As the number of defamation lawsuits rise, Margaret Merga explains how researchers, educators, and supervisors who use autoethnography can avoid falling foul of the law, particularly in the context of Australian non-disparagement and defamation law.

Autoethnography is a qualitative research method that involves sharing your own story, connecting personal experiences to social and cultural phenomena, often to highlight or challenge norms. In higher education, it can be a powerful tool for exposing injustices and limitations from the perspective of those experiencing them. The motivation for my recent work on autoethnography came from a real-world trigger. In this instance, I planned to run a “Method of the Month” seminar on autoethnography for my university.

In preparing for this seminar, I shifted from being an author of autoethnographies to an educator, a role that comes with different responsibilities. If I was going to promote this research method to both novice and experienced researchers in my university community, in addition to detailing how it should be best conducted according to the extant research, I also needed to cover current and evolving risks and limitations.

Some of those wishing to speak up about issues in higher education through autoethnography are already perceiving negative effects for employment.

Like all research methods, there are ethical considerations that need to be taken into account, some of which are unique to autoethnography. As a rule, I approach all methods with minimising harm as the highest priority. However, the more examples of organisational autoethnographies I read, the more concerned I have become.

It was easy in some instances to connect the author to their site of conflict at a current or former institution, and there have been recent shifts in the legal landscape in some contexts that make this potentially risky. Some of those wishing to speak up about issues in higher education through autoethnography are already perceiving negative effects for employment. There have already been claims that false or misleading statements are being published through autoethnography.

While there is a lack of research in this area, I’m not convinced that all researchers in affected contexts understand the potential consequences of using autoethnography to raise their concerns about organisational issues in higher education. There may be a false sense, perhaps based on US First Amendment protections for freedom of speech, that academics have freedoms that they do not actually possess in other contexts. Even when institutions and parties involved are not explicitly named, it’s often easy to identify these via deductive disclosure; as an autoethnography is a person’s own story, social media leaves many clues.

Non-disparagement and defamation

Two risks relate to non-disparagement clauses in higher education employment contracts and defamation laws. At the time of writing, “there was no known example of an autoethnography triggering a non-disparagement clause, or an autoethnography becoming the key publication in a defamation claim”, though they remain foreseeable risks.

Non-disparagement clauses in higher education, also referred to as gag clauses, seek to bind the signatory from making statements about their organisation that could reasonably be viewed as negative. In contexts where they are legally permitted, they can appear in both employment contracts and separation agreements.

Though its definition varies across contexts, defamation typically involves the publication of false statements about another individual or party that has caused reputational damage. In its most extreme cases, this has resulted in massive financial penalties in the US and Australia.

Even where defamation claims are found to not be truthful, the toll on whistleblowers can be significant.

Recent times have seen a “defamation boom” in my country, and I live in one of the Australian states and territories most resistant to legal reforms designed to protect whistleblowers.

High-profile individuals in higher education have also been among those initiating this action. For example, one of my former line managers has initiated defamation proceedings against two media outlets who reported on allegations.

Even where defamation claims are found to not be truthful, the toll on whistleblowers can be significant. For example, in a highly publicised trial of a former soldier who brought a defamation case against media outlets, a witness was forced to recount traumatic events and have his credibility brought into question, stating “I know it’s your job to discredit me, but I’m doing my best as well”. The defamation claims were ultimately unsuccessful, but the ongoing impact on the witnesses of participating in the trial is not known.

My concern is that when individuals use autoethnography to voice criticism of higher education management and power structures, depending on the laws specific to their context and how jurisdiction is determined, both of these risks are potentially applicable. Telling the truth does not necessarily protect you from being embroiled in a costly legal matter. The knowledge that costs may be recouped when findings are in your favour may be little comfort when legal bills are mounting to support your defence, and individuals may not typically be able to afford to retain a legal team with the same expertise as universities and high-profile individuals within them.

Muting the vulnerable

Organisational autoethnographies in higher education contexts often seek to identify and challenge power imbalances, such as the impact of global corporate managerialism on the experiences and practices of higher education staff. The culture in higher education in many contexts may focus on muting dissent and maintaining the status quo, even if this results in a hostile or regressive working environment.

Whistleblowers and marginalised voices in higher education use autoethnography to raise awareness of serious issues that may implicate management. They can also openly confront workplace bullying, the demands placed on women of colour who are also mothers, and the precarity of sessional employment, among many other pertinent issues.

Acknowledging the potential risks of speaking up can help individuals to manage them, but it may also silence marginalised voices, enabling unjust practices to continue without criticism. We need laws and policies in place across contexts that genuinely protect the vulnerable so that autoethnography and other measures can be used to speak up about issues in higher education without fear of unjust reprisal.

Important considerations

This blogpost does not provide legal advice; it seeks to raise awareness of the importance of being informed. If in any doubt, always seek legal advice.

Before you speak up, you might want to:

• Familiarise yourself with defamation laws that apply to your context, including how jurisdiction is determined, and be aware that these are often not applicable across a country, and may instead widely vary across states and territories.
• Be very careful to ensure that anything you publish is the truth and not embellished, and that it can be substantiated as such.
• Read your employment contracts and separation agreements as applicable, and look for a non-disparagement clause. Seek legal advice to determine if what you want to say can put you at risk of legal action in relation to this clause.
• Find out what (if any) whistleblower protections may apply in your context and individual circumstances.

Finally, there are also implications for research student supervision. Supervisors should familiarise themselves with the evolving context-specific legal landscape in relation to the potential risks raised in this blog post to protect their students and themselves. Sometimes students are working on higher-risk projects than their supervisors are used to, and methods that were deemed low-risk in the past may be viewed differently in the current context, given evolving laws and technologies that enable the rapid spread of information.

Image: Tingey Injury Law Firm/Unsplash

Note: A version of this post first appeared on 14 November 2024 on the LSE Impact Blog.

_____________________________________________________________________________________________ This post is opinion-based and does not reflect the views of the London School of Economics and Political Science or any of its constituent departments and divisions.    ______________________________________________________________________________________________