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
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!
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The Bush Lawyer's
Guide to 
