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?" ...is 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.
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.
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.