I have only once been threatened with legal action for defamation. An official looking letter arrived and I noticed the name of an impressive Cape Town law firm at the top of the first page. Law firms don’t mess around with niceties such as hoping this letter finds you in good health. They cut to the chase by telling you what they think you have done wrong and go on to inform you that they have been instructed by their client, Mr So-and-So, to demand a written retraction to be published in every English language newspaper and to ask for an amount to be paid for damage to his reputation by a certain date. Failure to do either of these things will result in the matter being taken to court, they add cheerfully.
I don’t mind admitting I was terrified. Although I didn’t think he had a hope in hell of winning the case if it went to court I knew that it would probably cost me a fortune in legal fees to defend myself. The alleged defamation was over a piece I had written strongly suggesting that the gentlemen in question had personally done rather well out of some financial transactions while acting for a large investment firm. I hadn’t a scrap of hard evidence at the time I made the accusation, which didn’t help matters. However I was pretty certain that a bit of digging would reveal everything. So I decided to bluff and instructed my lawyer to send a letter back telling them that I stood by my comments and looked forward to seeing them in court. I also let it be widely known that I was about to be sued for defamation and asked people to step forward if they had any evidence that would lend weight to my case. The response was encouraging and within a few days people were begging me to let their incriminating evidence be heard. Not surprisingly I heard nothing more from the other party who clearly had no desire to air his dirty linen in public.
A cheaper alternative to legal action should be available both to those who have been defamed and to those accused of defamation. The horrific prospect of massive lawyer’s bills and the vagaries of the courtroom undoubtedly deter a lot of people who would like to take action when they feel their good name has been called into question. On the other hand, the alleged defamer should also be protected from rich bullies who use the threat of legal action to silence their critics. It’s ludicrous that recourse should only be available to those with deep pockets.
Since self regulation is all the rage, perhaps the government should set up a system of media courts where editors could sit in judgement on cases of alleged defamation. This would have the twin advantages of keeping costs down and producing more gossip for the next issue’s pages. Naturally the court would be impartial and would give complainants a fair hearing before ruling in favour of the journalist on the grounds of fair comment, being in the public interest and salaciousness. Cases between journalists might present more of a problem. Hacks generally only malign other hacks when they bear some long standing grudge or can’t contain their envy any longer. Simple cases of professional jealousy are easy to spot and would hopefully be thrown out of court with a sharp warning to the offending party to grow up. Defamation motivated by a long standing grudge is more difficult to deal with and the fairest and most entertaining solution would be to hire a boxing ring and allow the protagonists to slug it out in front of the rest of us.