More on defamation and blogging

It seems that the threat of defamation proceedings for blog posts is alive and well in Australia. Check out this post on The Local at blogs.com.au.

(Hat tip to the inestimable Jim Belshaw)

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15 Comments

Filed under Australia, blogging, blogs, defamation, law, technology

15 responses to “More on defamation and blogging

  1. The problem as your previous post on anonymity on the net suggests is that some Internet authors use the Internets easy anonymity as a licence to defame. A good example is the far left wannabe who has earned my Ire by publishing suggestions that both John Ray and myself are paedophiles (see this post for details). Such defamations would never be made by someone writing in their own name, or by an honourable person using a pen name.

    The story you link to is indicative of just how careful anyone has to be when writing about businesses let alone individuals and really when it comes to someone’s lively hood or even their personal reputations but were there not an expectation that anything derisory that one might publish about a person has to be true all kinds of malicious gossip would ruin far too many good reputations.

    There has to be a balance and the laws of defamation do clearly have some value here but as your link suggests there is also the clear possibility that vexatious litigation could be used to silence quite legitimate criticism.

    As bloggers we have to be 110% sure that anything we claim about someone is both true and, more to the point, that we can prove it is true to a high legal standard.

  2. I know it’s a bit of an impolite post Iain, an I wouldn’t write like that under my name or under an alias, but Hap isn’t actually calling anyone a paedophile. Not you, not John Ray.

    Heck, The Chaser’s paedophilia joke about the guy with the bike on The Secret DVD was closer to an allegation of paedophilia (albeit executed better) than what Hap has written.

    As bloggers we have to be 110% sure that anything we claim about someone is both true and, more to the point, that we can prove it is true to a high legal standard.

    I agree, although when the target is anonymous, one can’t defame them and hence some bloggers get lax when making claims about them. For example, claiming that Hap has alleged you or John Ray are paedophiles when he hasn’t.

    All he’s guilty of is some (perhaps rude) bad taste.

  3. I know it’s a bit of an impolite post Iain, an I wouldn’t write like that under my name or under an alias, but Hap isn’t actually calling anyone a paedophile. Not you, not John Ray.

    My My how your tune has changed Bruce, when Janine posted that photo of a friends son near his car with suggestions that he should fear me because of paedophilia you councelled her that such things were neither wise nor moral . Yet now you find excuses for something very much in the same vein.

  4. Iain, I primarily criticised her because of her use of the photo without the child’s parents permission. The other main criticism I made were that she was jumping into someone else’s fight.

    Neither being applicable to Hap’s scenario.

    I’d thank you to make sure you are 110% sure before making representations about me 😉

  5. Hall,
    Repeating a lie over and over won’t succeed in making it true.

    As bloggers we have to be 110% sure that anything we claim about someone is both true and, more to the point, that we can prove it is true to a high legal standard.

    This is garbage. Who decides what is ‘true’? The law allows for fair criticism and opinion, even if the opinion is extreme or unpleasant.

  6. The law allows for fair criticism and opinion, even if the opinion is extreme or unpleasant.

    Which I think nicely brings us back to the thread in question. I’m not sure this is so true in all jurisdictions.

    (Thanks to AV) I’d draw people’s attentions to this case here; Left Behind Games threaten to sue PZ Myers. A tad comedic this one.

    And French Author Jean-Charles Brisard’s loss to Bin Mahfouz in a defamation case in the UK High Court.

    For my part, I’ll probably make a better contribution to discussion here if things focus on actual cases rather than speculated ones.

  7. Ahhh bum… Two links, and Askimet eats my comment…

  8. Bruce, saved your comment from the overzealous Akismet. Thanks for tipping me off! I hate it when it swallows comments.

    It’s all a little complicated. On my understanding, the law of defamation requires the plaintiff to prove that the allegedly defamatory statement is false. Proving the truth or falsity of the statement is actually very important to the action. “Truth” is a potential defence to a claim for defamation.

    What is “truth”? The law is all about proving what happened – but you can never know for sure. Common law actions (such as defamation) would require establishing on the balance of probabilities that something was likely to be false. It is recognised that you can never know for sure whether something is true or not. And of course, there can be multiple different subjective perceptions of “truth”. Which makes the job of a judge somewhat difficult.

    Notoriously, “Lord” Jeffrey Archer in the UK succeeded in an action for defamation and was later found to have done the very thing which he had claimed was false…

    It is true to say that statements of opinion will not be defamatory, but statements which represent something false as fact may be defamatory. One of the defences to a claim of defamation is “fair comment”. But obviously the distinction between fact and opinion is hard to draw sometimes. Another defence is “freedom of speech” (often claimed by press organisations).

    Note that a representation which merely imputes something negative about a person may be defamatory. So, say you had a picture of me with a caption which read “Liar”, the imputation which an ordinary person would draw from this is that I am a liar.

    Hap, have a read of my recent post on defamation vis a vis a restaurant review. I would have thought that this was an instance where the statement was an opinion rather than a fact, but the High Court took a different view, partially because of the business context of the statement. The law is somewhat different and more unforgiving where the statement affects a business.

  9. The law is somewhat different and more unforgiving where the statement affects a business.

    Yes LE, That sounds right, and the reason that I feel so affronted is that such slurs upon me could very well refect badly upon my wife, who is a teacher working with children.
    In our society we rightly consider that people who sexually abuse children to be a vile criminal as bad as a serial killer. To so lightly bandy about the suggestion that someone even “looks like” a paedophile crosses a line that, in even the most heated political discourse that should not be crossed.
    The measure of the man is clear though, that when all I ask is that he remove the slur, that he refuses to do so.

  10. Hap
    Your slur was neither, true, Fair criticism, or even necessary to the point you sought to make in that post. I think that you did a miserable job of arguing your case with regard to the politics of AWH anyway. A good writer should strive to avoid playing the man rather than the ball. But your problem Vis a Vis AWH was, and remains, that you could not support your contentions with real facts. Even so would it have made any real difference to the rest of your argument to omit such cheap shots? You sought to get a message across, namely that AWH is a “proto fascist site” but can’t you see that your cheap shot has made the messenger rather than the message the issue and that no one is listening to your original contention at all?

  11. Thanks for the compliment, LE.

    I think that from a professional viewpoint, one needs to be aware of the issues. I retain an open comment policy, and I do not mind people being rude about me. However, there have been a couple of times I thought that comments went a bit far about others and actually cautioned.

    Over and beyond my own personal tastes, I don’t like flames, there is a risk management issue that I think all bloggers need to be aware of unless they have very deep pockets. At one level it does not matter whether something is defamatory or not in a legal sense. You can still go broke trying to defend it.

    In a practical non-legal sense, I think that you have to be especially careful where business issues are involved because this brings cash into play.

  12. Hap
    Your slur was neither, true, Fair criticism, or even necessary to the point you sought to make in that post.

    What is ‘slur’ in question? If you can point out specifically how you were defamed, this might be helpful.
    Defamation does not consist merely of vexatious litigants taking offence at every allusion, suggestion, or vague reference, in the manner of some hunchback or dwarf.

  13. Hap
    Now you are just being obtuse and I really think that you need to do a little more research into the law.
    Firstly you suggest that John Ray Looks like a paedophile, and then you suggest that neither he nor I should be trusted with children…
    Given that there have been cases won on less blatant slurs that your’s, you do your self no favours trying to hide be hind pedantry. I’m sure that LE will correct me if I’m wrong but I believe the legal test is what would an ordinary person discern from the message you publish and not some very narrow deconstruction of your precise word choice.

  14. When it comes to defamation, the normal rules as to onus are not applicable. All a plaintiff needs to do is establish that the publication has been made and that the publication, according to right thinking members of the public, will see it as defamatory. The common law then sets up a presumption that the defamatory statement is not true, not opinion, not privileged. Any defendant who wants to avail itself of one of these defences must prove it. In the UK, the HL has recently decided this presumption is not contrary to European Community rights of expression. Some jurisdictions provide some relief for the defendant – if the words complained about can be shown to be substantially true in their context, then the defence is made out.

  15. if the words complained about can be shown to be substantially true in their context, then the defence is made out.

    I wonder how far “substantially true” extends, in light of some of the tools of comedy. While the old blatantly absurd remark (eg putting words in the PMs mouth that he obviously didn’t say) probably would never get this far because such comedy relies on the audience knowing it isn’t true, subtle irony, tongue-in-cheek remarks and sarcasm probably open up a can of worms.

    The Chaser calling the guy with the bike from “The Secret” DVD an old paedophile (with him then appearing on ACA to state that he’s not taking it lying down) being an example of the former, whereas some of the more ambiguous remarks by Wil Anderson (ambiguous because the general observer had to guess the context and/or be “in” so as to get the subtlety) from The Glasshouse directed towards Shannon Noll.

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