Out of MTR’s defamation jail! The Streisand Effect, & conduct that offends

Image: Feminists for Free Expression ffeusa.org

This time last year I received a threat of defamation action from anti pornography activist Melinda Tankard Reist. The gist of her complaint is outlined in these extracts from a letter of demand, sent by her lawyer Ric Lucas of Colquhoun Murphy, on January 13 2012:

 We are instructed that you have made a number of defamatory posts concerning our client on the internet, set out principally under the heading “The questions Rachel Hills didn’t ask Melinda Tankard Reist” on your blog No Place for Sheep. These claims have been widely circulated, including on twitter.

For instance you assert that Melinda Tankard Reist is a member of a church that preaches the second coming off [sic] Christ, the end time, evangelism and that sex filthies the human female and renders her impure. You claim that “Tankard Reist is a Baptist.” This is simply false, yet you have erected an entire panoply of criticism upon it. And you finish your attack by alleging without the slightest evidence that our client is “deceptive and duplicitous about her religious beliefs.

This is false and unwarranted, and seriously defamatory.

Our client is very distressed at your behaviour, and requires that you immediately remove these posts from the internet. They are very damaging to her reputation.

Ms Tankard Reist also requires a prompt apology and retraction by signed letter, in terms to be agreed with this firm, and which also should be published upon your blog “No place for sheep” [sic]. She also requires payment of her legal costs.

She reserves her right to damages for defamation. 

We note that this is a concerns notice pursuant to s126 of the Civil Law (Wrongs) Act  2002 and is not for publication.

Then, on January 17 2012, I received another letter from Mr Lucas.

We refer to our letter of 13 January. We note that instead of seeking legal advice and considering whether you should withdraw your false claim that Melinda Tankard Reist is “deceptive and duplicitous about her religious beliefs…” you have redoubled your attacks upon our client, with the result that a number of journalists have raised the issue with our client.

Our client intends to rely on your conduct as aggravating the damages payable to her. The slightest reflection on your part would have led to the conclusion that your false claims are very hurtful to our client, and by circulating them so widely, you have done significant damage to her reputation. We can only conclude from your behaviour, especially since our client sought an apology, that you are motivated by malice.

We have pointed out to you the false basis on which you have proceeded, yet instead of apologising, you assert that because someone else has said (falsely) that our client is a Baptist “She is going to have to sue a few more blogs than mine.”

You cannot rely on anyone else’s false statements on a blog, as a defence for your false claims. Was that the full extent of your enquiries, before you proceeded to make the hurtful and damaging claim that Melinda Tankard Reist “is deceitful and duplicitous about her religious beliefs…?”

We note you have misled the followers of your blog by asserting that our client has demanded that “I withdraw all of my posts about her.” That is just another falsehood on your part. The demand is specific – that you withdraw those which are defamatory, and we specified some allegations, in particular the entirely false claim that Melinda Tankard Reist “is deceptive and duplicitous about her religious beliefs.”

Your sense of guilt about that particular claim is palpable, given that when you were seeking support online against my client’s attempt to censor you, you did not even disclose that was at the heart of my client’s objection to what you had written. 

Since our letter of 13 January you have made further defamatory claims, and comments on blogs, which should also be withdrawn. You should also take down defamatory and abusive comments by others, hosted on your blog.

You have in your published writings pointed to the fact that child abuse is a transgression of several articles of the Universal Declaration of Human Rights and have called for domestic law to give effect to a charter of rights. You are no doubt aware that the Universal Declaration of Human Rights powerfully affirms the right to honour and reputation. Article 12 provides that “No one shall be subjected to arbitrary interference with his privacy, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to protection of the law against such interference or attacks.”

You should reflect upon the fact that you have seriously flouted your obligation to uphold the Universal Declaration. Would you like to be described publicly as “deceptive and duplicitous?”

Australian law protects Ms Tankard Reist against your breach of her rights, through the law of defamation. It is an imperfect protection, because it cannot require you to retract or apologise for your breach.

The only remedy the law provides is the right to obtain a judgement declaring that what you wrote was false, and an award of compensation. If you will not retract, the law will protect our client’s rights.

Without prejudice, we note that our client’s aim in this is not to bankrupt you. She would much rather you came to your senses, and realised that a person who wishes to be taken seriously as a social commentator, who has pretensions as a scholar of human rights with a PhD from Southern Cross University, should check their facts, and not indulge in flights of libellous fancy. 

If this matter can be resolved by negotiation resulting inter alia in a correction and apology, that would be far preferable to the expense of proceedings in the ACT courts.

I’m resisting the considerable temptation to deconstruct this harangue.

A complainant has twelve months to instigate defamation action following the issuing of a letter of demand. This period has now expired.

The thing is, if Tankard Reist had bothered to contact me directly, I’d have been more than happy to discuss the situation with her, and to publish her rebuttal on the blog. This is an example of how threats of legal action and demands for money achieve nothing, and indeed, can make matters far worse. See this brilliant analysis of the Streisand Effect as it played out in this case, to Tankard Reist’s considerable detriment.

I have  strong objections to people attempting to intimidate and bully others into silence through threats of financially crippling legal action. I think it is all too often the first resort of a coward. Imagine how much better this could have turned out for Tankard Reist if she’d challenged me, instead of trying to frighten and silence me.

It’s also worth checking out Sarah Joseph’s analysis of the proposed draft anti discrimination bill. In this proposal, it becomes unlawful to engage in “conduct that offends, insults, or intimidates.”  There is quite a difference between offence and insult,  and intimidation and harassment, yet they are lumped together in the proposed legislation as unlawful. As Joseph points out “There is no human right not to be offended or insulted. And indeed, historically much important speech has offended somebody.”

After reading Joseph’s piece, I am at a loss to understand why Attorney General Nicola Roxon is pursuing this avenue. While I would be delighted to watch Alan Jones and his ilk hauled before the courts on a fairly consistent basis as they continue to offend and insult someone because of their protected attribute, the bigger picture is frightening, and smacks of far too much government control. Nobody enjoys being insulted and offended because of who they are and what they believe, yet the idea of taking legal action in such circumstances is extreme, is it not?