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 anonymous person circulates defamatory material about you, you can’t contact them to sort out discrepancies.
Say it to the person
Send a copy of what you propose to publish to people who might sue. If they don’t respond, it will be harder for them to sue successfully later, since they haven’t acted to stop spreading of the statement. If they say that what you’ve written is defamatory, ask for specifics: which particular statements or claims are defamatory and why? Then you can judge whether their objections are valid.
It’s not defamatory to criticise a person to their face or to send them a letter criticising them. It’s only defamation when your comments are heard or read by someone else — a “third party.”
Keep a copy for posterity
If you have to censor your writing or speech to avoid defamation, keep a copy of the original, uncensored version — in several very safe places. Save it for later and for others, perhaps after all concerned are dead. You might also inform relevant people, especially those who might threaten defamation, that you have saved the uncensored version. (Be aware, though, that you might be called to produce this material as part of the discovery process in a defamation action!)
Defamation law distorts history. How nice it would be to read old newspapers in uncensored versions, if only they existed! By saving the unexpurgated versions, you can help challenge this whitewashing of history.
Call the bluff
If you are threatened with a defamation action, one strategy is to just ignore it and carry on as before. Alternatively, invite the threatener to send the writ to your lawyer. Most threats are bluffs and should be called. The main thing is not to be deterred from speaking out. The more people who call bluffs, the less effective they become.
If you receive a defamation writ, try to find a lawyer who is willing to defend free speech cases at a small fee or, if you have little money, no cost. Shop around for someone to defend you or contact public interest groups for advice.
Use publicity
Just because you are sued doesn’t mean you can’t say anything more. (Many organisations avoid making comment by saying that an issue is sub judice — that is, under judicial consideration — but that’s just an excuse.) You can still speak. In particular, you can comment on the defamation action itself and its impact on free speech. It’s also helpful to get others to make statements about your case.
A powerful response to a defamation suit is to expand the original criticism. Defamation suits aim to shut down comment. If enough people respond by asserting their original claims more forcefully and widely, this will make defamation threats counterproductive.
A group called London Greenpeace produced a leaflet critical of McDonald’s. McDonald’s sued five people who were involved in distributing it. Two of them, Helen Steel and Dave Morris, decided to defend themselves — they had no money to pay lawyers. They used the trial to generate lots of publicity. Because of the trial — the longest in British history — their leaflet has reached a far greater audience than would have been possible otherwise. The whole exercise has been a public relations disaster for McDonald’s.[10]
Law reform recommendations
Law reform commissions have been advocating reform of defamation law for decades. Possible changes include:
public figure defence so that it’s possible to make stronger criticisms of those with more power;
adjudication outside courts, to reduce court costs;
elimination of monetary pay-outs, requiring instead apologies published of equal prominence to the original defamatory statements.
In spite of widespread support for reform among those familiar with the issues, Australian law remains much the same. That’s because it serves those with the greatest power, especially politicians who make the law and groups that use it most often.
Reforms sometimes don’t help as much as planned. The US has a public figure defence, for example, which means that suers must prove malice. This has become the pretext for highly intrusive discovery exercises that can themselves deter free speech.
Fixing the law is at most part of the solution. It’s also necessary to change the way the legal system operates.
Campaigns for reform of the legal system
Any change that makes the system cheaper, speedier and fairer is worth pursuing. The sorts of changes required are:
reducing costs that are excessive compared to damage done or large compared to a party’s income;
allowing court orders to remove tax deductibility for the legal costs of corporations assessed to have acted high-handedly;
making laws simpler;
introducing compulsory conciliation;
speeding up legal processes.
There’s a much better chance of change when concerned individuals and groups organise to push for change. This involves lobbying, writing letters, organising petitions, holding protests, and many other tactics. In the US, campaigning by opponents of SLAPPs has resulted in some states passing laws against SLAPPs.
Set up defamation havens
The World Wide Web creates the possibility of undermining the use of defamation law to suppress free speech. There are cases in which documents that are defamatory in one country have been posted on web sites in other countries where it is harder and more inconvenient to sue.