Litigation now the new censorship in reporting the news in the 21st century - National Indigenous Times

By National Indigenous Times columnist, Dr Woolombi Waters -  I wish the first article of the year brought happier news but as I am sure most readers will have heard we are now publishing issue by issue without knowing who will own the National Indigenous Times for another few weeks. The lesson learnt is that modern news is no longer about truth but instead its about retaining social capital to the elite in ensuring the rhetoric of neoliberalism right wing conservative politics is retained at all cost.

  Censorship of the national Aboriginal voice began last year with the unfortunate passing of Gavin Jones after funding for Deadly Vibe had been cancelled by Tony Abbott’s “government for the Aborigines”.

  This was despite Gavin’s media company having held great influence in raising the importance of self-worth and education for a generation of Aboriginal and Torres Strait Islander children.

  After 20 years of focusing upon the achievements of Indigenous Australians across society, Gavin’s inspired leadership and good work was stripped of its resources with the strike of a pen upon his passing. It also highlighted that suicide and self-harm is a problem confronted in our communities at all levels.

  Then there was also the cancellation of Tracker magazine, which not only advocated for Indigenous rights it created a platform for telling our stories and also continued the career of Darumbal and South Sea Islander journalist Amy McQuire after she was first given her start in journalism by the National Indigenous Times.

  Then at the end of last year the National Indigenous Times was left with no alternative but to enter into voluntary administration after incurring significant legal debts relating to two separate actions, one a defamation action and one relating to a claim of unfair dismissal by a former Editor of the publication.

  The loss of the National Indigenous Times as a voice and champion for the rights of First Peoples is a massive blow to freedom of speech and the rights of Aboriginal Australians in this country.

  The National Indigenous Times has won several awards for its reporting, including a Walkley award and myself, Gerry Georgatos and Geoff Bagnall were all awarded Australian Multicultural and Indigenous Media Awards last year.

  I am so proud of my association with this paper and the colleagues I work with who remain committed to our people, our Culture and voice. We have never relied on government support or funding and we have continued to adopt a mantra of publishing without fear or favour in exposing the truth behind Australia’s relationship with Aboriginal People.

  It is this commitment to the truth that appears to have been the problem, as in the end legal challenges from some of the most powerful individuals in the land look to silence us. The publication has simply not been able to continue to compete with the financial strain caused in legal fees against us.

  We may well have become the victim of a common strategy in western neoliberal economies called: Strategic Lawsuit Against Public Participation or SLAPP – which is defined as a lawsuit filed strategically by a corporation against a group or activist opposing certain action taken by big business, usually in the realm of an environmental or civil protest.

  Typical claims underlying a SLAPP suit are libel, slander or restraint of business.

  The typical SLAPP plaintiff does not normally expect to win the lawsuit, as we could perhaps argue is the case here where, if we had the money to compete, we may well have even won but as with many principals in the western judicial system, rather than fairness this appears to be more about money, power and censorship.

  The plaintiff’s goals are often accomplished if the defendant succumbs to fear, intimidation, mounting legal costs or simple attrition because in many cases, repeated litigation against a defendant may raise the cost of representation in court, ultimately interfering with an organisation’s ability to operate.

  As I said earlier in the article, we knew what we were up against and we have fought for as long as we could to keep the voice of our fellow Aboriginal Australians alive. I remember meeting with Geoff Bagnall in Canberra last year after talks with the owner John Rowsthorne, his partner Beverley and Gerry Georgatos and we made a conscious decision to keep going.

  This was in despite of the impending pressures around us and in particular upon both John and Beverley. Here is the human face of neoliberal pressure because these two have sacrificed so much to keep this paper going, not because it is not economically viable, there is enough public interest and support to keep the paper going. The problem was litigation from those whose purses seem bottomless in getting what they want.

  I owe so much to this paper I don’t know where to start. Like many of us I had made a successful career from being moderate in my politics and never raised my head above the trenches to see what was really happening in our communities.

  Living on the eastern seaboard side with a “Whiteman’s” education and being fair-skinned I didn’t face the problems associated to the Northern Territory Intervention, the suicides and living conditions of our remote communities and no one was threatening to cut off my water supply or bulldoze my home.

  My children, though dark and Kamilaroi language speakers, went to private schools and social capital for them has been a benefit not a burden. I too would defend my Aboriginality against those who questioned my identity down, to colour, I still do but to suggest that colour is not important in regards to segregation and opportunity is simply not true.

  I discovered this while writing for the paper.    

  Don’t believe me? Go and spend some time at any of the University Aboriginal Centres and then go and spend time in any of the jails and come back and tell me colour doesn’t segregate opportunity. Also ask yourself who are under constant attack though things like the Northern Territory Intervention and all the other policies inflicted upon remote communities and then tell me colour is not an issue.

  When I was in Alice Springs recently as part of the Freedom Summit we witnessed pubs that still don’t serve local Blacks and police at most bottle shops with our people lined up like criminals as police check their ID because some of our mob are not allowed to buy alcohol.

  And yet we could come and go as we please. My Uncle Paul and I even witnessed dark skinned kids staying at the hotel we were staying at being told to get out of the pool. That’s right they were staying at the same hotel and when Uncle Paul and I questioned the manager she said it was because the kids swimming would “stop other guests from swimming”.

  So again, don’t tell me colour is not an issue.

  This is the beauty of our paper. We get to tell and write the truth, even when it concerns issues that remain confronting and hard to deal with. In many ways the paper saved me by allowing to reconnect with the values of my childhood, my parents and grandparents.

  I have learnt individual success is nothing if the community you come from is hurting. This newspaper gave me a voice and through that voice we stand as a collective against the division, manipulation and trauma of those most vulnerable.

  It was my colleague and friend Gerry Georgatos who raised issue of self-harm, incarceration and suicide through this paper long before they became national concerns.

  Gerry was writing about such tragedy way back in 2011 and yet only late last year after the Productivity Commission released a comprehensive report on overcoming Indigenous disadvantage Patricia Karvelas, the Australian newspaper’s major journalist on Indigenous issues wrote on twitter:

  “The PC report on Indig progress makes for disturbing reading. The incarceration and self harm areas shocked me and I’m not easily shocked.” (Patricia Karvelas: Twitter, 2014)

  This demonstrates two things. 1) how out of touch mainstream media is with the reality of what’s happening in our communities, and 2) that the Aboriginal people who mainstream media rely upon as their sources are as out of touch about the real issues our People face as mainstream media is.

  Bottom line, if the National Indigenous Times is to close down or the ownership changes to those with a different agenda to the one this publication has promoted there will be a massive hole left in reporting Aboriginal issues in this country in terms of substance and integrity from the perspective of First Nations People.

  The difficulty is that in a SLAPP lawsuit, plaintiffs do not present themselves to the Court admitting their intent is to censor, intimidate or silence their critics. Therefore it is almost impossible to stop.

  SLAPPs have been directed against individuals and groups who have spoken in public forums on a wide variety of issues, particularly against property development, fracking and other mining activities or on subjects like the actions of public officials, environmental damage or pollution and unwanted land use.

  They have also been used against those who have worked publicly for the rights of consumers, workers, women, minorities and others. SLAPP defendants have been sued for apparently lawful actions such as circulating a petition, writing to a local newspaper, speaking at public meetings, reporting violations of the law or even participation in peaceful demonstrations.

  While most SLAPPs are legally meritless, they can effectively achieve their principal purpose which is to stop public debate on specific issues because defending a SLAPP requires substantial money, time and legal resources and therefore takes the defendant away from operational issues.

  It doesn’t seem just or fair does it?

  As I have said in many articles deconstructing neoliberal politics, fairness or truth is far from the moral compass of those who retain power in free market economies. It appears there is just no place for truth and fighting for justice in mainstream media unless of course the interests of those who control mainstream media are being challenged.

  Let me explain. In February, 2003 a Florida Court of Appeal unanimously agreed with a claim by Fox News there is no rule against distorting or falsifying the news to its intended audience.

  Now remember Rupert Murdoch’s The Australian newspaper is the dominant mainstream media publication of Aboriginal news and public opinion in this country. It is here we see regular articles written by Noel Pearson, Marcia Langton, Warren Mundine, and of course the same Patricia Karvelas who was “shocked” by the gravity of self-harm, suicide and incarceration in our communities.

  In the court case in Florida Fox News asserted there are no written rules against distorting news in the media. They argued that, under the US First Amendment, broadcasters have the right to lie or deliberately distort news reports on public airwaves.

  The court case goes back to December 1996, when journalists Jane Akre and her husband, Steve Wilson, were hired by Fox as a part of the Fox “investigators” team to research a story involving a growth hormone manufactured by Monsanto Corporation.

  Fox executives and their attorneys wanted the reporters to use statements from Monsanto representatives they knew were false and to make other revisions to the story that were in direct conflict with the truth.

  Fox editors then tried to force Akre and Wilson to continue to produce the story knowing what would be aired to the public was simply not true. Akre and Wilson refused and both were fired.

  Jump ahead to August, 2000 and an unanimous Florida jury found that Akre was wrongfully fired by Fox Television when she refused to broadcast “a false, distorted or slanted story”  - the jury awarded her $425,000 in damages.

  Fox appealed the case and on February 14, 2003 the Florida Second District Court of Appeals overturned the settlement awarded to Akre.

  The Florida Appeals court agreed with Fox representatives who asserted there are no written rules against distorting news in the media and that, under the First Amendment, broadcasters have the right to lie or deliberately distort news reports on public airwaves.

  In such an environment the National Indigenous Times in wanting to make a stand for the truth and in representing the most vulnerable of our society has always faced the battle of right versus might. It is a battle we hope and pray can continue.

Dr Woolombi Waters is a Kamilaroi language speaker and writer and is a lecturer at Griffith University. He writes a weekly column for the National Indigenous Times. E-mail: woolombi.waters@nit.com.au