Defamation Litigation threatens Freedom of Speech
Increasing use of defamation litigation is a worrying trend that is threatening freedom of speech. In my view it is often an abuse of power. When Business leaders, CEO’s, public servants or politicians take civil action, there is rarely a level playing field.
Unlike the United States which has a constitutionally entrenched freedom of speech, Australia only has an implied freedom of speech. Australian governments have failed to legislate to restrict the capacity of powerful interests to litigate to silence critics. This has seen defamation law emerge as a significant threat to freedom of speech.
Defamation Law used by political heavyweights
The wealthy and powerful use defamation law in Australia. Civil law is something that only those who have money or influence have full access to. Look no further than mining billionaire and former politician Clive Palmer for a powerful man prepared to litigate to silence his critics. Indeed he has listed one of his favourite pastimes as taking defamation litigation.
Most recently, Clive Palmer commenced a defamation lawsuit action against the YouTube personality Jordan Shanks a.k.a. Friendly Jordies. Palmer’s lawyer demanded $500,000 in damages, legal costs, and also demanded that Shanks “make no further publication of and concerning” Palmer. Shanks hilarious response revealed liberating behaviour only possible from a defendant with ‘nothing to lose’.
Christian Porter ‘Trial of the Century’
The most prominent defamation case currently underway is that of Christian Porter, the current Attorney-General (the highest law officer in the land) who is suing the ABC for defamation. His lawyers claim that an ABC publication identified him as the Cabinet Minister accused of raping an Adelaide woman. Despite the publication not naming him.
It is unknown who is paying for Mr Porter’s litigation. A supportive millionaire has been reported to be picking up the bill. Porter’s legal team are charging around $20K a day, in what is being dubbed “the trial of the century”.
Local government defamation actions and other civil litigation
There has been a noticeable increase in local government litigation against residents for defamation over recent years. This trend has significant freedom of speech implications for our democracy.
Civil Action to Silence Toogoods
Cassowary Coast Regional Council has commenced a number of legal proceedings against Steve and Julie-Anne Toogood of Mission Beach. However, the only actions the Toogood’s have initiated against Cassowary Coast Regional Council have been for breaches of the Privacy Act.
Defamation litigation and other civil actions are an abuse of power, because of the limited access to justice most citizens face. Unfortunatly legal Aid is generally not available. This is the main reason people are self-represented and miscarriages of justice occur.
Organisations such as the LGAQ and Cassowary Coast Regional Council have an almost unlimited bank account and aren’t afraid to sue. Indeed, it has been argued the whole purpose of such litigation is to gain a judgement greater than their assets, causing bankruptcy. This will almost certainly ruin their life.
Totalitarian regimes often use fear as a means to control people. However, this is becoming a reality here. Civil litigation has become a way to discourage people from actively engaging in debate. Consequently, many people are becoming too afraid to speak up, for fear of legal sanction.
Living it from both sides
Unfortunately, I am in a unique situation to write on issues concerning defamation. I have been defamed and I am also being sued for defamation. As an elected councillor and MP I copped heaps. My critics called me everything from dog, rat, scum and coward to four letter words I will not repeat here. However, I never commenced litigation against my critics. Ultimately taking a position in elected office will subject you to a significant amount of criticism. Accordingly this just goes with the job. Indeed as the old saying goes, if you can’t stand the heat, get out of the kitchen.
I cannot expect my values to be adopted by others. Thus, in December 2017, litigation was commenced against me. I was not just sued by a small regional council, but by the LGAQ CEO Greg Hallam. He lodged a defamation claim against me in the District Court claiming several hundred thousand dollars.
The claim relates back to my time in the state parliament when I repeatedly raised issues concerning local government corruption. Hence, the LGAQ will now teach me a lesson. As a result, anyone else thinking of raising corruption concerns will think twice before speaking up.
Surviving Defamation Litigation
The stress of my journey has led me to create a series of videos to help others facing defamation litigation. Producing these videos is an act of solidarity with other activists. I am confident anyone who is subject to a defamation claim will find them useful.
Those with power abuse defamation litigation.
When governments, government agencies or corporations engage in civil litigation against their critics, the dice are well and truly loaded their way. This will remain the case as long as we live in an adversarial justice system. Consequently, the side with the most resources and the most expensive hired gun is likely to beat a self-represented defendant.
There must be a rebalancing in relation to defamation law, whether it is organisations developing policies, or government making laws. Further, there should be a reluctance to engage in legal attacks upon people for simply stating valid opinions. Indeed, even if opinions are not valid or ratonal, but truly held, who are those in power to say people must not speak up for fear of legal reprisals? We must have law reform now, if we are to protect freedom of speech.