This is an edited version of a leaflet about defamation produced by Animal Liberation, Australia, 2000
Defamation is not necessarily about saying nasty things about someone. For instance, saying that a development will damage the environment might bring a defamation suit. The case may not succeed, but it is time consuming, expensive and stressful even if you win. No amount of legal advice can guarantee that you will not be sued. The goal is to minimise the risk (and maximise the defences available).
Private developers/companies are more likely to sue than governments.
The "McLibel" case: In what turned out to be the longest running legal case in British history, the hamburger giant McDonald's sued two London activists for publishing a leaflet "What's Wrong With McDonald's". The case was a public relations disaster for the company. While McDonald's won the case, the judge nonetheless found that McDonald's was anti-union, exploited children in its advertising and was culpably responsible for cruel practices in buying its eggs and chickens. By the end of the case, a worldwide campaign had formed, over three million of the leaflets had been distributed and the campaign website McSpotlight had over 15,000,000 hits. [Source: John Vidal, McLibel: Burger Culture on Trial, (Pan: London, 1997)].
Large corporations that spend zillions of dollars on public relations are not as likely to sue as smaller companies that have all their resources tied up in a particular project that is under threat due to citizen opposition.
Defamation is about damage to reputation - not all criticism is defamatory.
Remember there are strong legal defences available:
Get a copy of the ABC Media Handbook (from your local ABC Store). This is the best, most understandable guide to 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.
"Publish" means any communication to a third party.
Remember, you do not have to name someone, or a particular company, for a statement to be defamatory of them (if the public could have understood the statement to refer to them).
Avoid rhetoric, state facts - and check all your facts.
(Note: the second statement is not only safer legally, it is politically more effective!)
Ask yourself: can you prove each statement you make?
For example, in the first example above, 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/or claim he is following expert advice.) By contrast, you should be able to prove the facts of the rewritten version above.
Be precise in your statements.
Minimise the number of people publicly associated with statements.
Consult with other activists experienced with defamation stuff, and/or with community lawyers or the Environmental Defenders Office.
Keep a record of all statements and media coverage of the issue - this may be vital in preparing legal defences. (Note again: this effort makes for better activism!)
Decide in the beginning, either not to respond to lawyers' letters threatening litigation, or respond politely. Honestly seeking further information as to why the people threatening litigation think you have defamed them is often useful. You can use such correspondence to engage in political debate, and you can use statements made by the other side to set up your defence - but beware, they can use your statements against you as well.
You will get to discover all sorts of interesting things when you legally inspect the other side's documents dealing with the issues in their complaint. For example, you may get to see their business records, stocking records and mortality rates, PR advice, and communications with governments.
Once you start thinking of the case as a legal rather than a political matter, you have started to lose - politically and legally.
Think about what (if any) political outcomes you want from the case - or whether you are just trying to save yourself or your organisation. (Note: both these are valid and important.)
The legal system is complex, self representation is romantic, but often not feasible or sensible. (Remember, behind Steel and Morris in McLibel, was Keir Starmer’s regular legal advice, and an international campaign.)
Malice is one of the big problems of defamation law. If a court finds that you have acted "with malice", this will ruin your legal defences and increase potential damages awarded against you.
Any action, publicity or further comment on the issue, or on the court case, can be used as evidence of malice:
Lawyers will therefore advise you to say/do nothing once you have been sued. That is, your own lawyers will deliver this political victory to the other side.
Setting up a separate group to speak about the legal cases allows activists to talk about the cases (if not the original issue) without damaging your case. It also allows the issue to be framed in terms of civil rights and free speech. This can appeal to a different/wider audience than those only interested in the original issue.
For those not used to community-based organisations and politics, coalitions on particular issues can muddy the waters as to exactly who is responsible for statements/actions - though, ultimately, you must always be prepared to take responsibility for your actions.
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