SAYING IT SAFELY

Martin Hadley

A SUMMARY FOR THE CRUSADING SKEPTIC OF HOW FAR FREE SPEECH CAN GO

by Martin Hadley

This Paper supports a discussion held at La Notte on 29 January 2012. I repeat my gratitude for the hospitality I received that day; and my appreciation of the fine presentations and comments.

 

Initial word of caution

Defamation law involves a mixture of basic common sense ideas and quite fine distinctions that call for application in particular situations.

 

You will benefit greatly from understanding the basic ideas.

 

Do not treat this paper as exhaustive advice to cover every situation. And do not accept advice about defamation from bush lawyers.

 

Basic terms

In court, a defamation trial involves three main issues in this sequence:

–        Is the material complained of, DEFAMATORY of the person who is suing? (If not, end of trial.)

–        If so, does the person who made the statement, have a DEFENCE? (If so, end of trial.)

–        What damage has been done, and what compensation should be awarded?

 

Note that when people talk about someone being DEFAMED, they often refer only to the first stage.

 

Sometimes it will be quite proper for us skeptics to defame someone eg we criticise a university for teaching a woo woo course as if it is established medicine.

 

It will be proper because what we say is true and truth is a complete defence.

 

What we don’t do is to defame someone WITHOUT A CLEAR DEFENCE

 


Purpose and Introduction

 

BASIC PURPOSE

The purpose of this paper is to impart the basic knowledge that will allow us to communicate our ideas without fear of intimidation by groundless legal threats.

 

It is a broad concept of ‘communicate’. A lot of our work is done through the written word. What we speak is often recorded. Or if it is significant enough, someone else will put it in print. All these are the same in the eyes of the law. A hasty blog entry is as actionable as a book. For those of you who are sick of Chinese proverbs, at least remember this one: “Once put in writing, words have a life of their own.”

 

RESTRICTION NOT INTENDED

I am not trying to rein in members or cramp anyone’s style. As individuals we are like the racing driver who wants to master the various techniques of driving around the track as quickly as possible but without crashing. A speed limit does not help. Some knowledge does.

 

From my perspective I could divide members into two groups: Firstly there are those who write or speak in a way that is always fair and cautious. Perhaps these people do not need to make any changes to their behaviour, but they might as well know how they are doing the right thing.

 

Secondly there are those (including myself) who can’t help but get passionate at times about some of the issues that our work takes us to. As the level of passion rises, so does the desire to speak out. Unfortunately, the increasing desire to speak is seldom accompanied by greater wisdom at the critical time. Perhaps one feels moderated by nothing more than a noble sense that: “In the public interest, this cannot go unanswered!” Consider whether there is also the kick of taking a risk and causing disruption in the enemy camp. At such times it is useful to have an embedded sense of how to say it safely.

 

FAIR EXPRESSION AND OUR INTEGRITY

During the nearly 20 years that I have been involved with the Skeptics as a subscriber or on Committee, I have been impressed by the intellectual integrity of almost everyone I have met. It is part of our enquiring spirit to try to set out relevant facts in a fair and comprehensive manner so that the reader has some ability to decide for themselves, rather than taking our word for it. We will all be tempted by the opportunity of the cheap shot but we want to end up seen as moderate and authoritative.

 

It suits our purposes to be able to justify ourselves when scrutinised. Being unable to do so can lose us much momentum on an issue. For example, I have read The God Delusion and considered it a milestone. Perhaps a bit wordy in places, but that is the academic style. How have Christians reacted? People like Sweatman and I who interact with such people, hear constant complaints of errors made by Dawkins about supposed facts that form planks of his arguments. I do not know whether these complaints are correct, but I have not heard Dawkins refute them. Similarly, I expect most of us have heard Ian Plimer being hammered over factual shortcomings.

 

If we can make sure that our facts are facts, and keep our comments to what is fairly based on such facts, then we are doing the right thing by our readers, by our reputation for integrity and we will remain immune from successful defamation actions. There is no reason why doing it legally should curtail you in fairly expressing yourself as part of our work.

 

NO GUARANTEE OFFERED (OR NEEDED)

This paper is not offered as any guarantee against being sued. The best we can do is to put ourselves onto ground that will turn out to be relatively safe if we are sued. To be sued and to win can still be expensive and VERY TIMECONSUMING. But it well beats being sued and losing.

 

Some of the people we take on are well funded. It is an occupational hazard for us to be sued by someone who does not have a good case. It is not very difficult to persuade a lawyer to sign the papers necessary to commence proceedings, including a certificate that there appear to be good grounds for the case. The object therefore is to make the best of it if we are sued. Despite the expense of being involved in any legal proceedings, there could be situations where being sued allows us to spread our message on the issue further.

 

The separate objectives of firstly succeeding legally and secondly on the merits of the issue, therefore involve the same task of being properly set up from the beginning, with the right facts to back up our assertions. Without inside information no one knows how much money any of the Branches has. I do not think it very likely that we will be sued by someone who is out for easy money, unless we go way overboard. More likely is a suit to silence us. Apart from the survival of the branch, a suit puts our intellectual integrity on the line. How good were our grounds for going into print or speech in the way that led to the complaint?

 

CLOSE CALLS

Why does the media love defamation cases?

I suggest:

–        the allegedly defamatory material is often scandalous or at least interesting;

–        the financial downside for both parties adds drama;

–        they are unpredictable.

 

A couple of examples. There are many aspects to the Singh case, including how he might lose a battle but win the war. It is clear that by using slightly different words, he could have achieved conveyed his intended meaning without being sued. Most of his article was not actionable, and we have been able to republish it.

Some may think it was Simon’s intention to get sued thanks to the publicity it could generate. I doubt it. Being published in The Guardian, he already had a lot of publicity. And it is better to provoke an adversary with material which might cause them to sue, but does not give them a winning case.

 

Secondly, we think of defamation as involving lying about a good person or smearing an innocent reputation. Something bad, if true, is not defamation. And since the camera does not lie, surely if you took a photo of a person, without any retouching or trickery, that could not defame them!? We shall see…

 

What is defamation?

Defamation is the core concept of this discussion. It is old law recently gathered and confirmed by the Defamation Act 2006. Two of the objects of the Act are worth noting – I suggest they are right in line with our attitude:

–        to ensure that the law of defamation does not place unreasonable limits on freedom of expression and, in particular, on the publication and discussion of matters of public interest and importance, and

–        to provide effective and fair remedies for persons whose reputations are harmed by the publication of defamatory matter…”

 

Defamation is part of the common law (sometimes called the general law). The common law got that name when Henry II decided there would be one law for everyone, instead of local Barons being able to tweak their own versions, which meant that their mates tended to win. Much of the common law was not written down. It was regarded as residing in the collective minds of the Monarch’s judges. Occasionally, Statutes could be enacted to redirect the law, or express parts of it. Our Defamation Act works in this way by sitting on top of the common law.

 

The common law could be divided into Criminal and Civil. Basically the division corresponds to:

–        Between Crown and person;

–        Between two persons.

 

The Civil law can in turn be divided into tort and contract. The best way to understand the distinction is that a contract establishes and defines a relationship between two people. Any dispute will be resolved according to the contract, either what is expressly set out or, if necessary, from what is to be implied to cover the situation.

 

Tort is the law that covers people who have not already made it for themselves by contract eg if I slip over in Woolworths on a negligently dangerous floor. Tort was Norman French for ‘wrong’ and means a civil wrong. Defamation is a tort.

 

Some possibility of confusion arises from the fact that some events have both civil and criminal significance eg any car accident where a person is injured. There is such a thing as criminal defamation, but we can leave that aside.

 

The three-stage process

To simplify the procedure, a defamation case involves three steps:

 

Firstly, has the Defendant defamed the Plaintiff, according to the test we will examine below? The Plaintiff has the onus or ‘task’ of proving this.

 

No = Plaintiff loses.

 

If yes, then Defendant will be liable unless one of the recognised defences applies. The Defendant has the onus of making out the defence. At this stage, it is common for people to say that the Plaintiff has been ‘defamed’ but the case is not over.

 

Defence established = Plaintiff loses.

 

If no defence, then the Plaintiff has succeeded. (In precise terms, we have now moved from ‘defamation’ to ‘actionable defamation’.) The third stage is to assess damages.

 

Damage assessment has mostly been done by juries. They have sometimes given the writer a moral victory by awarding damages of ‘a farthing’ to the Plaintiff. That might look frivolous but is a valid binding outcome to the trial. Note however that the Plaintiff would usually get a costs order entitling them to get most their costs paid by the Defendant. But not all costs – the Plaintiff would be out of pocket to the extent of the difference – its irrecoverable costs – and after a typical defamation trial that would be tens of thousands. Meanwhile the Defendant pays the farthing damages plus what it must pay to the Plaintiff for the Plaintiff’s legal costs, plus the Defendant is paying all of its own bill.

 

A note on terminology. All defamation used to be divided into libel or slander, depending on whether it was written or spoken. (There used to be different requirements for proving each.) One thing that the Defamation Act does is to abolish that distinction.

 

What does defamation protect?

A good clue to understanding how defamation works is to think in terms of property law, and not in terms of feelings. You could create a cause of action that looked at deliberate attempts to upset a person. Compensation would depend upon the injury to their feelings – the period and depth of suffering. Defamation law does not completely ignore the feelings of the victim, but the focus is on the person’s reputation before and after. Your reputation is like one of your assets and the idea is that damage to it is akin to damage to your property.

 

Consider two people who are defamed and insulted with a similar allegation, say embezzlement . Both might feel the insult with equal keenness but imagine that one previously had a golden reputation whereas the other was lowlife. With feelings-based compensation they would recover equal damages. However defamation looks at injury to the asset of reputation, which means that the ‘golden’ Plaintiff is better placed.

 

A consequence is that a defamation Plaintiff opens themselves up to scrutiny of their own reputation, prior to the alleged defamation. A Defendant will often tender a tonne of dirt about the Plaintiff, to show that the scurrilous published material was close enough. Don’t threaten to sue for defamation unless you are ready to be scrutinised in detail.

 

Intention is not a critical element. You can defame a person even though you had no intention of insulting them.

 

Defamation law is there to protect our reputations from unfair attack. The defences that are available balance the competing interests of reputation and free speech. It is never intended to be totally free, as per the timeworn example that one is not free to stampede a crowd by yelling “fire” in a theatre.

 

A critical consequence of the focus on reputation, rather than feelings, is that you cannot be defamed by being insulted on your own. Conversely, if you want to give someone a serve, do it to them and to them alone. However brutally you have injured their feelings, you have not defamed them.

 

Direct Contact

Sooner or later you will experience the practical importance of this in terms of disruptive individuals within skepticism. Generally, it is far easier to take a cheap shot at your own movement than at an opponent’s. Within the movement are easy targets at close range. We know all sorts of things about people we have spent time with while relaxed or tired or emotional. Our movement includes some people who are overly hungry for publicity and adulation. If the “critic” as we shall call him or her, has enough hubris, then a few historical irrelevancies can become a sermon from the moral high ground. Or there may be a real problem that they identify.

 

Either way, when you consider what is the best step towards improvement, is it:

a)    A quiet word to the critic; or

b)    Telling the world what you think, probably leading to further attacks on us from pseudonym pseudo-intellectuals in the blogosphere?

 

Your quiet word may cause the critic to realise that being inside the tent, pissing out, is not the only alternative to being outside, pissing in.

 

Of course some people cannot take queries or criticism, so if you put your comments in writing, be prepared to live with the possibility of the critic leaking them.

 

 

Definition

Returning to our definition: A person is defamed when someone communicates something about them that damages their reputation, to another person.

 

There is a lot of law that teases out elaborations of those concepts. I will summarise the more important points. Do not try to learn them as rules. Consider how they show a common sense balancing of reputation and free speech interests.

 

In the examples below, remember that we are dealing only with stage 1.

 

Defamation in whose eyes?

The other person is initially assumed to be a reasonable member of the community – ‘right-minded’ but not perfect. Sometimes there will be defamation only in the minds of a smaller group who have special information. Eg, a statement about a brain surgeon that would strike a chord with other brain surgeons. These members of a small group are also deemed to think reasonably in the application of their special information.

 

Therefore a Plaintiff cannot succeed by showing he is thought less of by a select group of eccentric irrationals or a group whose standards are considered incompatible with general society. However in a pluralist society it can be debatable how something would be seen by the right-minded – acceptable or aberrant.

 

Is it defamation to accuse a bikie of failing to join his gang in assaulting a rival? The person is complying with the law, instead of joining the others in breaking it; but he is breaking the code of his gang?

 

Is it defamation to say someone is gay?

If they had revealed it – Michael Kirby?

If they had denied it – Alan Jones?

 

Special knowledge

The defamation may depend on knowing things in addition to what is stated at the time. It may take special knowledge to ‘complete’ the defamation.

 

Randi was seen sunning himself for a week on the beaches of Mikonos. [Not defamatory. But if we add….]

 

This was at a time that he had failed to appear as speaker at a conference, claiming he was too ill to travel. [People with this additional knowledge will see an allegation that Randi was a liar and a cad.]

 

Identification

Special knowledge often applies to identification. An unnamed person is defamed in the eyes of people who can identify him from the material.

 

The West-Ryde Morris Dancing Society will be run into bankruptcy by its incompetent President.

Some people know the President is ******.

 

No need for suggestion of immorality

A person can be defamed by the description of something that was not their fault, such as being a psychiatric patient. A person once won a case because the alleged defamation was that they had been raped. That might no longer be considered defamation. Standards move with the community.

 

Is it defamation to say that a Qantas pilot has developed Parkinson’s disease?

 

Context

The reasonable person interprets joshing around on a social occasion differently from something seriously put into print.

 

 

Professional and trading reputation

An attack on professional competence is defamatory. If the activities of a business are attacked, the question is: what are the implications for the person involved?

 

A restaurant serves crap food.

 

A shop sold electronic goods that turned out to be faulty.

 

A business is insolvent or about to fold.

 

A person’s business has ceased trading.

If stated to a person who was about to order from them?

 

Interpretation, in light of the above

The idea is to apply common sense to the material instead of trying to hide behind unrealistic or selective interpretations. What is the effect? Remember that reasonable people think in sentences and paragraphs, not by individual words that can be looked up in dictionaries.

 

Mr X has done time.

 

Mr X was imprisoned for three months before his appeal was allowed and he was acquitted. As a result of his experience, he is familiar with prison conditions.

 

The Defences

 

If the Plaintiff has met its onus of establishing that the material complained of is defamatory, then the Defendant can try to make out one or more defences.

 

          JUSTIFICATION = “It’s true.”

This is a complete defence. It is our protection in most of the situations where we defame people, as we unquestionably do at times.

 

Defendants come a cropper when they forget that THEY have to show truth, and the Plaintiff does not have to say anything. Belief that something is true is different from being able to establish that truth objectively.

 

Australia’s biggest ever defamation case, concerning John Marsden, turned on the defence of justification. There was no question that the allegations of having sex with underage male prostitutes, often drugged, were defamatory. Could the Defendant network justify its story? A number of the ‘sources’ turned out to be unreliable when scrutinised. Some folded in the box. Critically, the Defendant could not show that any of the partners had been underage or that the drugs had overborne their consent.

 

Marsden was revealed to be a frequent partner of young male prostitutes, usually picked up from the Cross, whom he plied with alcohol and marijuana during his all night sessions in his large home at Campbelltown. In addition to their fee, the lads were given the train fare home, or a taxi fare if they were lucky. Marsden’s reputation was thus ruined in the eyes of many. Others who had been ‘in the know’ saw their suspicions amplified and publicised in lurid detail across national media. Note however, that the defence of justification was NOT established. Marsden won but probably regretted starting the case. He could have publicly refuted the allegations and left it at that.

 

More mundane examples of failed justification still involve the problem of partial success.

 

I say x is a bad builder. I have evidence from one of his clients of a badly botched job.

 

People like us must note that justification is NOT established by showing that  we have repeated other material, believed to be true.

 

The republisher takes on the same responsibility as the original author. If we repeat something that is defamatory, we may find ourselves obliged to prove that it is true.

 

HONEST OPINION OR FAIR COMMENT

This is another important defence for our purposes. Again, it has its limits.

 

You need to show:

–        honest comment;

–        on a matter of public interest;

–        with the comments based on facts that are set out in the article or are already known by the readership (eg when criticising a book, it can be taken ‘as read’ instead of quoting every passage criticised);

–        and ‘facts’ means facts, not gibberish, bullshit or speculation.

 

In an organisation like ours, the question might arise: whose comment? Any Committee Member might find themselves called upon to answer questions about the organisation. The Member is effectively a spokesperson at that time and the audience will assume their comments are meant to be true, unless they are obviously joking. I think we all appreciate the need to live up to the Committee’s expectations at such times. On any subject where the organisation does not have a view or a policy as such, then it should be made clear that you are expressing a personal opinion.

 

If someone ever says something way out of line, apparently on behalf of Australian Skeptics, then the EO or President should issue a correction.

 

ABSOLUTE PRIVILEGE

This defence is unlikely to assist us.

 

It applies to certain specific situations: Parliament; statements made in Court; confidential communications between Ministers of the Crown; and statements made under lawyer/client privilege.

 

QUALIFIED PRIVILEGE

This defence equates to ‘done in the public interest’. It may help us if we have repeated material that we cannot ourselves justify eg proceedings of an inquiry into vaccination.

 

To invoke this defence it is necessary to show what we should always be doing in any event, namely that we have acted fairly and without malice. No cheap shots.

 

This defence would probably allow us to publish the full Singh article, for the purpose of debate about how the law should bear upon such material. Similarly if we published the preliminary judgement, or a summary of the submissions of Counsel for each side. Until the case is over, it is however safer to remove the allegedly defamatory material, as we have done.

 

Aspirations

Now I will try to summarise how all that affects our conduct as skeptics.

 

  1. We aspire to be 100% accurate and 110% fair.
  2. Always leave no doubt as to what is fact and what is opinion.
  3. The only “facts” are what we can prove if necessary. (Otherwise we are not being 100% accurate.)
  4. If we offer an opinion then:

–        We clearly identify it as such  (which was 2).

–        It will flow reasonably from facts which are stated in the article, and/or the reader knows anyway. (Otherwise we are not being 110% fair.)

  1. Avoid sentences or short paragraphs which can be quoted as ‘whoppers’, requiring you to defend with references to context. How often do you hear such defences and find them unconvincing?
  2. If you play word games with the identity of people, or allegations about them, then be prepared to live with the most serious possible interpretation of your text. Metaphors or nicknames may be humorous but they are not antidotes to liability.
  3. Consider whether your purpose is served by communicating only to the subject person, rather than telling the world about them.
  4. If you write something that criticises someone, consider whether you would be prepared to give it to them across a desk, and sit there while they read it. (If not, why are you reticent? Have you been unfair?)
  5. Before you spread criticism of another person, consider whether your readers will benefit. Are we really motivated by public interest or the pleasure of sounding off?

10.If you are trying to get across an idea or opinion, give the reader the facts and reasoning that enables them to form that opinion themselves. If the reader thinks it is their idea, you have achieved a high level of persuasion.

11.Remember that if something is defamatory and you repeat it, you are committing your own individual act of defamation. You can present both sides of a controversy but this involves more than just slinging mud in the form of quotations.

 

 

 

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