A few years ago, when I was in my early twenties, we traveled around for half a year and then moved back to the sleepy little town
we’d lived in for four or five years previously for me to do my PhD.
Then the strangest thing happened. We had phenomenal trouble
getting work. For months, we looked and applied for anything that was open,
regardless of what it was. It took forever, but we found work only after
someone had told us that a previous employer (who we had listed as a reference)
was saying nasty things about us behind our backs. This was very strange for
us. We had left employment with him on amicable terms and because we were
leaving town to travel for a while. We didn’t know of any ill will between us. I
approached him about it. He was friendly to me, denied the whole thing and
seemed too genuinely shocked considering he was a bit of an apathetic slob to
be believed.
It took forever for us to be told about this. This is a huge
problem with something like defamation: the subject of it is usually about the
last to know and by then, there is nothing much that can be done to repair or
account for any harm.
Once we knew of it, we got my father to ring this bloke (sans
information about exactly who Dad was) for a reference to confirm that there
was foul things afoot there. I remember Dad got off the phone and was visibly
livid from the conversation and he was not a man who ever really let emotion
show at all. He refused to tell me exactly what was said. He simply said that I
didn’t want to know (which made me want to know more).
Thankfully a friend of ours was a senior partner in one of
the local law firms and agreed to smack this guy around the chops a bit. He got
his office manager to ring for a reference for us, with no disguise on who she
was but allowing an inference to be made as to why she was calling. She then
wrote up what was said and was prepared to witness it. The content was
ridiculous.
According to this guy, we were “known to the police” who ran us out
of town and would not let us come back to our hometown to live (even though we
actually did live in the town and hadn’t ever had any involvement with the
police or anything like that at all.
At the time, I remember being absolutely furious about this.
The injustice, the cowardice and the deceit of it made me want to do everything
from smash this guy’s face in to burn down his shop to start rumours of my own.
And you know me dear reader – I am not a violent or vicious person.
Time passed
on a bit, we got on with things and my friend arranged for a barrister who
specialised in defamation to meet with us to discuss the case as he was in town
on another case.
The barrister was a nice and talkative old bloke. I remember
he was wearing silk (literally) with the most hideously bright suspenders and
socks. But then, it was the late 90s and we were still being blackmailed by
fashion of the 80s. The barrister agreed that we had a good case. There was
clear loss to us. There was no problem in proving it false. There were no
evidentiary issues and there was little that could be taken from us if we lost.
He agreed to take on the case. But he
gave us some good advice – don’t – just walk away.
He said that any lawyer that advised to take a defamation
action to court is an idiot and should be shot. The reason for this was clear.
Defamation, no matter how costly or large, is essentially statements that exist
in a community with the relevance of gossip or innuendo. If that rumour and innuendo
is ignored, it goes away, if it goes into a courtroom, in the eyes of the public
it comes out as gospel. It doesn’t matter what happens. It doesn’t matter who
wins, the court process, by the very fact that it allows the defendant to
ignore everything, validates the rumour (which by that stage have usually grown
considerably more saucy and specific than the instigators of the rumours
started). He said we could get some money, but it would take years and after
that, we probably would be run out of town quite literally. I am not sure if he
was a fan of Schopenhauer (to be honest, I don’t really know what a
Schopenhauer fan looks like) but I guess what he was saying was if a truth is
violently opposed, it will become self-evident. If it is ignored, it will lose
its reference point and become obsolete. The moon is after all, made from blue
cheese.
At the time I thought he was wrong and I was upset about
it. But I trusted my friend and he trusted this old bloke, so I took his advice
and thanked him for it. Don’t get me wrong – we had our retort against our
former employer – he got his ... and then some. We just didn’t need a lawyer to
do it (mind you, we would have needed a lawyer if we were caught, but we weren’t).
Funnily, I have just been through the process from the other
side. I have been a part time writer now for a while and the responses received
from some people are to be avoided if
possible – they seem quite obscure: they are like exceptionally drunk friends –
they only ever tell you one of two things – how much they love you or how much
they hate you. You have people convinced that they were the inspiration behind
character x or y and that is either endearing or insulting to them. You have
people saying that a particular story was based on a mutually shared experience
that you have no recollection of. ]
But defamation is different, in defamation, your words cease
to be your words. They are taken out of context and owned by people who are not
able to understand their meaning. That’s very frustrating. Being abused by some
twit who thinks he is a thousand times smarter than me because he apparently
read Descartes in the original French [sic] when his daddy was stationed in
Belgium is annoying, but easy to ignore. He is not really criticising me, he is
not really even criticising my work, he’s just a dick. He’s not right. He’s not
even partially right enough to be considered wrong.
But defamation is speaking to someone who thinks that they
own those words, because they think it is about them. You try to understand why
he thinks it’s about him, but it’s just a waste of time, the answer is “obvious”
yet not forthcoming. What was said was amplified, changed and exaggerated but
it was still gossip and innuendo. Until he took it to court.
When this type of matter goes to court, the victim is no
longer the victim: they are on the front foot, they are the aggressors, they
appear as if they have something to hide. They are the agitators. Nothing will
ever really come out of it. It doesn’t matter what happens, but if the
slandered party can’t come out of it and tell everyone that the judge
considered it the worst case she had ever witnessed and ordered the guilty
party to go to gaol for ten years followed by exile to New Zealand, then the
slandered party will be labelled as not only as whatever it was the rumour
ended up after it had done the rounds, but there is a great potential that
there will be implications that the slandered party is also a whinger/ dobber.
But think about it this way – what if defamation were no
longer a tort? What if it were solely a criminal offence? It basically is a
form of assault, so it does fit in there somewhere. If it were a criminal
offence, the victim would stay the victim. The involvement of the police in
investigating it would be enough for the victim to justify to people that there
was some seriousness in it. The gossip would then be mostly dismissed, if not
entirely. The police would give it the integrity that slip-and-trip lawyers
lack and the accused would not be bound to respond. S/he could stay silent, as
s/he should be allowed to do. In the tort of defamation, every claim has to be
pleaded and responded to. If it were a crime, it would simply be a case of “not
guilty your honour” and then watch the prosecution try to bumble through a
committal.
If found not guilty, the victim can claim that there was
just not enough evidence or just bad luck, but be stoic about the way it all
happened and the accused can just say, “well, I told you so.” If the accused is
found guilty, the victim is vindicated and the accused can be badly done by and
suffer some harm at the hand of the state. The punishment would not need to be
much as it would be real, as opposed to the very hypothetical punishment that
appears in most tort cases where there is no
actual outcome.
That would suit everything a lot better.
No comments:
Post a Comment
Note: only a member of this blog may post a comment.