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. 
(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 http://www.flickr.com/photos/handmadelove/5079989981/

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).

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.
and... 

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)