Tag Archives: defamation

harassment, reputation, tactics

Publish — and be careful

In Australia, it can be risky to publish comments about another person. They might sue you for defamation.

           I was first threatened with defamation suits in the 1980s, when writing about prominent advocates of nuclear power. Over the years, I learned about options for publishing on sensitive topics while reducing the risk of legal action.

            Because whistleblowers are often threatened with legal action for defamation, I wrote a leaflet titled “Defamation law and free speech,” with a lot of help from others, including a leading defamation barrister. Since it was posted online in 1996, I have received hundreds of queries from people who want to publish but are afraid of being sued. Nearly all of these are low-profile cases that never come to public attention. I’m not a lawyer and mainly comment on options before cases get to court.

Say it carefully

The first step in defamation-proofing is to clean up your language, getting rid of general claims, and instead giving specifics that you can back up. Instead of saying “He’s a corrupt bastard,” you might write, “He received a payment of $50,000 from the owners before approving their development,” or “He was recorded shouting at a teenage employee.” This sort of advice was an important part of “Defamation law and free speech.”

            And you’d better have evidence to back up every statement. In court, the defendant has to prove the validity of every contested statement. Instead of innocent until proven guilty, defamation laws say you’re guilty until you can prove you’re not.

Legal advice?

One option is to find a lawyer knowledgeable about defamation matters and ask them to check what you’ve written. There are two problems. Lawyers are expensive, and most of them are cautious, rightfully so. They are likely to recommend omitting anything that might offend the people you write about. You might end up saying almost nothing.

            If you’re a journalist and work for a large media company, you’ll have lawyers on tap to check what you’ve written. Even better, the company’s lawyers will be there to defend against legal actions. Most of the people I advise are not journalists and don’t have large cash reserves. They don’t want to spend a lot — but they do want to publish.

Send a draft?

Before publishing anything, it’s valuable to obtain comments on drafts of what you’ve written. This can help improve your expression and avoid mistakes. When your text is potentially defamatory, extra care is needed. You might be sued over the draft.

            Once, when a colleague was causing problems, I wrote a short account of his actions. I wanted others to read it but not give it to him, so I met with individuals in their offices and gave them a paper copy to read on the spot, asking for their comments and suggestions, taking back the copy afterwards. This alerted them to what had been happening in a careful way without releasing the document.

            Another option is to send copies by email, personalised. For a copy to Margarita Snell, in the header of the document I write “Draft, 4 January 2004, not for quotation or circulation. This copy for Margarita Snell only.” Then I make a pdf of the document and send it. If Margarita sends it to someone else, they will see the header on every page. If I were seriously worried that Margarita might remove the header, I wouldn’t send her the pdf.

            Dating your document is crucial, so there’s a record of when you created it. If it’s a draft and you later make corrections, you need documentation of the creation date of each version. Probably you’ll never need to prove when you created it, but it’s a good practice anyway. Sometimes you can be threatened with legal action over something you didn’t think was a problem.


Libel and slander are two forms of defamation

            In 1992, John Wright, a Sydney paediatric surgeon, contacted me. He wanted to write about his dismissal from the hospital where he worked. Preparing to post his story on my website was a delicate matter. Several doctors who had been his colleagues might have sued John as the author and me as the publisher. I mailed a draft of John’s account to each of them, saying, “I would appreciate any comment you may have to ensure the accuracy of the story,” and waited for responses. One made a specific request. A few responded with comments but no requests for change. One offered a general attack on John. Most didn’t respond at all. What to do?

            The general rule is to address each comment carefully and make changes when you think they are warranted. If you’ve made a mistake, fix it. If you’ve made a claim, and someone contests it, and you don’t have documentary evidence to back it up, then remove the claim or modify how you’ve expressed it.

            The general attack on John wasn’t too worrying. It came from one of John’s opponents, but didn’t point to any false statements. No need for changes. After publication, no one sued.

            Even if you send a draft and make changes based on comments, you could be sued later. Also, if the other person didn’t reply, you could be sued. But it’s less likely. A judge might ask the plaintiff, “Why didn’t you take the opportunity given to you to address defamatory comments?”

            One thing you need to know is that it’s safe to send defamatory text to the person you’re defaming. You can write to someone, “You’re a lying, thieving idiot,” and there’s no risk of them suing for defamation. It’s only when you say this to someone else — verbally or in writing, in a text message or picture, whatever — that you open yourself to legal action. Of course, it’s seldom a good idea to send someone an abusive message. It’s far better to be as polite as possible. The more you seem to be rational and public-spirited, the harder it will be for the other person to discredit you.

            In summary, the advantages of sending a draft to people who might sue are that you can improve the accuracy of what you write and reduce the risk of being sued.


Ben Roberts-Smith damaged his reputation by suing

            Sometimes, though, it’s better not to send a draft. You might want to surprise them. If they know about your text, they might apply to a court to prevent publication, put pressure on your employer, or make damning comments about you on social media, prejudicing your audience before they hear your viewpoint.

            To decide what to write and whether to send a draft, you need to have a sense of the other person’s thinking and behaviour. Are they rational or driven by emotion? If they are driven by emotion, they might sue even though they have no chance of success, just to cause you pain.

Assess your vulnerabilities

Usually, you want to avoid legal action, because it’s expensive even if you win, chews up vast amounts of your time and energy, and can be incredibly stressful. Relax – a bit – because if someone threatens to sue you, most likely nothing further will come of it. Many threats turn out to be bluffs.

            The next step is that you might receive a letter from a solicitor, called a letter of demand or a concerns notice. If you’ve already published comments, the letter might ask for a retraction and apology, and a payment. If you haven’t yet published anything, it might threaten legal action if you do. Even when you receive a letter like this, usually it doesn’t go any further. But sometimes you receive a writ, a court document initiating legal action. That’s more serious and you should seek legal advice. If you haven’t before, it’s time to learn more about defamation law.

            But even when you receive a writ, it’s unlikely you will end up in court. Many cases are dropped by the plaintiff. Others are settled.

            It’s unlikely that you ever want to get this far. Maybe you’re wealthy and don’t mind losing a lot of your money. Otherwise, going to court is no fun, and often only the lawyers come out ahead.

            However, it’s good to be prepared for the worst, so you can make sensible decisions about risking legal action. How much money do you have? Can you afford to lose it? Are others, for example children, dependent on your support? The more you have to lose, the more cautious you need to be.

            Ironically, you are best placed if you have few assets. If you lose in court, you could go bankrupt, but the person who sued you will get little or nothing because you can’t pay. That means they should be more reluctant to sue, because it’ll cost them a lot of money with little chance of getting any of it back.

Plan ahead

If you think you’ll be at risk of being sued, one option is to divest yourself of assets, so you’re a less attractive legal target. For example, you can put your house in your partner’s name, give your savings to a trusted friend who will help you when needed, and otherwise limit your financial vulnerability. You need to do this well in advance, several years, otherwise it might seem you are trying to avoid paying a specific debt.

            Another option is to find someone to speak out on your behalf, to be the author of your damning claims. Who would want to take this risk for you? Ideally, it is someone with no assets and little income, perhaps living on a modest pension. Or it’s someone living in another country who cannot easily be affected by a legal action in Australia.


Bruce Lehrmann hurt his reputation by suing

Prepare for backfire

Defamation law is supposed to be about protecting people’s reputations. The idea is that harming someone’s reputation by making unfounded claims will be penalised by payments, and that the risk of a defamation suit will deter people from making such claims.

            The trouble is that defamation law doesn’t work well to protect reputations, and sometimes suing for defamation can hurt your reputation — it can backfire. Imagine that a major newspaper publishes an article about you filled with false and misleading claims. So you decide to sue the newspaper. Big problem. The newspaper now publishes article after article about every stage of your legal action, recounting the original defamatory claims each time, which it can do safely because it’s reporting factual material. Even if you win in court (very unlikely unless you have plenty of money to run the case), your reputation is trashed by the publicity. That’s what’s happened in several high-profile cases, like solicitor John Marsden who won in court but further ruined his reputation.


John Marsden

            If you’re sued for defamation, you can turn this process against the suer by publicising everything that happens. You also need to publicise your good deeds and prestigious supporters, interpret the suit as censorship, and continue despite the danger. If you have a lawyer, you’ll need to ignore their advice not to say anything in public.

            When you’re sued, it’s counterintuitive to publicise it. The common reaction is to bunker down and prepare a legal defence. Nevertheless, a strategy of publicity can be potent. Sometimes it’s enough to make the suer back down. If they realise what’s happening — namely, that their threat to sue is actually harming their reputation — they may cut their losses by not proceeding.

            Trying to make legal action backfire is a risky strategy, but extremely potent when it works. If you ever get into this situation, you should study previous cases and use the insights from them to plan your own strategy.

Waiting for death

Robert Askin was a police officer who became a politician, rising to become premier of the state of New South Wales for a decade, 1965–1975. He was knighted for his services to Australia.


Sir Robert Askin

            Shortly after he died in 1981, an article appeared in the newspaper The National Times titled “Askin: friend to organised crime.” It documented Askin’s role in the rise of criminal activity in the state during his time as premier. Journalists knew all about this at the time, but never published anything because of the likelihood that Askin would sue.

            In Australia, the dead cannot sue for defamation, and neither can relatives on behalf of a dead person. It means that after someone dies, you can say anything you like about them with no legal risk. After Askin died, it was legally safe to sully his public reputation.

            If there’s something you want to say about someone and you don’t mind waiting, death provides an opportunity to say it. I’ve written an article about someone — a police officer, actually — who, years ago, threatened to sue over a colleague’s statements in a newsletter I edited. My article about this saga is ready to go. Every year, I check obituary columns to see if he’s still alive. One of these years, when I discover he has died, I’ll publish the article on my blog.

            There’s another possibility: I might die first. That’s not ideal for me, but it does mean I won’t be worried about defamation suits. I can arrange for the article to be automatically posted on my blog. Another option is to put the article on my website and ask a friend — in another country, just to be safe — to circulate the URL in the event of my death.

Conclusion

The risk of being sued for defamation can be worrying. It’s safer to say nothing at all! Actually, though, the risks are small and manageable if you take precautions. The chance that you’ll unexpectedly be taken to court and lose a lot of money is almost zero. There will be warnings along the way.

            The first and most important step is to be careful about what you say and write. If you are prone to sending out serious accusations — “He’s a liar and a thief!” — you are asking for trouble. Make sure what you say is accurate and, if you’re not sure, seek advice.

            There’s another reason to be accurate: your credibility. If you say things that are easily shown to be wrong or misleading, others will start to distrust you. It’s usually wise to apologise as soon as you realise you’ve made a mistake. A sincere apology can make a big difference to your credibility and bank balance.

            Despite the risks, you may feel the need to speak out on matters important to you and others. If so, seek advice from those who are experienced and knowledgeable. Assess your vulnerabilities, financial and emotional. Try to guess what those who might sue will do. See whether there are other, safer ways to get your message out.

            You may decide to publish no matter what. Fine. Sometimes nothing happens, and your worries gradually evaporate. And sometimes it turns out that no one cares about what you said anyway!

Brian Martin
bmartin@uow.edu.au

reputation

When you’re defamed

What would you say if you received a message like this?

I’m a high school teacher. A group of parents held a public meeting, which the principal attended, and made serious allegations about my performance, including uncomplimentary slurs, some even involving my family. What can I do? I thought of contacting a lawyer, but too many of them are just in it for the money. Henry

This is one of the hundreds of emails I’ve received from people distressed because their reputations have been hurt. “Defamation” is the general term for harm to someone’s reputation. Slander is the verbal variety while libel is the written or broadcast type.

            It wasn’t my intent to become an adviser to people who’ve been defamed. For years I was in contact with people at the other end of the story: they had been threatened with a legal action for defamation, or been sued. Often this served as a method of censorship.

            Suppose you discover some corrupt activity and plan to report it. The person you were going to expose threatens to sue you if you say anything. This often happens to whistleblowers.

            In 1996, I decided to write a leaflet to inform whistleblowers about defamation matters, and obtained comments from a range of individuals to make it as accurate as possible, including from a leading defamation barrister. Putting it on my website, soon it was being accessed more than anything else I had ever written. This was when the World Wide Web was becoming popular, and my leaflet provided practical information, in contrast with many legal treatments. It was titled “Defamation law and free speech.”

            Soon I was receiving queries from numerous people, with diverse and often disturbing stories about their concerns about being silenced by defamation threats and actions. But along with these messages came a different sort of query, from people who had been defamed and wanted to know what to do about it.

I’m a career coach and see clients at a room in my home. One of them wrote a comment online saying “I saw him for a consultation. What to expect? He’s obese and his place is a mess!” Admittedly, I’m a little overweight but I keep my consultation room neat and tidy. Do I have grounds to sue?

            A decade later, I wrote a short article, “What to do when you’ve been defamed.” It’s convenient to give people a link to an article rather than repeat the same advice. Each case is different but there are commonalities.

            As the years have gone by, the frequency of defamation queries has dropped off, I presume because the amount of information on the web has grown and my articles are no longer as high on web searches. Recently I was scanning my old paper files, came upon a thick folder of queries about being defamed, and decided to upload samples of my advice, with the queries anonymised. My advice is monotonous in one way: I always say something along the lines of “Don’t sue!”

            Most media attention to defamation is about high-profile cases, such as the suits launched by Ben Roberts-Smith and Bruce Lehrmann. Ironically, each of these legal actions greatly damaged the reputations of the individuals who sued, a phenomenon that can be called defamation backfire.

            Roberts-Smith and Lehrmann are exceptions. Few individuals whose reputations have been harmed ever go to court, and few members of the public are aware of a huge undercurrent of distress about being defamed. That’s what I discovered through the stories of correspondents who wanted advice on what to do about it.

            I often say, don’t sue unless you have a lot of money and don’t mind losing it. There are other options. At least that’s my advice in “Being defamed Q&A”.

Brian Martin
bmartin@uow.edu.au

reputation, tactics

When they say false things about you

What can you do when people spread false statements that harm your reputation?

It was going around social media that you lied about your personal relationships. There was a news story about your group, saying you supported violence. At a public meeting, a speaker called you a racist. There was another media story about your group, saying you received funding from vested interests. At a staff meeting, your boss accused you of bullying.

            None of it is true, yet the claims are being repeated all over the place. Your reputation is being trashed. What can you do?

            Before making accusations about lies and libel, and before rushing to your lawyer, pause — and consider your options.

Reputations under attack

This is the first in a series of posts about dealing with unfair attacks on reputation. Since the 1970s, I’ve advised hundreds of people who contacted me about being defamed. Each case is different and the best option for one person may not work for someone else, so I will suggest several options for consideration. Future posts deal with derogatory labels, guilt by association, malicious gossip and online attacks. See also “Being defamed Q&A“.

Understanding false claims

To appreciate what’s really going on, try to figure out what’s in the minds of those spreading the falsehoods. Could it be just a difference in perspective? Could there be some misinterpretation of actions or statements? Or is it something malicious?

            Your boss accuses you of bullying. Did you do something inappropriate? Or is the boss bullying you and others, and because you called out the boss’s obnoxious behaviour, you’re now a target?

            To say a claim is false is to make a statement about truth. Is that possible in an age of fake news, disinformation, and the postmodern rejection of ultimate truths? In academic circles, it’s accepted that all knowledge is provisional and open to challenge. Don’t worry about that, because for practical purposes the belief in truth remains strong in most circumstances, though often people disagree about where the truth lies.

            The trouble is that powerful groups try to impose their views as being true. That means bosses, media outlets and governments assert or assume their claims are true even though others — including you — can see they are obviously false.

Issues to consider

When confronted with false claims that damage your reputation, it’s tempting to jump to an immediate defence or to lash out in a counterattack, calling the other person a liar. Usually it’s better to pause and consider what you know about the situation.

            Is the other person — the one who makes the claims you think are false — sincere? Do they believe what they’re saying? This is an important question. If your boss says something damaging about your performance, maybe that’s what they really think, so it’s a matter of different perspectives, different information or a communication problem. Listen carefully. Then, if your boss seems sincere, it may be better to try to explain things. But if you think your boss is trying to get rid of you or trying to warp your perceptions — in other words, gaslighting — then you need to be more careful.

            If the other person is sincere, then they aren’t lying. A lie is an intentional falsehood or intentional withholding of the truth. It’s unwise to call someone a liar if they might believe what they’re saying. To further complicate matters, many lies are for good purposes.

            Another distinction is between misinformation and disinformation. Misinformation is information that’s incorrect, which may be due to ignorance, mistakes or sincere belief. Your boss can be misinformed while being concerned and supportive. Disinformation, on the other hand, is intentionally false. It is often used to describe covert government campaigns to discredit enemies or disrupt societies. The words misinformation, disinformation, fake news and post-truth are sometimes used as labels for attacking rather than accurate descriptions.

            You need to decide whether you’re being targeted or whether the false claims referred to you inadvertently or as a spin-off from other agendas. When the boss says your report is not up to scratch, is this harassment or is it because the boss needs to please some other player and your report gets in the way? When your group is attacked by a politician in a media story, is your group a special target or just being named for rhetorical purposes?

            You may not know the answers to all these questions, but it’s worth asking them and keeping in mind that you don’t know for sure what motivates other people’s actions. It’s usually better not to make too many assumptions, so you can adapt your responses as new information becomes available.

            After you’ve tried to understand what’s happening and why, you can consider options. There’s no single best option when you’re subject to false claims, so you need to think about everything you know about the people and the circumstances, and decide what to do.

Ignore

Although you may be upset or angry about falsehoods, sometimes it’s better to ignore them. At work, if co-workers or clients make comments about your performance, you might be better off not seeming to notice but just continuing with your efforts. Responding might seem to others like accepting the comments as potentially valid. Worse, it might simply draw more attention to them. By not responding, you also signal that you’re not easily rattled.

Defend

Counter the false statements. Just say they’re wrong. Present the evidence showing what’s actually going on.

            The boss says you’re not showing up on time and that your work rate is one of the lowest on the floor. You prepared for this. You have screenshots showing when you arrived every single day, and you have the stats on work rates in your team. So there!

            Defending can be effective when others respect honest information. It’s good news if they say, “Sorry, we were mistaken. You’re doing a good job.” On the other hand, if they make some new false claims, you might be subject to mobbing, a collective form of harassment. If so, the facts won’t matter.

            Should you defend by collecting information and providing as many facts as you can? It depends a lot on the circumstances. If there’s any risk of a false-claim attack, it’s nearly always valuable to obtain information to counter the falsehoods. At the workplace, you can collect information about your performance, testimonials from bosses, co-workers and customers, and comparative statistics. Just hope you never need it!

Explain

Instead of defending directly, you can explain what’s going on, for example why someone might want to make false claims. This is best done in a calm manner. If a co-worker says you’re not doing your job, you might explain that the workload has increased with no added staff and for the past month you’ve been doing two people’s jobs.

            Explanation is useful when others don’t know what’s been happening. It provides context so they can understand and make a judgement themselves. Rather than saying “You’re wrong” you’re in effect saying, “Here’s what you need to know so you can decide for yourself.”

            Explanation is an excellent technique for communicating to outsiders, those who have no stake in the conflict. You change their understanding from “You said, they said” to “Let’s see what’s really behind this difference in opinion.” However, those involved in a dispute may just see explanation as a form of special pleading.

Accept

In some cases, nasty comments and misleading statements contain a grain of truth. The boss might say you’re never on time and always too slow, which is a gross exaggeration given that you’re nearly always on time and usually work faster than others. A disarming response is to accept the criticism. “Thank you for your feedback. I appreciate your concern about my performance.” This sort of response draws on the perspective of the Stoics, a group of philosophers in ancient Greece, whose ideas remain relevant today.

            Chris Voss was an FBI negotiator who developed techniques that worked in the most difficult situations. He then found the same techniques applied in other negotiating situations, and wrote about his experiences in his book Never Split the Difference. When you confront someone, it can be powerful to start off by recounting every negative thought they have about you.

            If false statements about your performance have been circulated around your workplace, when you meet the boss or someone else you need to deal with, you can lead off with something like this: “You probably think I’m never on time.” After they nod, you say, “And you probably think that I’m one of the slowest workers on the floor.” Again they nod. The surprising thing about this approach is that it enables a more open and honest interaction.

Sue

“They defamed me. I’m going to sue.”

            The law of defamation is supposed to provide a remedy for damage to reputation. There are two main forms of defamation: slander refers to spoken defamation and libel to written defamation, except that broadcasts are in the libel category.

            There are two main problems with defamation law. First, it serves as a means of censorship. Second, it seldom restores reputations. In addition, it is slow, costly and procedural.

            The general rule is, don’t sue unless you have a lot of money and don’t mind losing it. It’s especially unwise to sue an organisation that has more money than you.

            When you sue, you become the attacker. Before, you might have had sympathy due to being treated unfairly. Now people’s sympathy may switch to the person you’ve sued.

            Suppose there’s a front-page news story that contains false and misleading statements about you and your group. You are accused of fraud, extreme political views, and lying. So you sue the media organisation for defamation. What’s going to happen? The most you can hope for is a published apology. It will be in small print in some obscure location on a website, and most readers won’t remember the original story.

            More often, though, you won’t receive an apology. Months later, after you’ve spent tens of thousands of dollars on lawyers, you might receive nothing or maybe a financial settlement. That means the organisation pays you something. That’s nice but doesn’t restore your reputation.

            Rather than suing, consider other options. You can write a polite letter for publication countering the accusations (defending) or giving the context (explaining). Or you can just let it go (ignoring), guessing that most people will forget that front-page story and that by suing, you may just make more people aware of it.

Conclusion

When others make false statements about you, it can be extremely upsetting. Your reputation is at stake, and it’s totally unfair to be attacked with incorrect, misleading or manufactured information presented as if it’s the truth.

            It’s tempting to reply immediately, while you’re angry and upset. It’s better to wait until you can calmly consider options. If possible, seek advice from people you trust, especially people who’ve been through a similar ordeal. Be especially cautious about defending, in case you draw more attention to the falsehoods, and don’t take legal action unless you know for sure that it has worked well for others in similar situations.

            If you care about your reputation, and the reputation of your group, remember that people are influenced by what you do. That includes how you respond to attacks. If you seem generous, understanding and informative, you have a better chance of making a good impression. And you set a good example.

Brian Martin
bmartin@uow.edu.au

Thanks to Kelly Gates and Suzzanne Gray for helpful comments.