How to make defamation threats and actions backfire
Australian Journalism Review, Vol. 27, No. 1, July 2005, pp. 157-166
Brian Martin and Truda Gray

Backfire materials

Backfire Basics

Brian Martin's publications on defamation

Brian Martin's publications

Brian Martin's website

Abstract
Defamation threats and actions often discourage free speech, including in low-profile cases that never come to the attention of journalists or lawyers. To respond to oppressive uses of defamation law, it is useful to learn from the ways that other sorts of attacks (such as attacks on protesters) backfire on the perpetrators. The main methods for ensuring that appropriate outrage occurs in relation to a defamation threat or action are to expose what happens, validate the target, interpret the action as censorship, avoid or discredit the courts, and resist intimidation and bribery.

Defamation actions often serve as a form of legal intimidation, suppressing free speech. Threats of defamation suits are more frequent than suits themselves, and can have the same effect. In Australia, where defamation laws are quite favourable to plaintiffs, defamation law is an especially powerful tool against free speech (Pullan 1994).

Before proceeding further, it is important to note the effect of defamation law on any commentary about problems with defamation law. In giving examples, writers must be careful not to make themselves, or their publishers, vulnerable to defamation suits. As a result, it is risky to tell the full story about many cases. Nevertheless, it is possible to give a few illustrations.

* Robert Askin, premier of NSW from 1965 to 1975, was widely known to be corrupt. But the media did not publish what they knew for fear of defamation actions. Only after Askin's death in 1981 were stories of Askin's involvement in organised crime published (Hickie 1981).

* In 1985, Avon Lovell's book The Mickelberg Stitch was published. It analysed the police case against the Mickelberg brothers, gaoled for swindling gold from the Perth Mint, concluding that they were framed. The book sold briskly until the police sued Lovell, his publisher and distributor, and threatened to sue bookshops and newsagents. Western Australian police paid a levy on their paycheques for years to fund dozens of defamation cases concerning The Mickelberg Stitch. After more than a decade, a settlement was reached that allowed Lovell's book to be sold. In 2004, an appeals court quashed the convictions of the Mickelbergs (Mayes and King 2004).

* The owners of a marina on Hindmarsh Island, near Adelaide, sued environmental organisations and individuals, as well as media organisations, over statements critical of a proposed bridge to the island. This had the effect of discouraging public comment about the development (Kumarangk Legal Defence Fund 1998).

* In the late 1970s, Mick Skrijel blew the whistle on drug importation in South Australia and suffered numerous reprisals. In 1996, in an episode in his long-running saga, Skrijel distributed leaflets in the Hobart electorate of Duncan Kerr, then federal Minister for Justice, because Kerr had not acted on Skrijel's complaints about the National Crime Authority. Kerr sent the Australian Federal Police to Tasmania to interview Skrijel and threatened defamation actions against media outlets that were due to interview him (Ackland 1996).

What is distinctive about these and many other similar examples is that the media are a key target of defamation actions. This is partly an artefact of the choice of prominent examples, because they are ones that receive media coverage. But there are other, less obvious effects of defamation law, that are manifested in low-profile cases, many of which never come to the attention of a lawyer, much less a journalist. Here are some examples, inspired by actual cases that have come to our attention, but with details altered.

* A group of disenchanted high school students circulated an anonymous leaflet making fun of some of their teachers. One teacher responded with defamation threats against anyone involved.

* A member of a service club sent an email to another member making critical comments about the club president, in particular concerning use of funds. The recipient showed the email to officers at the club. The sender of the email then received a writ for defamation.

* A teacher wrote a report on a poorly performing student. The student's parents threatened to sue unless certain comments were retracted.

* Several individuals heard about abuse in a residential service for people with disabilities. They obtained documentation from workers about the abuse and reported it to the head of the service. They received a defamation writ.

* A woman was assaulted at work by a co-worker. She reported the assault and the attacker was moved. The attacker threatened to sue for defamation if anything further was said about the matter.

* A man complained to an estate manager about lack of assistance in obtaining some personal documents from a relative's estate. He received a reply demanding an apology for the criticisms and threatening an action for defamation if no apology was received.

* A couple made a posting on an email list critical of the views of another poster. They received a letter demanding an apology and payment of a specified sum, otherwise they would be taken to court.

* The editor of an academic journal, in editing an article to be published, removed some sentences that referred to individuals, believing them to be potentially defamatory. The editor did not consult with the author of the article.

Anyone familiar with defamation law will realise that many of the threats described here are unlikely to result in writs, and that many of the individuals had adequate defences and did not need to worry. For example, the teacher, in writing a report on a student, would be protected by qualified privilege. But few individuals in such cases are knowledgeable about defamation law; many of them are easily intimidated by a threat and even more so by a writ. Defamation law thus operates to inhibit free speech in a wide range of circumstances unknown even to those who follow the big cases.

What can be done? The usual prescription is law reform. This has a long history of failure. Law reform commissions have been recommending change for decades, but usually with no impact. Some proposals for unifying Australian defamation laws would actually make free speech more difficult.

The problems have remained the same over a long period: defamation law is very expensive, slow and complicated. It is not very good for protecting reputations - especially for anyone who does not have a fair bit of money - and is regularly used in ways that inhibit free expression.

A wider problem is that defamation is only one of the legal means used to suppress free speech. For example, the Tasmanian timber company Gunns has sued environmentalists using a variety of torts. Legal actions attacking free speech are commonly called SLAPPs: Strategic Lawsuits Against Public Participation (Donson 2000; Pring and Canan 1996; Walters 2003). Defamation is one of many types of actions used in SLAPPs.

A law reform response to SLAPPs is anti-SLAPP legislation, as implemented in a number of US states. A possible solution in Australia would be to establish a legal right to comment. Such initiatives can be valuable, but there is still a limitation: in many cases threats are made and legal actions initiated even though they have little chance of success. In the US, SLAPPs routinely fail in court because of the First Amendment's guarantee of the right to petition the government, but the SLAPP as a technique is still effective because so many targets are frightened.

Rather than focus on changing the law, another option is to give people knowledge and skills that they can use against speech-inhibiting threats and suits. For this we use the backfire model, as described in the next section.
Defamation backfire

An action that is perceived as unjust can backfire against those held responsible by creating outrage and mobilising opposition constituencies. To illustrate this, we use an example dramatically different from defamation. In 1991, Indonesian troops opened fire on protesters at a funeral in Dili, East Timor, killing a large number of them. Previous massacres had been covered up, but this one was witnessed by a number of western journalists and recorded on videotape by filmmaker Max Stahl. When the recording was shown internationally, it generated massive outrage and provided an immense boost to the East Timor support movement. The massacre, intended to crush the independence movement, had exactly the opposite effect.

Attackers can take various steps that inhibit outrage from their actions and thus reduce backfire. The most common methods fit under the five categories of (1) covering up the action, (2) devaluing the target, (3) reinterpreting the action, (4) using official channels and (5) intimidating or bribing participants. After the Dili massacre, Indonesian officials: (1) cut off phone connections out of East Timor and alerted Australian customs officials to search Max Stahl; (2) made derogatory comments about the protesters; (3) claimed that only a few protesters died and that the incident was provoked by the protesters; (4) set up inquiries into the event that whitewashed the military's role; (5) immediately arrested and assaulted many East Timorese involved in the independence struggle.

The five methods of inhibition can be met by a variety of methods of amplifying backfire along the lines of (1) exposing what happened; (2) validating the target; (3) emphasising the injustice involved; (4) avoiding or discrediting official channels; (5) resisting and exposing intimidation and bribery. The Dili massacre backfired because: (1) the western eyewitnesses and the video cut through Indonesian censorship; (2) western audiences thought the East Timorese were just as worthy as Indonesians; (3) credible sources, and the video, challenged Indonesian interpretations of what happened; (4) official inquiries had little credibility for western audiences; (5) western audiences could not be directly intimidated or bribed; indeed, stories of intimidation increased their outrage.

This model has been applied to censorship (Jansen and Martin 2003, 2004), whistleblowing (Martin with Rifkin 2004), dismissal of academics (Martin 2004a), police beatings (Martin in press), torture (Martin and Wright 2003) and the invasion of Iraq (Martin 2004b).

It is straightforward to apply the backfire model to uses of defamation law that suppress free speech. Indeed, such uses of defamation law can be conceived of as one form of censorship. But there is a peculiar feature of defamation cases: the suppression occurs through an "official channel," namely defamation law. Because the law exists, many people assume that it is legitimate. Therefore, in opposing the injustice of defamation actions, it is especially difficult to avoid or discredit the official channels, namely defamation law itself.

We now examine each of the five main avenues for amplifying backfire, seeing what they imply for countering suppression of free speech through defamation law. These tactics are suggested only for those cases where participants are willing and able to use them. There are many situations when it is advisable to make apologies, keep a low profile or focus on defending oneself in court. The suggestions here are for cases in which free speech issues can be easily highlighted and in which defendants are willing and able to pursue attempts to make defamation threats backfire. It is always wise to proceed with care and with good advice.
Expose what happens

One of the most effective ways to prevent outrage from injustice is to cover up the injustice. Therefore, to amplify outrage, it is essential to provide information about what is happening to significant audiences.

However, in many defamation cases, neither party wants publicity. The plaintiff seldom wants attention drawn to the matter: after all, preventing further comment is the whole point. But defendants often are reluctant to go public, for various reasons. Some are embarrassed by the allegations. Others are afraid, and sometimes believe that they might further defame the plaintiff or imagine that the matter cannot be discussed because it is sub judice.

To maximise backfire, publicising the defamation threat or suit is a powerful tool. For example, if a public official threatens to sue over criticisms, the critic can report the criticisms, plus the threat, in leaflets, emails and/or a website. To publicise the threat or suit, it can be advantageous to have a supporter or support group that takes responsibility for getting the message out, thereby protecting the defendant from legal complications.

Cover-up also occurs when settlements of defamation cases include a silencing or gagging clause, requiring all parties to keep quiet about the original matter. Plaintiffs often insist on such clauses, sometimes refusing to settle otherwise.

To magnify backfire, defendants should refuse such clauses when possible. But when financial concerns make a settlement hard to resist, it is still possible to publicise the matter by making sure, in advance, that sympathisers, not bound by the settlement, have adequate information to continue to raise the matter.
Validate the target

A prime way to reduce outrage over an injustice is to denigrate the target. The poor, the homeless and people with disabilities are often the victims of an uncaring system. By blaming them for their plight, outrage is reduced.

When people are sued or threatened with defamation actions, the implication is that they have broken the law and done something objectionable. In addition, in some cases defendants are verbally abused, often via rumours.

To resist this process of devaluation, defendants and their allies should do everything possible to present an honest, principled, upright image. Depending on the case, they can present themselves as defenders of the truth, as straight speakers, as principled objectors to censorship.
Interpret the action as censorship

Defamation actions serve to redefine an issue as one of damage to reputation. Defendants must emphasise that free speech is the central matter.
Avoid or discredit the courts

Because many people believe that the legal system provides justice, defamation law is a powerful ally of censors. But once inside the court, matters of justice are submerged by procedural matters; the issue of censorship is not even on the agenda. Therefore, the courtroom is an unpromising venue for producing outrage.

Luckily, most defamation threats never graduate to suits and few suits ever reach court. In terms of promoting outrage, defendants need to avoid putting lots of effort into legal niceties and instead think in terms of publicity and mobilising support. Every stage of the legal process is a potential angle for publicity about the original matter. Supporters should emphasise that the courts do not necessarily deliver moral justice.
Resist intimidation and bribery

Many people are frightened by defamation threats and suits. They are truly a form of "legal intimidation" (Donson 2000). Likewise, the attraction of a settlement induces many defendants to agree to silence.

To make defamation actions backfire, it is vital to overcome feelings of being intimidated and to proceed with publicity. Defamation actions can instead be thought of as opportunities for revealing what opponents will do to stop free expression.

Some people, due to their financial or personal circumstances, are not in a position to stand up against defamation threats and actions. But others are. To oppose oppressive uses of defamation laws, it is useful to find indigent advocates of free speech: people with few financial assets but a willingness to speak out, for example by writing accounts, circulating leaflets or sending emails. Ways need to be found for rewarding such individuals, for example through fame or subsidised housing and food.

Another method for resisting intimidation is to spread the risk by involving lots of individuals in publishing materials. For example, if a website comes under attack, the author can seek several others to post the material. If these others are threatened, they in turn can find yet others, further afield.
Examples of defamation backfires

In 1990, McDonald's sued several members of the anarchist group London Greenpeace over its leaflet "What's wrong with McDonald's?" McDonald's had a history of suing its critics, and most of them acquiesced (Donson 2000). But in this instance, two individuals, Helen Steel and Dave Morris, refused to give in. The court case, the longest in British history, triggered the creation of an international support network for the activists and became a public relations disaster for McDonald's (http://www.McSpotlight.org; Vidal 1997).

Steel and Morris did nearly everything right to amplify backfire. (1) They, and their support network, publicised the defamation action, breaking the normal pattern of cover-up. (2) As low-paid activists, they obtained sympathy for their plight in being sued by a powerful multinational corporation. They also gained credibility by not seeking personal gain from the process. (3) They successfully interpreted the suit as a matter of free speech. (4) They used the court process to present damaging testimony about McDonald's, which was subsequently publicised. (5) They were not intimidated. They also refused offers to settle.

John Marsden, a prominent Sydney solicitor, sued Channel 7 over two television broadcasts in 1995 and 1996 that alleged that he had had sex with underage boys. Channel 7 defended vigorously, and the whole process further damaged Marsden's reputation (ABC 2000; Marsden 2004; McClymont 2001). (1) There was continuing media coverage about the trial, repeating the original defamatory allegations. (2) Witnesses called by Channel 7 made damaging claims about Marsden. (3) Channel 7 successfully presented the matter as one of public interest. (4) Channel 7 used the court case to focus on Marsden, neutralising the law as a means of attack. (5) Channel 7 was not intimidated by Marsden's suit but instead fought the case tenaciously.

Marsden won in court, receiving about half a million dollars for injury to his reputation plus millions in costs, and later further millions in a settlement. [Note added after publication: we have since found out that Marsden received payment for injury and costs, but no "further millions".] But the publicity surrounding the case damaged his reputation far more than the original broadcasts. Channel 7, by being willing to spend millions of dollars on the case, was able to make it backfire on Marsden.

Brian Martin, on his website at the University of Wollongong, provides many documents on suppression of dissent. In 1997, he put a document on the site about Dudley Pinnock, a professor of entomology at the University of Adelaide who had been declared redundant. The Vice-Chancellor of the University of Adelaide, Mary O'Kane, contacted the Vice-Chancellor of the University of Wollongong, saying that the Pinnock page could result in legal action. Martin was instructed to remove the page and did so, but arranged for it to be posted on several other websites, and put links to these sites on his revised Pinnock page, which described what had happened (Martin 2000). The attempt to hide information about Pinnock's redundancy was countered by these tactics. (1) The request to remove the site was revealed. (2) There was no public attempt to denigrate Martin. (3) The matter was presented as one of free speech. (4) Official instructions to remove the page were followed, thereby avoiding entanglement in disciplinary procedures or court cases. (5) Martin was not intimidated, but used O'Kane's actions as a tool for increasing attention to the Pinnock matter and to the use of the web for challenging censorship.

Tim Field supports individuals subject to bullying at work and runs a website at www.bullyonline.org. He says that "threats of libel are a hazard of the job, especially when I blow the whistle on bullying cases. As a self-employed individual I cannot use the UK's Public Interest Disclosure Act, but bullies often don't realise that a defamation action resisted with a backfire strategy can provide a much more prominent platform for public disclosure." (personal communication, 17 August 2004).
Conclusion

The usual responses to the problem of defamation law being used to suppress free speech are either to acquiesce or to seek law reform. Neither is satisfactory. We propose an alternative approach: encourage more people to use tactics that make such injustices backfire. Insights drawn from backfires in diverse arenas can readily be applied to defamation.

Defendants have five main ways to make defamation threats and actions backfire: expose what is going on, validate the target, interpret the action as censorship, avoid or discredit legal processes, and refuse to be intimidated or bribed. For powerful organisations sued by individuals, these rules are easy to follow, as shown by John Marsden's disastrous suit against Channel 7. The immediate lesson for individuals is that it is unwise to sue any person or organisation with more money and staying power.

For individuals sued by those with more money and power, matters are less clear-cut. In many cases, individuals cannot afford the time and money to resist legal bullying. However, many individuals can do better than they imagine if they follow the steps to amplify backfire. The first thing is not to give up immediately but instead to carefully examine options. In some cases it is wiser to acquiesce, but in others a valiant defence can be successful.

For society, it is certainly better if more individuals attempt to make defamation actions backfire: society benefits from dissent, even if individual dissenters do not (Sunstein 2003). The valiant efforts of Helen Steel and Dave Morris against McDonald's have made large corporations more reluctant to sue and thus have benefited consumers and citizens generally. Such exemplary struggles have an influence far beyond their immediate circumstances. The challenge ahead is to offer encouragement and skills to more people so that they are able and willing to resist legal intimidation.
References

ABC Radio (2000, July 20). Defamation case has ruined my life and reputation: Marsden. 7.30 Report (transcript of broadcast) (accessed 4 May 2005).

Ackland, R. (1996, February 9). Policing a citizen's right to expression. Australian Financial Review, p. 30.

Donson, F. J. L. (2000). Legal intimidation: A SLAPP in the face of democracy. London: Free Association Books.

Hickie, D. (1981, September 13-19). Askin: friend to organised crime. National Times, p. 1.

Jansen, S. C. & Martin, B. (2003). Making censorship backfire. Counterpoise, 7(3), 5-15.

Jansen, S. C. & Martin, B. (2004). Exposing and opposing censorship: backfire dynamics in freedom-of-speech struggles. Pacific Journalism Review, 10(1), 8-24.

Kumarangk Legal Defence Fund (1998). Tricky legal business: the impact of legal processes on the campaign against the Hindmarsh Island bridge. Paper for the Defending the Environment Conference, Sydney, 24 October (accessed 4 May 2005).

Lovell, A. (1985). The Mickelberg stitch. Perth: Creative Research.

Marsden, J. (2004). I am what I am: My life and curious times. Melbourne: Viking.

Martin, B. (2000). Defamation havens. First Monday: Peer-Reviewed Journal on the Internet, 5(3).

Defamation havens

Published in First Monday: Peer-reviewed Journal on the Internet, Vol. 5, No. 3, March 2000. See the article on the journal's website at http://firstmonday.org/htbin/cgiwrap/bin/ojs/index.php/fm/article/view/734/643
Brian Martin

Defamation law is frequently used to suppress free speech. The net provides a means to challenge this. A country without laws against defamation could become a "defamation haven" by providing web sites and publication assistance. A more immediate alternative is reproducing material on multiple web sites, thus creating a "virtual defamation haven." Struggles over defamation on the net illustrate the way media forms are influencing free speech battles.

The net could make defamation law obsolete. The best solution to defamatory comments is a timely opportunity to reply, and this is readily available to users through email lists and the web. This is a dramatic difference from the mass media, where the ordinary person can't afford to reply to a defamatory story.

Defamation law is supposed to balance the private right to protect one's reputation with the public right to freedom of speech. The law allows people and organisations to sue those who say or publish false and malicious comments. Anything that brings a person into contempt, disrepute or ridicule, or otherwise injures the person's reputation, is likely to be defamatory.

Traditionally, there are two types of defamation. Slander is oral defamation, such as from stories told at a meeting or comments in a telephone conversation. Libel is published defamation, such as a newspaper article or television broadcast. Pictures as well as words can be libellous. Defamation on the web or email is a type of libel.

Defamation law is an extremely slow, expensive and unreliable way to address injuries to reputation. Cases often take years to progress through the legal process and, if they run in court, can cost hundreds of thousands of dollars. Decisions are often dependent on esoteric legal points rather than the substance of what happened. Finally, the normal remedy for successful litigants, a payment to the defamed party, does not in itself redress the injury to reputation. The reality is that defamatory comments occur all the time but the law is seldom an effective means to obtain redress.

Many people who are defamed would like most of all to be able to reply promptly to the same audience that was exposed to the defamatory comments. However, the mass media are notoriously reluctant to publish retractions and frequently fight a case through the courts at great expense rather than provide a prompt opportunity to reply. By comparison, the net provides a wonderful solution to net defamation, namely a low cost and timely avenue for replying to the same audience.

If damaging material is posted on the web or circulated on an email list, one response is to request the author to post a reply and to send a reply to the email list. That is straightforward and happens routinely. If the author refuses to post a reply or to remove the offending material, information about this can be circulated to potentially interested parties on the net with rapidity, low cost, convenience and precision that is impossible to match with mass media, much less the courts.

Not only is defamation law ineffective for dealing with defamation, but it has a darker side. It is routinely used to suppress free speech, especially speech critical of those with power and wealth.[1]

In countries such as Australia and Britain, defamation laws are incredibly harsh and used capriciously.[2] One Australian book reviewer, for example, said in a newspaper "I object to the author's lack of moral concern." The author sued and after two trials finally obtained more than $100,000 from the publisher.[3] In another case, police in Western Australia kept a book off the market for a decade by launching dozens of defamation actions against the author, publisher and retailers.[4] Corrupt politicians have escaped media scrutiny by threatening actions for defamation.[5]

Things look better on paper in the US, but in practice defamation law often restrains free speech.[6] After the magazine Rolling Stone published an article about the origin of AIDS from polio vaccines, the scientist who developed the vaccine in question sued. Rolling Stone, having spent half a million dollars on legal fees before even getting to court, decided to settle by publishing a "clarification". It didn't run any further stories on the topic.[7]

There are hundreds of cases where US defamation law has been used to intimidate citizens who write letters of complaint to the government or even just sign a petition. Uses of defamation and other laws to squelch free speech have been dubbed SLAPPs (Strategic Lawsuits Against Public Participation). They show how the legal system can be manipulated by powerful and wealthy groups.[8]

The net cannot solve all these problems at a stroke, but it does offer the potential to get around one major obstacle: how to publish material when the mass media are scared away by the threat of defamation. The answer: put it on the web or an email list.

One of the most common ways that defamation law is used to suppress free speech is through threats, which are far more common than actual lawsuits. Even cases lodged in court seldom come to trial, with many dropped along the way. But publishers are understandably reluctant to take the risk of a costly court case and hence in many instances a threat leads to blocking of publication. Even more insidious than threats is the fear of being sued, leading to a form of self-censorship. Some editors and publishers avoid anything controversial for fear of offending potential litigants. The net sidesteps these problems by allowing self-publication. The author just sets up a web site or sends emails to recipients.

Of course, the author can still be sued. But this may not be as big a risk as might be imagined. Mass media corporations are more attractive targets because they have a lot more money. It is expensive to follow a defamation case through to the end and the process would be financially unattractive if the author has few assets.

For example, if the author's only major asset is a house, perhaps with a heavy mortgage, then a threat to sue is likely to be a bluff. The best strategy for the author is to refuse to acquiesce and wait for the threatener to give up. To parry the initial legal moves, free or low cost access to a sympathetic libel lawyer is a great advantage.

If threats to the author do not succeed, a next step is to threaten to sue the ISP hosting the web site or emails in question. Depending on the particulars, some ISPs will acquiesce to threats, some will resist and a few may eventually be sued.

The author can keep one step ahead but putting the material on the web in another country. However, even this isn't totally safe, since the ISP can be sued in the other country, and the author can be sued there or at home. One solution to this problem is defamation havens.

A country could make itself a defamation haven by eliminating all laws against defamation and offering itself as a host for web sites or targeted email. Local writers could offer, for a fee, to be the authors of documents. Alternatively, indigent writers from other countries could be the authors. A defamation haven would be analogous to a tax haven, though less lucrative.

So far, there are no countries that have advertised themselves as defamation havens. However, there is an alternative that can be just as effective: getting a number of people around the world to put the material on their web sites in the cause of free speech. In principle, each ISP and web host could be sued. But this is pretty unlikely, given the costs of mounting cases in foreign jurisdictions. Furthermore, defamation laws vary from country to country, and sometimes between provinces within countries, so the attempt to shut down all the sites internationally may have little prospect of success compared to achieving this in single jurisdiction with harsh legislation.

One consequence of the process of obtaining numerous web hosts for the material is that more people are exposed to the issue. Attempts at censorship often lead to greater attention to the material in question, and attempts at shutting down web sites are no different. Even if web hosts and ISPs acquiesce to threats, others can be sought who will be willing to host the material, leading to ever more attention to it.

This account of how to use the net to overcome the suppression of speech by defamation law has been abstract. To illustrate the dynamics in practice, two case studies are presented here, in both of which I was involved personally. I choose these cases because I am familiar with the details and can be more confident about the interpretation, something that is especially important when defamation is involved. Others undoubtedly can provide their own examples.

The focus here is on net-based strategies against suppression of speech by defamation law. The important related issue of defamation actions against net publication is not addressed.
The University of Adelaide Versus Dudley Pinnock

Dudley Pinnock was Professor of Entomology at the University of Adelaide, where he worked for nearly 20 years. He was highly successful, obtaining outstanding teaching evaluations and bringing in large amounts of outside research money. However, in late 1996 he was targeted for involuntary redundancy. He appealed against the decision through an internal review committee and was supported in this by the National Tertiary Education Union, but lost the appeal and, hence, his job.[9]

Pinnock gave me a copy of a document about his case. After he lost his appeal, he authorised me to put it on my web site at the University of Wollongong, where I have numerous documents about suppression of dissent and related matters.

Geoff Maslen, a journalist who writes regularly for the Australian weekly newspaper Campus Review, prepared a story on the Pinnock case and, in contacting officials at the University of Adelaide, made them aware of the Pinnock document on my web site. The Vice-Chancellor of the University of Adelaide, Mary O'Kane, wrote a letter to the Vice-Chancellor of the University of Wollongong, Gerard Sutton, about the Pinnock document on my site. I was not allowed to see this letter, but was told that it said that the document looked like it was published by the University of Wollongong, that it was defamatory of the University of Adelaide, that it contained untrue statements and that continued publication might result in legal action.[10] I received a letter from the Vice-Principal at the University of Wollongong requesting me to remove the document because the University did not wish to be exposed to possible legal action.[11]

If officials at the University of Adelaide had approached me directly with information about the Pinnock case, for example to argue that some statements in the documents were false or requesting that I post a reply, that would have been a process of dialogue and debate. However, their approach was to try to stop publication. It is a classic characteristic of attempts to suppress speech for a complaint to be made to a person's superior rather than directly to the person concerned.

I removed the Pinnock file from my site, replacing it with an account of what had transpired, adding material as time went on. I wrote a letter to the Vice-Chancellor of the University of Adelaide, asking her to send me details of particular statements and imputations in the document that she considered to be "false, misleading and defamatory" and offering to post a reply on my site. I put this letter on my site. She replied two months later but gave no details of any false, misleading or defamatory statements.

I contacted Danny Yee, a leading figure in Electronic Frontiers Australia, about finding sites for the Pinnock document. He put the document on his site at the University of Sydney and through his contacts three others put the document on their sites. I put links to these.

Meanwhile, Geoff Maslen's stories about the Pinnock case and the struggles over my web site appeared in Campus Review.[12] I put these articles on my site. Because newspapers have much to lose from defamation suits, they routinely have lawyers check stories to make sure they can be adequately defended in court. So it seemed safe to put the Campus Review stories on my site. I am not aware of any subsequent defamation action against Campus Review.

The defamation threats from the University of Adelaide ended up giving more attention to the Pinnock story than would have occurred otherwise. That result should be the goal for those who oppose censorship through defamation.

The University of Adelaide's attempts to block publication of the Pinnock document could have been resisted at any of a number of stages. First, the University of Wollongong administrators could have ignored the defamation threat. This would have been a safe option, given that it would be terribly bad publicity for the University of Adelaide to prosecute a case for defamation against another university, using taxpayer money to attempt to suppress free speech. By resisting the threat, the University of Wollongong could have developed a reputation as a defender of free speech.

Second, I could have refused to remove the Pinnock document from my site after being requested to by the University of Wollongong administration. The document might have been allowed to remain or, alternatively, penalties might have been applied to me, such as removing my entire site or my net access. This could have been an opportunity for me to highlight the issue and become the centre of attention in a free speech struggle. However, I decided to enrol others in the struggle rather than try to hold the line as an individual.

Third, the several sites hosting the Pinnock document served as a virtual defamation haven. If any of them came under threat, the hosts could either resist or acquiesce (by removing the file). In the latter case, more sites could be sought, maintaining the virtual haven.

This is exactly what happened at the end of 1999, after the Pinnock document had been freely accessible for more than two years. I have been informed that the Vice-Chancellor of the University of Adelaide contacted at least two of the three remaining web hosts of the Pinnock document, threatening a defamation action unless the document was removed and that, as a consequence, the document is no longer available at the University of Sydney site. Hence I sought an additional site for the file overseas, maintaining the virtual defamation haven.
The University of Western Australia versus David Rindos

David Rindos, an archaeologist from the US, took a post at the University of Western Australia (UWA) in 1989. He soon became aware of some unsavoury activities in his department and reported them. Subsequently, he came under fierce attack and was denied tenure. His case generated enormous concern internationally and led to the establishment of a web site of documents about the case (http://www.acsu.buffalo.edu/~hjarvis/rindos.html), especially copies of letters, submissions and newspaper articles, maintained by Hugh Jarvis at the State University of New York at Buffalo.

The site was located in the US to better resist pressure from UWA to shut it down. UWA contacted SUNY threatening to sue for defamation but did not initiate a suit. Later, the site at SUNY was mirrored at other locations. This provided a virtual defamation haven for the Rindos documents.[13]

This case is of special interest because UWA pursued an additional strategy. It tried to stop publication of the web site address.

I had followed the Rindos-UWA case for some years and written a few letters about it. In May 1996 two similar letters of mine appeared, one in the Australian (8 May 1996, p. 41), a national daily newspaper with a higher education supplement each Wednesday, and the other in Campus Review (8-14 May 1996, p. 8). Here is the text of my letter published in Campus Review under the title "Threat to autonomy."

THE West Australian parliament has set up an inquiry into the events surrounding the denial of tenure to Dr David Rindos by the University of WA.

It has been reported that the Australian Vice-Chancellors' Committee sees this inquiry to be a threat to autonomy.

But sometimes "university autonomy" can be at the expense of other interests. In the numerous cases of whistleblowing and suppression of dissent that I have studied, internal procedures seldom have delivered justice. Universities are little different from other organisations in this regard.

When an academic exposes some problem such as favouritism, plagiarism or sexual abuse, it is common for senior academics and administrators to close ranks and squelch open discussion. A more enlightened response would be for the university to put its house in order. If the University of WA had set up a truly independent inquiry, with experts from the outside, the present parliamentary inquiry probably would have been unnecessary.

The Senate Select Committee on Unresolved Whistleblower Cases reported in October last year. In relation to higher education, it commented as follows: "The committee heard allegations of destruction of documents, alteration of documents, fabricated complaints concerning work performance and harassment of the individuals concerned. Such allegations raise concerns about the ethical standards within institutions and attitudes to outside review. The committee concedes that there is a need for outside review to be balanced against the autonomy of academic institutions. However, autonomy cannot be allowed to override responsibility to academic staff as well as students."

Since a web page has been set up about the Rindos case (http://www.acsu.buffalo.edu/~hjarvis/rindos.html), readers can judge the issue for themselves without relying on the AVCC.

On 15 May, I received a letter from the legal firm acting for UWA. The letter stated that the material on the web site "contains statements which are defamatory of members of our client's [UWA] academic and administrative staff, including the Vice-Chancellor and at least one Professor. By publishing the address of the web site, you have both drawn the attention of others to it and have provided the means by which the defamatory material posted on the site may be viewed. That constitutes a re-publication of the defamation." They stated further that unless I refrained from publishing anything containing the web site address, UWA "will be forced to consider recommending to its staff members that action be taken against you." I understand that similar letters were sent to the Australian, Campus Review and the Australian Broadcasting Corporation, which had made a broadcast mentioning the site.

If it is defamatory to refer people to a site that contains allegedly defamatory material, then by the same logic all sorts of everyday recommendations could be considered defamatory. A large web site can have as many words as a book, a newspaper, or major collection of documents. By analogy, the following actions could be considered defamatory:

* recommending that someone reads a book, newspaper or magazine;
* referring someone to a section of a library;
* suggesting that someone reads the graffiti along a train line;
* telling someone to read documents in the drawer of a filing cabinet;
* citing a source as a footnote in a scholarly article.

Note also that UWA only alleged that the Rindos web site contained defamatory material. UWA's case would have been more persuasive if specific material on the site had been proved in court to be defamatory.

I continued to list and make a link to the Rindos web site address on my own site and was not sued by anyone, suggesting that the UWA threat to me was a bluff. From the point of view of opposing threats to free speech, the key question was whether the UWA threat would deter the mass media from further publicising the web site address. According to ABC journalist Jane Figgis, after she broadcast a programme giving the web site address, UWA contacted the ABC, which removed the reference from the repeat broadcast. I sent letters to the Australian and Campus Review telling about the UWA threat. The Australian did not publish the letter. Campus Review took a stronger line. The editor, Warren Osmond, published my letter (though omitting the web site address) and refused to agree to UWA's demand.[14]

A defamation action for simply publishing a web address, along with the allegation that the web site contained defamatory material, would seem to have little chance of success in court, though one never knows in Australia. Nevertheless, UWA's threat apparently inhibited mass media outlets from further publication of the address.

If publication of a web site address, or making a web link, were considered defamatory, the next stage of the struggle would be to tell people that a web site about the Rindos case exists, since it can be readily found using search engines. Could stating that a Rindos web site exists conceivably be considered defamatory?

To further challenge UWA's attempted censorship, I composed a general message about what had happened, including the text of my first Campus Review letter, and sent it by email to staff at the University of Wollongong and to various others whom I thought would be interested. In my message I encouraged individuals to send copies to others: "If you are concerned about this attempt by UWA officials to inhibit open discussion, you can send a copy of this message to others who might be interested."

As a result of this initiative, I received quite a few supportive messages. Several individuals set up links from their own web sites to the Rindos web site and wrote letters informing the Vice-Chancellor of UWA of this. Others informed me that they forwarded my message to numerous other people. Thus, by alerting people to UWA's defamation threat, information about the Rindos web site was circulated more widely. As well, journalists in Perth wrote stories about UWA's actions.[15]
Conclusion

Defamation law not only is an unwieldy method for dealing with defamation but is frequently used to suppress free speech. The net provides an effective means of responding to net defamation and for publishing material that the mass media are afraid to touch. This is not to say that the net is an ideal system for protecting reputations and affording free speech, just that it is greatly superior to the combination of mass media and defamation law.[16]

A country could set itself up as a defamation haven by having no law against defamation and hosting web sites. Even without this option it is possible to create virtual defamation havens by putting material on multiple web sites.

However, those who wish to stop others' speech will seek new avenues for censorship. They can threaten web site hosts with legal action; this can be countered by refusing to acquiesce or by finding new hosts.

Attempts to muzzle publication on the net can readily backfire, by triggering free speech concerns and leading to mirror sites and email list alerts. Therefore, the battle lines may be drawn at the interface between the net and the mass media, as illustrated by the University of Western Australia administration's attempt to block publication of a web site address. The more people who can receive information via the net, the less effective such strategies will be.

The net provides such ease of publication that the key in the future may not be access but rather credibility. With mounds of defamatory material, of claims and counterclaims, will anyone pay attention? Being an impeccable source would be extremely important. In a world with easy publication and no generally effective defamation law, there will still be a great incentive to be accurate if one wants to be taken seriously. That may be better protection for reputations than defamation law ever provided.[17]
Footnotes

(1) On whistleblowing and suppression of dissent more generally, see for example William De Maria, Deadly Disclosures (Adelaide: Wakefield Press, 1999); David W. Ewing, Freedom Inside the Organization: Bringing Civil Liberties to the Workplace (New York: Dutton, 1977); Myron Peretz Glazer and Penina Migdal Glazer, The Whistleblowers: Exposing Corruption in Government and Industry (New York: Basic Books, 1989); Geoffrey Hunt (ed.), Whistleblowing in the Social Services: Public Accountability and Professional Practice (London: Arnold, 1998); Nicholas Lampert, Whistleblowing in the Soviet Union: Complaints and Abuses under State Socialism (London: Macmillan, 1985); Marcia P. Miceli and Janet P. Near, Blowing the Whistle: The Organizational and Legal Implications for Companies and Employees (New York: Lexington Books, 1992); Gerald Vinten (ed.), Whistleblowing - Subversion or Corporate Citizenship? (London: Paul Chapman, 1994); Deena Weinstein, Bureaucratic Opposition: Challenging Abuses at the Workplace (New York: Pergamon, 1979); Alan F. Westin, with Henry I. Kurtz and Albert Robbins (eds), Whistle Blowing! Loyalty and Dissent in the Corporation (New York: McGraw-Hill, 1981).

(2) Eric Barendt, Laurence Lustgarten, Kenneth Norrie and Hugh Stephenson, Libel and the Media: The Chilling Effect (Oxford: Oxford University Press, 1997); Robert Pullan, Guilty Secrets: Free Speech and Defamation in Australia (Sydney: Pascal Press, 1994).

(3) David Bowman, "The story of a review and its $180,000 consequence," Australian Society, Vol. 2, No. 6, 1 July 1983, pp. 28-30.

(4) Avon Lovell, The Mickelberg Stitch (Perth: Creative Research, 1985); Avon Lovell, Split Image: International Mystery of the Mickelberg Affair (Perth: Creative Research, 1990).

(5) Sir Robert Askin, premier of the Australian state of New South Wales for the decade 1965-1975, was widely thought to receive large bribes, but nothing was said in the mass media until just he died, after which he could not sue for defamation. For the first posthumous exposé, see David Hickie, "Askin: friend to organised crime," National Times, 13-19 September 1981, pp. 1, 8. Note that in some jurisdictions, relatives can sue for defamation after the death of the defamed person.

(6) For a comparison of countries, see Michael Newcity, "The sociology of defamation in Australia and the United States," Texas International Law Journal, Vol. 26, No. 1, Winter 1991, pp. 1-69.

(7) Michael K. Curtis, "Monkey trials: science, defamation, and the suppression of dissent," William & Mary Bill of Rights Journal, Vol. 4, No. 2, 1995, pp. 507-593.

(8) George W. Pring and Penelope Canan, SLAPPs: Getting Sued for Speaking Out (Philadelphia: Temple University Press, 1996).

(9) After leaving the University of Adelaide, Pinnock entered private enterprise and has been doing very well for himself. He has not been directly involved in struggles over the document about his case at the University.

(10) David Rome, Vice-Principal (Administration), University of Wollongong, phone conversion, 26 August 1997.

(11) David Rome, Vice-Principal (Administration), University of Wollongong, letter to Brian Martin, 20 August 1997.

(12) Geoff Maslen, "Unis clash over redundancy protest on Web", Campus Review, Vol. 7, No. 33, 27 August - 2 September 1997, p. 1; Geoff Maslen, "When redundancy strikes ...", p. 11.

(13) Ironically, given the value of net publication for Rindos' struggles, Rindos himself used defamation law to sue an anthropologist who defamed him on an email list, winning A$40,000 which, however, was never paid. This was one of the world's first successful legal actions for defamation on the net.

(14) Brian Martin, letter, Campus Review, Vol. 6, No. 21, 5-11 June 1996, p. 8.

(15) Joe Poprzeczny, "UWA in web site attack," Sunday Times (Perth), 12 May 1996; Joe Poprzeczny, "Rindos affair hits the net," Sunday Times (Perth), 19 May 1996; Peter Morris, "UWA Rindos case writ threats spark storm," West Australian, 7 June 1996.

(16) An issue not addressed here is power inequalities on the net in relation to defamation. For example, if a large ISP defames an individual, there might not be an equivalent opportunity to reply. Some on-line discussion groups are closed, again restricting opportunities for response.

(17) I thank Judith Gibson and Danny Yee for helpful comments on a draft.
About the Author

Brian Martin is associate professor in Science, Technology and Society at the University of Wollongong, Australia. His research interests include nonviolence, dissent, democracy and scientific controversy. His most recent books are Suppression Stories (1997), Information Liberation (1998), The Whistleblower's Handbook (1999) and (with Lyn Carson) Random Selection in Politics (1999). He is past president of Whistleblowers Australia and maintains a web site on suppression of dissent.

Martin, B. (2004a). The Richardson dismissal as an academic boomerang. In K. Westhues (Ed.), Workplace mobbing in academe: Reports from twenty universities. Queenston, Ontario: Edwin Mellen Press.

Martin, B. (2004b, April 17-23). Iraq attack backfire. Economic and Political Weekly, 39(16), 1577-1583.

Martin, B. (in press). The beating of Rodney King: the dynamics of backfire. Critical Criminology.

Martin, B. with Rifkin, W. (2004).The dynamics of employee dissent: whistleblowers and organizational jiu-jitsu. Public Organization Review, 4, 221-238.

Martin, B. & Wright, S. (2003). Countershock: mobilizing resistance to electroshock weapons. Medicine, Conflict and Survival, 19(3), 205-222.

Mayes, A. & King, D. (2004, July 3-4). Court quashes brothers' convictions for 1982 Perth Mint swindle.The Weekend Australian, p. 8.

McClymont, K. (2001, June 28). Marsden's bitter-sweet victory: 'forever tainted'. Sydney Morning Herald,p. 1.

Pring, G. W. & Canan, P. (1996). SLAPPs: Getting sued for speaking out. Philadelphia: Temple University Press.

Pullan, R. (1994). Guilty secrets: Free speech and defamation in Australia. Sydney: Pascal Press.

Sunstein, C. R. (2003). Why societies need dissent. Cambridge, MA: Harvard University Press.

Vidal, J. (1997). McLibel. London: Macmillan.

Walters, B. (2003). Slapping on the writs: Defamation, developers and community activism. Sydney: University of New South Wales Press.

Acknowledgements

We thank the many individuals who have shared their stories of being confronted by defamation threats and actions. A prior version of this paper was presented at the Public Right to Know conference, Australian Centre for Independent Journalism, University of Technology, Sydney, 21 August 2004. An anonymous referee gave helpful comments on a draft. This work is supported by the Australian Research Council.