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?" ...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.

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. 

"An Outbreak of Reason..." In Defamation Law? Unlikely.

Grendel's Mother 2007

At a Directions Hearing intended to assign yet another new start date for our case to be heard at trial Supreme Court of Victoria Associate Justice Melissa Daly remarked as a question to the appearing barristers "…it is possibly safe to assume there has been no outbreak of reason?"

Where Defamation Law fails is in its practice. The facts of a case, the truth, simply get in the way when all that defendants should do is back down in order to be seen as reasonable by the court. It is a flawed and insincere system that is the Victorian Supreme Court. 

I recognise that Justice Daly's comment may come from a sense of helpless frustration as it is likely connected to valid concerns of a congested and overworked court system. However, is this the fault of all parties associated with the attendant grid-locked cases? What I'd ask Justice Daly, if I could is, where is this complained of lack of reason actually present? The subject of reason is one raised over and over by my co-Defendant and I with regards it's relative absence in light of efforts, particularly by the Plaintiff and his lawyers in our case, but also by the justice system itself, to ensure the journey of the case has as little relationship with reason as possible. 

In Defamation Law the legal sanctions and burdens are all on the defendant. The constant rescheduling of our case at such a late hour is out of our hands, and, we've jumped through every fiery hoop one can imagine to get there. What is it that we could do to make matters more reasonable? Give up and lose our life's possessions entirely as well as completely shred our ethics and values?

Justice Daly's off the cuff remark, noted above, in part a defensively put apologia of sorts to the appearing barristers, presumes by its tone that problems or flaws only exist outside those caused by her own industry, and because it presents a perversion of reality I must point out the following:

1. I am a reasonable person the remark implies this isn't the case.
2. My co-defendant is a reasonable person the remark implies this isn't the case.
3. Each in our own way critique the assailing of reason by the forces of unreason in our art and writings. The remark implies this is irrelevant.
4. Justice Daly's off the cuff remark implies the court assumes there is a lack of reason on behalf of all parties to a case.
5. The remark and its attendant assumptions issued within an open court room embarrassed with its tone. And, those in attendance found the justice's remark to be amusing at my and my co-defendant's expense.
6. Reason itself has already been rejected on a number of occasions by officers of the court system itself…Daly has no weight behind her assertion that there is little reason on behalf of the parties when it is the court that has assisted to create the unreasonable circumstances allowing for the case to continue at the behest of an unreasonable litigant.
7. Defamation Law provides an unreasonable person, who has the financial means, the capacity to utilise the law as a weapon, as a tool of censorship to suppress knowledge of the truth.  As I've noted in previous postings Defamation Law is a known means by which to threaten critics, prevent criticism and quash evidence of truth and therefore apply limits to truth and free speech which the law claims it does not intend to restrict or limit. For further reading see: "Defamation Terrorism is Alive and Well in Australia" & "How Defamation Law Achieves Censorship in modern Australia" etc. 
8. Defamation Law contains no sign of reasonable checks and balances to prevent its misuse. Misuses are only identified at trial and are rarely punished. 
9. Those that finally get to trial to defend truth are labelled "unreasonable" by a court system that cannot cope with the self-created problems it complains it has become overburdened by. Our case being delayed is due to other newer cases usurping it in importance (as ours was delayed). This is an outcome we cannot affect. 
10. The over-burdened court, through its own unreasonable processes, has made a case string out to almost 3 years, then blamed those who are inextricably caught in the inevitable congestion for this outcome. Thus the court turns on those who have been victims once making them victims all over again by in addition blaming them for possessing a lack of reason.

The question of reason is one we put to the Plaintiff Robert Cripps. When Robert Cripps consistently spewed forth public diatribes containing accusations of racism against us and our exhibition (that we'd unfortunately held in his failed Guildford Lane Gallery) we attempted to reason with him. We challenged his ideas and pointed to the flaws in those ideas and complained to him of his behaviour towards us. The attempts we made to defend our reputation and art however simply further incensed an unreasonable person. 

Why the attempts we made to "reason" with Cripps so spectacularly failed is a good question that we'd like to have answered too. He either ranted more or denied ever having made the accusations we complained of. He further lied about steps he took to distort viewers' understanding of the content of our exhibition and his successful aim to deny us access to the gallery for the duration of the show. His behaviour was and is not that of a reasoned or reasonable person. 

I give you "Exhibit A" being the defamation case before the Supreme Court of Victoria brought by the Plaintiff Robert Cripps. It is not that I or my co-Defendant lack reason in being forced to defend ourselves against a person using an unreasonable system that feeds and nurtures his unreasonable sense of hurt. Robert Cripps, a person who has caused me and my co-Defendant harm, and the Supreme Court of Victoria have forced me to engage with them both, not the other way around.

Daly (et al) complain of what I see as a self inflicted - overburdened - system. It appears they have a different view since it is believed there must be a taint upon our character or the character of other/all parties to a case by association, as they will have us all lumped together as persons who lack reasonableness. 

It is Robert Cripps who detected the weaknesses in Defamation Law and who is now attempting to exploit it to his advantage. He like others before him see an opportunity, using defamation law to make up for complained of poor business practices and unprofessional behaviour. Defamation Law and the courts contribute to and validate such unreasonableness by not striking out cases brought to it that are clearly vexatious litigation. 

If Defamation Law is to maintain a valid place it must reform and tighten up its proclaimed "objects of the act". Where are the early phase checks and balances to avoid its misuses? It should never be used to prop or conceal a poor reputation in order that it may continue to cause harm. It should never be possible to misuse Defamation Law in order to make financial gain on the basis of concealing the truth of a pre-existing and extant poor reputation. 

The result is that in practice Defamation Law does exactly what is claimed it is framed to avoid, limit and restrict the imparting and receipt of information, as it dismisses truth as being harmful to a reputation and therefore defamatory. 

The only cause of any harm ever to Robert Cripps, is Robert Cripps. Perhaps he really should be suing himself?

If there exists any lack of reason it is in a poorly framed Defamation Law that does not care where, how or when it should not be used, in a judicial system that merely looks the other way as it is over-whelmed(?), and in Plaintiffs who will exploit these built in flaws.

Other Reading (image heavy): http://www.redlegvartists.com/fraud.html