Defame

Defame (pronounced dih-feym)

(1) To attack the good name or reputation of, as by uttering or publishing maliciously or falsely anything injurious; still in some jurisdictions classified as slander (in speech or by gesture) or libel (something permanent in some sense including writing, images & broadcasting); calumniate.

(2) To disgrace; to bring dishonor upon (dating from the fifteenth century and now archaic).

(3) To indict or accuse (dating from the fourteenth century and long obsolete).

1275–1325: From the Middle English defamen, from the Old French & Anglo-French defamer (verb) & defame (noun) or directly from the Medieval Latin dēfāmāre, a variant of the Medieval & Classical Latin diffāmāre (related to the Classical Latin dēfāmātus (infamous)) (to spread the news of; to spread by unfavorable report; to slander), the construct being dif- (an alternative form of dis- (the prefix form dif- appearing only when the prefix dis- was added to a word beginning with f, as in difficilis (difficult) from facilis (easy), or diffiteor (deny) from fateor (acknowledge)) + -fāmāre (verbal derivative of fāma (news, rumor, slander)),  It replaced the Middle English diffamen, from the Anglo-French & Old French diffamer or directly from Medieval Latin, source the Latin diffāmō, from fāma (fame; rumor; reputation).  The verb defame (speak evil of, maliciously speak or write what injures the reputation of) dates from circa 1300, from the Old French defamer (which in the thirteenth century became the Modern French diffamer).

The construct in English is de- + fame.  The de- prefix was from the Latin dē-, from the preposition dē (of, from (the Old English æf- was a similar prefix).  It imparted the sense of (1) reversal, undoing, removing, (2) intensification and (3) from, off.  Fame was from the Middle English fame, from the Old French fame (celebrity, renown), from the Latin fāma (talk, rumor, report, reputation), from the primitive Indo-European beh-meh from beh (to speak, say, tell).  It was cognate with the Ancient Greek φήμη (phḗmē) (talk) and related to the Old English bōian (to boast), bēn (prayer, request) & bannan (to summon, command, proclaim).  It displaced the Old English hlīsa.  Defame and its derivatives are defined in law but in general use the vaguely synonymous terms include backbite, besmirch, denigrate, derogate, discredit, disgrace, disparage, malign, revile, scandalize, smear, vilify, asperse, belie, blacken, blister, calumniate, detract, dishonor, knock, pan, roast & scorch.  Defame is a noun and verb, defaming is a verbs, defamer & defamation are nouns, defamingly is an adverb, defamed is a verb & adjective and defamatory is an adjective.

Google LLC v Defteros, Case # M86/2021 on appeal from Supreme Court of Victoria (Court of Appeal) (17 June 2021, VSCA 167).

The High Court of Australia (HCA) recently ruled that in certain circumstances, Google (and presumably every other search engine) is not a publisher, the critical point in this case being that a hyperlink generated in an organic search is “merely a tool which enables a person to navigate to another webpage”.  The case before the country’s highest court was an appeal from Victoria’s court of appeal which in 2021 declined to overturn a defamation finding in favor of a lawyer known for representing underworld figures and others associated with organized crime.  The state courts had found Google was the publisher of a defamatory 2004 newspaper article on the basis its search results were instrumental in communicating the content to readers.  Google had argued providing a hyperlink to content did not constitute publication and therefore it could not be liable for any defamatory material in the piece.  Apart from a discussion of the legal principles, counsel for Google also informed the HCA that were the decision of the lower court to be confirmed, it would have a “devastating” impact on the way the internet operates because it would compel search engines individually to see legal opinion on the billions of results to which hyperlinks are daily generated.  Google maintained it acted on the internet only as a navigator responding to users’ requests for directions and it was (and given the volumes had to be) wholly disinterested in the content of that to which its hyperlinks referenced, the operator of the hyperlinked link being the one which communicates (and thus publishes) the content to the user.

The facts of the case were also interesting in that they played out on a time-scale very different to that of most defamation matters.  Google was notified of the article in February 2016, some eleven years after it was published in the newspaper but it was not until December that year that the link was removed from search.  Interestingly, the “removal request form” submitted in 2016 had alleged the original article was defamatory and that proceedings brought against the newspaper in 2007 had resulted in a settlement at mediation which included the deletion of the article.  There was however no such settlement and proceedings against the newspaper had never commenced.  In 2020, the Supreme Count on Victoria (VSC) ruled the article implied the lawyer’s relationship with certain figures in organized crime had gone beyond a professional relationship to the point of being a confidant and friend and he had thus been defamed.  He was awarded damages of Aus$40,000.

In a 5-2 judgment, the HCA ruled in Google’s favor, finding that search engine’s results “merely facilitated access” to the material and that did not reach the threshold required to amount to publication in a legal sense, the point being that Google “…had not participated in the writing or disseminating of the defamatory matter”.  The other side of the HCA’s judgment was that it rejected the claim that search results “enticed” the person searching to open the provided hyperlink and thus proceed to the material on the basis that the person would already be looking for particular information before the result was received.  That was interesting but a wrinkle was added by one judge who differentiated between an organic hyperlink and a sponsored link in which each click generated advertising revenue which accrued to Google.  That matter however did not come before the lower courts and is thus not considered part of the substantive judgment (the ratio decidendi (reason (or rationale) for the decision) but is a piece of obiter dictum (by the way) which, left hanging in the legal air, might in the future be re-visited and, because it involves the core component of the search engines’ business model, interest will be greater still.  There certainly may be more to explore because the court, having found there was no basis for finding publication because Google had not participated in the writing or disseminating of the defamatory matter, noted that "…there being no publication”, the majority found it unnecessary to consider the defenses raised by the appellant.  That was a shame because it might have been an interesting discussion given Google filed, inter alia, defenses of innocent dissemination and qualified privilege.

There were however dissenting opinions, the most interesting of which at length discussed the actual mechanics of Google’s search engine, the succession of algorithms which interact with its indexes to generate the results seen by users.  In the view of one judge, what these components did constituted an “active and voluntary participation in the process that is in fact directed to making matter available for comprehension by a third party” and was thus an act of publication and that moreover neither the defense of innocent dissemination and qualified privilege, nor the defense of statutory qualified privilege available under Victoria’s Defamation Act 2005 were sustained.  The judge also hinted that a distinction between the results generated by organic search and those of sponsored content was not of necessity clear because of the commercial benefits which Google anyway gained through the operation of the search engine.  The other dissenting judge substantially agreed, adding that the matter of publication before the court would have been impossible without the operation of Google’s algorithms which “intentionally assisted in the process of conveying the words bearing defamatory meaning to a third party” and that publication would not have occurred but for Google’s facilitation.

So, the HCA has issued what is (for now) a definitive ruling on a search engine’s liability for third-party publications to which it has directed users, finding there is none, rejecting even the analogy cited by the lower court of a librarian handing someone a book with a certain page marked, preferring the example of someone in the street being asked for direction to a bookshop which turned out to have on its shelves a book containing a defamatory passage.  It seems inevitable that at least some of the matters raised in Google LLC v Defteros will again be litigated and analogies similes and metaphors will return to the battle.  Whether long-established legal principles can be reconciled with a public policy which would seem to suggest the algorithms of the search engines are acknowledged now to be an essential part of modern life, remains to be seen.

Meet our spokesperson.  With experience in civil litigation and other legal matters, Lindsay Lohan was a good choice to be lawyer.com's spokesperson.

Noted litigant Lindsay Lohan hasn’t enjoyed great success in her defamation suits, even when pursued on the basis of commercial rights.  In 2015, a defamation case against Fox News was dismissed, the judge ruling (perhaps unfairly given the nature of the evidence), "truth is a defense" (and in the US it is an absolute defense).  The case concerned Ms Lohan and her mother and according to their filing, Fox News “falsely, inappropriately, and shockingly” stated, unequivocally and as a “matter of fact” stated “Lindsay Lohan’s mother is doing cocaine with her”.  The judge noted Ms Lohan’s mother is a public figure and that the statements made on Fox News were not made maliciously (in US law two vital points used to determine whether or not something is at law, considered defamatory).  Interestingly Fox News had formally apologized for what they called an “oversight” in airing the piece, noting the evidence later introduced couldn’t verify the claim and that the material had been removed from their archives.

Just a little removed from defamation law was a writ she filed in 2010 against E-Trade in 2010 for using her name in one of their television advertisements without her permission. The commercial, which was played during the Super Bowl, featured a "milkaholic" baby named Lindsay and the basis for the suit was the claim E-Trade as mocking her drug and alcohol-related problems.  In response to the US$100 million claim, E-Trade responded with little more than an explanation that there are in the world, many Lindsays.  After some six months, the lawsuit was withdrawn, the terms of the settlement subject to a non-disclosure agreement (NDA).

Lindsay Lohan returned to court in 2011, suing hip hop artist Pitbull over the lyrics in his song Give Me Everything, which included the line: So, I’m toptoein’, to keep flowin’, I got it locked up, like Lindsay Lohan.  Ms Lohan cited the lyric as a violation of her publicity and publicity rights which caused her emotional distress, claiming the lyrics “includes an unwarranted, unauthorized, and unfavorable mention of [her] name and personality, and allusions to her physical and mental character.”  The judge dismissed on technical grounds the claim made under New York Civil Rights law, adding that the First Amendment anyway affords full protection.  What was more interesting was the discussion of the argument the song was commercial rather than expressive in nature, the judge ruling that even if the work was created for the purpose of “making a profit”, that does not mean her name was “used for advertising or purposes of trade within the meaning of the New York law“ and that, on the facts of this case, even if that were proved, the “isolated nature of the use of her name” (just one line in the song) would “prove fatal” to the claims.  Putbull’s counsel indicated they wished to have the court sanction Ms Lohan for filing a frivolous lawsuit (an abuse of process) but the judge, noting the paucity of case law in this field, said the lack of precedent meant there was no clear indication the case would be doomed and the claim was therefore not so frivolous as to warrant the imposition of a sanction.  Lindsay Lohan thus remained free to litigate, which she did.

Traduce

Traduce (pronounced truh-doos or truh-dyoos)

(1) To malign a person or entity by making malicious and/or false or defamatory statements; slander; libel; defame.

(2) To pass on (to one's children, future generations etc.); to transmit (archaic).

(3) To pass into another form of expression; to rephrase, to translate (archaic).

1525–1535: From the Latin trādūcō (lead as a spectacle, dishonor), from trādūcere (to lead over, transmit, disgrace), a variant of trānsdūcere (to transfer, display, expose), the construct being tra- (from the preposition trāns (through, across, beyond)) + dūcere (to lead).  Synonyms include vilify, decry & disparage.  The Latin trādūcere was from the Proto-Italic tranzdoukō and cognates included the Italian tradurre and the French traduire.  The noun transduction (act of leading or carrying over) is from the 1650s, from the Latin transductionem & traducionem (nominative transductio) (a removal, transfer), noun of action from the past-participle stem of transducere & traducere (change over, convert) which also picked up the meaning "lead in parade, make a show of, dishonor, disgrace".  Traduce, traduction, traduced & traducing are verbs, traducement & traducer are nouns, traducingly is an adverb and traducible is an adjective; the most common noun plural is traducements.

To be traduced in speech or in writing (historically treated in English (and related) legal systems respectively as libel and slander but some systems have reformed their rules and now treat all as just the single concept of defamation) can allow the victim to seek redress through legal process, the available remedies including retractions, apologies and damages by way of financial compensation.  Also available is the injunction to prevent publication and what has become popular in some jurisdictions in the (secret) secret injunction, a device whereby (1) publication is denied, (2) all details of the matter (names of the parties or even an allusion to the nature of the proscribed material) and (3) the very fact any injunction has been granted is kept secret.

Mostly a thing of civil law, in some jurisdictions there’s still the offence of criminal defamation but its very existence is now less common and use seldom.  Criminal defamation exists when someone publishes defamatory material knowing it is, or not caring if it is, false with the intention to, or not having regard to whether it will, cause serious harm to the victim or any other person is guilty of a crime.  In most cases, the same defenses available in a civil action can be used in a criminal matter; a criminal charge does not preclude civil action being taken for the same publication.  The matter of truth is interesting.  In the United States, truth is an absolute defense to an action for defamation.  As many have found out, that doesn’t mean there aren’t in the US consequences for publishing something defamatory but the action taken will not be on grounds of libel or slander.  Although it seems strange to many, truth isn’t an absolute defense in many jurisdictions but it can be a matter raised in mitigation so that even if a judgment is delivered against a defendant, the damages awarded may be nominal.

Publish and be damned

Although there’s always been a suspicion a ghost writer may have helped a bit in matters of style, the content of Harriette Wilson’s (1786–1845) book The Memoirs of Harriette Wilson: Written by Herself was all her own.  First published in 1825, it was a best seller and thought topical enough to deserve a re-print a century later, it’s notable still for having one of the finest opening lines of any auto-biography ever published:

"I shall not say how and why I became, at the age of fifteen, the mistress of the Earl of Craven."

The cover of some of the French editions were more alluring than those sold in England.

However much the tales of Regency’s most revealing courtesan may have delighted readers, there was one not so happy.  In the mail one morning in December 1824, Arthur Wellesley (1st Duke of Wellington; 1769–1852, UK prime-minister 1828-1830) the famous soldier who led the coalition of armies which defeated Napoleon Bonaparte (1769–1821; leader of the French Republic 1799-1804 & Emperor of the French from 1804-1814 & 1815) at Waterloo in 1815, found a letter from the publisher John Joseph Stockdale (circa 1775-1847) which can’t have been pleasant reading.  Stockdale was attempting blackmail, advising the duke he was about to publish Miss Wilson’s revelations which contained “various anecdotes” of Wellington which “it would be most desirable to withhold” and that could be arranged were payment to be made.

Duke of Wellington (1816) by Sir Thomas Lawrence (1769-1830).

The duke's response was the famous “Publish and be damned!” reputedly scrawled across Stockdale’s letter and sent to him by return mail.  Publish Stockdale did, the book, a romp through the beds of the aristocracy appearing by installments before appearing in bookshops where it scandalized and thrilled London society although it would have been more salacious still had more of Stockdale’s blackmail victims had the fortitude of the iron duke and refused to pay.  An instant best-seller, the book went through thirty-one printings in a year and pirated copies were on-sale all over the continent but even without revenue from overseas sales the book was lucrative although the Stockdale was soon ruined by libel suits from those whose reputations had been traduced and Miss Wilson would eventually die in obscurity.

Riveting reading it may have been but so many of the libel actions against Stockdale were able to succeed in English courts because of the many errors of detail and chronology but historians nevertheless agree the narrative is substantially a reliable track of Miss Wilson’s adventures even if the sequence of events is sometimes misleading; to be fair, she had so many affairs it would be churlish not to allow for a little vagueness of recollection, one man presumably much the same as another after a while.  Whether “Publish and be damned!” in the duke’s own hand was ever written across the letter and sent back has never been confirmed because the original apparently hasn’t survived but there’s enough evidence from contemporaries to leave no doubt he certainly spoke the words but whatever she wrote of her time with Wellington, it must have been sufficiently truthful to convince the duke not to issue a writ for libel, despite at the time having threatened to sue “...if such rubbish is published”.

His marriage was already unhappy and the disclosures probably little surprised the duchess and the union endured until her death while the book clearly did no lasting harm to the duke's public reputation, the hero of Waterloo afforded some latitude in pre-Victorian England.  Within a decade of publication he would be prime minister and when he died in 1852, he was again a national hero and granted a state funeral, a rare distinction in England, unlike Australia where they’re given to reasonably successful football coaches and television personalities.  The phrase “Publish and be damned!” entered the language and was in 1953 used as the title of a book detailing the history of the Daily Mirror newspaper, a tabloid which once had its own interesting history.

To keep track of one's traductions, it's recommended a burn book be maintained.  Introduced to the world in Mean Girls (2004), "burn" in this context was used in the sense of "an insult, a disparaging statement" and, depending on one's motives, a burn book can either focus exclusively on one individual worthy of being burned (eg crooked Hillary Clinton) or be devoted to a villainous group (eg the Republican Party).  One of the attractions of a burn book is that nothing, however scurrilous, need be verified and heresy evidence is admissible (indeed it's probably obligatory).  Thus, accusations against someone of stuff like voting Tory, belonging to the Freemasons, enjoying sexual relations with certain vegetables & fruits (all three perhaps not unrelated), substance abuse or hoarding all belong in a burn book and, if selectively and anonymously leaked, reputations will be traduced.  The other utility a burn book offers is that nothing gets forgotten however great the volume, an important point for any traducer who likely will find someone like crooked Hillary will attract hundreds of entries.  Surely, Harriette Wilson kept a burn book.

Politicians do maintain burn books although few are much discussed.  Richard Nixon's (1913-1994; US president 1969-1974) "enemies list" became famous in 1973 when it emerged during congressional hearings enquiring into the Watergate break-in and that such a list existed surprised few although some did expect it to contain more names than the twenty included; it was common knowledge Nixon had many more enemies than that.  That view was vindicated when later lists were revealed (some containing hundreds of names) though had the net been cast a little wider, it could well have run to thousands.  At least one Eurocrat has also admitted to keeping a burn book although Jean-Claude Juncker (b 1954; president of the European Commission 2014-2019) calls his "little black book" Le Petit Maurice (little Maurice), the name apparently a reference to a contemporary from his school days who grew taller than the youthful Jean-Claude and seldom neglected to mention it.  Although maintained for some thirty years (including the eighteen spent as prime-minister of Luxembourg) to record the identities of those who crossed him, Mr Junker noted with some satisfaction it wasn't all that full because people “rarely betray me”, adding “I am not vengeful, but I have a good memory.”   It seems his warning “Be careful.  Little Maurice is waiting for you” was sufficient to ward of the betrayal and low skulduggery for which the corridors of EU institutions are renowned.

Phial

Phial (pronounced fahy-uh)

A small container or bottle, used to store liquids.

1350–1400: From the Middle English viole (vessel used for holding liquids), (a variant of fiole which existed also as phiole & fiole), from the Old French fiole, via the Old Provençal fiola, from the Medieval Latin phiola, from the Latin phiala (a broad, flat, shallow cup or bowl), from the Ancient Greek φιάλη (phiálē) (flat vessel, dish, flat bowl for drinking or sacrificing) of unknown origin.  The evolution was influenced also by the twelfth century Old French fiole (flask, phial) which at least in parts accounts for the of proliferation of spelling in Middle English (fiole,phiole,phial,fial,viole,vial,viele and the modern vial).  Phial is a noun & verb; the noun plural is phials.

Lindsay Lohan pouring from a modern phial (or vial), PepsiCo Pilk promotion, December 2022.

Phial is a doublet of vial.  In technical use (in science), some institutions have drawn distinctions between the two (1) phials being larger than vials and (2) vials are for liquids related to medicine and phials for other fluids but in general use they remain interchangeable (although consistency within documents is obviously recommended).  In the US, early in the twentieth century, phial became close to extinct after hundreds of years of being nearly as common as vial while elsewhere in the English-speaking world, vial emerged as the preferred form during the post-war years and phial seems now a romantic form restricted to fiction, historical and spiritual writing.  Vial must never be confused with its homophone vile.  A vial is something in which liquids are kept; vile is an adjective, applied most often to morally dubious characters like crooked Hillary Clinton (b 1947; US secretary of state 2009-2013).

The Seven Phials

The seven phials (translated also as cups or bowls) are a set of plagues in the New Testament (Revelation 16), apocalyptic events seen in the vision of the Revelation of Jesus Christ, by John of Patmos.  Seven angels are given seven phials, each a judgement of the wrath of God, to be poured upon the wicked and the followers of the Antichrist after the sounding of seven trumpets.  In the twenty-first century, end-of-times theorists, religious fundamentalists and the habitually superstitious have taken an increased interest in the seven phials because the text in Revelation can be variously interpreted including as a foretelling of AIDS, chronic pollution, species extinction, climate change, wild fires, floods and the rule of various autocrats.

Michelangelo (1475–1564), Last Judgment (circa 1540), Sistine Chapel, Vatican.

When the first phial is emptied, foul and painful sores are inflicted upon those bearing the mark of the beast and those who worship the image of the beast.   

When the second phial is emptied, the seas and the oceans become bitter and all life in the sea dies.

When the third phial is emptied, the rivers turn to blood; angels begin praising God's holy judgments.

When the fourth phial is emptied, the sun causes a major heatwave to scorch the planet with fire; the incorrigible and wicked refuse to repent while they blaspheme the name of God.

When the fifth phial is emptied, a thick darkness overwhelms the kingdom of the beast. The wicked continue to stubbornly defame the name of God while refusing to repent and glorify God.

When the sixth phial is emptied, the great river Euphrates dries up so that the kings of the east might cross to begin battle.  Three unclean spirits with the appearance of frogs come from the mouths of the dragon, the beast, and the false prophet.  These demonic spirits work satanic miracles to gather the nations of the world to battle against the forces of good during the Battle of Armageddon. Jesus says his coming will be like that of a thief in the night, urging his followers to stay alert.

When the seventh phial is emptied, a global earthquake causes the cities of the world to crumble collapse.  All mountains and islands are shaken from their foundations.  Giant hailstones rain down upon the planet and plagues are so severe the incorrigible’s hatred intensifies as they continue to curse God.

MRDA

MRDA (pronounced emm-ahr-dee-ey)

The abbreviation of “Mandy Rice-Davies Applies”, an aphorism used in law and politics to refer to any denial which is transparently self-interested.

1963: An allusion to the statement “Well he would, wouldn't he?”, said by Welsh model Mandy Rice-Davies (1944-2004) during cross-examination in a trial at the Old Bailey (the central criminal court for England & Wales) associated with the Profumo affair.

Lord Astor, Mandy Rice-Davies and the Profumo Affair

The context of Ms Rice-Davies’s answer was the question: “Are you aware that Lord Astor denies any impropriety in his relationship with you?” and the answer “Well he would, wouldn't he?” elicited from those in the court “some amusement”.  MDRA (Mandy Rice-Davies Applies) thus became in law and politics an aphorism used as “verbal shorthand” to refer to any denial which is transparently self-interested although it doesn’t of necessity imply a denial is untrue.  In general use, the fragment from the trial is often misquoted as “Well he would say that, wouldn't he?” because that better encapsulates the meaning without being misleading.

Mandy Rice-Davis (left) and Christine Keeler (right), London, 1963.

The Profumo affair was one of those fits of morality which from time-to-time would afflict English society in the twentieth century and was a marvellous mix of class, sex, spying & money, all things which make a good scandal especially juicy.  John Profumo (1915-2006) was the UK’s Minister for War (the UK cabinet retained the position until 1964 although it was disestablished in the US in 1947) who, then 46, was found to be conducting an adulterous affair with 19 year old topless model Christine Keeler (1942-2017) at the same time she was also enjoying trysts with a Russian spy, attached to the Soviet embassy with the cover of naval attaché.  Although there are to this day differing interpretations of the scandal, there have never been any doubts this potential Cold-War conduit between a KGB spy and Her Majesty’s Secretary of State for War represented at least a potential conflict of interest.

Dr Evatt (left), comrade Molotov (centre) and Soviet translator Alexei Pavlov, exchanging MRDAs in Russian & English, London, 1942.

MRDAs are common in courtrooms and among politicians but some became legends.  In 1954, Dr HV Evatt (1894–1965; Australian attorney-general & foreign minister 1941-1949, and leader of opposition 1951-1960), in the midst of a particularly febrile period during the Cold War, wrote a letter to comrade Vyacheslav Molotov (1890–1986; Soviet foreign minister 1939-1949 & 1953-1956) asking if allegations of Soviet espionage in Australia were true.  Comrade Molotov of course wrote back, politely denying the USSR engaged in spying anywhere.  Assured, Evatt read the letter to the parliament and the members sat for a moment stunned until, on both sides, loudly laughing.  It was a MRDA before there were MRDAs.

The Profumo affair is noted also for being at least an influence in the end of the “age of deference” in England and while that’s often probably overstated, the immediate reaction and the aftermath proved it wasn’t only across colonial Africa that a “wind of change” was blowing.  The second Lord Astor (1907–1966) was emblematic of the upper classes of England who once would have expected deference from someone like Ms Rice-Davis, someone “not of the better classes” as his lordship might have put it.  Although what came to be known as the “swinging sixties” didn’t really begin until a couple of years after the Profumo affair when the baby-boomers began to come of age, the generational shift had by then become apparent and it was something surprisingly sudden as the interest of the young switched from pop music to politics.  As recently as the 1959 election campaign, the patrician Harold Macmillan (1894–1986; UK prime-minister 1957-1963) had told the working classes “most of you have never had it so good” and for the last time they would express their gratitude to their betters, delivering the Tories an increased majority, an impressive achievement for "the last of the old Edwardians" who, upon assuming the premiership in 1957 in the wake of the Suez debacle, had told the Queen he doubted his administration would last six weeks.

In the matter of Lehrmann v Network Ten Pty Limited [2024] FCA 369

Mr Justice Lee.

Justice Michael Lee (b 1965) in April 2024 handed down one of the more anticipated judgments of recent years, finding Bruce Lehrmann (b 1995), on the civil law test of the balance of probabilities, had raped Brittany Higgins (b 1993) on the sofa in a ministerial suite in Parliament House while the victim was affected by strong drink.  Apart from the heightened public interest in the verdict, lawyers were watching closely to see if there would be encouragement for those defending themselves in defamation cases, something which had been lent unexpected strength by an earlier judgment; although the matter of rape was central to the facts, Lehrmann v Network Ten was a defamation case.  However, for those who appreciate judicial findings for their use of language, Justice Lee didn’t disappoint and although neither Ms Rice-Davies nor MRDA were mentioned in his text, as he assessed the conduct and evidence of Mr Lehrmann, they may have come to mind.

Janet Albrechtsen in her study.

In his opening remarks, the judge acknowledged the case had become a cause celebre for many and that it was best described as “an omnishambles”, the construct being the Latin omni(s) (all) + shambles, from the Middle English schamels (plural of schamel), from the Old English sċeamol & sċamul (bench, stool), from the Proto-West Germanic skamul & skamil (stool, bench), from the Vulgar Latin scamellum, from the Classical Latin scamillum (little bench, ridge), from scamnum (bench, ridge, breadth of a field).  In English, shambles enjoyed a number of meanings including “a scene of great disorder or ruin”, “a cluttered or disorganized mess”, “a scene of bloodshed, carnage or devastation” or (most evocatively), “a slaughterhouse”.  As one read the judgement one could see why the judge was drawn to the word although, in the quiet of his chambers, “clusterfuck” may have been in his thoughts as he pondered the best euphemism.  Helpfully, one of the Murdoch press’s legal commentators, The Australian’s Janet Albrechtsen (b 1966; by Barry Goldwater out of Ayn Rand) who had been one of the journalists most interested in the case, informed the word nerds omnishambles (1) dated from 2009 when it was coined for the BBC political satire The Thick Of It and (2) had endured well enough to be named the Oxford English Dictionary’s (OED) 2021 Word of the Year.  The judge's linguistic flourish was a hint of things to come in what was one of the more readable recent judgments.

Noting Mr Lehrmann’s original criminal trial on the rape charge had been aborted (after having already been delayed for reasons related to the defamation matter) because of jury misconduct with a subsequent retrial not pursued because of the prosecution’s concern about the fragile mental state of the complainant, the judge observed “Having escaped the lion’s den, Mr Lehrmann made the mistake of coming back for his hat.”  In other words, Mr Lehrmann who could have walked away with no findings against him, lured by the millions of dollars to be gained, rolled the legal dice and was found to have committed rape.  He is of course not the first to fall victim to suffer self-inflicted legal injury in not dissimilar circumstances; the writers (from different literary traditions) Oscar Wilde (1854–1900) and Jeffrey Archer (b 1940) both were convicted and imprisoned as a consequence of them having initiated libel actions.  Whether Mr Lehrmann will now face a retrial in the matter of rape is in the hands of the Australian Capital Territory’s (ACT) Director of Public Prosecutions (DPP).  In such a case, it would be necessary to prove the event happened under the usual test in criminal law: beyond reasonable doubt.  Even if that isn’t pursued by the DPP, his time in courtrooms may not be over because it’s possible he may face action because of his conduct in this trial with the handling of certain documents and another unrelated matter is pending in Queensland.

In considering the evidence offered by Mr Lehrmann, the judge appears to have found some great moments in the history of MRDAs:

Commenting on his claim to having returned (after midnight following Friday evening’s hours of convivial drinking) to his Parliament House office to write papers about the French submarines and related government matters, he observed Mr Lehrmann “…hitherto had demonstrated no outward signs of being a workaholic.”  “To remark that Mr Lehrmann was a poor witness is an exercise in understatement.”

Regarding the claim Mr Lehrmann had made to someone to whom he’d just been introduced that he was “…waiting on a clearance to come through so that he could go and work at Asis.” (the Australian Security Intelligence Service; the external intelligence service al la the UK SIS (MI6) or the US CIA (although without the assassinations… as far as is known)), the judge observed she “…kept her well-founded incredulity to herself.”, such “Walter Mitty-like imaginings” demonstrating he “…had no compunction about departing from the truth if he thought it expedient.”

Lindsay Lohan and her lawyer in court, Los Angeles, December, 2011.

The reading of the judgement was live-streamed and the passage which got the loudest chuckle was in the discussion of Mr Lehrmann’s deciding whether he found Ms Higgins attractive.  In an interview on commercial television broadcast in 2023, he’d denied finding the young lady attractive, despite the existence of comments dating from 2019 indicating the opposite.  Pausing only briefly, Justice Lee delivered this news with an arched eyebrow:  “When confronted by this inconsistency, his attempt to explain it away by suggesting the attraction he felt for Ms Higgins was ‘just like [the attraction] I can find [in] anybody else in this [court]room, irrespective of gender’ was as disconcerting as it was unconvincing.”  The judge ordered to audience to suppress their laughter.

Even regarding submarines as a likely topic over drinks, his honour was sceptical: “With the exception of Mr Lehrmann, no one who gave evidence as to their time at The Dock could recall discussing Australia’s submarine contracts with France at either table. The lack of recollection of any discussion of this topic is intuitively unsurprising.  Declaiming on the topics of who was building submarines and where they were being built was not quite the repartee one would usually expect to hear over a convivial drink on a Friday night between 20 [something]-year-olds out for a good time – even if (with respect) one would not expect the badinage of the Algonquin Round Table.” (an early twentieth century, shifting aggregation of men & women of letters who met over lunch in New York’s Algonquin Hotel, their barbs and thoughts often appearing in their newspaper & magazine columns; they dubbed themselves “The Vicious Circle” and were a sort of Cliveden set without the politics.  Cliveden was a stately home in Buckinghamshire, the country seat of Lord Astor and the scene of many of the events central to the Profumo affair).

The judge was forensic in his deconstruction of Mt Lehrmann’s MRDA he returned to Parliament House after being out drinking with Ms Higgins and others in order to retrieve his keys: “If the reason Mr Lehrmann needed to return to Parliament House was to collect his keys, he could have texted his girlfriend to have her meet him at the door or called her.  Mr Lehrmann asks me to accept the proposition that it was ‘a process to get in’ to his shared flat and that to avoid this complication, he preferred to: (a) go out of his way to go back to work in the early hours; (b) lie to Parliament House security; (c) sign the necessary register; (d) be issued with a pass; (e) go through a metal detector; (f) be escorted by a security guard to his office; (g) obtain his keys from his office; (h) book another Uber; (i) go back through a Parliamentary exit; (j) meet the ride-share car; and then (k) ride home.”

Bruce Lehrmann leaving the court after the verdict was delivered.

In psychiatry, distinction is made between the “habitual” and “compulsive” liar and while this wasn’t something Justice Lee explored, he did in one passage sum up his assessment of the likely relationship to truth in anything Mr Lehrmann might say: “I do not think Mr Lehrmann is a compulsive liar, and some of the untruths he told during his evidence may sometimes have been due to carelessness and confusion, but I am satisfied that in important respects he told deliberate lies. I would not accept anything he said except where it amounted to an admission, accorded with the inherent probabilities, or was corroborated by a contemporaneous document or a witness whose evidence I accept.”

One fun footnote from the case was a non-substantive matter, Ms Lisa Wilkinson (b 1959), the Network 10 journalist at the centre of the defamation claim, objecting to being characterized as a “tabloid journalist”.  It transpired her employment history included stints with Dolly, the Australian Women’s Weekly and commercial television including the Beauty & the Beast show.  Unfortunately, she wasn’t asked to define what she thought “tabloid journalism” meant; perhaps Justice Lee decided he’d heard enough MRDAs that day.

On the basis that, on the balance of probabilities, Mr Lehrmann did rape Ms Higgins, his claim for damages against Network Ten for defamatory material earlier broadcast was dismissed.  The judge found the material indeed had the capacity to defame but because the imputations substantially were true, their defense was sustained.  So, the only millions of dollars now to be discussed concern the legal costs: who is to pay whom, the judge asking the party’s submission be handed to the court by 22 April.  Mr Lehrmann’s legal team has not indicated if they’re contemplating an appeal.

Slight

Slight (pronounced slahyt)

(1) Something small in amount, degree, etc.

(2) A small increase in something.

(3) Of little importance, influence, trivial.

(4) Slender or slim; not heavily built.

(5) Frail; flimsy; delicate; of little substance or strength.

(6) To treat as of little importance.

(7) A description of a form of deception or trickery, literal and metaphorical.

(8) To treat someone with indifference; ignore, especially pointedly or contemptuously; snub.

(9) To defame with a casual or off-hand comment; a pointed and contemptuous discourtesy; an affront.

1350-1400: From the Middle English slight (bad, of poor quality, unimportant, trivial, slender, slim, smooth, level), from the Old English sliht (smooth, level), derived from the Proto-Germanic slihtaz (smooth, plain, common).  Cognate with the Danish slet (bad, evil, poor, nasty, wrong), the Dutch slecht (bad), the Icelandic sléttur (even, smooth, level), the German schlecht (bad) & schlicht (plain, artless, natural), the Norwegian slett (even), the Low German slecht (bad) and the Swedish slät (smooth).  The early fourteen century sense of “flat, smooth” is thought to come from a Scandinavian source akin to the Old Norse slettr (smooth, sleek), derived from the Proto-Germanic slikhtaz (smooth).  It also mean “plain or common” as in the Old Saxon slicht, the Low German slicht and the Old English sliht (level) is documented as as eorðslihtes (level with the ground).  Related too are the Old Frisian sliucht (smooth, slight), the Middle Dutch sleht (even, plain) the Old High German sleht, the Gothic slaihts (smooth), all thought most likely ultimately derived from a collateral form of the primitive sleig (to smooth, glide, be muddy) from the root slei (slimy).

In the (sometimes) organic way of English, from the original meaning(s) “plain, smooth, common, level”, there emerged in the 1520s “small amount or weight” and, in the 1590s, the adjectival sense of “having little worth”.  The meaning "act of intentional neglect or ignoring out of displeasure or contempt" is from 1701, almost certainly from the seventeenth century phrase “to make a slight of”, first attested in 1608.  Interestingly, in German, schlecht likewise developed from "smooth, plain, simple" to "bad, mean, base," and as it did it was replaced in the original senses by schlicht, a back-formation from schlichten (to smooth, to plane), a derivative of schlecht in the old sense.  In English, the original meaning went extinct.  Slight, slightness & slighting are nouns, verbs & adjectives, slighten is a verb, slighted is an adjective & verb, slightful, slighty, slighter, slightest & slightish are adjectives and slightingly & slightly are adverbs; the noun plural is slights.

A slight Lindsay Lohan during her "thin phase", early in the third millennium.  Note the fine ribcage definition.

Slights: Boris on crooked Hillary Clinton and others

Few have managed so often to slight so many as former UK prime minister Boris Johnson (b 1964; UK prime-minister 2019-2022) and unusually, those best remembered tend to be where the victim was friend rather than foe.  It should be noted that when referring to Mr Johnson having friends, the word is used in a specific technical sense, vaguely similar to the form pioneered by Facebook.

Long before there was Crooked Hillary, there was Hillary Clinton (b 1947; US secretary of state 2009-2013) and she had been promised the Democratic Party nomination for the 2008 presidential election.  It had all been fixed up at head office "and the middle-class was quite prepared" but her 1990s style campaign fell apart.  Johnson had tried to help.  In November 2007, writing in his Daily Telegraph column, he endorsed Clinton as candidate, helpfully adding… “She's got dyed blonde hair and pouty lips, and a steely blue stare, like a sadistic nurse in a mental hospital."  “Clinton…” he continued, had done the job of First Lady like "…Lady Macbeth, stamping her heel, bawling out subordinates and frisbeeing ashtrays at her erring husband."  Actually, it was the husband (Bill Clinton (b 1946; US president 1993-2001)) he wanted back in the White House.  "For all who love America, it is time to think of supporting Hillary, not because we necessarily want her for herself but because we want Bill in the role of First Husband." he concluded.

Years later, in mid-2016, confident Donald Trump (b 1946; US president 2017-2021) would never become president, Johnson said Trump was "clearly out of his mind" and his "ill-informed comments are complete and utter nonsense...", accusing him of "stupefying ignorance".  He finished by saying "…the only reason I wouldn't go to some parts of New York is the real risk of meeting Donald Trump".

Another head-of-state slighted was Recep Tayyip Erdoğan (b 1954; prime-minister or president of the Republic of Türkiye since 2003).  Upset about the lawsuit brought by Mr Erdogan against a German comedian who recited a poem the president found insulting, the conservative weekly The Spectator ran a competition to find who could write the most offensive poem about the president.  Johnson won, his entry an ode to Mr Erdogan enjoying intimacy with a goat.  The president met Mr Johnson in 2016 during his brief stint as foreign secretary; the two seemed to get on well.

Slights can be avoided with a little luck.

World War II (1939-1945) veteran George HW Bush (1924–2018; US President (George XLI 1989-1993)) would have remembered Winston Churchill's (1875-1965; UK prime-minister 1940-1945 & 1951-1955) wartime "V for victory" sign and that’s the meaning the gesture gained in the US.  Unfortunately he wasn’t aware of the significance of "the forks" in the antipodes: when given with the palm facing inwards, it’s the equivalent to the upraised middle finger in the US.  On a state visit to Australia in 1992, while his motorcade was percolating through Canberra, he made the sign to some locals lining the road.  What might have been thought a slight worked out well, the crowd lining the road cheering the gesture which must have been encouraging.  That same day, the president gave a speech advocating stronger efforts “to foster greater understanding” between the American and Australian cultures. The Lakeland Ledger, reporting his latest gaffe, wrote, “...wearing mittens when abroad would be a beginning”.

Context

Context (pronounced kon-tekst)

(1) In structural linguistics, the factors which may define or help disclose the meaning or effect of a written or spoken statement including (1) the words preceding or following a specific word or passage, (2) the position of the author, (3) the identity of the author, (4) the intended audience, (5) the time and place in which the words were delivered and (6) such other circumstances as may be relevant.

(2) The surroundings, circumstances, environment, background or settings that might determine, specify or clarify the meaning of an event or other occurrence.

(3) In mycology, the fleshy fibrous body (trama) of the pileus in mushrooms.

(4) In Novell’s Netware network operating system, an element of Directory Services (the hierarchical structure used to organize and manage network resources), one’s context being a specific level within the directory tree.

(5) To knit or closely bind; to interweave (obsolete).

(6) In archaeology and anthropology, the surroundings and environment in which an artifact is found and which may provide important clues about the artifact's function, age, purpose, cultural meaning etc.

(7) In formal logic (for a formula), a finite set of variables, which set contains all the free variables in the given formula.

1375–1425: From the late Middle English context (a composition, a chronicle, the entire text of a writing), from (and originally the past participle of) the Latin contextus (a joining together, scheme, structure), the construct being contex(ere) (to join by weaving; to interweave) + -tus (the suffix of a verb of action).  The construct of contexere was con- + texere (to plait or braid, to weave), from the primitive Indo-European root teks (to weave; to build; to fabricate).  The prefix con- was from the Middle English con-, from the Latin con-, from the preposition cum (with), from the Old Latin com, from the Proto-Italic kom, from the primitive Indo- European ḱóm (next to, at, with, along).  It was cognate with the Proto-Germanic ga- (co-), the Proto-Slavic sъ(n) (with) and the Proto-Germanic hansō.  It was used with certain words to add a notion similar to those conveyed by with, together, or joint or with certain words to intensify their meaning.  The verb contex (to weave together) was known as early as the 1540s and was also from the Latin contexere; it was obsolete by the early eighteenth century.

The meaning "the parts of a writing or discourse which precede or follow, and are directly connected with, some other part referred to or quoted" developed in the mid-late sixteenth century.  The adjective contextual (pertaining to, dealing with the context) dates from 1822, on the model of textual and the phrase “contextual definition” appeared first in works of philosophy in 1873.  Contextualization from 1930 & contextualize from 1934 were both products of academic writing.  Many of the derivations (acontextual, contextual criticism, contextual inquiry, contextualist, contextuality, contextualize, metacontextual, non-contextual, sub-contextual) are associated with academic disciplines such as linguistics and anthropology but, predictably, the verb decontextualize (study or treat something in isolation from its context) emerged in 1971 and came from postmodernism where it found a home, along with the inevitable decontextualized, decontextualizing & decontextualization.  Context is a noun, verb & adjective, contextual & contextualistic are adjectives, contextualism, contextuality & contextualization are nouns, contexture is a noun & verb, contextualist is a noun & adjective, contextualize, contextualizing & contexualized are verbs and contextualistically & contextually are adverbs; the noun plural is contexts.

Contextual truth

In the law of defamation law, “contextual truth” describes one of the defences available to a defendant (ie the party accused of defaming the applicant).  It’s an unusual aspect of defamation law (and there are others) in that while it acknowledges certain statements may literally be false yet may still convey a broader truth or accurate meaning when considered in the context in which they were made or considered in the context of other statements (dealing usually with matters more serious) which were part of the case.  Although there have been reforms in many jurisdictions, as a general principle, defamation happens if statements found to be false have harmed the reputation of an individual or entity (although in some places, including some with respectable legal systems, it’s possible to defame with the truth).  Typically though, successfully to establish a claim of defamation, a plaintiff needs to prove (1) a statement was false, (2) that it was published or communicated to a third party and (3) that the plaintiff suffered harm as a consequence.  The defense of contextual truth essentially “runs on top” of the traditional rules in that while the some (or even all in legal theory) of the specific details of a statement may be factually incorrect, but when considered in context, they can be found to convey an underlying truth.

For example, if someone publishes an article stating that a public figure was involved in a scandalous incident, and it later emerges that some of the specific details in the article were incorrect, the defendant might argue contextual truth. They may claim that while the specific details were inaccurate, the overall implication of wrongdoing or impropriety by the public figure was true or substantially true.  Successfully to invoke the defense requires a defendant must demonstrate the impression conveyed by the statement was substantially accurate, even if specific details were incorrect and the form this takes is often that the statement alleged to be defamatory statement was not intended as a recounting of specific facts but rather a representation of a larger truth.  Despite the terminology, the defences of justification and partial justification really don’t sit on a continuum with contextual truth which demands at least one or more imputations complained of to be substantially true, and in light of the substantial truth of those imputations, the remainder of the imputations complained of do no further harm to the plaintiff’s reputation.  Like justification, contextual truth can be a complete defence to a claim and is often invoked as a defense where other statements being considered allege conduct much more likely to damage a reputation.

Pronunciation can of course be political so therefore can be contextual.  Depending on what one’s trying to achieve, how one chooses to pronounce words can vary according to time, place, platform or audience.  Some still not wholly explained variations in Lindsay Lohan’s accent were noted circa 2016 and the newest addition to the planet’s tongues (Lohanese or Lilohan) was thought by most to lie somewhere between Moscow and the Mediterranean, possibly via Prague.  It had a notable inflection range and the speed of delivery varied with the moment.  Psychologist Wojciech Kulesza of SWPS University of Social Sciences and Humanities in Poland identified context as the crucial element.  Dr Kulesza studies the social motives behind various forms of verbal mimicry (including accent, rhythm & tone) and he called the phenomenon the “echo effect”, the tendency, habit or technique of emulating the vocal patters of one’s conversational partners.  He analysed clips of Lilohan and noted a correlation between the nuances of the accent adopted and those of the person with who Ms Lohan was speaking.  Psychologists explain the various instances of imitative behaviour (conscious or not) as one of the building blocks of “social capital”, a means of bonding with others, something which seems to be inherent in human nature.  It’s known also as the “chameleon effect”, the instinctive tendency to mirror behaviors perceived in others and it’s observed also in politicians although their motives are entirely those of cynical self-interest, crooked Hillary Clinton’s adoption of a “southern drawl” when speaking in a church south of the Mason-Dixon Line a notorious example.

Memo: Team Douglas Productions, 29 July 2004.

Also of interest is the pronunciation of “Lohan” although this seems to be decided by something more random than context although it’s not clear what.  Early in 2022, marking her first post to TikTok, she pronounced her name lo-en (ie rhyming with “Bowen”) but to a generation brought up on lo-han it must have been a syllable too far because it didn’t catch on and by early 2023, she was back to lo-han with the hard “h”.  It’s an Irish name and according to the most popular genealogy sites, in Ireland, universally it’s lo-han so hopefully that’s the last word.  However, the brief flirtation with phonetic H-lessness did have a precedent:  When Herbie: Fully Loaded (2005) was being filmed in 2004, the production company circulated a memo to the crew informing all that Lohan was pronounced “Lo-en like Co-en” with a silent “h”.