments to my manager, deteriorated so much further into the absurd that any steps we might have taken to tackle this with him were subsumed by his further belligerent actions he conducted to degrade us and our art completely. He declared the show and us racist at the end of our opening night event, kicked us out in front of a crowd of onlookers, repeating this on a second occasion, and subsequently barred us from all access to the gallery. He is now suing us for writing about that which he forced upon us by repeatedly denying all responsibility for doing so on the several occasions we attempted to reason with him.  

The sexual harassment aspects of his behaviour alone have him in a great deal of bother. In Cripps' original April Fools Day writ his inappropriate "lovely bottom" comments were denied. They were instead claimed to be malicious falsehoods by me written when it was known they were not true, and on account of his denial he was claiming $140,000.00 in losses*. He has since admitted to approaching my manager and asking her if that was her lovely bottom, however I am still being sued for "defamation" by him. 

April Fool's Day Cripps Writ - "Injurious Falsehood" - click on image to read.
*$140k? Yes, the demands made by Cripps were and remain unreasonable as are the claims what we wrote of constitute "Injurious Falsehood" at all. Later in the same year as this first demand of $140k Cripps acquired a Steinway D Grand concert piano which go for around that amount retail minimum. Interesting.

As a final point, to create a contrasting perspective, consider this last image with the first image at the top of my article. Would it have been complimentary, okay, appropriate, for men to be asked the same? Did Cripps ask men or was Cripps himself asked "is that your lovely penis?" whilst viewing the paintings shown below? I'm betting not.
"Is that your lovely penis?" - showing on the far Left "the fucking press", centre "kore of the industrial age (girl)", on the right "kouros of the industrial age (boy)" - all by Demetrios Vakras as exhibited during "Humanist Transhumanist" at the failed Guildford Lane Gallery run by Robert Cripps in 2009.

Saturday, November 9, 2013

Paradoxes - Courage Cowardice and Robert Cripps

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; 
  1.  that he was "a big scary meanie", 
  2.  changed their contract agreement arbitrarily, 
  3.  obsessed about his dog ordering that no one was to go near it though it hung around them during set up, 
  4.  yelling at them whilst they used the gallery equipment, 
  5.  prevented them installing their artworks appropriate to the medium, and 
  6.  preventing them posting any qualifying artist or contextual documentation alongside their art works,
  7.  upset her so much she left the gallery crying all the way to the train station initially thinking she'd not exhibit at all. 
  8. (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. 
  1. The fear already mentioned, or 
  2. 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

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).

Sunday, October 13, 2013

Defamation law renders truth the enemy. Viva la truth!

To understand the ill chill that is defamation law one has to experience it from the inside.

The whole legal affair that is case "SCI 01484/2011" in which I am a defendant has more than a little of the sense of the ridiculous about it. "Is this a joke?" the expression I receive when describing it to most, which I do, with as much accurate candour as I can muster. From a personal tragedy relayed in context has developed an epic absurdity, four years in the making. The time-frame and absurdity being due, in that order, to the plaintiff's intentionally late complaint and a compliant legal system that is only too glad to assist the litigious to use it. So at odds is my and my co-defendant's experience with defamation law's self-proclaimed good intentions that it cannot be overly emphasised just how blatantly and spectacularly it does indeed fail; on grounds of fairness, equity, logic or as a self-proclaimed, necessary guardian of the perpetually angelic reputation. It, it is claimed is not written to unduly limit our freedoms.

Citizens of free and democratic societies tend to have a sense of faith and trust in their laws and legal system, that they are there for and act for our benefit, will be fair, reasoned, logical and will work for the good citizen and not against them. Our case presents a contrasting experience to this and is one that is hardly a demonstration of the law bearing out such hopeful, innocent conclusions. To believe otherwise is fanciful delusion. 

Truth and the sharing of information are important aspects of our society and the freedom to do so  characterises in part our understanding of what constitutes a free society. However, to impart information publicly these days one must take the risk they may end up being dragged at length through a thorny legal brier patch to arrive bedraggled and battered at court to answer either to claims of defamation or worse. It is not so theatrical a declaration to state defamation laws and the judiciary who defend them are a great threat to our freedoms from within. Freedoms are diminished by legally assisted efforts to keep information suppressed and have and do operate without many limits on them. Calls for change, for reform, for abolishing the law are all met with intolerant barely concealed contempt by those in the legal system and legislature. With them they can emit more control. It is a paternalistic and entitled attitude that is contemptuous of change or calls for change from the lower classes. We are fighting in part, still, an English (old European) class system's world view.
Book Devourer - exquisite corpse - L-A. Raymond (L) & B. Dumaine (R)    
In a recent conversation I dubbed defamation law the Grendel of our legal system; a grinder of hope and decency, a distorted beast of a law that cannot be reasoned with. It blindly goes about its function to quash criticism of a reputation and, the judiciary may as well be this Grendel's mother. How may one or two individuals bring about change in such a context? Write a blog, check. Write up a petition, check. Write to appropriate specialists and commentators, check. The result? Patchy acknowledgment, understanding and some patronising there, there. It is a no brainer, we are no-bodies and it might be true and they could be guilty would be the thought of some. One has so declared it and in so doing declare the success of defamation law to stain merely by its claim. Declared guilty with mere mitigation as possible defences the accused remain stuck in Grendel's mill stone unless they recant.

Defamation law in operation is a framework that offers those with greater financial means a legal tool to wield as a weapon in order to conceal and censor. This bluntly is the main error and no one appears, who might have the influence to do so, appears to want to do so. In allowing itself to be used in this manner the law and the objects of the act under-pinning defamation law are self-undermining. To go by appearances alone, at the academic level, it exists for its self-described aims to serve the greater good by protecting reputation (paramount) whilst not being framed to limit freedoms (secondary, but important, it implies). Is this demonstrably the case though and if so is it a valid goal in the first place? If the highest aim of the act is to protect reputation then we are in trouble as it over-shadows our human right to receive and impart information. A true reputation is one that need not fear examination. Truth cannot defame and the law instead should (in the unlikely event it will remove itself entirely) understand that to do so does not mean its citizenry will resort to lying about a reputation en-Mass. Ask yourself why does a false reputation exposed warrant greater protection than the freedom to truthfully expose it? This is the law we currently have.

Any audit of defamation cases brought about by plaintiffs aiming to conceal the truth and limit the imparting of it whilst using it purely to have their critics sanctioned, censored and squashed, might demonstrate skewed figures. Not many cases get up or even get to trial due to the inherent threat and fear of the financial ramifications. Measurement of successful threats of punitive damages to coerce under-resourced defendants to retract would need auditing as well. In defamation law truth is merely an excuse and proof of truth becomes part of a mitigation of guilt rather than a real defence for a defendant.  It is as if truth is the enemy of reputation! More precisely though of course, truth is the enemy of a false reputation. Revealing a true reputation is what I and my co-defendant have done. Truth is rendered the enemy, something to be summarily dismissed and undermined to ensure a reputation that is truthfully bad remains protected from scrutiny.

A critic charged with defamation faces real and constant sanction from the outset. Resist and you will pay the price of great losses; in time, finances and sanity as the law with its focal point being the plaintiff, the plaintiff, the legal fraternity and the underpinning endorsement of the courts do all they can to silence, chill and disappear the truth. As a defendant it dawns on you that the whole aim is to destroy you, the defendant. Like Grendel, defamation law is a grinder, grinding everything to dust including one's soul.
Grendel - pen on paper - 2007 Lee-Anne Raymond    

As a framework not intended to hinder truth and the imparting of information for the beneficial receipt of others, does defamation law makes sense in the abstract(?) Perhaps. In action though, I argue this is not the case. Coercion is rife, and too easy. Threaten a defendant with few resources and an aggrieved plaintiff gets a nice pay-off and a retraction. Reduce the ability for plaintiffs to demand such financial windfalls and you will reduce the number of instances where this is the main aim. The law is as well too tolerant of manipulation by the rich, the well positioned or the well resourced to effect censorship so must limit the ability to do so severely. Then there are the legal Arborists (lawyers and judges) who tend these compliant characteristics around which has been formed a cottage or forested "legal industry". Self interest is at every level of this game.

Arguably given the support it has in the legal fraternity the reliance on defamation law is not by our society but by the law itself and its Arborists, which exposes the falsity of the claims it exists to protect reputation whist not unduly diminishing truth and freedom. Lofty goals so expressed in the face of reality are merely a smoke screen for empty claims.

And, so the Grendel that this law is rolls out arbitrarily and unpredictably. What of truth? What is truth really worth? In the context of defamation law it is a relatively worthless intrusion as the legal Arborists tending it seek at every turn to extract false retraction from a defendant over scrutiny of a lying plaintiff. 

Truth, in reality, is everything and that this law places it into the realm of a mitigation to a guilty act is a problem for everyone. 

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.