Why Defamation should be a Crime, not a Tort

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.