The Rhetoric of Defamation as a Management Tool

By Daniel Joyce, UNSW

SYDNEY: 21 SEPTEMBER 2013 - Sports law and media law are linked in both theory and practice, reflecting the connections between the media and sports industries and their prominence in our social and cultural life.  These connections range from the trivial to the more reflective – involving questions regarding the prominent role of sporting personalities and associations in the generation of defamation litigation, but also in relation to the utility of such developments.

Celebrities and the powerful have a special interest in and access to our defamation laws.  There is no ‘public figure’ doctrine as in the USA, nor is there a cause of action for privacy protection.  Defamation law does a lot of the heavy lifting in our media law landscape.  Sports people are a special form of celebrity in Australian life and as such increasingly turn to the defamation suit to preserve some limits on media intrusion, but also to assist in managing criticisms, both true and false.

Questions of policy flow from such developments.  Is defamation law the appropriate remedy for sports persons and organizations in such circumstances?  Are there any special issues arising for sport and players?  More specifically, can a private law mechanism which aims not to restrain publication but to provide remedies (chiefly damages) for damage to reputation flowing from the publication of defamatory matter, effectively and fairly function in the context of the broader public debate concerning doping and efforts to investigate and regulate it?

Just as criticisms have been made of prominent political figures using the lever and threat of defamation laws to silence critics, so too there are disturbing indications that sports figures and those managing their reputations and careers, are turning to defamation law to protect not only their individual reputations, but perhaps also to preserve their ‘brand’ in the market place.

In Australia most corporations cannot sue for defamation, the theory being that they do not have feelings and can look elsewhere such as to the law of injurious falsehood or to misleading and deceptive conduct provisions.  But this does not mean that individual litigants and other entities do not turn to defamation law as part of a broader reputation and brand management strategy.  Nor does it mean that corporate interests are not increasingly entangled with such processes.

This has at times led to appropriate concerns regarding the motivations for pursuing, or threatening to pursue, defamation litigation.  Think here of the disgraced cyclist Lance Armstrong and his earlier strategic use of defamation suits to help cover up his own involvement in doping offences.  His subsequent confession to doping has led to his being pursued by those media outlets who earlier settled with him.

Questions regarding the ethics of doping in sport and how the ordinary reasonable person would view such activity are also relevant to considering how defamation law might deal with imputations arising from an allegation relating to doping.  Truth is often the best defence, but it can be costly and risky to prove.   Qualified privilege has been difficult to establish for the media, though this may be changing.   One further question which arises is whether it is the doping itself or the lying and covering up associated with it which would give rise to reputational damage.

Since his ‘confession’ Armstrong and others have indicated that the practice of doping is widespread in cycling.  On the one hand this kind of approach might be seen as tainting the reputation of otherwise ‘clean’ competitors, but there is also an element of damage control involved – how can it be so bad if everyone else is doing it?

Malcolm Gladwell has written recently of Armstrong and his former team mate Tyler Hamilton, that theirs is ‘a vision of sports in which the object of competition is to use science, intelligence, and sheer will to conquer natural difference.  Hamilton and Armstrong may simply be athletes who regard this kind of achievement as worthier than the gold medals of a man with the dumb luck to be born with a random genetic mutation.’

Context is key in defamation law.  Attitudes may change to doping in sports, but until they do we will see defamation actions continue to be threatened by those accused of violations.  The James Hird and Essendon doping saga looks to have returned from the brink of defamation litigation, but are we any clearer about the true nature of what occurred?

Whilst that case undoubtedly involves considerable damage to the reputation of the AFL, the club and the coach, it remains to be seen whether a cause of action could arise and whether it now would be successfully defended in any event given further revelations.  What it does illustrate is the ways in which the rhetoric of defamation and defamation law is being used not only to protect individual or group reputations, but also to manage and control the media and brand management fallout.  Defamation suits, of course, can further damage reputation as well as offering protection, just as they can act to obscure and reveal the truth.

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