on defamation, harassment, ethics and the internet

The Concise Oxford defines defaming as attacking a person’s good reputation, or speaking ill of a person. I’m sure we’re all grateful that the law has a rather more narrow definition. Australian law distinguishes between criminal and civil defamation, but I’m only concerned here with the civil kind.
A civil defamation finding will incur monetary penalties only. Such a finding will of course depend on the definition of ‘defamatory matter’ (I’m here talking of ‘published’ or written material, in blogs, emails etc), and this varies from jurisdiction to jurisdiction. It should be noted though – and this is relevant to my case – that emails sent to someone, and to that person alone, cannot be found to be defamatory, since they don’t involve a third person, or a fourth, fifth or seventeenth, before whom that person’s reputation can be besmirched (lovely word that).
But enough of defamation and the law, there are other more purely ethical issues here, issues around what a person chooses to post on a blog, and how it affects others. The issue of airing the dirty linen of others in public. Hurt feelings and so on.
It has been brought to my attention that I’ve already published material on my blog that has caused offence to a person close to me. I apologise for this and am in the process of deleting this material from my blog, though ultimately it is up to me, as the author, to decide what to leave in and what to leave out. So if anybody else finds anything offensive in my blog, please leave a comment, and I will have a look at the material and decide accordingly.
May I just say in my defence that, as a person still in my first months of blogging, and as a person who has kept a regular journal for more than twenty-five years, I’m still adjusting to the new situation.
As a journal writer, I gradually became accustomed to the idea that nobody knew or particularly cared about my writing. In any case, nobody ever read it. This gave me a greater sense of freedom, though I always had some imagined, idealised readership in mind. With the transfer to blogging, I didn’t change my practice much, I didn’t really think through the implications of my writing actually being available, to friends, loved ones, as well as people with a bit of time on their hands in Iceland. This was reinforced by the fact that, in the first, well, many months of blogging, I had no evidence that anybody was reading it, since I haven’t really advertised it, and I haven’t worked out a way of getting it ‘out there’. A couple of months ago there was a flurry of comments on some posts I did re evolution and religion, and I think these people found my blog because I’d listed it on the ‘Adelaide Blog Directory’, now unfortunately defunct.
With that excitement came a gradual realisation that I must watch what I’m writing, and only in the past few months have I stopped simply transferring all journal entries to my blog. I shall be more careful in future and shall cull my archives of anything I deem to be offensive or an invasion of someone’s privacy. Having said that, I cannot of course be held responsible if someone claims to be traumatised by the mere mention of their name in my blog. Mere mentions won’t be deleted.
Since the beginning of this entry I’ve been informed that the person making complaints against me made no mention of defamation, so I may have been barking up the wrong tree. Apparently some mention was made of my blog, and I hope I’ve covered this issue already. Just to keep all bases covered though, I need to explore the area of harassment, sexual or otherwise, and the internet.
I think it’s fair to say that if one person accuses another of harassment, via email, text messages, phone calls, personal visits to home or work-place, or a combination of the above, some evidence must be cited. This is a tricky area to write about, for I don’t wish to go into personal details but I do wish to defend myself stoutly against any foreseeable claims.
Much of the material I’ve found on sexual harassment refers to workplaces or university campuses, which have developed their own policies, presumably in line with broader laws. I believe these laws are state-based.
Lawlink NSW presents a handy definition of how that state defines sexual harassment. It states that, in general, sexual harassment is ‘any form of sexually related behaviour that :
- you do not want
- offends, humiliates or intimidates you
- in the circumstances, a reasonable person should have expected would offend, humiliate, or intimidate you’
Let’s assume that the definition under SA law is the same. I’m also assuming that, for behaviour to be deemed sexual harassment, all of the criteria above have to be satisfied, not just one of them.
Now, I’m not sure if the person is accusing me of sexual harassment, but I do know that a recent email sent to this person, whom I’ve known for many years, has brought about a reaction, which, quite frankly, has surprised and shocked me. I think it is also fair to say that the extremity and severity of the reaction has affected my own health and well-being.
Problems with any foreseeable accusation.
First, I don’t think it’s necessarily clear that the sending of this email constitutes ‘sexually related behaviour’. Whether there is any real sexual content in the email would be a matter of perception, and I think opinion might be equally divided. Certainly there is no overt sexual content. There may be an attempt to argue that there was a sexual ‘mission’ behind the sending of the email, but given the wording of the email, and the current nature of the relations between the two parties, I don’t think that argument would get very far.
So it may be that just simple harassment should be charged. However, let’s assume for the moment that the sending of the email is established as a piece of ‘sexually related behaviour’. Then the three criteria would have to be met.
The first criterion, that the email was not wanted, is easily met. If the recipient says they don’t want the email, then that is that.
The second criterion is also pretty easy. The recipient must find that the email was offensive, humiliating or intimidatory. Again, if the recipient says that they were either offended, humiliated or intimidated by said email, it’s very hard to argue with a person’s feelings.
The third criterion, though, is the crucial one. Should I have expected, as a reasonable person, that this email would have offended or humiliated? (We may strike intimidation, I don’t think even the recipient would want to claim that it was intimidatory). Of course I expected to get a reaction, the email was sharpish in places, and was intended to be a robust rejoinder to a person whose remarks I occasionally find offensive. I also tried to lighten it at the end with a humorous touch, which appears to have been taken completely the wrong way. In any case, I’ve strongly defended elsewhere my sending of the email, and emphasised my complete astonishment at the reaction to it.
To conclude, I’m confident that any accusation of harassment, sexual or otherwise, based on this email would comprehensively fail on the third criterion.