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Naylor, Bronwyn --- "Slapping on the Writs by Brian Walters" [2004] AltLawJl 29; (2004) 29(2) Alternative Law Journal 106

REVIEWS


SLAPPING ON THE WRITS
Defamation, Developers and Community Activism

Brian Walters; UNSW Press 2003; 95 pp; $16.95 softcover.

This is a passionate book. sure to arouse the reader's passions. It is about free speech, and the power of litigation to stifle free speech. Brian Walters, a Melbourne barrister and vice-pres1dent of Liberty Victoria, has written a short and snappy, highly readable account of cases of bravery and injustice in various fields of community activism, where legal action, or the threat of legal action, has ended protests raising public concerns. He gives background to news stories which many will have seen -and whose outcomes they will have wondered about- such as Erskine House in Lome, Crown Casino and gambling regulation in Victoria, Hindmarsh Island in SA, and Hinchinbrook Island in Queensland.

The author identifies the use of what is known in the US as the SLAPP writ -'strategic litigation against public participation'. Community groups sued, for example for defamation, will often be forced to settle the action, not because there has been any actionable defamation (which will not in fact be tested), but because it would be financially impossible to defend: '[l]t is not enough to be innocent, or to be right' (10). Further, future public silence by the activists will often be a term of the settlement.

Slapping on the Writs ends with short sections on defamation law and possible law reforms. As the author emphasises, words matter: it is the very power of words that underpins the importance of freedom of speech in a democracy. Brian Walters proposes legislation to protect citizens' participation in the public interest, in line with some US jurisdictions. The legislation would provide immunity from 9efamation actions for conduct or words aimed at 'influencing public opinion' or promoting 'lawful action' by government or others in relation to an issue of public interest, and would also allow a person facing civil action to apply to have the proceedings dismissed if their purpose was to prevent public participation.

At least as much journalism as legal scholarship, Slapping on the Writs is an up-to-the-moment, engaged, and inspiring call for public awareness and legal change - a great title, and a great read too.

BRONWYN NAYLOR teaches law at Monash University.


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