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) 

What ever happened to the separation of Church and State?

Censorship Australian Style 2012

"The Christian lobby says children as young as 11 are regularly accessing porn online. Research had also found that 84 per cent of boys and 60 per cent of girls had been exposed to internet sex sites accidentally." Michelle Gratten, 9th November 2012: http://www.theage.com.au/technology/technology-news/backdown-on-internet-filter-plan-20121108-290qr.html#ixzz2BhVpWh1G

As a child growing up in the 1960's - 1970's I was "accidentally" exposed to porn, not through the internet of course which was only available widely in Australia by the time I was in my mid 20's. My father had a "collection" of porn magazines, hidden badly, we found them "accidentally" as Michelle puts it. When you are 5 you are not looking for porn, you are looking for secrets, lollies, treasures. You are at your nosiest as a little child and those who will remember know that curiosity takes you for a walk and you just have to follow. We were all very little and went through this "collection" with eyes ever widening, utterly transfixed amidst much giggling. Even when you are little you can't look away from some imagery. Colourful and intriguing? Yes, but harmful? No. In the years that followed New hiding spots for the "collection" were randomly discovered. Some of the imagery I encountered remains vivid to me and it taught me a little about the naked form in a way. Not in a disturbing way the Christian Lobbyists will be sad to know or find difficult to understand. Images are powerful but they can't alter the essence of who we are. We are more than the sum of our individual experiences which include what we are ingesting or digesting through seeing, hearing and reading. Statistic such as those quoted by The Christian Lobby, if correct, only tell us that children encounter porn (who'd have thought) but not that this is harmful. Statistics also tell us a significant percentage of sexual abuse of children is perpetrated by religious leaders such as priests or similar, nuns,  or officials belonging to various denominational religious bodies, which we know, without requiring statistical proof, is harmful to children.

Why the Christian Lobby is not concentrating more on addressing the sexual or physical abuse of children by Catholic, Anglican etc, nuns, priests and others belonging to the Christian Church realm is beyond reasonable comprehension. Abuse of children within these bodies existed prior the internet and still does. A form of Nanny cam lock on the Australian internet is not any sort of solution to protect children but represents a real and potentially damaging attack upon what  freedoms of expression, thought and access to information we do have in this country. Such an act of parliament would open the door wide to do so for any purpose deemed to be harmful to the public palate. Art, literature, music, poetry, thoughts, ideas, politics all could slowly be sucked into a sticky web of censorship for reasons of public protection. Political rivals labelled harmful etc. And, all in secret. Suddenly and without warning a site and or its content could be deemed harmful and blocked. Attacking the perpetrators of any internet visible crime such as child porn and shutting down that industry at its source is the solution. Finding and shutting down the physical criminals, the who and where they operate. Technically internet filters will be detoured around by correctly skilled and resourced criminal networks. Use of the internet to locate and target them using their own medium is the logical remedy. Still this does not address the ultimate aims of The Christian Lobby of course which deems all porn harmful. It isn't, it never will be and it isn't criminal though some forms of porn may be, normal adult consensual porn is not in and of itself evil, harmful or illegal.

The internet is of course a kind of unfettered filter in itself and mostly it is a valuable delivering in its warts and all way a summation of human generated content. Good, bad and ugly the public domain needs to remain visible to us, not hidden. The laws and processes to address the criminal aspects of the net additionally need to remain transparent and open to challenge when wrongly or unfairly applied. Just as with the physical world, open and transparent works best in the digital space. Secrecy in law supports suppression of information which conceals actions that may further suppress our natural freedoms and rights. Then we will have censorship and Government power over the individual is ensured to be lead out of balance. If Government is pliable, yielding and swaying to suit a Lobby or Faction with greater influence than the general public then the temptation for Government is to widen the ambit of legislation beyond its original scope. In order to curry or gain favour in tough political times a Government under the influence can be tempted to make changes that suit a few but damage the rights of many. This is never more the case when acceding to religious or cultural pressure when it is the case that human rights must come first and foremost before the religious or cultural. Bad legislation by weak Government leads to bad Government through corrupted decision making. Religious influence over Government decisions is undesirable any way you look at it. Religious causes that successfully apply pressure to produce legislation of questionable benefit outside of a religious criterion is religiously inspired cronyism and it is insidious as it will ultimately destabilise secular democracy. 

Barely concealed attempts to enact legislated censorship such as the internet filter bill must not take 5 years to fail. Though we can't blame the Christian Lobby necessarily for attempting to pursue their religious agenda by influencing our socio-political framework via their political sympathisers, that they are formally being give so earnest an ear by our Secular Democratic Government is of great concern. 

What ever happened to the separation of Church and State? 

It is more than of passing concern now that this Labor Government, since Kevin Rudd, are not just seeming to be but are full on emerging as more religiously reactive, sensitive, acquiescent and influenced overall.The Christian Lobby and the current Labor Government are obviously too close. It would otherwise never have taken 5 years to rule out this filter nonsense and if they were listening to public temperament at all, we'd have legally recognised same sex marriage in Australia by now. Clearly the Australian Government are not listening to what the Australian people want, it can't hear them as it is only a few are being provided their full attention.

Australians, the State Knows Best

Art with a message the State disagrees with had better watch out in Australia. Censorship by the government is the way the State puts limits on certain thoughts being expressed publicly and with which the State disagrees or perhaps it considers may cause public unrest? north-korean-artists-banned-from-australia  These North Korean artists were commissioned by the Queensland Art Gallery to supply works for exhibiting but they were not allowed entry to Australia to explain their works. This might upset the thoughts of a free thinking secular democratic Australian public, so they were denied visas. The Australian public is here being told that in certain matters they must not be permitted to think for themselves and they must be protected from the expressions, words, ideas, thoughts of others. 

Is the Government overstepping its role? I am concerned it may not matter to Australians as much as it should. Whatever the message art, literature, speech may deliver, the silencing of it by-way of laws designed to limit free expression is much worse.