Clients deserve protection from internet 'mob'
The age of the internet presents challenges to conventional application of law. An internet conversation is permanent, at least until active and quite difficult steps are taken to remove it.
It also has the capacity to extend to thousands or hundreds of people and unfortunately permits anonymous participation.
The laws of defamation in Australia are similar in scope and form to the UK Canada New Zealand. Even in the home of free speech - the US - defamation plays a role.
As a society we recognise freedoms are conditional. We are not free to drive at any speed, we are not free to take property. The society in which we live places weight and importance on a person’s reputation. Damage to reputation can affect livelihood, social interaction and relationships. The laws have developed to strike a balance, hence the defence of truth.
How then does this translate to public company directors? There are powerful disincentives against persons becoming directors - the James Hardie litigation illustrates. You appear to advocate some special defence should apply to shareholder debate - a kind of anything goes defence. Why is this necessary? The present law adequately protects opinion debate.
The EGO situation is essentially different and illustrates - just like the Twitter response to the defamation of Lord McAlpine - that the internet facilitates a different manifestation of the mob mentality.
Each forum requires users to agree not to publish defamatory material. In the case of HotCopper this is emphasised. With EGO, vile falsehoods were published that went far beyond defensible opinion or debate.
The "mob" then picked it up in its various manifestations and it was repeated over and over. Sometimes the same person published it in excess of 100 times.
My clients sought to protect themselves. To do otherwise is to risk the mob converting accusation into "truth" simply because it is not denied. The directors met the key complainers and had the company solicitor explain certain transactions. That meeting was covertly tape recorded by one of the complainers. The meeting had no effect.
The prejudices were so ingrained the explanations were simply ignored or alleged to be a cover up.
The directors have existing legal rights. They have been forced to resort to them. The key defamers were sued. The identity of the psuedonymous posters was discovered.
Limited number of those received Concerns Notices. You say these claim money. Rubbish. They legitimately invited settlement of genuine causes of action. If you consider the innuendoes to be innocuous then you clearly haven’t been reading the same posts I have read.
It is up to the posters whether they wish to make an Offer of Amends. An apology alone is of limited value to my clients when they have already incurred extensive costs simply to find out the identity of those who lack the courage of their conviction to use their real name.
This hardly creates a crisis. If these people who trade in shares as well as defamation can’t afford the consequences of their own conduct that is indeed unfortunate - for them. There is no defence at law that entitles the people in this situation to some special protection. They can write to my clients and explain their circumstances.
The national debate you seek to promote occurred in 2005 at the behest of the federal government when it required the states to bring in more or less uniform defamation laws.
The foolish tortious conduct of these persons is hardly the basis for reagitating the issue of the balance between freedom of speech and individual rights.
Martin Bennett is a Perth-based lawyer