Defamation and the Art of Backfire
![handle is hein.journals/deakin11 and id is 321 raw text is: DEFAMATION AND THE ART OF BACKFIRE
TRUDA GRAY AND BRIAN MARTIN*
[Legal discussions of defamation commonly focus on defamation law, with
relative neglect of struggles that take place over defamation matters. To
understand defamation struggles, we introduce backfire theory: if something
is perceived as unjust and information about it is communicated to relevant
audiences, it has the potential to backfire against those held responsible.
Defamation suits have the potential to backfire when they are seen as
oppressive or contrary to free speech. There are several types of actions by
plaintiffs that can inhibit this backfire effect, including cover-up, devaluation
of the defendant, reinterpretation and intimidation. To illustrate the value of
backfire analysis of defamation struggles, we examine four Australian
examples, involving author Avon Lovell, politician Robert Askin, solicitor
John Marsden and Aboriginal leader Geoff Clark, and the British example of
McDonald's suit against two activists. Participants in these struggles see the
matters in terms of reputation and free speech; backfire analysis allows an
observer to put tactics used by participants in a coherent framework.]
I INTRODUCTION
The standard perspective on defamation law is that it is an attempt to balance
the protection of two contrary values, reputation and free speech. On the one
hand, defamation actions serve to penalise those who make inaccurate and
malicious assaults on a person's reputation and to provide recompense to
those whose reputations are unfairly tarnished. On the other, defamation laws
must not be so restrictive that they restrain free speech, including public
debate and investigative journalism that are essential for a well functioning
democracy. This perspective frames most legal writings about defamation,
which deal with facets of defamation law, the trajectories of particular cases,
* Truda Gray and Brian Martin work in the School of Social Sciences, Media and
Communication, University of Wollongong NSW 2522. Truda is interested in
corporate programmes for engineering consent. Brian has interest in non-violence,
whistleblowing and participatory democracy. Emails: tgravCyuow.edu.au;
bmartin@uow.edu.au.
We thank Greg Ogle for valuable comments on a draft of this paper. This research
was supported by the Australian Research Council.](ViewImageLocal?handle=hein.journals/deakin11&div=18&collection=&method=preview&ext=.png&size=3)
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Defamation and the Art of Backfire
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