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The Web: Defamation Havens

This was the time when the World Wide Web burst on the scene, with a rapidly expanding audience. I obtained a manual, learned how to write in HTML (the standard web language), obtained software to convert word-processed documents to HTML, and set up a website. One of the first things I put on my site was the defamation leaflet.9 Years later, I discovered that it had become the most-read item on my site, out of hundreds of articles.

On my website I included a section called “Suppression of Dissent.”10 Well, it was more than a section, closer to half the site, filled with all sorts of documents about dissent, whistleblowing, analysis, and responses. Before the web, people who wanted to publicize their case had to rely on the media—which often were not interested or only covered it briefly—or they had to laboriously send out copies of documents by post. And that is exactly what people did. The web made direct distribution far easier.

In 1997, I was contacted by Dudley Pinnock, an entomologist at the University of Adelaide. Although he was a senior academic who was bringing in lots of money through research grants, he had been declared redundant. Furthermore, he alleged that senior figures in his department were inappropriately accessing his research funds.

I advised him that official channels were unlikely to help him retain his job, but he preferred to follow the advice of the academics’ union and go through an appeal process. It was unsuccessful. At that point Pinnock authorized me to put an account of his story on my website. It was basically the chronology he had used for his appeal.

Having posted the Pinnock file, I alerted a couple of higher education journalists and within a matter of days I was instructed by University of Wollongong management to remove the file from my site. Why? One of the journalists had contacted the University of Adelaide for a comment about the Pinnock file. Finding out about the file, Mary O’Kane, vice-chancellor of the University of Adelaide—equivalent to president of an American university—telephoned Gerard Sutton, vice-chancellor of my university, threatening defamation actions unless the file was removed.

From my perspective, this would have been a great opportunity to take a stand for free speech. Imagine the publicity: “University of Adelaide threatens to sue to restrict free speech!” But no, instead the University of Wollongong management took a cautious route, minimizing risk by acquiescing rather than resisting.

At this point, I could have taken a stand and refused to remove the file. This might have resulted in disciplinary action or, more likely, simply an administrative takeover of my site and forced removal of the file. This could have been newsworthy in its own right, but my concern was with the Pinnock case, not making a scene at Wollongong. So I removed the Pinnock file, replacing it with a statement that it had been removed due to a defamation threat.

Next I contacted a friend in Electronic Frontiers Australia—an Internet freedom lobby and activist group—and asked for assistance in posting the Pinnock file on other sites. Before long, four different sites posted it. I made links to each of these sites. Mary O’Kane’s attempted censorship was thwarted. Even better, the Pinnock file received additional publicity through this enterprise.

The Pinnock experience led me to the idea of “defamation havens,” analogous to tax havens.11 A tax haven is a country with low taxes; running some operations there allows tax in the home country to be reduced. A defamation haven could be a country where there is no law against defamation, or laws that are less draconian than the home country. To get around the risk of defamation, just post a document on a website in the haven country.

For example, if Australian Internet service providers (ISPs) are threatened with defamation actions over a document, then use an American ISP, because US defamation laws do more to protect free speech and anyway, it is a lot of extra expense for an Australian to launch a legal action in the United States. Of course, the ISP is only one target: anyone involved in disseminating defamatory material can be sued—most obviously the author. But the author in such cases is not the target—Pinnock was not threatened with a defamation suit—because the purpose is censorship.

Defamation havens can be physical places, namely countries with low penalties for defamation, but in practice the most important haven is virtual: by putting a document on several websites, it becomes nearly impossible to eradicate. The University of Adelaide approached the ISPs hosting a couple of the copies of the Pinnock file, but to no avail: the ISPs didn’t take the threats seriously. Even if they had acquiesced and removed the file, the next step was straightforward: find yet more sites to host the file, generating ever more publicity along the way. The Internet in this way becomes a censor’s nightmare: every attempt to squash undesirable information only spreads it further.

With these experiences, I now have a fairly standard approach when proposing to publish potentially defamatory material. The first step is to apply my own understanding of what is defamatory and see whether statements can be defended. The most important part of this is to state facts and be careful in expressing judgments.

The next step is to consider sending the material to the person potentially defamed—just as Rupert and I did decades ago with Titterton and Baxter. This is a good way to flush out risk.

Then I post the material on my website and wait. If there is no response, then it is fine and good. If someone threatens to sue, I can either remove it, modify it, or send it to others for posting.

Michael Wynne is a retired medical academic who collects material about corruption and abuse by corporate medicine, especially hospital corporations and especially ones in the United States. He has produced a vast amount of material, much of it taken from media reports. I host his files on my suppression- of-dissent website.12

Four different health care companies have threatened to sue for defamation because of Michael’s material. Do they contact Michael first? No. Do they contact me as the site manager? No. They instruct lawyers who send a letter of demand direct to the University of Wollongong administration, which runs the website. This is a typical sign of an attempt at suppression of dissent: no negotiation, just threats to one’s superiors. The university’s managers then ask me to remove the offending webpage.

The sequence is becoming routine. I remove the webpage, replacing it with a statement that it has been removed because of a defamation threat. I inform Michael and he prepares a modified page, omitting what seems to be opinion and relying more on quotes from media stories. Sometimes he ends up with a lot more material. I then write to the health care company lawyers asking for an opinion on the revised page. If the lawyers respond with a letter with continued complaints about the content but no threat to sue, this means it is safe to post the revised page. If there is no response at all, I wait a few months and put up the new page.

In one case after I sent Michael’s modified page to a company’s lawyers, the company head wrote a letter to the chancellor of the university—a ceremonial position—making accusations about my status as an academic for having such material on my website. This was a sign that a legal action wasn’t feasible. Luckily, the administration is concerned mainly about possible costs and is able to stand up to abuse.

 
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