Defamation law was used as a tool to victimise and bully us personally for reporting our bully and our experience. Furthermore, it was used to disparage and discredit us, and our art, personally and professionally. Defending the defamation claims of our bully resulted in an outcome that has left us destroyed financially and artistically. We were first attacked by the plaintiff and then by the legal institutions in Australia and finally by a complicit media.
In regards the #Metoo #NameYourPig era our situation remains more one of #ButNotYou.
We reported via our online art websites our experience of the inexcusable bullying behaviour of a gallery director, of us, of other artists, and of many of his staff and volunteers. His unprofessionalism and inappropriate conduct had been prior knowledge of others in the arts scene, mainly in Melbourne but he had a history elsewhere in the art sector, where he was "castigated" by the industry and was known as a "troublemaker". His repeated aggressive abuse of us, and our art was unacceptable and we had the right to defend our art and selves, ...you would think.
Some victims and witnesses had complained online prior our experiences and prior our online complaints. When the same bully sued us those prior complainants went to ground, pulling their complaints from online, or refusing to come forward to speak as a witness to their issue during the trial. Witnesses to his treatment of us refused to come forward - one witness who'd informed an artist friend to avoid the gallery because of what he'd witnessed at our exhibition opening declared complete memory loss of the incident.
All feared being sued. They feared what did eventually happen to us, would happen to them too. They were also afraid of exposure to perceived detrimental professional ramifications by association if they came forward.
These are the reasons why #Metoo has taken so long to even emerge and is why spinoff inspirations such as #NameYourPig are understandable.
Those brave enough to come forward in our case told of a range of inappropriate, unprofessional to despicable behaviours - the plaintiff himself, even his own witnesses demonstrated the validity of the claims we made and that our witnesses confirmed. The weight of evidence, facts, statements, meant our defence was sound and the case un-losable.
But, we were later told, "The truth is what the judge says it is."
Against the weight of evidence – and in some instance in contradiction to the evidence cited – and witness statements the trial judge found entirely for the plaintiff. Oh, wait, that is not entirely true, the judge did find the plaintiff had improperly withheld money owed to us, awarding our defence around $3:00 AUD to cover the lost interest. The contempt for us, shown by the judge, underpins the problems with defamation law.
The institutions of the State, being Australia, punitively awarded massive costs against us. Costs that meant we lost everything we'd materially worked for, as well as our dignity, to our bully. Our victimisation was ruthlessly, systematic made complete by the State, the State's actor, being the judiciary.
Defamation law in how it is conducted in this country assists in preventing exposure of bullies and perpetrators. It does so through fear of its power to destroy defendants, preventing the exposure, or prosecution, of already powerful bullies. Defamation law in our case protected the bully who used it to further victimise the victims.
|"Judicatura (with pet/s)" - drawing, graphite on paper, Lee-Anne Raymond © 2018|
Additionally, a complicit media supported this victimisation, actually assisting in its amplification, when it could have done the opposite by looking properly at the case.
Media reaction to our case was the antithesis of recent #Metoo exposés. In 2014 the media, reporting on our case, simply regurgitated verbatim distortion of facts and evidence fed them in the trial judge's media release. The judge being outraged more by the atheist art of the defendants, as emphasised by an opportunistic counsel for the plaintiff, aimed to ensure our exposure in the media would be in as poor as possible a light. That it was untrue fabrication and distortion of facts, a further defamation of our moral rights and us, didn't matter to a media hungry for salacious headlines.
The reason for our complaints in the first place were due to the attack on us and our art by the plaintiff's repeated accusations the art and we were racist because of the criticism of religions. The plaintiff had couched his shouted accusations at us in claims that were racist towards a culture not even remotely depicted in our art. It was pointed out to him that this kind of racist rant was historically what informed Nazi propaganda. Relaying historical facts to a belligerent bully turned into headlines of the kind that would be laughable if not for the fact they contribute to our ongoing denial of justice and to our loss of dignity, resulting in a petition to Geneva (noted at conclusion).
Chief among the complaints by the plaintiff overall at the trial, in his own words under examination by his own counsel, was that his business, an art gallery was severely damaged by what we had exposed; he could no longer procure female volunteers and that he had been unable to attract "a lover". Declaring that he "loved women" and that he was "very flirtatious" the judge ruled we had essentially damaged the plaintiff's flirtatiousness. He lied that he had never caused our exhibition harm, claiming that he always was, and still was "very supportive of the artists" whilst under cross examination contradicting this claim confirming he had a problem with the "whole lot" [exhibition and artists] and had a duty to protect his staff and volunteers from it and apparently from us.
The trial judge was unconcerned with his behaviour with regard to us, or our art, and the appeal court over-looked it as merely being "the milieu" in which artists and gallery directors apparently operate. No understanding of #Metoo concepts there...
Blame, Shame and Defame the Victim
We, our matter, had become an embarrassment to the Supreme Court of Victoria, and so, in stark contrast with the trial judge's media attracting release, the mostly reversed on appeal result went entirely unheralded. And, though media were present at both events only one was reported on. All media involved have ignored our efforts to have the appeal result reported. News of most of a trial judge's findings, previously salaciously reported, being reversed on appeal, under any circumstance, you would expect, should cause great interest from the media. However, all prior keen interest shown had vaporised and has mysteriously failed to materialise ever since.
The money we were forced under penalty to pay the plaintiff post trial was ordered returned on appeal but without similarly imposed timelines or penalty for failure to do so. It meant we would have to spend another 160k to get it back from the plaintiff via legal action we could not finance. We had exhausted everything on appeal. This was as deliberate as the overturned punitive damages awarded against two artists with few financial means beyond their family home - which was, by the appeal verdict stage, all gone. Soon after losing the appeal the plaintiff declared bankruptcy (hiding all of his assets) meaning, a) we could take no action against him in the conventional courts anyway and, b) we'd have to pay a trustee around 160k to progress their recommendation that 7 matters regarding the bankruptcy warranted further investigation.
So, why would a victim come forward to denounce his or her bully publicly? They will be dragged through the courts, made out to be liars, be stripped of all financial assets, caused further damage in the media and even with confirmation of their original claims will be left to swing in the noose the complicit media had helped to string up.
The power wielded by a serial bully, misogynist or predator alike is amplified and is emboldened under the protection of such system-supported dysfunction. If a victim is brave (or stupid) enough to test this I refer to the experience described above.
Ultimately the mere threat of punitive defamation court action prevents most from speaking out. Indeed it looms as a threat for witnesses who feel exposed to litigation too. Combined with our actual experience this is the "chilling effect" and its realisation through defamation law.
Defamation law is not only a threat to victims of bullies it is a threat to an open, just society, to transparency and "free speech" in how it acts to chill speech and by extension stifle an otherwise free (though easily confused) media. It is not a new concern for the media and is regularly pointed out by commentators on its own behalf.
Problems exist due to a persistently flawed understanding of defamation law in how it is conducted in Australia.
The writer of the article above makes this inaccurate statement:
"Defamation turns on truth and falsity. No wrong is committed by telling the truth about a person."
In regard to Australian defamation law this is entirely wrong. And, it is why all journalism and comment by anyone not actually practicing or experiencing defamation law in Australia continue to get it wrong. Truth in Australia is irrelevant, as it is not a complete defence. The if you have told the truth you have nothing to fear mantra is completely without basis in the Australian jurisdiction.
To defend a defamation in Australia merely demonstrates an admission to having defamed. You, the defendant, must then prove, not the truth of the claim/s you made, but the truth as against the imputations manufactured by a plaintiff. 'Truth' is a relative concept in Australian defamation law.
Australian defamation law is plaintiff weighted in the first place and its feature tool, defamation imputation, is solely at the disposal of the plaintiff. A plaintiff's claim, about what is written, is that an imputation, or "innuendo" has been conveyed by what was written or said. The plaintiff decides the meaning and it is then this meaning or innuendo that a defendant is required to defend. This is precisely how informing a ranting, belligerent, obnoxious gallery director that his repeated racist claims belong historically in Nazi era propaganda becomes a screaming headline "Hitler rant costs artists dearly" years down the track.
The media perpetuate the problems with defamation law by reporting, without understanding; nonsensically what they are fed one screaming headline after another. It is like a protection racket, infecting not only defamation law but also the balance and functionality of democracy itself because how defamation law is conducted in this country means you cannot reference history in a debate as you risk having a defamation claim made against you! On this basis our case should never have passed the first court hearing. There was never a defamation to answer to but there was a disgruntled litigious plaintiff who did not accept his historically based racism was the problem.
Additionally, as if the above was not nearly enough, under Australian defamation law, perversely, truth does not even matter. The appeal court ultimately found though what we'd proven what we claimed to be true we had no right to inform. Truth is not even close to being a defence in Australia truth is irrelevant.
"Off with their heads!"
Like any protection racket defamation law can be abused from within. A judge on a personal crusade can crush divergence by applying meanings that bear no resemblance to the truth or statements made before him.
Our case is cautionary and is illustrative as to why, disturbing as it may be for some to acknowledge, defamation law as it stands permits unacceptable behaviour to go on unchallenged, and indeed to flourish for decades if not for generations.
Defamation law is a destructive relic of a different age and it must go entirely as it is unlikely to change enough to fit a modern society's values and expectations.
For now, we barely survived the Alice in Wonderland experience, lost down the rabbit hole into a court system where a real life Red Queen screamed "Off with their heads!". It is a land where we, the victims, were dealt with as perpetrators, punished, shamed and defamed for daring to out our bully, our "pig".
Still shattered we've found nothing has changed for the better, not least because nobody knew, or cared less, because it didn't happen to them.
Potentially an era post #Metoo, post #NameYourPig may see change for the better.
A petition has since been lodged with Geneva under the ICCPR.