I guess she won’t write the memoirs

Fans of Depp v Heard will be disappointed to learn that this is likely where the drama ends.

While a celebrity’s “rough pass” can sometimes provide juicy memoirs, Heard’s outcome in this high-profile case indicates that the chilling effect of the threat of defamation is still a very real barrier to free speech. .

Fear of defamation has a chilling effect on non-fiction writing. Photo: Getty Images

For commercial book publishing, this can be a real drag in a booming non-fiction market. Particularly in Australia, where defamation law is notoriously complicated, the road ahead seems insurmountable. Where is it?

Australia’s love for non-fiction

Australian readers love non-fiction as much as fiction. We like to know the juicy details about people, public and private, and the truth about “what really happened”. However, telling what really happened can get you sued, as evidenced by a historical overview of the Australian titles involved: Bob Ellis’s Goodbye, Jerusalem and Goodbye, Babylon, which were eventually pulped; Anne Coombs and Susan Varga Broometime, which has been reprinted; and Judith Moran My storywhich was withdrawn by publisher Random House.

Book by journalist and author Kate McClymont The one who must be obeyed was pulped in 2014 and republished with edits, prompting her to comment that “Every time I do a story, in the back of my mind there’s a lawsuit”.

The Australian Edition of Ronan Farrow catch and kill, who documented how Farrow exposed the abuse of disgraced Hollywood producer Harvey Weinstein, also faced challenges. The New York Times reported that “lawyers for Dylan Howard, an executive of American Media, Inc., have sent letters to Australian booksellers…warning them of the ‘false and defamatory allegations’.

Implicit censorship

The result for publishers wishing to avoid litigation is a trend towards “implicit censorship” – a process of pulling titles from lists before they get too deep into the editorial process, or circumventing potentially defamatory content. by “eliminating” the problematic passages. .

This type of editing has been described as difficult to identify because it is work that takes place behind the scenes by means of “textual cuts” and other subtle editorial manipulations.

Investigative journalist Ronan Farrow’s (pictured) book ‘Catch and Kill’ has been the subject of legal threats. Photo: Getty Images

While this activity may look like censorship, it is technically not the same as censoring “blasphemous” or “seditious” works for which there are codes of conduct to alert readers. Rather, “implied censorship” is a kind of duty of care whereby a publisher helps balance risk and expression.

This is particularly important in Australia, where defamation law has traditionally been clearly oriented towards the protection of reputation. Her practice, however, raises questions about whether the Australian publishing industry promotes a culture of caution that could have a significant impact on our reading satisfaction.

Navigating Australian Defamation Law

Matthew Collins AM QC has described Australia’s defamation laws as a ‘Frankenstein monster’, given its patchwork development over the years – designed to both protect reputation and facilitate free speech . But there are a few distinct obstacles that set the Australian situation apart from other jurisdictions such as the United States.

Until recently, there was a lack of consideration for editorial contribution and evaluation. Australian defamation law has also protected the plaintiff’s reputation even where their activities may have an element of public interest.

Even public interest defences, which propose to mitigate the chilling effect, often fail. Qualified immunity, for example, provides guidelines on the reasonableness of journalistic commentary and a standard of good journalistic practice, which could help determine whether, in the absence of a defense of truth, a publication could still be protected against litigation. However, it is not always possible to verify the facts and obtain a response from the person who is the subject of the report.

Australia’s defamation laws have been called a “Frankenstein’s monster”. Photo: Flickr

Additionally, defense is often reserved for journalistic writing, which can be quite different from non-fiction publishing with its longer publication times.

Defamation reforms: untested but promising?

These barriers have prompted the NSW government to explore solutions over the past few years. On July 1, 2021, defamation law reforms were announced to help steer the law toward greater flexibility, particularly in the digital age.

Most interesting of the developments for commercial publishing is the new public interest defence, which is modeled on Section 4 of the UK Libel Act and allows for editorial assessment to determine whether the statement(s) made are in the public interest.

While this sounds promising, it can only really be successfully applied to mass media journalism and political commentary, and there is still a noticeable gray area around celebrities and other persons of interest.

Persons of Interest

Readers’ fascination with individuals in the public sphere also broadens the range of authors with varying degrees of writing experience – some may be professional journalists or highly regarded fiction writers who have included non-fiction elements in their work. fictional and/or investigative-type writing. The writer’s expertise can also be considered when considering editorial evaluation.

Although the law has progressed gradually, we still have not determined what a public interest person looks like from a legal point of view. Even in Heard’s op-ed for The Washington Post, for example, the supposed impeachments were enough for Depp to claim the article had referenced him — a public person, even though he’s never mentioned.

Amber Heard’s opinion piece on domestic violence never mentioned Johnny Depp. Photo: Getty Images

Notwithstanding the many other legal factors to consider in the Depp v Heard situation, the release of content was the most contentious point of contention. So where to go from here?

Freedom or Freeze?

Previous research on the extent of self-censorship in Australian journalism, comparing the Australian situation to that in the United States, found that journalists tend to water down the content, pass on “elements” of it, but not the “entrails”.

While the new public interest defense appears to help combat implicit censorship, it remains to be seen whether it will have a significant impact on how non-fiction publishing is treated editorially in cases where the content is likely to affect a person’s reputation.

With ‘public interest’ still a vague term, I suspect it will and its implementation has ongoing consequences for freedom of expression and Australian non-fiction publishing generally.

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Scott R. Banks