A year ago even, this scenario would be almost unbelievable. KRudd was sailing high in the opinion polls, and could apparently do no wrong. I had actually heard about KRudd’s personal character flaws (swearing, anger, dogmatism) but none of that was being reported widely in the press. The Liberals were regrouping, having experienced their own divisive leadership spill.

Then things started to go wrong with the insulation scheme and with the BER scheme. As I see it, the press became disenchanted with KRudd at this point. They turned.

I’ve been thinking about why I also became disenchanted. I knew about KRudd’s character flaws, and never particularly warmed to him (despite the glowing opinion polls). To be honest, the positive opinion polls poleaxed me somewhat, as I saw KRudd as smarmy, a person who pandered to populism. But I didn’t say anything. Perhaps I wanted to give KRudd the benefit of the doubt. One mistake, well…everyone makes mistakes. Two mistakes, not so good… Plus, I’m not a political commentator, and I only rarely write about domestic politics. I’ve charted my own progress of disenchantment in a previous post. If the government had stopped and fixed the things that went wrong, I think that would have been better, but instead it brushed the wreckage of the old schemes into the corner, and hurriedly started piling new initiative on top of new initiative.

Suddenly the knives were out. It wasn’t just the “right wing” opinion writers who were criticising the guy. Media commentators which had traditionally been regarded as “left wing” started in on the action. The press salivated when KRudd got angry after he was questioned on The 7:30 Report. David Marr opined that KRudd was driven by anger. We heard from Marr that KRudd had publicly described the Chinese as “rat-f**kers” at the Copenhagen Climate Conference. We heard about KRudd’s penchant for using swear words off the record. Humans are social beasts, and we take our cues from the behaviour of other people. It’s like we looked at each other and thought, “Hey, it’s okay to criticise and question this guy, everyone else is doing it.” We also take our cues for what is appropriate behaviour from others. There are sound reasons behind this behaviour, and it has some very positive aspects. To use a crude example, people are unlikely to defaecate in public in Australia because of the herd consensus is that this is utterly inappropriate behaviour.

Now, from what I hear, what I like to call the “Labor machine” had been waiting for this moment. Alexander Downer (former Liberal opposition leader and former Liberal Foreign Minister) said in The Spectator:

It has taken an incredible three years for the Australian public to realise who their national leader really is. I sat with a Labor luminary having a late-night drink in June 2008. He turned to me and said: ‘Mate, one day the Australian public will grow to hate Kevin Rudd as much as I do.’ That day has arrived.

The Labor machine had kept schtum while KRudd was riding high in the polls, but once he’d fallen from grace in the eyes of the media and the public, the cogs whirred and it started into action. There was no way it was going to let a personally unpopular leader lose this election for them. I do wonder when the plan to remove KRudd was initiated. I’m pretty sure that it wasn’t an impulsive decision (contrary to the way in which it was portrayed last week). After all, Gillard’s new hair-do and colour was evident a few days before the putsch, and it seems odd to have it done then, rather than in the parliamentary recess…unless she knew what was coming. Of course, she does have a hairdresser as a partner…lucky thing…

An informal poll of my friends after the putsch indicates that many are more satisfied with Gillard as leader than KRudd, and they are disposed to respect her, but they remain uncomfortable with the ruthless way in which it occurred.

Even though I’d lost confidence in KRudd totally by the end, I did find the sight of him crying on national television heart-rending, and I couldn’t watch it. I’d feel the same for any person of any political stripe in his position. (One of my early political memories is of seeing Malcolm Fraser crying after losing to Bob Hawke, and feeling puzzled and very sorry for him, even though I loved Hawkie. I asked Dad why Fraser was crying — I think I had actually thought men were incapable of crying — and Dad said, “It’s understandable that he’s crying; he’s just lost a very big and important contest.”)

Then KRudd was sitting despondently in the backbenches during Question Time with an expression of bewilderment and devastation: you could tell he was thinking, “How did it all go so horribly wrong?” His failure to realise it was going horribly wrong is in part the reason for his downfall. Once the herd turns against you, particularly those who were formerly on your side, you’re on a slippery slope downwards. KRudd’s failure was that he did not realise that the zeitgeist had changed for many (although to be fair, not everyone followed the herd on this — see, for example, LP posts here and here). KRudd did not take his cues from the herd and amend his actions accordingly. In fact, he’s still not taking his cues from the herd. Reportedly, he asked Gillard for a frontbench position twice and was rejected. I wouldn’t have had the cheek to do it once, myself. I would have slunk off to the backbench to hide.

The fascinating thing for me now is watching people who formerly avowed support for KRudd now disavowing him, and claiming that never supported poor old KRudd in the first place. Tim Blair has collected a few. Samuel J at Catallaxy has wondered if the government would indulge in the Roman practice of damnatio memoriae if it were allowed.

Personally, I’m left a little uneasy by the whole thing. To be honest, I’m glad KRudd’s gone. I think Lorenzo’s observation that KRudd was like the Pointy Haired Boss from Dilbert is spot-on. I hope sincerely that Gillard will be a better Prime Minister. But I remain uncomfortable with the ruthless method of dispatch, and I’m a little freaked out by the power of the herd (the media herd in particular). It’s not so much that they turned, it’s the way in which the attitude of the media from the beginning to the end of KRudd was so extreme. The progressive media herd thought KRudd was beyond reproach at the start. I don’t think that’s acceptable. Surely he was the same man from beginning to end, and surely we should have heard critical analysis about any flaws or problems in KRudd’s leadership from the start.

It’s sometimes painful, always inconvenient and inclined to bite gaping holes out of your self esteem. Most people are pretty reliable: they get up in the morning, go to work or school during the week and kick back on the weekends doing activities they enjoy once the daily maintenance tasks (literal and financial housekeeping etc) are complete. However once you are disabled, you are no longer ‘most people’.

Supposedly the most damaging aspect of Disability is isolation. Sometimes this is physical – when a disability limits your ability to get out of the house; other times it is social – when you are so busy meeting the additional needs of your condition/illness/injury that there simply isn’t time or energy left to maintain relationships properly.

As a society we are at least beyond the stage of say the 1930s where those with disabilities were considered “socially dead” and restricted to a role of utter dependency and silence by the conviction that physical handicap was somehow a sign of intellectual damage.

What I’ve personally found most isolating about being disabled has been the change from working full-time to relying on benefits. As a benefits claimant I’m “politically dead” and restricted to a role of utter dependency and silence by the conviction that the source of my income is somehow a sign of moral damage. Once you rely on welfare you’re no longer ‘most people’.

IF I’M A WELFARE QUEEN, WHERE’S MY CROWN

Thanks to SL I had unprecedented access to a senior politican last week. Vicariously of course, but then these days most of what I consider my “life” is experienced vicariously, either online or through friends. You’ve read her piece David Cameron Visits Brasenose? Well that was MY question she was kind enough to ask.

I though it was important to ask because the question itself reminds policy promoters that their rhetoric effects real people. The idea that people commonly fake illness or injury to go “on the sick” isn’t in itself new, I ran into it personally ten years ago as my mobility declined and I started my grand tour of neurologists: my landlady decided that I was too young to be really disabled and evicted me. Unfortunately this story has been used deliberately as a tool to silence criticism of the welfare reforms forced through over the last two years, particularly the abolition of Incapacity Benefit.

It’s hardly coincidence that the government has been rolling out a massive national advertising campaign against benefit fraud during the same period. The BBC’s “Saints and Scroungers” series which followed the work of fraud investigation departments – three convictions an episode for thirteen episodes – simply offered a new placement for the same government advertising. So much for editorial independence.

Now you wont find me defending dishonesty or denying that benefit fraud exists, what I will question however is the differing treatment people receive and assumptions made about their character based on the source of their income. The creepy 1984-style “we’re closing in” adverts made a point of emphasizing the surveillance powers available to both local authorities and the DWP. The Regulation of Investigatory Powers Act that gives them the right to covertly follow and photograph suspects and commandeer their banking and utility records, was passed into law with barely a whimper in 2000 as an anti-fraud/anti-terror measure. It only aroused popular criticism when the same powers were used against parents gaming the “catchment area” system for school admission.

If it is acceptable and desirable to use this level of surveillance in the fight against benefit fraud why aren’t these powers available to the Inland Revenue when investigating tax fraud? Why is self-assessment considered an acceptable basis for a tax return but an unforgivable invitation to fraud when the application is for a disability-related benefit?

MORAL HAZARD IS FOR POOR PEOPLE

This double standard isn’t imaginary, though it doesn’t tend to get much coverage beyond left leaning publications like The Guardian .

Research earlier this year conducted by the Fabian Society and the Joseph Rowntree Foundation asked people to estimate the social cost of benefit fraud relative to that of tax evasion – and their answers misfired by an order of magnitude that was laughable.

The majority thought benefit cheats cost more than tax evaders; in fact benefit fraud is estimated by the Department for Work and Pensions to cost £800m a year, while personal tax avoidance was thought to be running at £13bn.

This misconception is more troubling than assumptions about middle-class honesty: if the taxpayer is thought to be broadly honest, while society’s net recipients are all crooks, then clearly that will have an impact on our readiness to pay tax and support even the most modest redistribution.

It’s hard to argue that fraud is only a minor problem when the latest DWP estimates for 2008/09 suggest that £3 billion of total benefit expenditure was overpaid due to a combination of fraud and error… unless you also notice that this constitutes only 2.2% of the overall benefit bill. [The fraud estimate for Incapacity Benefit in isolation is only 3.5% - the lowest of all the continuously monitored benefits - while Pension Credit is put at 5.1%. No mass public condemnation of rorting wrinklies seems imminent but perhaps they’re saving that for when the pensions crisis really bites.]

Not that the Guardian hasn’t joined most of the press in drawing a very long bow over the applicant failure rates for the new Employment Support Allowance (ESA) – now replacing Incapacity Benefit – in the course of its first year. Despite their Society section having one of the best articles describing the intricacies and contradictions of the new medical assessments, it didn’t stop political editor Patrick Wintour attempting to apply ESA failure rates to migrating IB claimants without considering IB failure rates …

More than two-thirds of applicants for a new sickness-related benefit are failing in their claims, suggesting many of the 2.6 million existing incapacity benefit claimants will be forced on to a lower level of benefit when they are assessed over the next two to three years…

Overall, the research found only 5% of those seeking ESA were thought totally incapable of being ready for work and so entitled to the full benefit of £108.55. A further 11%, thought potentially capable of work, were put on a rate of £89.80 a week, and were expected to co-operate with efforts to ready themselves for work. A third of the initial claimants dropped out before completing the claim, and a further third were seen as fit for work.

… but at least the broadsheets acknowledged that the whole definition of “fit to work” had been changed. At the tabloid end of the spectrum, editors were a bit clearer about the message these results sent to them..

75% ON SICK BENEFITS ARE FAKING
LABOUR’S failure to crack down on scroungers has let three-quarters of incapacity benefit claimants get away with faking their illnesses.
- Daily Express

Just one in six incapacity benefit claimants ‘is genuine’ as tough new test reveals TWO MILLION could be cheating
- Daily Mail

HEAD, MEET DESK

At the time ESA was launched I wondered why the government was needlessly duplicating the cost of privatized medical assessment in setting up a whole new benefit when they could have simply used the receipt of Disability Living Allowance to determine whether an IB claimant was genuine or not (DLA has had privatised medical inspections for over a decade and is paid alongside most income benefits to meet the additional costs of care and/or transport incurred when you’re disabled.)

Even if the numbers were still too high they could restrict eligibility further by dropping out those who only received the lower-rates of the two components… but that would have been validation of one of the benefits it has since turned out they were also planning to scrap (a fact not openly admitted until ministers changed their minds).

Though impressed by some of the Conservative moves towards openness about their priorities, I find Mr Cameron’s agreement that politicians need to be more careful with their statements to be somewhat disingenuous. Politicans are very careful with their statements. These are carefully scripted by an army of special advisors… take this choice nugget from Theresa May, the Shadow Secretary of State for Work and Pensions.

The Government needs to get to grips with Britain’s benefit culture and radically reform our welfare system. It’s hardly surprising that so many people spend their lives on benefits when in some cases they can get as much money from benefits as many people earn in work. Things really have to change.

Hard to argue with that one as most people would agree that people who work should end up with more money than people who don’t, but the solution is left carefully unstated.

The Right hear, “The unworthy poor are receiving too much money. Cut their benefits!”

Libertarians hear, “Low income earners are paying tax too early. Raise the personal threshold over £10,000!”

The Old Left hear, “The minimum wage is too low. Raise it with new legislation!”

The New Left hear, “The minimum wage is too low. Raise it by restricting low skilled immigration!”

This is why you hear so much about the problems and so little about the solutions when parties are campaigning. The problem alienates no-one whereas the choice of solution may.

I’M THE KIND OF POOR ALFRED DOOLITTLE WARNED YOU ABOUT

The Conservatives recently published a cheeky little league table that “ranks constituencies according to the proportion of working-age adults receiving incapacity, lone parent or jobseeker benefit”. 189 of the 200 seats with highest rates of adults on benefits for being incapacitated, unemployed or single-parents are held by labour, only 4 by the conservatives. It was accompanied by the Theresa May soundbite I’ve just mentioned. Though the right wing press cheerfully pounced on the idea that Labour was in power thanks to the “Welfare Vote”, actual Conservative statements seem to have left this very carefully unmentioned.

Here’s a tip: if you genuinely think a particular selection of the electorate has control of a particular seat, it might be a good idea to not insult them during the runup to a general election. If not, then you have no right to use the association with them as a smear against your political rivals. This ‘nod and a wink’ politics is extremely annoying. A smear inferred is no less a smear, particularly if not especially, when it’s against you as a person.

If Mr Cameron really believes that there is a “welfare vote”, then how about publicly acknowledging the electoral significance of that section of the British electorate in receipt of State Benefits in a positive way? After the party conference rhetoric where Tories claimed to be the “party of the poor” I’d rather hoped this would be the new direction they were taking but that might be the residual middle-class expectation of fairness showing.

I receive benefits because I can’t work full-time not because I lack the education, intelligence or skills I had when working full-time as a journalist (though sure, the ability to walk and remain upright is pretty much a goner at this stage). I may be overweight and live in social housing but the accent is unmistakeable.

UNIVERSAL SUFFRAGE IS A BITCH AND SO AM I

SL always says that her “libertarian exception” is compulsory voting. Having grown up in Australia she has decided that it discourages politicians from demonising any particular minority group by making them pay at the ballot box and that it is unfortunate this mechanism isn’t available in the UK. But Britain got rid of Census Suffrage and the property qualification in 1918 for men and 1928 for women, so I’d like to end my post with this timely reminder for Mr Cameron and other politicians of whatever party.

We listen.
We remember.
We vote.

Main Entry: de·fa·ma·tion
Pronunciation: “de-f&-’mA-sh&n
Function: noun
1 : communication to third parties of false statements about a person that injure the reputation of or deter others from associating with that person.

Defamation is a tort (ie, a legal wrong). A publication will be defamatory if it tends to injure reputation by:

• disparaging a person;
• causing others to shun or avoid a person; or
• subjecting a person to hatred, ridicule and contempt.

If an individual is defamed, then he or she has a right to damages for the injury to reputation, as the purpose of the tort is to vindicate and protect reputation. Courts do not only look at the literal meaning of a defamatory publication, but also consider what the ordinary reader or viewer could have understood the publication to mean. This may be different from what was intended by the plaintiff or what was understood by the defendant.

Australia has enacted Uniform Defamation Laws (for example, the Defamation Act 2005 (Vic) in LE’s home State of Victoria).

As Marcellous has said in one post on a recent defamation case, it is not necessary for the plaintiff in a defamation case to prove that the defamatory statements are untrue:

If they are hurtful in the requisite way (ie, defamatory) it will be for the defendant to establish their truth by way of a defence. In the absence of such proof, the defamatory statements are assumed to be untrue and all the more shocking and harmful because of that.

On the other hand, a statement will not be defamatory merely because it is hurtful or upsetting to a person. It must affect their reputation in a damaging way.

Photos (such as those in the Hanson case) may constitute defamatory publications. Lawyers for Ms Hanson would argue that the publication of photographs which purportedly portrayed her in the nude subjected her to ridicule. There are parallels with the Andrew Ettingshausen case. Ettingshausen, a famed rugby league player, successfully sued GQ Magazine after it published a nude photo of him without first seeking his consent. At trial, he was awarded $350,000 in damages, but damages were reduced to $100,000 on appeal (see Australian Consolidated Press Limited v Ettingshausen (unreported, New South Wales Court of Appeal, 13 October 1993, Gleeson CJ, Kirby P and Clarke JA. Nor does a person necessarily have to be famous to succeed in an action for defamation. In Shepherd v Walsh [2001] QSC 358,  Sonia Shepherd successfully sued the publishers of a magazine called The Picture, after it published a nude picture of her. While the picture was of Ms Shepherd, she did not consent to its publication, and it was in fact sent in by her ex-boyfriend and his new girlfriend in revenge. (If you are interested in reading more on these cases, see David Rolph’s excellent article comparing these two cases — hat tip to Pete Black).

The Ettingshausen case suggests that even if the photos were shown to be of Ms Hanson, she may be able to recover damages for defamation. If they are not of Ms Hanson (or they are a Photoshop concoction), the newspapers will still be liable, as it does not matter if they published in error, or if they believed the photos were real.

Liability extends to all involved in the defamatory publication, including the writers, publishers and editors.  Everyone involved in the publication is potentially liable. Liability can even extend to a situation where a rumour or comment made by somebody else is repeated. Nor does the intention of the publisher matter.

If the defamer works for a media organisation, the media organisation will be liable for the defamation too. This arrangement is typical, and known as vicarious liability — employers, in many circumstances, are liable for their employees’ torts. That said, the tort must be carried in the course of employment. For an act to be considered within the course of employment it must either be authorised or be so connected with an authorised act that it can be considered a mode — though an improper one — of performing it. Courts sometime distinguish between an employee’s ‘detour’ or ‘frolic’. For instance, an employer will be held liable if it is shown that the employee had gone on a mere detour in carrying out their duties, whereas an employee acting in his or her own right rather than on the employer’s business is undertaking a ‘frolic’ and will not subject the employer to liability. This scenario has particular force when the law is dealing with, say, a blogger who both works for a given media outlet (and has a named and hosted blog) and also freelances on their own account.

It is also worth noting that the Media Entertainment and Arts Alliance has a code of ethics, the first article of which states:

Report and interpret honestly, striving for accuracy, fairness and disclosure of all essential facts.  Do not suppress relevant available facts, or give distorting emphasis. Do your utmost to give a fair opportunity for reply. (emphasis added)

The three main defences are:

• fair comment
• justification/truth
• qualified privilege

‘Fair comment’ is available when the publication is a comment (rather than a statement of fact). The comment must be:

• based on facts (which must be stated or sufficiently identified);
• relate to a matter of public interest; and
• an honest expression of the commentator’s view.

This is backed up by the statutory defence of ‘honest opinion’ (see eg, s 31, Defamation Act 2005 (Vic)), which is in similar terms.

In Australia, there is also a defence of ‘justification’, which applies if the defendant can prove the allegations are ‘substantially true’ (see eg, s 20 of the Defamation Act 2005 (Vic)). This can be compared to UK defamation law, where the defamatory statement is presumed to be false, unless the defendant can prove its truth. Presumably the UK laws are stricter because of the way in which the English tabloids (aka ‘Red Tops‘) operate.

‘Qualified privilege’ applies when there is a legal, social or moral interest or a duty to communicate something to a person and that person has a corresponding interest or duty to receive the information. This is what protects job referees, for example.

Some of these concerns apply with particular force to blogging, especially as it gets more popular. An important issue of which bloggers should be aware is malice. The Uniform Defamation laws expressly retain the common law rules in relation to malice (see eg, s 24(2), Defamation Act 2005 (Vic)). ‘Malice’ means ill will or spite towards the person defamed, resulting in publication for an improper purpose, or without an honest belief in the truth of the publication. If a defamatory publication is found to be malicious, then the defendant will not be able to claim the defences of fair comment or qualified privilege. A malicious publication may give rise to aggravated damages (ie, increased damages because of the damage to reputation and personal hurt). Conversely, an absence of malice may be an argument for mitigation of damages.

It’s not true to say that blogs can report without fear or favour, nor is it true to say that bloggers have no duty to those they do comment on. Bloggers have to be damn careful when they make allegations which may injure someone’s reputation (particularly their professional reputation) or cause others to avoid associating with that person.

Before you start speculating about the actions of a person in a way that may affect their career or reputation, you should contact someone to check your facts. Failure to even attempt to make contact with the subject of an allegation suggests malice, because the inference is that you do not have an honest belief in the truth of your publication.

Of course it is possible to speculate (like the English tabloids do), and if what you say is true, then the subject of the slur probably won’t fight too hard. But if you’re wrong, you will have to pay damages because you’ve undermined any defence you may have. That’s the way the tabloids play the game. Typically, they have big pots of money set aside to cover costs when the speculation turns out to be wrong. So if you’re going to speculate, make damn sure you’re right, and be prepared to wear the consequences if you’re not. Remember, too, that the law protects people equally: just because many people find Pauline Hanson’s politics obnoxious doesn’t mean she doesn’t enjoy the same rights at law as someone with different (or more moderate) views. This is an important aspect of the rule of law (‘treat like cases alike’, where the word ‘like’ refers to legally significant facts).

You don’t even have to be a blogger to be held liable for defamation. Marcellous has two great posts on people held liable for defamation in the context of a domestic dispute and another case involving a dispute between two sets of parents which entangled the children as well. These cases may seem extreme (as Marcellous points out), but they also show the law’s attempt to deal with damage caused by spiteful allegations and gossip. In some respects, they hark back to an earlier time — when your mother told you that ‘if you can’t say anything nice, don’t say anything at all’ — and expected you to take the principle behind her comment seriously.

In blogging, there may be situations where bloggers use personal information in order to ‘get at’ political opponents, but does not necessarily amount to defamation. Some use of personal information by other bloggers — while discourteous and mean-spirited — has no legal significance. This is simply because so many people publish vast amounts of information about themselves online. When they do so, they often fail to appreciate the internet’s ‘publicness’. Details about one’s relationships, where one lives, what one thinks of various public figures — all of this is the internet’s stock-in-trade. However, it is also perfectly possible for a political opponent to collate that information and use it as the substance of a nasty post. The key — if one is involved in heavy-duty political shitfightery — is not to make this sort of information available in the first place.

In our view, much of this vulnerability has come about because people have engaged in deeply personalised writing, inspired by the likes of Hunter S. Thompson. Unsurprisingly, those made the subject of attacks based on what they say online about themselves want the same sort of vulnerability in their opponents, and seek to make use of any information they may obtain accordingly. This is important to bear in mind, as is the fact that many people seem to be unable to perceive the difference between making use of publicly available information and going on what lawyers call ‘a fishing expedition’.

Hunter S. Thompson made ‘gonzo journalism’ popular — a personalised, emotional journalism which may have elements of sarcasm, humor, exaggeration and downright rudeness. However, doing what Thompson does requires an enormous amount of literary skill — as one veteran editor of our acquaintance put it, ‘you are the only person interested in your story’. Most of the time, the only information published by Thompson’s lesser imitators is exactly the sort of stuff that comes in handy during an inter-blog shit fight. Our advice? Put away thy Thompson, take out thy Orwell. George Orwell often wrote coruscating attacks on political and literary opponents during his lengthy career as a journalist and critic, but he was sparing when it came to inserting himself into the narrative. Perhaps intuitively, he knew that people were not interested in his story, but were interested in the subjects about which he wrote.

Why, you may ask, are two lawyers — one of whom is a libertarian — defending the tort of defamation, when its chilling effect on free speech is well documented? In short, we’re not defending it, at least not in its entirety. The simple fact is that this is how the law currently stands. One of us has made arguments to the effect that there are better ways to manage public untruthfulness and media irresponsibility than defamation, but for now, we’re stuck with defamation. It’s also wise to remember — especially with the old, common law torts — that they evolved over many centuries and have an important social function. For whatever reason — while people have valued their speech rights in the broadest sense since Magna Carta and the Glorious Revolution – they’ve also valued truthful speech, speech untrammelled by malice. Where the former has been threatened by the latter and vice-versa, a great mass of compromises have been hammered out. This is symbolised by the current dispute in the UK over poor litigants defamed in the Red Tops using ‘no-win, no fee’ arrangements to get at their tormenters.

The basic rules are as follows:

1. If you publish something unconfirmed, and it’s wrong, be prepared to take a hit.

2. If in doubt, take it out.

3. Make personal information available online at your peril.

4. If someone refuses to confirm or deny your speculation when you do contact them, it is in your interest not to publish anything unless you have very deep pockets.

It really is worth knowing a little bit more about the law of defamation if you are involved in political blogging. And maybe some of the media outlets involved in the Hanson photo debacle should take a refresher course too…

[Your friendly neighbourhood legal beagles, SL & LE]

Update by LE:

As Tim Macknay as pointed out in comments below, bloggers should be aware that they can still be sued even if the material is published on an overseas server. In the Joe Gutnick defamation case, the defamatory material was published on a server in the US by a US company, but Gutnick was able to sue in Victoria because the damage to his reputation occurred in Victoria.

Also, it seems Australia is not the only place where nude pictures of politicians have been appearing in public. Via Cearta.ie, I became aware that the issue has also surfaced in Ireland, albeit in a rather different way. Apparently a “guerrilla artist” sneaked into the National Gallery of Ireland and the Royal Hibernian Academy and hung some rather unflattering nude portraits of Brian Cowen, the Taoiseach (Prime Minister) on the walls. The whole thing has been dubbed “Cowengate”. As Eoin explains:

Once they were discovered, they were removed, but not before they had garnered sufficient publicity for RTÉ (Raidio Telefís Éireann, the national state broadcaster) to broadcast a story about them on the flagship 9:00pm television news programme.

It has been the occasion for lots of bad puns and some embarrassment on the part of the Taoiseach, the Gallery and the Academy, but in the ordinary course of things, they story should have blown over after about 48hours. However, things then took two turns for the worse. First, RTÉ apologised to Mr Cowen and his family or for any disrespect shown to the office of Taoiseach by their broadcast. Second, when the radio station Today fm covered the story, the Gardaí (the police) arrived at the station asking that an email with the artist’s details be handed over (.wav). Leaving the obvious jokes aside (because they have all been done better elsewhere), these two quite sinister developments raise some profound questions about freedom of expression in Ireland.

Eoin recommended this post by Sentence First on the issue – I’d have to agree that it’s an excellent post.