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) 

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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.