The Bush Lawyer's Guide to

Avoiding Being Sued for Defamation

Defamation Commercial Torts Trade Practices Abuse of Process

A Guide for Political Activists by Dr Greg Ogle

Surviving Suits

A Guide for Political Activists

What you might get sued for

Avoiding defamation suits

Protest risk minimisation

Responding to legal threats

Further information sources

Law Reform

Sport! Having fun with litigation

Being a Bush Lawyer

Bush Lawyer Awards

Threatening Wallpaper

 

Bush Lawyer Cases & Politics

Beating a SLAPP suit: Animal Lib SA

Gunning for Change: The Need for Public Participation Law Reform

The Gunns Case: Chilling the Environment Movement

Bruce Donald summarises a number of cases of "Defamation Against Public Interest Debate"

Hindmarsh Island - early days

Approaching the Court

 

This website is authorised by Greg Ogle on behalf of Bush Lawyers Ink, a not for profit legal service brought to you by the legal system's inability to protect the community's right and ability to participate in public debate and protest.

 

Risk Minimisation

The bad news is that there is no guaranteed way to ensure that you can't be sued! Even a statement as bland as "Logging Tasmania's old growth forests is bad for the environment" could be argued to be defamatory of particular logging companies involved and they could sue you. Even if what you have said is true, and even if the claim is silly, this doesn't mean they can't sue. They may not win, but you don't want to be tied up in court for the next 5 years (unless you enjoy the "sport of litigation"). Basically defamation law sucks and no lawyer can guarantee a statement is safe (eg. in the Conservation Council of SA's case, of the 18 claims brought against the Council, the only 3 found to be defamatory at trial were checked by lawyers!).

The choice comes down to: silence (and a win for the thing you oppose), or risk minimisation.

The good news is that risk minimisation makes for better, more effective political activism!

Understanding the Risks

In 2006, new uniform defamation laws came into force across Australia. These laws abolished the right of corporations to sue for defamation. Additionally, governments can't sue for defamation, so it looks like activists should be safer in making public comment on the things they might criticise. However, while the law has improved, we still don't have full protection for political comment - be aware even if your lawyer blithely advises that corporations can't sue. The traps are

  • individual company employees and government officers can sue in their own name (arguing for instance that criticism of a company was understood to infer they had misbehaved. Thus, in the Hindmarsh Island bridge defamation cases, the directors/principals of the development company sued in their own names for criticism of the company)

  • small businesses employing up to 10 people (and NGOs) can still sue for defamation, and (post McLibel) these size businesses have often been more likely to sue than large corporations for whom suing opponents would be bad PR

  • large companies can still sue for false statements made about them using the tort of injurious falsehood and trade practice torts or legislation (see "What You Might Get Sued For")

  • if someone has or makes a case against you under one of the other claims, they can use any defamations as evidence of malice in an argument for aggrevated (extra) damages.

Understand the prinicples of defamation law

  • Defamation is about damage to reputation - not all criticism is defamatory
  • Remember there are strong legal defences available:

    • fair/reasonable comment based on facts and honestly held beliefs
    • qualified privilege: a duty to inform the recipient, or freedom of political communication
    • truth

Get a copy of the ABC Media Handbook (from your local ABC Store). This is the best, most easily understandable guide to defamation law.

Environmental Defenders Offices in most states publish useful guides to the law, including defamation law.

Remember: fear of litigation silences more people than actual litigation.

Being smart means that you can still speak even in the face of legal threats.

 

Publishing and Liability

"Publish" means any communication to a third party

  • publishing includes statements in internal emails and newsletters, letters to editors and media releases (even if they are not "re-published" by the newspaper), webpages, reports, and even words spoken to somebody about someone else
  • a communication directly to the party you are criticising can not be defamatory

Any person or organisation who contributed to a defamatory publication, including by distributing or reproducing (republishing) someone else's words, can be held liable for damages.

  • eg. if you talk to a journalist you have published comments to them, they republish them to their editor/newspaper, and the newspaper republishes them to the community. You, the journalist, the editor and the newspaper are all potentially liable.

Incorporation of an organisation provides no protection for individuals acting on behalf of an organisation (eg. both the individual and the organisation they speak for would be liable for comments in a media release).

 

Hints for Speaking Out

The following apply particularly to defamation, but are also useful guides in relation to the other possible types of claims which could be made against you - and regardless of which legal thing you are concerned about, they will make for better activism.

Remember, you do not have to name someone, or a particular company, for a statement to be defamatory of them (if the public would have understood the statement to refer to them).

Avoid rhetoric, state facts - check all your facts:

eg. "Farmer Rob keeps chooks in cruel cages, and doesn't care how much they suffer as long as the chooks keep laying"

VS

"Battery cage systems like those used by Farmer Rob mean that hens live in incredibly cramped conditions. Cramped conditions have been shown to lead to animal stress and mutilation."

The second statement is not only safer legally, it is also arguably more politically effective as it focuses on the issue but still uses hard-hitting language!

Be particularly careful about commenting on someone else's motivation or thinking - you won't be able to prove it as a fact in court.

eg. can you prove Farmer Rob "doesn't care ..." (He may be too poor to fix a problem, or too stupid to notice, or he may be acting within the law and claim he is following expert advice). By contrast, you should be able to prove the facts of the second version above.

More importantly, in most political issues, the other person's motivation is less important than the effect of the particular action you want to protests about. Again, being defamation conscious makes for more focused political action.

Ask yourself: can you prove each part of each statement you make

Example 1: If you say "Minister X not only approved the uranium mine despite warnings from environmentalists, he did nothing to stop the pollution of the river which inevitably followed the development", can you prove (against a barrage of engineers and scientists) that the pollution was inevitable? Difficult.

More problematic, can you prove the Minister did nothing? He (economic ministers are usually "he"!) may have recommended a safety measure and been out-voted in cabinet, or he may have set up a bureaucratic guideline. Ineffectual maybe, but it is not "nothing" and therefore you can not prove your case!

Similarly, can you prove he made the decision "despite warnings" - he may have taken them on board, altered the proposal or approval conditions and will therefore argue that the defamatory meaning (the sting) of your statement is wrong. Stupid maybe, but you don't want a judge deciding the issue!

An alternative might be: "Minister X approved this mine when environmentalists opposed it because of the danger of polluting the river. The Minister must take responsibility for the pollution which has followed".

Example 2: If you say, "the company says X" or "the Mininster says X", have you got first-hand evidence that you can produce in court of where the company said exactly that?

If you only heard or read it in the media, you should say "the company/Minister reportedly said X". The company/Minister may have been misquoted, or say they were misquoted, in which case you would have the near impossible task of proving they were not misquoted! By contrast, you can prove that they were reported to have said something - that is a provable fact.

Quote other people where you can!

Instead of saying, "This development will endanger the yellow-spotted something or other", you could say, "X report" or "The prominent biologist Fred Bloggs has said that this development will endanger the yellow-spotted something or other". Providing that you have accurately reported the statements, proving that a report or Fred Bloggs said this will be much easier than actually proving the fact of the endangerment.

Be sure that you have accurately reported the views of the person or source you are citing, but remember, this tactic is politically useful as it adds authority to your position.

However, be aware that this does not give you immunity - you are still ultimately liable for the words if you (re)publish them - you just have better defences, especially if you are reproducing an expert opinion.

You can also quote the person you are opposing (as long as you quote fully and fairly).

  • In one classic case, people were being sued for saying that people were being silenced by law suits, so one Sydney Morning Herald journalist did an article with long quotes from the developer's lawyer saying basically that greenies have said these law suits intimidate people and that they are SLAPP suits. Of course, to quote in context, the denials also had to be printed, but in that case, the opposing lawyer uttered statements which the activists could not!

Remember you can't "prove" inherently subjective and value-laden concepts

  • words like cruelty, appropriate, inadequate, oppressive are value statements and courts may interpret them using test which you neither meant nor think is appropriate:
    eg. A statement like "intensive piggeries are cruel" might be held to be defamatory because the piggeries are not operating in breach of the Prevention of Cruelty to Animals Act!
  • when using subjective words, it is best to make them "comment":
    "the consultation process for the development was token in our view" or "the protest was organised after what the group says was inadequate public consultation".

Making something a comment does not guarantee you are safe, but it does make the statements much more defensible (provided you honestly held those opinions).

Be precise in your statements

eg. saying "Minister R should stop gaoling innocent asylum seekers" (Defamatory) is different from saying, "The government should abandon its policy of mandatory detention of asylum seekers", (Safest option) or even, "Mandatory detention should be abandoned because it inflicts physical hardship and psychological damage on vulnerable people. We think it is un-Australian!" (Defensible Fair comment).

In high-risk campaigns, minimise the number of people publically associated with statements

  • false names may be an option, but they may be inconvenient, and may rebound against you legally and PR-wise
  • when chosing spokespeople, consider people's financial postion as well as their media skill/ability

Consult with other activists experienced with defamation stuff, and/or with EDO/community lawyers - but make your own (political) decisions.

  • don't hand over decision making to lawyers - take their legal advice if you like, get other political advice from experienced activists, consider your own position, and make your own decision

Keep a record of all statements and media coverage of your issue - this may be vital in preparing legal defences

Note again: this archiving effort makes for better informed and resourced activism!

Remember the bush lawyer's golden rule

Be careful, not silent

For further information on bush lawyering or this website, email greg_ogle@yahoo.com