Media power and defamation
One of the best responses to defamatory comments is a careful rebuttal. If people who make defamatory comments are shown to have gotten their facts wrong, they will lose credibility. But this only works if people have roughly the same capacity to broadcast their views.
Only a few people own or manage a newspaper or television station. Therefore it is difficult to rebut prominent defamatory statements made in the mass media. Free speech is not much use in the face of media power. There are cases where people’s reputations have been destroyed by media attacks. Defamation law doesn’t provide a satisfactory remedy. Apologies are usually too late and too little to restore reputation, and monetary pay-outs do little for reputation.
Most media organisations avoid making retractions. Sometimes they will defend a defamation case and pay out lots of money rather than openly admit being wrong. Media owners have resisted law reforms that would require retractions of equal prominence to defamatory stories.
By contrast, if you are defamed on an electronic discussion group, it is quite easy to write a detailed rebuttal and send it to all concerned the next hour, day or week. Use of defamation law is ponderous and ineffectual compared to the ability to respond promptly. Promoting interactive systems of communication as an alternative to the mass media would help to overcome some of the problems associated with defamation.
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.
4
David Bowman, “The story of a review and its $180,000 consequence,”
5
David Hickie, “Askin: friend to organised crime,”
6
Graeme Leech, “Lecturer drops suits against students,”
7
Robert Pullan,
8
Avon Lovell,
9
Richard Ackland, “Policing a citizen’s right to expression,”