NSW Who Bombed the Hilton - Defamation Through Publication?

[Abhidevananda]

The short answer is: I don't know, but certainly I did not do it. Nevertheless, in the last week, a book was published by Dr. Rachel Landers (NewSouth Books, UNSW, and perhaps the State of NSW) with that very title, clearly seeking to assign blame to me (formerly known by the novitiate name, Abhiik Kumar). See here and here.

Just to be clear, Rachel never made any attempt to contact me either before or after publication of her book, even though - by her own admission - she knew how to do so. And, yes, even in the recorded interview (see the second link above), there is a lot of false and misleading information. In my opinion (FWIW), her words go well beyond a mere "honest opinion". Considering where she works, who pays her salary, and the people with whom she was/is apparently in contact, there would seem to be great bias, enough to suggest an agenda that is inconsistent with the facade of scholarly and impartial, investigative journalism that is asserted.

I am an Australian citizen, currently residing mostly in Israel. Travel to Australia is time-consuming and expensive. However, I am prepared to do that if required and will certainly go there if effective legal remedies are available (at an affordable price). In the short-term, I would like to seek an immediate injunction that would remove the Landers book from the market. Over the longer term, I would like to seek damages for the defamation that is contained in her book and in her various promotional interviews.

What are my legal options?

 

[Sophea]

Hi Abhidevananda,

It can be defamatory for someone to accuse you of committing a crime. In order to establish an action for defamation you need to show that: there has been a publication, it identifies you and the content is defamatory. Based on the limited details you have supplied above it would appear you may have grounds to show this.

However, as you have pointed out it is the defences available to the author which may present a challenge. It is a defence to defamation if the published defamatory comments are true or if they are considered fair comment. The latter extends to any sentiments expressed regarding a topic of public interest, and don't need to be reasonable or true. This allows people to express their freedom of opinion on any public matters without the threat of a defamation case.

A reasonable preliminary step you could take is to issue to the author and publisher of the book, a concerns notice or cease and desist letter that outlines details of the defamatory statements, the imputations that can be drawn from the publication, and the redress that you are seeking (being to stop circulation of the book and or monetary compensation). This would be the first step in initiating a defamation action in Australia.

Check out these articles:
Defamation - What Is a Concerns Notice? - Legal Blog - LawAnswers.com.au
Have You Been Defamed? What You Need to Know About Defamation Law in Australia - Legal Blog - LawAnswers.com.au
Defences to Defamation in Australia - Legal Blog - LawAnswers.com.au

 

[Abhidevananda]

Hi Sophea,

Thank you for your informative reply. I have gone through the articles you referenced, and I will begin work on a concerns notice (which I assume is the same as a cease and desist letter). However, in that respect, I have some practical questions. I don't know whether I am entitled to ask more than one free question here, but let me list the additional matters that I would like to know while crafting my concerns notice:

1. In two of the articles that you link, the word, honest, comes up repeatedly in reference to defenses: "honest report", "honest opinion", "honest conversation". I know the normal meaning of that word, but is there a special legal meaning as well? In this case (my case), nothing seems honest to me, because any reasonable person would understand that reading documents from a single source, a single party, without making any attempt whatsoever to get and consider a contrary point of view is not at all honest in an intellectual sense.

A similar question arises with respect to the word,fair, in "fair comment". (A simple example here would be Rachel's words toward the end of the recorded interview: She was talking about someone who was considered highly unreliable by both the police and the courts. Rachel discounts that person's remarks about everyone except me. In other words, he was only "crazy" when talking about everyone and everything else. The police who hired him say: "This is the guy we want." That person replies: "Yeah, that's the guy who did it." And Rachel comes along 40 years later, looks at the police report in the national archives, and says: "This is 'strong' evidence, because the witness only went 'a little bit crazy' a little bit later.")

2. When writing my concerns notice, one of the elements to be included is the redress that I am seeking. Naturally, this would include an amount of non-economic damages. However, the second article referenced by you states: "The amount of non-economic loss recoverable is capped by legislation." On further research, it seems that the maximum amount that the courts can award is something like $A250,000. If that is correct, then defamation could prove a lucrative business for some persons (respondents).

The possible damages awarded in a defamation suit might be negligible in comparison to the profits to be made (economic or non-economic). In other words, there might not be any significant deterrent here. And even for a successful plaintiff, after legal expenses, there might not be any economic gain. Worse still, it might take so much time to win the case that the case only provides free advertising that would promote sales of the book that is defamatory (that is, economic and non-economic profit by the respondents).

So my questions here are: (a) What is the maximum amount of non-economic damages that I could seek in a case like this? (b) How likely is it that a court would grant an injunction against the sale and distribution of this book while the defamation case is still pending? (c) How long would it take to secure such an injunction?

 

[Tim W]

You have actually read the book, yes?
Merely to be mentioned in a book, in effect as a more or less historical figure,
is not always and automatically to be defamed.

While I agree with @Sophea, I feel the need to point out to you
that there are two defences relevant to your purported claim - sections 25 and 26 of the Defamation Act 2005 (NSW),
Along with section 31, I suggest that both are readily available to the publisher and author jointly and severally.
Further, it is frequently the case that a publisher (if not an author) seeks legal advice prior to publication.

Beyond what you have above, it is not our custom to provide fully considered, case specific advice in here.

Further, even if you are resident in Israel on a long term basis, there is no impediment to you
engaging a lawyer in Australia to advise and assist you.

 

[Abhidevananda]

Hi Tim,

Thank you for your reply, although - sadly - I did not find it very helpful or constructive.

No, I have not read the book. I have no need to read the book at this stage. Had you taken the time to look at the two links I gave at the beginning of my original posting, you would have seen that the answer Rachel gives to the title question of her book is myself. I think that goes well beyond a mere mention as a historical figure.

Regarding Sections 25 and 26, from the few write-ups of the book that I have seen and the interview with Rachel that I listened to, I don't think that those defences will be difficult to overcome. However, from the little research that I have had time to do between my other tasks, it is becoming increasingly apparent that the defamation laws of Australia are only congenial to greedy bottom-feeders and wealthy victims who can demonstrate substantial financial loss.

In a case like mine, the author and the publisher might well have dismissed any concern about a defamation lawsuit simply because the cost of losing would be minimal compared to the profits they expected to amass from the defamation. So, if indeed the author or the publisher consulted a lawyer before publishing, their main concern might well have been only how much they would have to pay out if a defamation suit be brought.

Once they knew that paltry sum, they probably had all of the information that mattered to them. After all, if they had had any concern for human rights, human dignity, human decency, privacy, justice, or even mere accuracy or factuality, then surely they would have at least contacted me soon after publishing if not - and much more sensibly - before publishing.

By the way, there could be other respondents in any defamation case that I might bring. For example, I don't think it is a big stretch to include UNSW and perhaps even the State of NSW. However, with respect to those parties, I doubt that financial profit played a significant part in their backing of Rachel's book. In their case, some things less tangible but easily understood might have been the motivating factors.

 

[Rod]

What are my legal options?

even if you are resident in Israel on a long term basis, there is no impediment to you
engaging a lawyer in Australia to advise and assist you.

^^ This is the help you asked for.

 

[Abhidevananda]

I would be curious to know under what circumstances an Australian - or even a non-Australian - would not be entitled to engage a lawyer in Australia.

 

[Tim W]

I did not find it very helpful or constructive.

Do not distress yourself.
My help here is worth exactly what you paid for it.

At least read the book....