How to make defamation threats and actions backfire

Abstract

Defamation actions often serve as a form of legal intimidation, suppressing free speech. Threats of defamation suits are more frequent than suits themselves, and can have the same effect. In Australia, where defamation laws are quite favourable to plaintiffs, defamation law is an especially powerful tool against free speech (Pullan, 1994). Before proceeding further, it is important to note the effect of defamation law on any commentary about problems with defamation law. In giving examples, writers must be careful not to make themselves, or their publishers, vulnerable to defamation suits. As a result, it is risky to tell the full story about many cases. Nevertheless, it is possible to give a few illustrations. • Robert Askin, premier of NSW from 1965 to 1975, was widely known to be corrupt. But the media did not publish what they knew for fear of defamation actions. Only after Askin’s death in 1981 were stories of Askin’s involvement in organised crime published (Hickie 1981). • In 1985, Avon Lovell’s book The Mickelberg Stitch was published. It analysed the police case against the Mickelberg brothers, gaoled for swindling gold from the Perth Mint, concluding that they were framed. The book sold briskly until the police sued Lovell, his publisher and distributor, and threatened to sue bookshops and newsagents. Western Australian police paid a levy on their paycheques for years to fund dozens of defamation cases concerning The Mickelberg Stitch. After more than a decade, a settlement was reached that allows Lovell’s book to be sold. In 2004, an appeals court quashed the convictions of the Mickelbergs (Mayes and King 2004). • The owners of a marina on Hindmarsh Island, near Adelaide, sued environmental organisations and individuals, as well as media organisations, over statements critical of a proposed bridge to the island. This had the effect of discouraging public comment about the

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