IS IT defamatory to say of someone that they are a Baptist? A ding-dong over a blogger’s post about an anti-pornography campaigner raised this question this week causing a stir in the social and traditional media.
The ding-dong is over Jennifer Wilson’s No Place for Sheep blog (which can be found here: )
The discussion is over two sorts of opposition to pornography and abortion: one is from the religious-moralist viewpoint and the other from the feminist or female-exploitation point of view.
Wilson criticised a Fairfax article on prominent Canberra anti-pornography activist Melinda Tankard-Reist for not asking about her religious affiliation, which Wilson incorrectly described as being a member of the Belconnen Baptist Church, though all the indications are that she is strongly Christian.
Tankard-Reist complains that Wilson’s article says that Tankard-Reist was being deceptive and duplicitous in not disclosing her religious beliefs – a sort of god-botherer in feminist clothes.
Assertions of duplicity and deception are definitely defamatory, but whether there is a defence of fair comment is a matter of (very expensive) legal debate.
The lawyers in this case are not asserting that merely branding someone a Baptist is defamatory, but it is an interesting question that reveals the workings of our defamation law.
I certainly would be offended if someone asserted I was a Baptist. But being offended is not the legal test, even if it might be the major prompter of going to law. The test is whether right-thinking people in society generally would think the lesser of me because of the assertion.
Certainly, many of my friends and acquaintances would think the lesser of me. They would say, “Crispin has gone mad. He now believes in all sorts of drivel like the virgin birth and everlasting life. I thought he was a rational sort of chap.”
But that is not the legal test. The law does not look to my mates, but to ordinary right-thinking people generally. They might well say we do not think lesser or better of anyone because of their religious beliefs.
On that test, merely asserting someone is a Baptist would not be defamatory. But if you assert someone is a Baptist when they are public atheists, it carries the imputation they are hypocrites, duplicitous and deceptive.
So then the publisher has to prove the truth of that assertion or that it was fair comment on the facts truly stated.
Herein lies the problem for those who engage in the social media. The explosion of material on the internet at once both helps and hinders fact-gathering. Apparently, Wilson relied on Facebook and Wikipedia.
Facebook and Wikipedia are great resources, but not great sources.
What someone says about themselves on Facebook is reliable. What is said about others is not. So Facebook is good for getting some base information and some directions for further checking. Same for Wikipedia. It is great for getting an overview and fantastic for getting links to primary materials. But Wikipedia articles are written by fallible humans, often with biases.
If the facts are not truly stated it is difficult to get a truth or fair comment defence. It is worse for people who use Twitter because the Tweets are restricted to 140 words. In that space it is difficult to build a fact base upon which to comment. Tweeters generally jump to conclusions, which can be fatal in defamation.
More importantly, in this climate of instant self-publication, is the question of whether the ponderous processes of the law are effective or suitable in dealing with matters of public debate and the character of people debating them.
Wilson subsequently wrote that Tankard-Reist has had plenty of opportunity to debate the issues or refute arguments or incorrect assertions, but has not done so.
She did not post a comment on the Wilson blog that so offended her. I think that is a reasonable point, but it cuts no ice with the law.
Defamation law is a creature of old-style media of wealthy powerful publishers in which the few publish to the many and the many have little or no recourse. Those powerful publishers have (but are slowly losing) the wealth to teach journalists how to gather facts and write in a way that helps insulate them from the rigours of defamation law.
They also have pre-publication professional legal advice and experienced editors who can rework material to make it more difficult for the defamation plaintiff. Any one of those could have rewritten Wilson’s blog to say pretty much the same thing but in a way that would make it fairly immune to a defamation action.
Further, formal media carries greater credibility than blogging and people take more notice of it, so when it defames, the damage is greater.
Is then it reasonable to impose the full rigours of a defamation law of another age on the amateur self-publishers of the internet, particularly when those publications encourage responses, denials, rebuttals and refutations? It might be a different matter if the publisher refused to post the response.
Incidentally, Rachel Hills, the journalist who Wilson criticised was the first to post a response to Wilson’s blog and Wilson let it run.
And when I say the rigours of the defamation law, I include the hideous cost of it. Wilson rightly argues that a defamation action would financially ruin her. She concludes, as other defamation defendants say, that it is a tactic to silence her.
At least the 2006 changes to the defamation law capped damages to an indexed $250,000 and stopped big corporations from suing. But they have not changed the costs and delays of the legal processes which seem so out of kilter in the internet age. By the time this case gets to court, if ever, the whole thing would have blown over. The comments on the blog have already dried up.
DOT DOT DOT
In last week’s column on unemployment, I should have mentioned that the ABS does measure the labour force underutilisation. It comes out quarterly, unlike the monthly unemployment figures. At 12.5 percent the ABS underutilisation rate is 4.3 percentage points or a third lower than Morgan Opinion Poll’s figure of 16.8 per cent.
This article first appeared in The Canberra Times on 21 January 2012.