Information liberation. Challenging the corruptions of information power

Examples

These examples are all Australian because they are the ones I’m most familiar with. I need to know each case reasonably well to avoid defamation! There are plenty of similar examples from other countries.

Physicist Alan Roberts wrote a review of a book by Lennard Bickel entitled The Deadly Element: The Men and Women Behind the Story of Uranium. The review was published in the National Times in 1980. Bickel sued the publishers. He was particularly upset by Roberts’ statement that “I object to the author’s lack of moral concern.” There was a trial, an appeal, a second trial, a second appeal and a settlement. Bickel won $180,000 in the second trial but received a somewhat smaller amount in the settlement.[4]

Sir Robert Askin was Premier of the state of New South Wales for a decade beginning in 1965. It was widely rumoured that he was involved with corrupt police and organised crime, collecting vast amounts of money through bribes. But this was never dealt with openly because media outlets knew he would sue for defamation. Immediately after Askin died in 1981, the National Times ran a front-page story entitled “Askin: friend to organised crime.”[5] It was safe to publish the story because, in Australia, dead people cannot sue. (In some countries families of the dead can sue.)

In 1992, students in a law class at the Australian National University made a formal complaint about lecturer Peter Waight’s use of hypothetical examples concerning sexual assault. Waight threatened to sue 24 students for defamation. Six of them apologised. Waight then sued the remaining 18 for $50,000 for sending their letter to three authorised officials of the university. He later withdrew his suit. Subsequently the students’ original letter of complaint was published in the Canberra Times without repercussions.[6]

In 1989, Tony Katsigiannis, as president of the Free Speech Committee, wrote a letter published in the Melbourne Age and the Newcastle Herald discussing ownership of the media. Among other things, he said of a review of the Broadcasting Act “that its main concern will be to save the necks of the Government’s rich mates.” Although he mentioned no names, he and the newspaper owners were sued for defamation by Michael Hutchinson, a public servant who headed the review of the Broadcasting Act. Hutchinson sued on the basis of imputations in the letter, which can be judged defamatory even when not intended by the writer. Hutchinson said he wouldn’t accept just an apology; he wanted a damages payment and his legal costs covered. Katsigiannis received $20,000 worth of free legal support from friends, but after three exhausting years of struggle he agreed to a settlement in which he apologised but Hutchinson received no money.[7]

In 1985 Avon Lovell published a book entitled The Mickelberg Stitch. It argued that the prosecution case against Ray, Peter and Brian Mickelberg — sentenced to prison for swindling gold from the Perth Mint — was based on questionable evidence. The book sold rapidly in Perth until police threatened to sue the book’s distributor and any bookseller or other business offering it for sale. The Police Union introduced a levy on its members’ pay cheques to fund dozens of legal actions against Lovell, the distributor and retailers. The defamation threats and actions effectively suppressed any general availability of the book. For ten years, none of the suits against Lovell reached trial, but remained active despite repeated attempts to strike them out for lack of prosecution. Eventually, in 1996 Lovell reached a settlement with the Police Union. All the cases were dropped and he became free to sell his books in their original form. (Financial details of the settlement are confidential.)[8]

In the late 1970s, fisherman Mick Skrijel spoke out about drug-running in South Australia. Afterwards, he and his family suffered a series of attacks. The National Crime Authority (NCA) investigated Skrijel’s allegations but in 1985 ended up charging Skrijel for various offences. Skrijel went to jail but was later freed and his sentence set aside. In 1993, the federal government asked David Quick QC to review the case; Quick recommended calling a royal commission into the NCA, but Duncan Kerr, federal Minister for Justice, declined to do so. Skrijel prepared a leaflet about the issue and distributed it in Kerr’s electorate in Tasmania during the 1996 election campaign. Kerr wrote to the Tasmanian media saying he would not sue Skrijel but that he would sue any media outlet that repeated Skrijel’s “false and defamatory allegations.” The story was reported in the Financial Review but the Tasmanian media kept quiet.[9] Skrijel’s view is that most media wouldn’t have published much on his case no matter what and that defamation law provides a convenient excuse for media not to publish.

Options

In practice, the court system and the media serve to protect the powerful while doing little to protect the reputation of ordinary people. They undermine the open dialogue needed in a democracy. There are various options for responding to uses of defamation law to silence free speech. Each has strengths and weaknesses.

Avoid defamation

Writers can learn simple steps to avoid triggering defamation threats and actions. The most important rule is to state the facts, not the conclusion. Let readers draw their own conclusions.

Instead of saying “The politician is corrupt,” it is safer to say “The politician failed to reply to my letter” or “The politician received a payment of $100,000 from the developer.”

Instead of saying “The chemical is hazardous,” it is safer to say “The chemical in sufficient quantities can cause nerve damage.”

Instead of saying, “There has been a cover-up,” it is safer to say “The police never finalised their inquiry and the file has remained dormant for nine years.”

Be sure that you have documents to back up statements that you make. Sometimes understatement — saying less than everything you believe to be true — is more effective than sweeping claims.

If you are writing something that might be defamatory, it’s wise to obtain an opinion from someone knowledgeable. (Remember, though, that lawyers usually recommend that you don’t say something if there’s even the slightest risk of being sued.)

Another way to avoid being sued for defamation is to produce and distribute material anonymously. Some individuals do this with leaflets. They are careful to use printers and photocopiers that cannot be traced. At times when few people will notice them, they distribute the leaflets in letterboxes, ready to dump the remainder if challenged. Gloves of course — no fingerprints. For those using electronic mail, it’s possible to send messages through anonymous remailers, so the receivers can’t trace the sender.

These techniques of avoiding defamation law may get around the problem, but don’t do much to eliminate it. They illustrate that defamation law does more to inhibit the search for truth than foster it. If an