Australian Treasury Review

E-commerce Best Practice Model

Submission: Evan Whitton 14/26 Cook Street, Glebe 2037. 02 9566 4121

ewhitton@zip.com.au 20 December 2003

This submission deals with certain aspects of E-commerce relating to justice. It relies

on judges and lawyers to show that the lawyer-run adversary system does not seek the

truth, and hence is not fair, just, or moral. It will suggest that best practice is to keep

lawyers out of E-commerce disputes, and that such disputes be resolved by a tribunal

run on investigative rather than adversarial lines.

Lack of Public Confidence in the Adversary System

The public have a vague feeling that something is wrong with the legal system, a

feeling quantified by market researcher Quantum’s 2003 Australia Scan survey. Of

2000 questioned on institutions in which they had great confidence, 15% said they

had great confidence in judges.

Public disquiet stems from confusion. Members of the public wrongly believe that the

system is run by judges and that it tries to find the truth, and are baffled when legal

outcomes seem contrary to justice, truth, fairness, and common sense.

Lawyers and the Adversary System

Charles P. Curtis wrote in The Ethics of Advocacy (1951): ‘ … one of the functions of

a lawyer is to lie for his client … He is required to make statements as well as

arguments which he does not believe in.’

Harvard Ethics Professor Arthur Applbaum says lawyers may accurately be described

as serial liars because they persistently try to persuade others to believe things the

lawyer believe to be false.

Law professor Murray L. Schwartz examined adversarial ethics in The Professionalism and Accountability of Lawyers (California Law Review, 1978). He

wrote: ‘When acting as an advocate for a client, a lawyer … is neither legally,

professionally, nor morally accountable for the means used or the ends achieved … It

might be argued that the law cannot convert an immoral act into a moral one … by

simple fiat. Or more fundamentally, the lawyer’s non-accountability might be illusory

if it depends upon the morality of the adversary system, and if that system is immoral

… the justification for the … Principle of Nonaccountability … would disappear.’

Nonetheless, lawyers are allowed to control the adversary process. An untrained judge

controls the court room, but lawyers gather and present ‘facts’, decide who will give

evidence, what they will say, and how long the process will last.

In Overcoming Law (Harvard, 1995), Chief Judge Richard Posner described

‘adversarial procedure’ as ‘contests of liars’. Geoffrey Robertson QC said the

adversary system makes justice a game.

Justice - First Principles

In a 1971 dismissal case, Commissioner Gilbert Manuel, of the NSW Conciliation

Commission, propounded an all-purpose test for justice: ‘a fair go all round’.

In 1960, Lord Chancellor Kilmuir claimed that the common law ‘puts justice before

truth’. The Hon Russell Fox AC QC responded to that assertion in Justice in the 21st

Century (Cavendish 2000). He wrote:

‘This statement in fact begs the present question by saying that justice is what the

parties [i.e. lawyers] present in evidence, true or not. On the other hand, there must be

a standard, and the public estimate must be correct, that justice marches with the truth.

Only in this way does the concept present a moral face, as distinct from one where the

winner is the person with the greatest resources and best advocacy.

‘This is the view taken on the continent and in other countries, where the whole

system of justice proceeds on the footing that the truth is to be ascertained. Hence the

investigational, or inquisitorial, approach of the French, which even provides that, the

true facts having been found by a judicial officer, their presentation is not to be

polluted by the parties.

‘The common law has a different system, in which reliance is placed on the parties for

the gathering and presentation of the facts. They are presented as the true facts, and

there was a stir quite some years ago [in 1982] when I showed how wide of the mark

our system takes us.’

Judge Fox can be summarised thus: Justice means fairness, fairness means truth, and

truth means what the public think it means, reality. A justice system must have a

moral dimension, and the moral dimension comes from the search for truth.

Judge Harold Rothwax wrote in Guilty: The Collapse of Criminal Justice (Random

House, 1996): ‘Without truth there can be no justice … Our system is a carefully

crafted maze, constructed of elaborate and impenetrable barriers to the truth.’

If Judge Fox and Judge Rothwax are right, it follows that the adversary system is not

interested in the truth, and hence is not fair, just or moral.

Civil Litigation

Not only is the civil process run by lawyers, some aspects are unfairly biased in

favour of plaintiffs. Intentionally or otherwise, the bias makes work for lawyers; it

encourages people to sue and the sued have to pay lawyers to defend them. Libel, for

example.

E-commerce Libel

In The Justice Game, Geoffrey Robertson QC says: ‘London is the libel capital of the

world because English law heavily favours the plaintiffs … So there have been

celebrated cases where newspapers have published the truth, yet lost …’ Some think

Sydney is the libel capital of the world, for the same reason.

It goes without saying that libel law is not interested in the truth, and it has favoured

plaintiffs since the Scandalum Magnatum (scandalising the magnates) of 1275 made it

an offence to utter a slur against the great men of the realm. The law was necessary

because the magnates, and people in the trade of authority, were mostly organised

criminals, i.e. people who engaged in systematic criminal activity for money or

power.

In 1378, the law was extended to cover other important and respectable organised

criminals, including judges, and libel law is still unfairly biased in favour of plaintiffs

by a series of obviously false presumptions. Judges would claim that the rule of

precedent prevents them from correcting patent injustice. In Media Law in Australia

(OUP, second edition, 1988), law professors Mark Armstrong, Michael Blakeney and

Ray Watterson wrote:

‘The mere publication of words defamatory of the plaintiff gives rise to a prima facie

cause of action. In pressing his claim, a plaintiff has the benefit of the presumptions of

falsity and of damage. He is not required to prove that the words are false; the law

presumes in his favour that they are.

‘The law also presumes that defamatory words cause harm. Thus it is not necessary

for the plaintiff to produce witnesses to attest to the fact that they now think less of

him, or to prove that he suffered material or financial loss as a result of the

publication.

‘Furthermore, a plaintiff is not required to establish that the defendant intended to

harm his reputation by the publication, or that such harm resulted from a lack of care

or concern.’

On my count, libel law is based on seven false presumptions: Appearance (reputation)

is always preferable to reality (character). The private right to reputation is always to

be preferred to the public right to information. A slur is always false. The author of a

slur is always guilty. The subject of a slur is always innocent. A slur is always

intentional. A slur always causes damage.

A slew of lying politicians got libel money: Aneurin Bevan and Dick Crossman, who

falsely denied they were drunk at a Venice conference; Lord (Bob) Boothby, who

falsely denied he had a sexual relationship with an organised criminal, Ronnie Kray;

Jack Profumo, who falsely denied he had sex with Christine Keeler; and Jeffrey

Archer, who falsely denied he resorted to a prostitute, Monica Coghlan..

Because the law is so heavily weighted in favour of plaintiffs, the unscrupulous can

get money by blackmail, which is the crime of theft by extortion, i.e. by putting in

worthless claims and agreeing to settle for less than the high cost of litigation.

In the Gutnick-Dow Jones case, the Australian High Court ruled that internet cases of

alleged libel should be heard in the country where the offending slur was published

(Australia), rather than in the country where it originated (the US).

Ambulance-chasing libel lawyers will thus be scanning the Internet for potential

plaintiffs, but only if the US defendant has assets in Australia: US courts will

probably not enforce Australian judgments because they are based on unfair law.

The First Amendment (1791) to the US Constitution guaranteed free speech. In the

US, the burden of proof in libel cases is on the plaintiff rather than on the defendant,

as in the rest of the English-speaking world. US courts thus take the view that US

libel defendants cannot get justice in England (and presumably Australia).

Under international practice of ‘comity’ (reciprocity), US courts normally enforce

orders made by overseas courts, but they draw the line at awards based on law

‘repugnant’ to US law. In 1997 a Maryland court refused to enforce an English libel

verdict on the ground that English libel law ‘is totally different’ from First

Amendment principles of free speech and a free Press ‘in virtually every significant

respect’.

E-commerce Tribunal

It has been shown that the adversary process is not fair, just or moral because it does

not seek the truth. Moreover, it is a game (‘contests of liars’) controlled by morally unaccountable lawyers.

Yale Law Professor John H. Langbein’s 2001 CV states: ‘He believes that the

European style of nonadversarial justice [i.e. the investigative (inquisitorial) system]

is more fair, accurate and economical than American procedures.’

Best practice is a fair go all round for E-commerce providers and consumers. To that

end, an E-commerce Tribunal should be set up to settle disputes. The chair should

have an obligation to do whatever is necessary to find and manifest the truth He/she

should not be a lawyer, but a lawyer might be permitted to advise him/her on the

weight to be given to certain evidence. Otherwise, lawyers should not be permitted to

appear.

The legislation should state specifically that the adversary procedures are not to be

followed. The NSW Independent Commission Against Corruption and the NSW Land

and Environment Court have been partially crippled by legislation stating that

adversarial procedures will be avoided ‘where possible’. That left the process open to

be ‘lawyerised’ and the truth to be ‘polluted’ in cross-examination.