Defamation and web site addresses

Brian Martin

This is the story of how a university administration, by threatening to sue for defamation, was able to deter the mass media from publishing a web site address.

Earlier this year I publicised the address of a site on the web where information can be obtained about a case involving Dr David Rindos and the University of Western Australia. As a result, the university threatened to sue me and several media outlets for republishing a defamation. What we published was not defamatory material itself but a web address where it was possible to read material that the university alleged was defamatory.

The information in question concerns the denial of tenure to Dr David Rindos at the University of Western Australia. Hugh Jarvis, who was concerned about the case, set up a web site which includes a large number of documents about it, especially copies of letters, submissions and newspaper articles. The site is located at the State University of New York (SUNY) at Buffalo.

I have been following the Rindos-UWA case for some years and written a few letters about it. In May two similar letters of mine appeared, one in the Australian (8 May 1996, p. 41), a national daily newspaper with a higher education supplement each Wednesday, and the other in Campus Review (8-14 May 1996, p. 8) , a national weekly newspaper. Here is the letter published in Campus Review under the title "Threat to autonomy."

"THE West Australian parliament has set up an inquiry into the events surrounding the denial of tenure to Dr David Rindos by the University of WA.

"It has been reported that the Australian Vice-Chancellors' Committee sees this inquiry to be a threat to autonomy.

"But sometimes 'university autonomy' can be at the expense of other interests. In the numerous cases of whistleblowing and suppression of dissent that I have studied, internal procedures seldom have delivered justice. Universities are little different from other organisations in this regard.

"When an academic exposes some problem such as favouritism, plagiarism or sexual abuse, it is common for senior academics and administrators to close ranks and squelch open discussion. A more enlightened response would be for the university to put its house in order. If the University of WA had set up a truly independent inquiry, with experts from the outside, the present parliamentary inquiry probably would have been unnecessary.

"The Senate Select Committee on Unresolved Whistleblower Cases reported in October last year. In relation to higher education, it commented as follows: 'The committee heard allegations of destruction of documents, alteration of documents, fabricated complaints concerning work performance and harassment of the individuals concerned. Such allegations raise concerns about the ethical standards within institutions and attitudes to outside review. The committee concedes that there is a need for outside review to be balanced against the autonomy of academic institutions. However, autonomy cannot be allowed to override responsibility to academic staff as well as students.'

"Since a web page has been set up about the Rindos case (http://www.acsu.buffalo.edu/~hjarvis/rindos.html), readers can judge the issue for themselves without relying on the AVCC." [end of letter]

On 15 May, I received a letter from the legal firm Freehill Hollingdale & Page acting for UWA. Their letter stated that the material on the web site "contains statements which are defamatory of members of our client's [UWA] academic and administrative staff, including the Vice-Chancellor and at least one Professor. By publishing the address of the web site, you have both drawn the attention of others to it and have provided the means by which the defamatory material posted on the site may be viewed. That constitutes a re-publication of the defamation." They stated further that unless I refrained from publishing anything containing the web site address, UWA "will be forced to consider recommending to its staff members that action be taken against you." I understand that similar letters were sent to the Australian, Campus Review, the Australian Broadcasting Corporation (ABC), Hugh Jarvis and SUNY.

If it is defamatory to refer people to a site that contains allegedly defamatory material, then by the same logic all sorts of everyday recommendations could be considered defamatory. A large web site can have as many words as a book, a newspaper, or large collection of documents. By analogy, the following actions could be considered defamatory:

* recommending that someone reads a newspaper or magazine;

* encouraging someone to read a book;

* referring someone to a section of a library;

* suggesting that someone reads the graffiti along a train line;

* telling someone to read documents in the drawer of a filing cabinet;

* citing a source as a footnote in a scholarly article.

There is a further difference. In some of these cases, such as newspapers, defamation has been proved. It is only alleged that the Rindos web site contains defamatory material.

From the beginning, UWA's threats seemed to me to be bluffs intended to deter further publicising of the web address by the mass media, especially during the course of the WA parliamentary inquiry, but unlikely to be followed through with writs and appearances in court. These bluffs seem to have worked, for the most part.

According to ABC journalist Jane Figgis, after she broadcast a programme giving the web site address, UWA contacted the ABC, which removed the reference from the repeat broadcast. I sent letters to the Australian and Campus Review telling about the UWA threat. The Australian did not publish my letter. Campus Review took a stronger line. The editor, Warren Osmund, published my letter (though removing the web site address) and refused to agree to UWA's demand.

Meanwhile, Hugh Jarvis quite properly asked UWA officials what particular material on his site was defamatory, and invited UWA to present its own point of view. According to Jarvis, UWA has not responded to these overtures, instead merely reiterating its general threat to sue. This is compatible with my impression that UWA's threats are bluffs.

For distributing messages, the net provides an alternative to the mass media. As well as sending letters to the two newspapers, I composed a general message, including the text of my first Campus Review letter, and sent it first to Forums & Debates at the University of Wollongong (which gets to nearly all staff) and then to various others whom I thought would be interested. In my message I encouraged individuals to send copies to others: "If you are concerned about this attempt by UWA officials to inhibit open discussion, you can send a copy of this message to others who might be interested."

As a result of this initiative, I received quite a few supportive messages. Several individuals set up links from their own web sites to the Rindos web site and wrote letters informing the Vice-Chancellor of UWA of this. Others informed me that they forwarded my message to numerous other people. Thus, by alerting people to UWA defamation threat, the information about the Rindos web site was circulated widely. As well, journalists in Perth (the home of UWA) have written stories about UWA's actions. I put a version of this article, including text of various letters, on my own web site, which deals with suppression of dissent (http://www.uow.edu.au/arts/sts/bmartin/dissent/). Hugh Jarvis also has an account on his Rindos/UWA site ((http://www.acsu.buffalo.edu/~hjarvis/rindos.html).

UWA's threats may have deterred some of the mass media but have had little impact on users of the net. As web access grows, UWA's threats may in the longer term turn out to generate the very publicity that UWA officials seem most anxious to suppress.

Brian Martin
Science and Technology Studies
University of Wollongong, NSW 2522, Australia
email: brian_martin@uow.edu.au