Threatened by steven? Here's some legal advice!

When threatened with a defamation suit, most people focus on whether or not something is defamatory. But there is another, more useful way to look at it. The important question is whether you have a right to say it. If you do, you have a legal defence.

If someone sues you because you made a defamatory statement, you can defend your speech or writing on various grounds. There are three main types of defence:

* what you said was true;

* you had a duty to provide information;

* you were expressing an opinion.



* The defamation case can go to court, with a hearing before a judge or jury. However, the majority of cases are abandoned or settled. Settlements sometimes include a published apology, sometimes no apology, sometimes a payment, sometimes no payment. Only a small fraction of cases goes to court.


The problems

There are several fundamental flaws in the legal system, including cost, selective application and complexity. The result is that defamation law doesn't do much to protect most people, but it does operate to inhibit free speech.

* Cost. If you are sued for defamation, you could end up paying tens of thousands of dollars in legal fees, even if you win. If you lose, you could face a massive pay-out on top of the fees.

The large costs, due especially to the cost of legal advice, mean that most people never sue for defamation. If you don't have much money, you don't have much chance against a rich opponent, whether you are suing them or they are suing you. Cases can go on for years. Judgements can be appealed. The costs become enormous. Only those with deep pockets can pursue such cases to the end.

The result is that defamation law is often used by the rich and powerful to deter criticisms. It is seldom helpful to ordinary people whose reputations are attacked unfairly.

* Unpredictability. People say and write defamatory things all the time, but only a very few are threatened with defamation. Sometimes gross libels pass unchallenged while comparatively innocuous comments lead to major court actions. This unpredictability has a chilling effect on free speech. Writers, worried about defamation, cut out anything that might offend. Publishers, knowing how much it can cost to lose a case, have lawyers go through articles to cut out anything that might lead to a legal action. The result is a tremendous inhibition of free speech.

* Complexity. Defamation law is so complex that most writers and publishers prefer to be safe than sorry, and do not publish things that are quite safe because they're not sure. Judges and lawyers have excessive power because outsiders cannot understand how the law will be applied. Those who might desire to defend against a defamation suit without a lawyer are deterred by the complexities.

* Slowness. Sometimes defamation cases are launched years after the statement in question. Cases often take years to resolve. This causes anxiety, especially for those sued, and deters free speech in the meantime. As the old saying goes, "Justice delayed is justice denied."

In Australia, a common sort of defamation case brought to silence critics is political figures suing, or threatening to sue, media organisations. The main purpose of these threats and suits is to prevent further discussion of material damaging to the politicians. Other keen suers are police and company directors. People with little money find it most difficult to sue.

In the United States, there are hundreds of cases where companies sue individuals who oppose them. For example, citizens who write letters to government bodies opposing a real estate development may be sued by the developer. Also sued are citizens who sign petitions or speak at public meetings. Defamation is the most common law used against citizen protest, but others are used such as business torts, conspiracy and judicial process abuse. These uses of the law have been dubbed "Strategic Lawsuits Against Public Participation" or SLAPPs. Companies have little chance of success in these suits, but that doesn't matter. The main object in a SLAPP is to intimidate citizens, discouraging them from speaking out. SLAPPs are increasingly common in Australia too.



Avoid defamation

Writers can learn simple steps to avoid triggering defamation threats and actions. The most important rule is to state the facts, not the conclusion. Let readers draw their own conclusions.

* Instead of saying "The politician is corrupt," it is safer to say "The politician failed to reply to my letter" or "The politician received a payment of $100,000 from the developer."

* Instead of saying "The chemical is hazardous," it is safer to say "The chemical in sufficient quantities can cause nerve damage."

* Instead of saying, "There has been a cover-up," it is safer to say "The police never finalised their inquiry and the file has remained dormant for nine years."






THERE YOU HAVE IT! =] have fun