Sunday, May 19, 2013

How Defamation Law Achieves Censorship in modern Australia

Defamation Law is purportedly about the protection of a good reputation. The assumption being that all reputation are good. Not so. Defamation Law is to protect reputation from factual information that can harm it. It is a common fallacy to believe Defamation Law is a just and necessary legal framework to protect good reputation. The not so commonly accepted aspect is that it is the intent of Defamation Law to suppress knowledge of bad reputation. Ultimately its proponents wish to spin the social service guff about it when in fact what Defamation Law protects, tooth and nail, is the bad reputation. The good reputation based on truth does not require such a law to any remotely equivalent level. 
thief (detail) 2010 © Lee-Anne Raymond
That a reputation is considered to be the most important thing a person can cultivate is understandable. Your good reputation can achieve good things for you and represents to the society in which you live a measure of your worth and contribution. A reputation for modern society as it was in antiquity is something to cultivate, preserve and use as if it were a commodity, but also to provided for us a reflection out to the world of who we are. How a reputation is critiqued therefore, it can be asserted, has meaning. 

Socrates points to the most important possession that a man can cultivate as though it were a precious jewel is his reputation. Those quoting this as evidence that a reputation must be defended then from any criticism forget that he also said...
The way to gain a good reputation is to endeavor to be what you desire to appear.
The shortest and surest way to live with honour in the world, is to be in reality what we would appear to be - Greek philosopher in Athens (469 BC - 399 BC)  
Socrates is saying to be true unto yourself and that the pursuit of a good reputation is one best achieved through truth of your actions and behaviours.

Australian Defamation law though cares nothing about a person being true unto themselves. 

Defamation law is not about whether the truth of the criticism can be proven, truth is only a justification for the harm done to a reputation because the truth was made known. Australian Defamation Law contains a trap when a defendant motivated by truth maintains her position and commits to a defence of the accusation of having defamed an individual or entity (plaintiff) with her criticism. The trap is in defending yourself. The law classifies the defamation defendant as admitting to having defamed the plaintiff because they have written/communicated the truth because the truth only provides a justification for the defamation. Truth is not a complete defence  but must be proven to limit punishment. If that is not crystal clear I'll put it another way; the law views the defendant, by her own admission in defending the claim, as guilty, has defamed the plaintiff and even when demonstrating that truth and justification are established this will still mean she will bear up to 40% of her costs. The law merely disallows compensation to the plaintiff for damage done to their true character by it being exposed. The law intends that a good reputation is preseved despite that reputation being clearly shown to be otherwise.

What a defendant must show in order to win her case is all of the above and that the manufactured "imputations" are false, not proven. This is the rub as they say. The defence already hamstrung have imputations to hurdle in addition. Imputations are tools at the plaintiff's disposal allowing them to distort criticisms to mean something altogether more serious or completely different by claiming an imputation has be made other than the actual meaning behind what was stated. And, though it is possible to have an imputation struck out it takes much time and money to achieve. A case must reach trial to do so and as many defendants are not financially equipped to last that long with the escalating legal costs they cannot chose to do so. Who would opt for defence under these conditions if they had a choice? Not many, as not many would be in the position to do so, and not many could endure the stomach turning hypocrisy of its claim to be representative of a just model.

Much about defamation law, in the reality of its practice, is designed to threaten and bring about submission. In one scenario a defendant is threatened she must submit to the demands of a plaintiff (the aggrieved) as outlined in D) or else she will be: 
A) charged with criminal defamation (not technically possible in Victoria but the threat was made); 
B) required to pay for all the huge fees wracked up on both sides or; 
C) inclusive of costs in B/ have punitive (further) costs awarded against her for having mounted her defence and not opted for D) in the first place;

At the outset a defendant has this as an alternative: 
D) She can apologise, admit the criticisms made were a lie (truth is immaterial here) and pay excessive compensation to the aggrieved plaintiff anyway. 

Difficult choice being between a rock and a hard place so it best to go with the right thing to do.

Choosing C) to defend herself means she will be dragged to court and to a trial she is told should she lose she will incur potentially hundreds of thousands of dollars in court costs and punitive costs awarded to the plaintiff because she did not apologise to the plaintiff when she had the chance (truth being irrelevant in this legal framework). 

For a socially and civic minded, honest and fair individual D) as an alternative is diametrically opposite to these fundamental values, values that are qualities the State and its apparatus the Law purport to admire and uphold for themselves and the citizens they represent. 

But if it all sounds like system endorsed bullying to bring about censorship you'd be close to describing the actual achievement of Defamation Law.

It is a law to bully and gain acquiescence in order to achieve other aims one being censorship another being collateral (to punish or gain financial advantage over an opponent). It affords the wealthy with a weapon to threaten and if that doesn't work a tool to censor any undesirable content. It therefore assists undeniably aims, by those who can afford to use it, to limit public knowledge and debate. It is State legislated and thus State endorsed censorship in action. 

When individuals or the state control the message you have censorship. When it is a prerequisite that art in its content and effect should never offend you have censorship.

When an artist writes of a gallery operator's misrepresentation of her art and a defamation action is taken out against her for doing so you have legalised censorship.

When the State and the Law accept this behaviour the message is that the State and its apparatus the Law are complicit and in league with the censorship.

Open political, social, religious, cultural and artistic debate art is not served by censorship and all will suffer its stagnating effects. What do we expect of our thinkers, commentators and artists if not challenge, perspective and debate? We will as a consequence of protection of the reputation at all costs and in disregard of the truth engender a nationalistic, unimaginative, conformist, without innovation, characterless society.

A society advances through innovation not just but significantly through the arts by being exposed to new forms of content, new or transformed ideas, which take the viewer/listener into a new understanding whether they like it or not, accept it or not. 

Without the protection of freedom of speech, one of the inspirations for innovation, change and development, we may as well be at sea with a fixed rudder. We are fixed as we cannot robustly challenge the status quo of difficult or sensitive subjects nor can we challenge a behaviour or action of individuals or corporations for fear of an attack we cannot resist, no matter how brave our resistance. 

So, fixed we become gradually lost and unable to alter our trajectory we inevitably head toward the rocks.

Always remember that it is impossible to speak in such a way that you cannot be misunderstood: there will always be some who misunderstand you. 
Karl Popper Unended Quest: An Intellectual Autobiography (1976) 

Sunday, May 5, 2013

Defamation Terrorism is Alive and Well in Australia

How the Defamation Terrorists win in Australian is through our legal system's blind eye to defending truth and its farcical fascination with preserving the beauty of its own navel forever to be kept in stasis so that one day, it may be reconnected to the umbilicus of the Great and Mighty British Mother Land. Gives you chills and goose-bumps at the thought doesn't it? Or, like me, does all the aping of Her transposed pomp and nonsense ceremony, bowing and scraping to bewigged puffed up buffoonery dismay you too? How can we take this seriously? Why is it that the Australian legal system (industry) cannot see that what it desires and apes for itself is not what the people of Australia want? Defamation laws or wigs, their acceptance as the way things are meant to be are formed from the same illogic. If it is from the Mother Land it is to be emulated as it is good.
Justice Generic Bewigged - incognito © Lee-Anne Raymond 2013

Well, Your (bewigged) Worship, you and your ilk, who would determine my fate, are asses and peculiar ones to boot. How are we to take you seriously? No, seriously why should we not laugh and point at your clown like bewigged appearance - which according to NSW Court of Appeal Court Spokeswoman Sonya Zadel is because a wig affords judges in particular a sort of protective shield:
“In criminal matters a wig gives a judge some anonymity … it’s an issue of safety and security,” lawyersweekly-2007-judges-ditch-wigs  
Nonsense Sonya.
The wearing of wigs though not enforced in law grew in tradition from the 17th century on as a type of "fashion statement" alternative to bad hair and into hierarchical symbolism (though in my view the original aims were based upon establishing hierarchy and elevated difference). The wigs and gowns suggest a uniform of sorts a bit like a religious order, shocked as some in the legal industry may be to have such an association made. The wigs and robes represent within the industry and to the public the status of the wearer. The garments separate and elevate the lawyers from the public to create a hierarchical authority over the client and identify their level or status within and to the order.  Other elements of significance come into play such as the age the wig looks to be being relevant to how important you are, its style and length etc along with the types of robes worn are all very important markers of elevation and status. History-of-wigs

But I digress. Of course with the title of my post I am adapting the label of "Libel Terrorism" which applies to offended plaintiffs (wealthy ones) dragging defendants into UK courts in order to seek damages outside of unfavourable jurisdictions like for instance the USA which protects the right to free speech. Libel terrorism developed out of the legal phenomena known as libel tourism (coined by Geoffrey Robinson). Even the UN finally noticed enough in 2008 to point out the flaws in British Libel legislation allowed for serious human rights implications as they 
"served to discourage critical media reporting on matters of serious public interest, adversely affecting the ability of scholars and journalists to publish their work, including through the phenomenon known as libel tourism." 
I am labelling ALL Defamation Law as being a way to threaten, attack and wipe out criticism in order to censor and/or extract monetary gain. The mere threat of the damaging effects of defamation law are enough in many cases to silence the right to impart and receive information which is a human rights violation. Why would we want to allow free speech which might lead to robust criticism and to more free and open society/s? Yeah crazy talk, isn't it?

Following political and public agitation in 2010 the US "Committee on the Judiciary" and President Obama concluded the use of the UK's "Militant Libel Laws" threatened the freedom of speech and was effectively a "chilling" of the fifth amendment rights of US writers and journalists. So they have now passed protective laws called The Libel Terrorism Protection Act to block supply to the libel terrorists/tourists. Hell, there was even an episode of "The Good Wife" (which I have blogged on earlier) that seemed to pick up on some elements from a known case - Funding Evil where author Dr Rachel Ehrenfeld was sued for libel in the UK (by a non-resident plaintiff) as 23 copies of the publication in question had been purchased through UK online bookstores. 

Anyway with such decisive action by the US courts...take that you British scoundrels...loud applause and hoorays from all...came the backlash. Backlash? you ask, who'd protect such ludicrous laws? The libel terrorism industry protectors and benefactors (the lawyers and judges specifically) in the UK of course. Sure the odd individual beneficiary might have been paid out bazillions of nefariously acquired libel terrorism bucks too but these sensitive malcontents are the least of the issue. Where the real interest lay in keeping the backdoor open is in the legal industry that had built up around the demand. Where the legal industry, like any industry, sees a market it fills it, justifies it and cultivates it. And, now their beautifully fattened up law and their ability to continually suckle at its ever ballooning teat had been taken away.

Does this mean that a potentially never ending source of financial resources and source of social aggrandisement would be affected? Well, shit yeah! But, not without tantrums being thrown from within The House of Lords (the most bewigged and robed attired of them all) it wouldn't. Loud cries of "You shall not pass!" were heard...okay apologies to J.R. R. Tolkien and Gandalf, but you get the gist. Quite right too, how on earth will they ever afford their rented castles and wig makers now?

Rachel Ehrenfeld at the time noted...
"A recent speech by a former senior judge of the appellate committee of the House of Lords, Lord Leonard Hoffmann, expressed strong opposition to the US legislation. He also attacked the UN human rights committee's finding in July 2008 that British libel laws, especially those that facilitate libel tourism, are chilling free speech worldwide. Libel tourism is a phenomenon in which foreign claimants exploit plaintiff-friendly defamation laws to sue authors and publishers in countries in which they have not worked or published." 
All defamation laws and jurisdictions are flawed, expensive and shamefully tawdry in intent, some more so than others. Even the US version has problems, though it at least limits defamation significantly by clearly declaring the truth cannot defame. And it does so without the security of protective wigs.

Defamation/Libel Laws in their current forms do nothing to sufficiently defend the so called defamed and are anti human rights. No one has the human right to
- not ever be offended
- subvert the truth to achieve censorship
- conceal a lie in order to achieve censorship
- elevate reputation above the right to receive and impart information
- utilise laws, poorly framed or not, for a collateral purpose

Truth may offend but it cannot harm a reputation by being known. If true then that is the reputation revealed as it exists. If you don't want others to know you expose your dangly bits to unfortunate school children, defraud, lie, burn, bomb, rape or pillage, then don't be that sort of person/company. Be better, be good and deal with the truth when it comes out by facing it and its consequences honestly. Expose a lie when it is a lie, but don't develop out of such an aim an industry which in reality has the goal to eliminate truth and all knowledge of it. There's a good world citizen.

What is needed?
Reform ** (view the petition and please sign to support Australian defamation law reform)

One follower of our case "couldn't" sign our petition as it doesn't "go far enough", the law should be completely abolished in his view. I can't disagree but I can't see how we might get such an outcome in reality. That said there could be a framework which upholds the right inform on truth and informed opinion.  Wait, isn't that the US Constitution's 5th Amendment? I know but stay with me. Where in addition such a framework channelled complaints through an Administrative Tribunal. One providing democratic access to ones own representation to prove truth or demonstrate a lie. Complete with severely capped potential payouts thus blunting the current windfall component of defamation law that encourages litigation for collateral purpose and authorises censorship which in turn encourages an industry to be built up around it in order to service the litigious and censorial.

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.