Geoffrey Rush. Rebel Wilson. Ben Roberts-Smith. Clive Palmer. Craig McLachlan. What do they all have in common? They have all in recent times commenced high-profile defamation legal proceedings against publishers they say damaged their reputation and discredited their character.
And some of them have been “right”, at least to varying degrees. Usually, when a party commences a legal proceeding, they plan to “win” or at least have a strategy which leaves them in a position better off than they would be had they not commenced the proceeding.
Lawyers are commonly asked to advise on their likely prospects of success and provide an opinion on the merits and demerits of their claim and the likely quantum of a potential damages claim. But lawyers aren’t PR advisors. If they were, we’d see much fewer of these cases make it to Court.
In my experience and in most cases, pursuing a defamation proceeding leads to a pyrrhic victory in the best of cases and much worse in most other cases (including expensive legal bills due to the complexity of this area of law and the irreversible damage to the reputation of the plaintiff - the very thing the proceeding seeks to vindicate).
One of the reasons for this is the ‘Streisand Effect’. This occurs when an attempt is made to hide, remove or censor information and has the unintended consequence of increasing its awareness. The name is taken from the well-known singer Barbara Streisand who once attempted to suppress a photograph of her residence in Malibu taken to document coastal erosion and in doing so, inadvertently drew greater attention to the environmental issue she sought to suppress.
You can apply this same logic to Clive Palmer, the former Federal Member for Fairfax, in his case with the Premier which was handed down earlier this week. Palmer went to great lengths to draw the Court’s attention to his good reputation and even called character witnesses about his philanthropic donations and contributions to Australian commerce. But when the judgment was delivered, an experienced Federal Court Judge after considering all the evidence, described Palmer as “angry” “combative and evasive”, “unsatisfactory”, “unhelpful”, “unresponsive” and said his evidence was contradictory.
Furthermore, Mr Palmer’s apparent concerns that Mr McGowan had legislated a “licence to kill” him caused the Judge to jokingly draw a comparison between the Premier and Ian Fleming’s fictional MI6 character, James Bond.
Irrespective of the trivial damages award Mr Palmer received, surely these aren’t the findings of someone who has “won” their case?
These adverse findings about Mr Palmer’s character are etched in stone for anyone with an internet connection to read. They are directly inconsistent with the very interests Mr Palmer sought to advance by commencing the legal proceeding in the first place.
This, in my view, can be the false economy of pursuing a defamation case. These outcomes occur regularly. In defamation cases across the country and throughout the world. In cases you won’t read about between persons who do not have the profiles of the persons named in this article.
It is important to take open and frank legal advice before embarking on any legal skirmish, and particularly one that involves a claim in defamation. And at the same time, it might be worth seeking public relations advice, as in the case of a protracted defamation trial in an open court, the adage ‘any publicity is good publicity’ rarely applies.
Aaron McDonald is Managing Director at Pragma Lawyers, a law firm that specialises in dispute resolution and litigation.
