It's defamatory!

Chapter 4 of Suppression Stories by Brian Martin (Wollongong: Fund for Intellectual Dissent, 1997), pages 55-68.

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In my studies of dissent, I sometimes like to imagine that I could tell the full story, revealing the hidden facets on all sides of the issue. But this is just a dream. I've never been close. Partly it's because my information isn't complete or totally reliable. Partly it's because I don't want to offend someone, especially the person who has been suppressed. Partly it's because of the limitations of the frameworks through which I view the world. But even if I could overcome these obstacles, there's another big problem: the law of defamation.

Many people think of the law as a great protector, as a place where justice is dispensed. If only it were true! Actually, the legal system serves best those who have the most power and money.

For anyone who writes or publishes on sensitive topics, concern about defamation is always there in the background. Here I won't bother with legal details, but just give a general perspective on defamation. Broadly speaking, defamation occurs whenever you say or write anything derogatory about someone and someone else hears or reads it. Most people make defamatory statements several times every day or even every few minutes, just in the course of everyday gossip. If you say that someone is stupid or fat or corrupt or rude, that's defamatory. When you just say it, it's called slander. When it's printed or broadcast, it's called libel. The term defamation covers both types.

If you say something defamatory about someone, they can sue you. You can defend in court on various grounds, depending on the law. In some places, you only have to prove that your statement is true. In other places, you have to prove that it is true and also that it was in the public interest to say it.

Of the untold number of defamatory statements made every minute, only a handful get to court. Few people ever do anything about purely verbal statements unless they are widely broadcast, such as on radio or television. Similarly, few people ever do anything about written statements unless they are widely circulated, such as in a newspaper. Publication is the usual prerequisite for a charge of defamation.

In a polite society, a person who said something defamatory and wrong would be asked to make a correction, retraction or apology. The law of defamation uses quite a different approach. The person or organisation that is found guilty of defamation - saying or writing it, publishing it or even just distributing it - may be forced to pay thousands or even hundreds of thousands of dollars in compensation. It's also expensive to take a case to court. Lawyers' fees can be hefty. It is the big financial penalties and legal costs that make defamation law a tool to protect those who are powerful from published criticism.

Considering some of the sensitive topics I've dealt with, I've had a relatively easy time, having never been sued for defamation. But there have been some threats. My experiences give me a warm awareness of the dangers but have not left me scorched with a major case. Threats of defamation are far more common than actual cases. Therefore it may be helpful to tell about my experiences in this regard.


Jousting with the nuclear knights

In 1979 I decided to do a study of the views of the leading Australian proponents of nuclear power. I was involved in the anti-nuclear campaign and thought that such a study would be useful to other opponents. I eventually decided to focus on the two leading proponents, Sir Ernest Titterton, then Professor of Nuclear Physics at the Australian National University, and Sir Philip Baxter, former head of the Australian Atomic Energy Commission. They were knighted largely for their contributions in the nuclear field.

I tracked down as many pieces of their writings as possible and then analysed their views on nuclear power, nuclear weapons and the nuclear debate. My argument was that their views reflected their positions as nuclear experts and also that their views on particular issues had changed to suit the convenience of the current debate. When in the 1960s they looked favourably on the prospect of Australian nuclear weapons, they said the Nuclear Non-Proliferation Treaty was, in Sir Ernest's words, a "worthless bit of paper." But in the 1970s when nuclear proliferation was a key argument against uranium mining and nuclear power, they changed their tune and said the Treaty ensured that ostensibly "civilian" parts of the nuclear fuel cycle could not be used for military purposes.

My critique was detailed and hard-hitting, but also carefully written and highly referenced. I was aware of the possibility of defamation. My analysis was of their views, not a judgement of them as individuals.

On completing the analysis, I submitted it as a paper to the British journal Social Studies of Science. The editor, David Edge, told me that they would be most reluctant to publish it if either Sir Ernest or Sir Philip objected strongly. Edge had some reason to be concerned. He was the co-author of a book on British astronomy, and an astronomer had threatened to sue in order to stop the book's publication. I knew for sure that Sir Ernest and Sir Philip would object to my article, so publication in Social Studies of Science was not a prospect. (As it turned out, it was rejected anyway as not having enough original sociology.) I also realised that I'd have the same problem at other journals. So I decided to publish it myself as a booklet.

I approached the Rupert Public Interest Movement ("Rupert" for short), an organisation that campaigned for freedom of information legislation and took up other free speech issues, to see if it would be the official publisher. I knew two of the key people in the organisation: John Wood and Kate Pitt. They agreed. Rupert was the official publisher. John and Kate helped out with some useful promotion. John drew some fantastic cartoons, including the cover showing Sir Ernest and Sir Philip tilting at a windmill. I did all the typesetting and layout, covered the costs and did most of the publicity and bookkeeping.

But before we got this far, we took precautions to reduce the risk of a defamation action. Rupert was incorporated - Rupert Public Interest Movement Inc. - which meant that the members were not liable for debts of the organisation. Since Rupert had almost no money, there wasn't much to lose. Indeed, if Sir Ernest or Sir Philip did sue, it might bring helpful publicity to Rupert. But there was no point being rash. John McMillan, a lawyer who was involved with Rupert, looked over the manuscript. After checking that I had evidence to back up some of my statements, he concluded that there was nothing that couldn't be defended. I sent copies of the manuscript to Sir Ernest and Sir Philip, asking if they had any comments. As we expected, they didn't reply. So Kate Pitt rang up each of them, with John Wood listening in. She asked whether they had read the manuscript and whether they had any comments. Sir Ernest said it was "mainly rubbish - not entirely but mainly." Sir Philip said the manuscript was with his solicitors. He threatened to sue "for very considerable damages" if it was published.

We thought that Sir Philip was just bluffing. But his threat made us wary. In August I sent the typeset version to another lawyer, a friend of Rupert's from Perth who didn't charge for giving his advice. He queried the evidence for a few statements and I made a few adjustments to the text. It was published with the title Nuclear Knights in October 1980. As we expected, Sir Philip didn't sue.

There were several lessons from this experience. I learned first hand how the risk of being sued for defamation can inhibit research and publication of material that criticises powerful individuals. I also learned several ways to avoid defamation that have worked well in the years since. First of all, I studied the law of defamation a little bit myself, reading several treatments of the issue. I used my amateur understanding of the law when writing my critique. Second, I sought advice. John McMillan and the lawyer from Perth gave free legal advice. I also sought comment from others on the accuracy of my analysis. Several friends read versions of the manuscript and provided corrections and suggested improvements. Third, I sent the manuscript to the nuclear knights themselves. This put them in the position of remaining silent, in which case it would have been harder for them to successfully sue later, or providing specific requests to remove or change defamatory passages, in which case changes could have been made before publication. One reason we thought Sir Philip was bluffing was that he didn't point out problems with any specific bit of text. One last protection was that Kate Pitt gave me a signed summary of her conversations with Sir Ernest and Sir Philip.


An expert bites back

A couple of years later, I wrote a critique of the writings of another Australian advocate of nuclear power, Leslie Kemeny, who was in Nuclear Engineering at the University of New South Wales. My article, set in the context of a general critique of experts, was hard-hitting but carefully written and well documented. In March 1982 I sent a draft to Kemeny. He wrote back the next month saying that it was "dishonest, devious and actionable." The word "actionable" means that he expected to succeed in a court action for defamation. I wrote again asking for specific reference to defamatory passages, but he didn't reply.

My article, entitled "The naked experts," was published in the British journal the Ecologist, in the July/August 1982 issue. More than a year later, Kemeny sent a letter to the Ecologist which attacked me and said that my article was "dishonest, defamatory and actionable." Ironically, Kemeny's letter was much more defamatory of me than anything I had said about him. He didn't point out a single statement of mine that was defamatory. Kemeny demanded that I apologise in print. Instead, I wrote a letter in reply for the Ecologist. Kemeny's letter, mine and one by Mark Diesendorf were all published in the January-February 1984 issue.

The next communication from Kemeny was a letter to the editor of the Ecologist, Edward Goldsmith, in July 1984. He demanded a written apology - he sent a copy for us to sign - from the publisher and editor of the Ecologist, from me and from Mark Diesendorf and Rosemary Walters. The only connection that Mark and Rosemary had with my article was that they had read a draft and given me comments, as I indicated in an acknowledgment. This curious inclusion of Mark and Rosemary in the demand, and the style of Kemeny's letter, suggested to me and others who read it that he had not actually received detailed advice from lawyers. For example, he demanded that we admit that the article had been written with malice to defame him and that almost every paragraph contained "a plethora of mendacious, unresearched innuendo." In addition, it would have been very expensive for Kemeny, living in Australia, to arrange for a defamation action to be launched in Britain where the Ecologist is published.

Edward Goldsmith was more rattled. He wanted me to supply documents that would enable the Ecologist to defend against a court action. So I made up a big bundle of photocopies of all relevant articles by Kemeny and others that were relevant to my writing of the article. It was a lot of work, but minor in comparison to what would have been involved in an actual court case. But Kemeny never sued. I presumed it was a bluff.

Perhaps when I originally sent "The naked experts" to the Ecologist, I should have warned Edward Goldsmith about Kemeny's threat to sue. I assumed then that it was a bluff. I turned out to be right, but Goldsmith might have preferred to avoid the worry.


An advocate of nuclear power?

In the opening section of Nuclear Knights, I gave an overview of the main issue in the debate over nuclear power. To provide a context for my analysis of the views of Sir Ernest and Sir Philip, I included a table of "Advocates of uranium mining and nuclear power prominent in the Australian public debate," noting that almost all of them were either nuclear scientists, nuclear engineers or had links with uranium mining companies. One of them, Dr Don J. Higson, who worked at the Australian Atomic Energy Commission, had written pro-nuclear letters to newspapers. Higson wrote to me and we had a cordial exchange of letters. At least it was cordial at first. Higson claimed that he was not an advocate of nuclear power, but rather he was simply providing facts to the public about the issue and correcting other people's mistakes. I disagreed, although I conceded that it might have been more accurate if I said that his letters had the effect of promoting nuclear power. Higson eventually wrote to Rupert concerning my statement that he was a public advocate of nuclear power, saying "I find this allegation offensive and consider it damaging to me." For those familiar with the language of defamation, this was obviously a threat to sue. At this stage I discontinued the correspondence. Higson never sued. But that someone would find a statement that he was an advocate of nuclear power defamatory - in this case, defamatory to his reputation as an objective scientist - and ask that it be withdrawn, shows how the law of defamation can extend to even apparently innocuous statements. This undoubtedly has a chilling effect, especially on publishers.


The deadly objection

Through my years of action and writing against nuclear power, I got to know many of the people in the anti-nuclear cause, especially the scientists. One of them was Alan Roberts, who worked in the Physics Department at Monash University in Melbourne. In the mid 1970s, Alan had written some of the earliest critiques of nuclear power with an incisive political analysis.

In 1980 Alan wrote a review of a new book by Lennard Bickel, The Deadly Element: The Men and Women behind the Story of Uranium. The review was published in the National Times, a prominent weekly newspaper. Bickel sued for defamation. Most of the review caused no problem. The crucial sentence that triggered the suit was this: "I object to the author's lack of moral concern."

The case went to court. Bickel claimed, among other things, that the review meant that he lacked concern about the human consequences of nuclear weapons and nuclear power. The defence - lawyers working for the publishers of the National Times - said that the statement was "comment" rather than a statement of fact, and thus was permissible. Without going into details of trials and appeals, suffice it to say that Bickel eventually won in court, being awarded $180,000 in damages. In a subsequent settlement, he received a somewhat lesser amount. It was not a happy moment for the publishers. Roberts did not have to pay anything. But it was a lesson for him too. He had to answer searching examination of the review in court. Afterwards, naturally, he was much more cautious about what he wrote.


A chill in the greenhouse

My good friend Mark Diesendorf has seen his share of suppression. I met Mark soon after moving to Canberra in 1976. He had just joined the Division of Mathematics and Statistics in the CSIRO, the large Australian government research organisation. He had a PhD in applied mathematics and had worked the previous three years in the Applied Mathematics Department at the Australian National University. When I joined that same department in 1977, I ended up in Mark's old office!

Mark took a keen interest in issues of health and the environment. In the early 1970s, he played a key role in drawing public attention to the health hazards of low-level ionising radiation, such as from chest x-rays. He was also a leading critic of the French government's testing of nuclear weapons in the Pacific. Mark became a highly effective opponent of nuclear power, using his expertise on both the social and technical issues to powerful effect. He went head-to-head in public debates against the likes of Sir Ernest Titterton and Leslie Kemeny. It was perhaps for this reason that when I contacted Kemeny at the beginning of my study of his views, he twice asked me whether I was working for Mark Diesendorf!

I learned a lot from Mark. We gave each other comments on letters that we wrote to the Canberra Times about uranium mining. Mark had a great talent for writing prose that covered the key points, was absolutely accurate and as brief as possible.

Mark was an enthusiastic promoter of energy efficiency and renewable energy technologies, so long as there was good evidence that they were effective. He soon became one of Australia's leading experts on wind power. In the late 1970s, we began a scientific collaboration on the potential role of electricity from wind generators in conventional electricity grids. Two others, John Carlin and John Haslett, were also involved at certain stages. Mark was the leader of the group, providing ideas and guidance but also being intimately involved in data analysis and mathematical modelling.

At the time, there was an organisation that funded energy research and development, called the National Energy Research, Development and Demonstration Council or NERDDC. Energy research in Australia was dominated by fossil fuel interests and the Australian Atomic Energy Commission. Renewable energy took a back seat. Although Australia has a great potential for using solar and wind energy, the existing energy system is largely dependent on coal and oil, and the relevant companies and government bodies preferred it this way. CSIRO was influenced by the same priorities.

Mark put in an application to NERDDC for wind power research. The application had to go first to CSIRO head office. He found out that head office had not even forwarded the application to NERDDC. After NERDDC itself put pressure on CSIRO, the head office forwarded the application and it was successful.

In 1981, Mark suggested that we submit a supplementary application with me as principal investigator, so that it could go through the university rather than CSIRO. Our application was unsuccessful, not too surprisingly, for I had received a copy of a letter from the ANU administration to NERDDC that had accompanied our application. Among other things, it said "Dr Martin's present appointment as Research Assistant in the Department of Applied Mathematics expires in January 1982." Due to financial uncertainties, "it is not possible to affirm that Dr Martin will remain in that position." This was true but also the kiss of death for a grant application.

Mark came under increasing pressure at CSIRO due to his research and public profile on renewable energy. In 1984 he was requested to transfer to Adelaide, a major move that would have separated him from his children. He refused to move and proceedings were begun to retrench him. As a result, in 1985 he lost his job but received a substantial pay-out.

These experiences are typical of situations in which suppression of dissent seems to be a factor, but there isn't really enough evidence to argue a convincing case. Maybe our grant applications weren't really all that good, but maybe hostility to wind power or to Mark's outspoken support for it played a role. Maybe Mark's transfer and retrenchment would have happened to him even if he had been a typical low-profile scientist working on noncontroversial topics. There is no way to know for sure.

Mark also became involved with the fluoridation issue. He undertook a careful investigation of the issue and by the mid 1980s had become one of the world's leading scientist critics of fluoridation. Not surprisingly, there were various attempts to discredit him and his work. Officials from the Australian Dental Association wrote to the chairman of the CSIRO (Mark's employer) and also to the federal government minister responsible for CSIRO, saying that he had "misused his CSIRO connections to lend weight to his views on subjects outside his expertise" and asking for "all necessary steps to ensure this deceptive practice does not continue." These officials did not write to Mark himself. He obtained the letters of complaint through requests using Freedom of Information legislation. CSIRO officials in this case defended Mark, pointing out that he had made clear in his public comments on fluoridation that he spoke in his "private capacity" and anyway he was an expert on some aspects of the issue.

Through all of his work on nuclear issues, wind power and fluoridation, Mark had no major encounters with the legal system. I have given this background to indicate that Mark is both a courageous critic but also an experienced and careful scientist. He is always disturbed by the less meticulous critics of nuclear power or fluoridation who get their facts wrong or propose wild conspiracy theories.

After a stint at the Australian Institute of Health, Mark joined the staff of the Australian Conservation Foundation (ACF), the country's largest environmental organisation. He was in charge of the ACF's climate change programme, a position that built naturally on his previous work. The key issue in climate change is the so-called greenhouse effect. Most researchers believe that carbon dioxide from burning of fossil fuels, plus other human activities such as clearing of rainforest, may be leading to major changes in climate.

However, there are a few critics of the standard view about the greenhouse effect. One of them is Dr Brian O'Brien, former chair of the Environmental Protection Authority in Western Australia. In 1990, Mark criticised some of O'Brien's claims about the greenhouse effect. He also pointed out that O'Brien had been a paid consultant for the coal industry - remember that burning of coal produces carbon dioxide, a major contributor to greenhouse warming - and that this should be taken into account in assessing his views. This comment was similar to my analysis of the nuclear knights, in which I criticised their views and pointed out the connection between their views and their positions as nuclear scientists and engineers. Mark did not say anything about O'Brien's motivations.

O'Brien responded by suing Mark and the ACF for defamation but not, interestingly, the newspapers that had reported Mark's comments. The ACF took on the defence, briefing its lawyers. As in many cases, it never went to court. After many months, a settlement was reached. The ACF published an apology. Why did the ACF agree to publish an apology? Basically, it would have been too expensive even to win the case. The ACF would have had to pay its own legal costs, and there was a slim chance of losing. The ACF is not a rich organisation. It receives most of its income from donations and subscribers. It could hardly afford a major pay-out. The expedient course was to settle the case and avoid further costs.

Naturally this was not welcomed by Mark. He felt he had been on solid ground in criticising O'Brien, but the big penalties available through defamation law were enough to make the ACF give in. The settlement made it difficult for Mark and the ACF to comment further about the key issue, namely O'Brien's links with the coal industry. In February 1992, Senator Peter Walsh wrote a column in the Financial Review, a national daily paper, in which he pointed out the ACF's apology, saying that Mark had impugned O'Brien's motives. Mark was constrained by the settlement from writing a reply. I wrote one myself. This is the way that free and vigorous discussion of social and scientific issues can be inhibited by the legal system.

I sent a draft of this chapter to O'Brien, inviting his comments. In reply he pointed out that he had publicly stated and published his views on the greenhouse effect before having any contact with the coal industry. In my view, this does not affect my assessment of the case.

Mark later left the ACF to take a position in the Human Ecology Program at ANU, a descendant of the Human Sciences Program, as described in chapter 1. After a few years in this precarious situation, in 1996 he was appointed professor and head of the new Institute for Sustainable Futures at the University of Technology, Sydney.


SLAPPing down critics

In 1988 two professors at the University of Denver, Penelope Canan and George W. Pring, published an article in the sociology journal Social Problems entitled "Strategic Lawsuits Against Public Participation." Their acronym for these lawsuits was SLAPP. They examined 100 cases throughout the United States in which the legal system was used to harass and intimidate people who were exercising their right to petition the government.

In one case, a farmer made a complaint to the US Environmental Protection Agency about pollution of a river by a coal company. The company sued him for defamation, claiming $200,000. In other cases, people who signed a petition against a real estate development were sued. Lawsuits have been filed against individuals and groups for all sorts of everyday actions, such as filing a complaint with a government agency, engaging in nonviolent rallies and marches, speaking critically at a meeting of a school board, or even signing the attendance sheet at a public meeting. The most common legal claim was defamation; others used include business torts, judicial process abuse and conspiracy. The amounts claimed are typically in the hundreds of thousands of dollars, up to many millions.

Very few legal actions of this sort are successful in court. That doesn't matter. Their main effect is to scare people, to make them afraid of speaking out. Those who have plenty of money can initiate legal actions. Those who don't are intimidated.

Canan and Pring's acronym SLAPP caught on quickly. They have continued to work in this area, producing valuable articles, circulating information and providing advice to people who have been SLAPPed. Many people who are subject to a SLAPP are stunned. Some of them back off, withdrawing their public statement or whatever. Others get angry. The value of the concept of SLAPP is that it puts individual cases into a bigger picture. Individuals realise that it's happening to others and that there's a pattern. They also learn how to oppose SLAPPs. Canan, Pring and their collaborators have led a push to oppose SLAPPs in a variety of ways, including laws against them and counterclaims against SLAPPers for injuries caused by the SLAPP.

Canan and Pring define SLAPPs as civil lawsuits, filed against nongovernment individuals or groups, claiming some injury due to communications aimed at influencing government on an issue of public concern. Brian O'Brien's legal action against Mark and the ACF seems to fit this definition, except that the injury didn't arise from communication aimed at influencing government, but rather more general discussion of a scientific and social issue. It can be argued, though, that one aim of debate in the media is influencing government. There is considerable similarity to Canan and Pring's definition of SLAPP.

SLAPPs seem to be most common in the US, where the legal system is used to deal with all sorts of issues that are handled differently elsewhere. But cases that fit the pattern are found in other countries too. The legal system is used as a tool to inhibit free discussion.


Is this book defamatory?

My aim in this book is to describe some of the things I've learned about how to oppose suppression of intellectual dissent. To do this, there is no special need to make risky statements that could be defamatory. On the other hand, I can explain things best if I'm able to state what I really believe, and sometimes that can lead to trouble.

Undoubtedly, this book has been censored, like many others. I decided to write it initially by including everything that seemed relevant to the points I was trying to make, with nothing excluded due to worries about defamation but nothing added just to be provocative. The text has been subject to two filters.

The first filter was my own judgement. If some points seemed too strong or not backed up by sufficient evidence, I deleted them. The second filter was the people to whom I sent draft copies. If they thought something was inappropriate or too risky, and I agreed with their judgement, I made deletions or changes. I sent draft copies to friends whose judgement I trust, such as Mark Diesendorf, and also to people likely to be critical, such as Leslie Kemeny (who, incidentally, didn't reply). I've also obtained informal legal advice - it's called informal because I haven't paid for it. Formal legal advice would be expensive.

If this book had been commercially published, there would have been a third filter: the publisher. At least one publisher was scared away by worries about defamation. The original idea for this book came from Souvenir Press in London. Editorial assistant Maggie Baddeley wrote in May 1993 saying they had seen my article on suppression in Newsweek and asking whether I might be interested in writing a book on the topic. I wrote back with a list of ideas for such a book. Next I heard from Tessa Harrow, Editor at Souvenir Press, who said "The one big problem likely to arise with this sort of book is libel" and asked how I would handle this issue. I replied at length and later sent a chapter outline. Harrow wrote in October that "the book and its problems have been the subject of intense and lengthy debate" and that it would be impossible to publish it initially in the UK, though they might be interested in UK rights if it was first published in Australia.

This was discouraging, but much later I decided to write the book anyway. I eventually sent a draft to Souvenir Press asking whether they were still interested in UK rights assuming there was an Australian publisher. Souvenir Press didn't answer my letter. This episode made one thing clear: if a commercial publisher had taken the book, quite a number of changes would have been required for legal reasons. Since Suppression Stories is essentially self-published, changes and deletions are due only to the first two filters.

However, rather than leave all these changes and deletions on the cutting-room floor, I've kept a record of the original version. It is safely stored with a friend in another country. This version is for posterity. Defaming the dead is not illegal, at least in Australia. I can say whatever I like about Sir Ernest and Sir Philip, but not about some others. Eventually the uncensored version will be available. The irony is that it may be unfair. When dealing with material where people threaten defamation, the usual process of checking facts and arguments is very difficult. Accuracy gets lost in the legal shuffle. Defamation law undermines the search for truth and hence results in greater misrepresentation in the long run.