If someone sues you because you made a defamatory statement, you can defend your speech or writing on various grounds. There are three main types of defence:
what you said was true;
you had a duty to provide information;
you were expressing an opinion.
For example:
You can defend yourself on the grounds that what you said is true.
If you have a duty to make a statement, you may be protected under the defence of “qualified privilege.” For example, if you are a teacher and make a comment about a student to the student’s parents — for example, that the student has been disruptive — a defamation action can only succeed if they can prove you were malicious. You are not protected if you comment about the student in the media.
If you are expressing an opinion, for example on a film or restaurant, then you may be protected by the defence of “comment” or “fair comment,” if the facts in your statement were reasonably accurate.
There is an extra defence if you are a parliamentarian and speak under parliamentary privilege, in which case your speech is protected by “absolute privilege,” which is a complete defence in law. The same defence applies to anything you say in court.
Defamation law varies from country to country. My outline here is oriented to the Australian context where defamation law is considered fairly strict. Even within Australia, the things you have to prove to use one of the defences may not be the same in different parts of the country. For example, in some Australian states, truth alone is an adequate defence. In other states, a statement has to be true and in the public interest — if what you said was true but not considered by the court to be in the public interest, you can be successfully sued for defamation.
What can happen
You can be threatened with a defamation suit. You might receive a letter saying that unless you retract a statement, you will be sued.
There are numerous threats of defamation. Most of them are just bluffs; nothing happens. Even so, often a threat is enough to deter someone from speaking out or to make them publish a retraction.
Proceedings for defamation may be commenced against you. This is the first step in beginning a defamation action. Statements of claim, writs or summons shouldn’t be ignored. If you receive one, you should seek legal advice.
The defamation case can go to court, with a hearing before a judge or jury. However, the majority of cases are abandoned or settled. Settlements sometimes include a published apology, sometimes no apology, sometimes a payment, sometimes no payment. Only a fraction of cases goes to court.[1]
The problems
There are several fundamental flaws in the legal system, including cost, selective application and complexity. The result is that defamation law doesn’t do much to protect most people, but it does operate to inhibit free speech.
Cost
If you are sued for defamation, you could end up paying tens of thousands of dollars in legal fees, even if you win. If you lose, you could face a massive pay-out on top of the fees.
The large costs, due especially to the cost of legal advice, mean that most people never sue for defamation. If you don’t have much money, you don’t have much chance against a rich opponent, whether you are suing them or they are suing you. Cases can go on for years. Judgements can be appealed. The costs become enormous. Only those with deep pockets can pursue such cases to the end. If you have say $100,000 or more to risk, go ahead and sue. Otherwise defamation law is not for you — though it might be used against you.
The result is that defamation law is often used by the rich and powerful to deter criticisms. It is seldom helpful to ordinary people whose reputations are attacked unfairly.
Unpredictability
People say and write defamatory things all the time, but only a very few are threatened with defamation. Sometimes gross libels pass unchallenged while comparatively innocuous comments lead to major court actions. This unpredictability has a chilling effect on free speech. Writers, worried about defamation, cut out anything that might offend. Publishers, knowing how much it can cost to lose a case, have lawyers go through articles to delete anything that might lead to a legal action. The result is a tremendous inhibition of speech.
Complexity
Defamation law is so complex that most writers and publishers prefer to be safe than sorry, and do not publish things that are quite safe because they’re not sure. Judges and lawyers have excessive power because outsiders cannot understand how the law will be applied. Those who might desire to defend against a defamation suit without a lawyer are deterred by the complexities.
Slowness
Sometimes defamation cases are launched years after the statement in question. Cases often take years to resolve. This causes anxiety, especially for those sued, and deters free speech in the meantime. As the old saying goes, “Justice delayed is justice denied.”
In Australia, a common sort of defamation case brought to silence critics is political figures suing, or threatening to sue, media organisations. The main purpose of these threats and suits is to prevent further discussion of material damaging to the politicians. Other keen suers are police and company directors. People with little money find it most difficult to sue.
Defamation law definitely affects the mass media, having a chilling effect on free speech. There is a direct chill when stories are changed or spiked. More deeply, there is a structural chill when areas are not investigated at all because the risks of libel suits are too great.[2]
The examples in this chapter are Australian, where defamation laws are notorious for their severity and their use against free speech, and where there is no clear constitutional protection for free speech. In the US, things would appear to be better, with explicit constitutional free speech protection and a public figure defence against defamation. But the US legal system can still be used against those who speak out. In the early 1980s, two Denver University academics — law professor George Pring and sociology professor Penelope Canan — joined together to investigate a rash of cases in which legal charges were made against citizens who spoke out in one way or another.[3] For example, citizens
testified at a hearing about a real estate development
wrote a letter to the Environmental Protection Agency about pollution
made a complaint about police brutality
collected signatures for a petition
reported law violations to health authorities.
In these and many other such cases, the citizens were sued by the real estate developer, the company complained about to the EPA, the member of the police, etc. The most common charge was defamation, but also used were business torts (such as interference with business), conspiracy, malicious prosecution and violation of civil rights. Pring and Canan dubbed these cases Strategic Lawsuits Against Public Participation or SLAPPs. These suits have very little chance of success and in practice very few actually succeed. However, they are very effective in scaring the targets, most of whom become much more cautious about speaking out.
Pring and Canan realised that a key to resisting SLAPPs was constitutional protection for the right to petition the government — an often overlooked part of the first amendment to the US Constitution. By emphasising the free speech and constitutional aspects of these cases, and just by calling them SLAPPs, it is much easier to resist and sometimes to win suits against the SLAPPers for malicious prosecution. Pring and Canan’s book is an essential guide for anyone threatened with a SLAPP. Yet the very prevalence of SLAPPs in the US shows that constitutional protection alone is not enough to prevent the use of the law to suppress free speech. For the reasons outlined here, such as complexity and cost, the legal system is a battleground that is biased in favour of those with more power and wealth. Greater formal protection by the law does not necessarily translate into greater freedom of speech in reality.
1
In Australia and the US, perhaps one out of five suits goes to triaclass="underline" Michael Newcity, “The sociology of defamation in Australia and the United States,”
2
Eric Barendt, Laurence Lustgarten, Kenneth Norrie and Hugh Stephenson,
3
George W. Pring and Penelope Canan,