Folks might recall some discussion about the law of defamation when the spurious photos alleged wrongly to be of Pauline Hanson were published during the Queensland election campaign. As promised, Legal Eagle and Skepticlawyer have put together a guide to defamation law at their blog. It’s pertinent for all bloggers and everyone who comments on blogs, particularly for those who are in the habit of making malicious inferences about people’s motives and characters. There’s far too much of that around, and I’m rather surprised that we haven’t seen litigation abound in the blogosphere. That might be because of the sort of ethos that existed about speech in the years in which it developed, but that ethos and blogging have both changed, and it’s well worth understanding the degree to which any sort of online publication is governed by defamation law.
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This is quite important. Defamation law also requires courts to take account of what an “ordinary right-thinking person” would make of the publication, an “ordinary right-thinking person” being someone presumed to have (or be likely to have) the more common prejudices and knee-jerk responses of a randomly selected citizen. Hence it has been found, at various times, to be defamatory to state that particular persons were communists, homosexuals, and rape survivors.
Ah, it’s detention centres and “bleeding heart lefties” over at LE I see. Takes me back to the good old days of the Hansonite discussion forums at 9MSN. Maybe it was touched off by her mercifully brief reappearance.
Well spotted, Paul.
Wow, who makes that call? I wonder if they ever call in literary critics as expert witnesses to do a proper professional fisk.
PC,
My guess is that this bit is intended to get around the “Ooohh – I did not mean it that way. Can you really get that meaning out of it?” defence.
Without that bit in there it would be possible for a defendant to get a favourable ruling by simply claiming that they did not really intend to defame as they did not understand what it was they were writing.
Oh, I didn’t mean it wasn’t a good idea; non-literal meanings are my own bread and butter. I just meant that it would be a brave person who claimed confidently that any non-literal meaning was clear enough to actually prove anything in law.
I remember a notorious case a few years ago about an ABC doco called ‘The Fisherman’, in which it was claimed that a man already in gaol in Tasmania for murdering a child was responsible for other child murders eg. the Beaumont childen.
From memoery, the bloke in question got an injunction and sued the filmmakers for defamation (he hadn’t murdered any other children). The defence was once you were a convicted child murderer, you had no reputation to damage. The murderer won the case, which seems strange. But he lost it on appeal and the doco was screened.
Fine, there is a difference between murdering one child and murdering several!
I’m having an interesting time of it over at Sheridan’s blog, where my ethics are being questioned because I’ve pointed out that Fitzgibbon’s actions are consistent with the Westminster convention.
Can an anonymous poster be sued for comments they make about another anonymous poster? My tendency is to think that they can be – just because you assume nobody knows who ‘mehitabel’ really is doesn’t mean that there might be hundreds of devoted fans (like to meet you some time, guys) who have sussed her identity. So defaming someone just because you assume they’re unidentifiable must be risky, to say the least.
I did once start down the track of sueing a blogger for defamation. Even though I had not been identified by name, I thought there was enough information given to identify me and that the accusations in themselves were serious enough to damage me.
It took a while and a lot of to – ing and fro-ing via emails but I got all the comments withdrawn in the end and an apology in the bargain.
I hasten to point out that, generally, I am the mildest and most tolerant of people. I just don’t like lies being told about me.
And one should be very careful of their comments on Facebook. In the SMH today:
What happened to my clearly enunciated defence of free speech, the foundation of democracy?
(ahem) “ defamation OF the bloggers BY the bloggers FOR the bloggers”
I hold this proposition to be self-evident: defamation by bloggers is an essential part of the pursuit of happiness.
I’m with you, Old Abe. Where’s the fun if we can’t defame?
“Can an anonymous poster be sued for comments they make about another anonymous poster? My tendency is to think that they can be – just because you assume nobody knows who ‘mehitabel’ really is doesn’t mean that there might be hundreds of devoted fans (like to meet you some time, guys) who have sussed her identity. So defaming someone just because you assume they’re unidentifiable must be risky, to say the least.”
IIRC there is case law that backs this up, if there is sufficient information to identify the person to a sufficiently large group of people.
Hey, slandering people on blogs is great fun! Just like moving into a communal household for the first time. You can stay up till dawn and say whatever you like about other people.
But the the chill wind of grownups collecting rent and paying bills blows through every communal household eventually. There’s now only a few major Oz blogs worth suing in terms of money or attention and LP is one of them.
So is this probably my last chance to say on a blog that **** ***** from ****** *****.blogspot.c*m fuck*d **q*** **** in a DP scenario involving a big f**king herm**t c**b.
Only the herm*t cr*b can say for sure, and he’s become so scared of the Law he’s gone back into his shell, and won’t be so much as LOOKING at a keyboard for the next 10 years at least.
Dont flatter ourselves: LP is not worth suing (and if it were it should be incorporated, owned by a shelf company, witha limited insurance policy).
Blogs will only be sued collaterally in Oz: ie if the MSM reprints their libels.
Fine @ 7: yes, I remember that Fisherman documentary. Indeed, I watched it when it was finally shown. The conclusion of the High Court was essentially that the defamed man had no character to be damaged – he was already a child killer – what matter if it was said that he killed other children? So, for example, Gleeson CJ and Crennan J concluded at [34]:
The other thing which was really important to the Court was the right of free speech.
Yeah, it was an interesting case LE. How do you defame a child murderer? I teach film production and every year I bring in a lawyer, mainly to teach copyright law. The students always want to know about defamation. I think some of them see themselves as mavericks wanting to say outrageous things. ‘What about free speech?’ they splutter. They never want to hear about limits, of course.
Unless of course, people are saying outrageous things about them…
That tends to get people changing their tune sharpish.
A question for skepticlawyer and Legal Eagle. If someone scurrilously libels you on a blog, is it a defence for them to submit that they are a blithering idiot who could never be taken seriously by an ordinary right-thinking person.
OMG! I didn’t realise the idiot had been on LP, let alone banned from it. You’re a very tolerant man, Paul. (Don’t you think he looks a bit like Richard Nixon?}
I think that’s Joe McCarthy there, Paul Burns.
Oh, yes, of course. He couldn’t be THAT stupid, could he?
So… help me out here. Why Joe McCarthy? I thought these wingnuts are always going on about freedom of speech (=to them, freedom to vent no matter how offensive or stupid.)
Harry has removed yesterday’s outpourings from Cousin Fethry, but he’s re-emerged here.