The simple thoughts of Jonathan J Hunt

You Look Ridiculous

Conservative New Zealand politician Colin Craig threatened satirical website The Civilian with defamation proceedings because they “quoted” him in satirical news article news link. Outrageously, Colin’s lawyer even demanded $500 cash as well as a correction. Luckily, the author of The Civilian responded with a tongue-in-cheek correction and Colin appears to have realized how silly the whole thing makes him look and dropped the whole thing.

Unfortunately, I’m not as a clever as some, so I will respond by writing a boring policy recommendation instead.

This situation really annoys me. I think defamation threats should be rare and made primarily against large publications or figures when they get something wrong that can really damage your reputation and the remedy should often just be a retraction or apology. In practice, they seem to be used as a legal intimidation by a well-funded party to shut someone up they don’t like and they suspect won’t have the means to defend the case (as in this case it often backfires). I’ve been on the receiving end of a threat (I wrote a truthful bad review about a crappy company) and just took down the page. At the time, I was a student and I had nothing like the kind of money I’d need to mount a defense if they followed through.

This situation is bad for society. It allows the strong to strong-arm the weak and impedes freedom of expression. Defamation statutes explicitly defend free expression (for instance, the honest opinion defense in New Zealand law), but in practice this is really only available to people willing to fight an expensive case. Mere mortals, concede or risk bankruptcy.

I think if we are going to maintain defamation as a tort we need to considering reigning in its use as intimidation by:

  • Sanctioning lawyers who write scary letters for nonsense cases. Lawyer’s have a duty to both their clients and society. Writing intimidating letters for cases which they know, or ought to know are rubbish should get them in hot water.

  • Quick and cheap remedies. Particularly for publications which don’t provide any revenue, there ought to be a quick remedy, such as an ombudsman, who can throw out a meritless case (and award costs) so that a poor blogger can speak truth to power with impunity without fearing for their livelihood.

Repealing defamation outright is not so unreasonable either. I don’t think anything really terrible would happen. I think it would be improvement on the status quo, if we can’t fix it. Australia has taken a step in the right direction by forbidding large corporations from claiming defamation.