Some years ago I chanced to render to a prominent and respectable Australian newspaper several reviews of books within a short space of time. In due course they meandered into print, with one exception. When I next met the book review editor I remembered to ask if something was wrong with the missing review. He replied, ‘Oh well, you didn’t think much of it. . .’, meaning the book.
This was true. I had in fact quite enjoyed bringing it, not into hatred or contempt, as the old common law test of defamation has it, but certainly into ridicule, which is another way of satisfying the test. If I recollect correctly, the miserable product that I had reviewed purported to be an insight of some profundity into the past century or so of whodunnits. At the time I took the editor’s remark to mean that his paper was not keen on publishing reviews which did not praise the book in question. Beyond reflecting that this was a flabby policy for a major newspaper I thought no more about the matter.
Recent events have brought this trivial incident back to mind. With the benefit of hindsight it is possible that I did the book review editor an injustice. He may have been suffering only from early warning, or intuition, of the state of affairs which has now come to pass. There has been a marked revival of enthusiasm for the law of libel as a means of preventing the publication of any review which takes the author of a book seriously to task.
There appears to be no embargo on extravagant praise, or even mere praise. At a pinch an unusually strong-minded reviewer may be able to insist on being simply uninformative. The one thing that no-one is any longer allowed to be when reviewing a book is sharply and adversely critical. To draw an inference in print that the author is a blockhead is just as sure a way of failing to get one’s review published as suggesting that he, she or it either knows nothing about the subject or has not done the job properly. The reason why the review will not see daylight is of course that a false step is likely to land both reviewer and publisher on the receiving end of a large award of damages to the author of the book reviewed, not to mention huge costs.
Readers of this note may be interested to learn that in the first draft I phrased the previous sentence somewhat differently. In, let us say, a more memorable way. It then struck me that if I did any such thing, and Meanjin were so misguided as to print it, I and Meanjin would probably suffer precisely the unfortunate fate that I have just referred to. Intensive research might have revealed the newspaper, the editor, the book and the author to whom I referred above, and everyone except perhaps the book could have sued away to their heart’s content for being called flabby or incompetent, as the case might be. So I changed my sentence and hasten to add that when I say flabby I mean flexible and when I say incompetent I mean surpassingly gifted.
Such is the pernicious influence of the law of libel. People have become uneasy of late at the extent to which parliamentarians have taken to saying all sorts of things in parliament, under the protection of privilege, which they are not game to repeat outside parliament. I have little doubt that this is an indirect effect of the same law of defamation which oppresses reviewers of books. Contrary to popular belief however, this phenomenon is a good deal less serious in terms of the transmission of ideas and the full and vigorous discussion of issues than the case of the humble book reviewer.
Competent reviews play an important part in the dissemination of information and the moulding of informed public opinion. Far too many books are published, on every conceivable topic, for anyone to know whether most of them are worth reading or not. Those many of us who, notwithstanding the advances made by television, still rely heavily on the written word to comprehend the world about us are very dependent upon honest book reviews. We do not need to have our minds made up for us but it is at least helpful to have a reviewer’s opinion, especially if the book in question is expensive, or on an emotive or technical topic, and the reviewer appears to be competent to do the job and declares any biasses he or she may have.
It is inevitable in the incessant torrent of publication that many books will appear which range from the mediocre to the bad. It is inevitable also that many books will provoke sharp differences of opinion between author and reviewer, even if each is perfectly competent in his or her role. To a now disquietingly obvious extent these facts of the good life are not allowed to be reflected in print. It has to be conceded that some reviewers have brought unnecessary trouble upon themselves in moments of excitement by appearing to reflect unworthily upon the motives of an author. Personally I do not think that it matters much if a reviewer does reflect unworthily on an author’s motives. At worst it can only be abuse and much more likely to reflect on the quality of the reviewer than the author.
Unfortunately however, ill-considered speculation about motives tends to undermine the status of a related opinion of substance, even if in itself reasonably expressed. In the hands of a skilled advocate the whole concoction can be made to sound very bad indeed. Theoretically a competent opinion, even if expressed with considerable strength, is not libel. Neither is mere abuse. There is no question however that overemphasis does not help the cause of freedom of speech. It complicates the task, which is not easy at the best of times, of drawing a reasonable line in law between what ought to be sayable in public and what ought not.
The difficulty feeds upon itself It is now not even a case of people believing the law to be other than it is. The situation is worse than that. Neither publishers nor reviewers nowadays are willing to come within even a remote cooee of the limits of the law. There is no need for censorship. They readily censor themselves. One cannot possibly blame them because the consequences are so serious. It means nevertheless that we now have a major problem of freedom of speech on our hands.
Freedom of speech incidentally is one of those basic rights in any civilised society which, as we always hear from the pundits whenever anyone suggests that we ought to have a bill of rights, is protected by the common law. The fact of the matter is that the common law does not protect freedom of speech, and never has, and that any bill of rights worth the name certainly would protect it.
The law of defamation in Australia must be one of the most perniciously restrictive to be found in any genuinely free country. Our national delicacy of feeling is phenomenal. Law reformers regularly suggest that we might be better off were it easier than it is to engage in vigorous public debate without courting bankruptcy. Politicians regularly agree with them but then go into convulsions about the protection of privacy as a reason for not doing anything. This is because the present situation suits them very well. The quickest way of shutting anyone up nowadays is to issue a writ. The advantages of being able so speedily and easily to stifle inquiry and suppress criticism are not confined to politicians. Incompetent authors have a vested interest too.