The Cadaver explains to Crikey why the dead should be able to sue for defamation:

Pros and cons of new uniform defamation laws



Subscriber email – 2 August

We all want uniform defo laws, there is no argument on that point. But any new laws must be workable and show a sensible approach as to how defamation laws are applied and what they are meant to achieve. ‘Ruddy’ Ruddock’s “revised’ proposal still has the smack of drafting on the run and a contempt for the opinions of respected practitioners (both legal and media) from around Australia.

Defamation of the dead, for instance, now has a large piece justifying this howler. Is Australia (after Barbados and Malawi) to be the first common law country to pass these laws? Matters such as truth as a total defence (which was largely accepted as preferable in most of the previous submissions) will now require a very broad contextual truth qualification in order to protect “private affairs” (hey Ruddy, ever heard of the Privacy Act?).

Further items attempting to censor the press include the ability of courts to order correction orders against a publisher. Somehow Ruddy cannot see how this may interfere with freedom of speech. This and much more will be discussed on Crikey soon. In the meantime, you can see the current proposal at www.ag.gov.au/defamation


Ruddock writes to Crikey on defo reform

Subscriber email – 5 August

Dear Crikey

I thought your comments on proposed defamation reform warranted a response.

The discussion paper was not drafted on the run – as you should know, since you attended one of the briefing sessions – but after extensive consultations around the country. Response has been largely positive to the latest draft, with one practitioner representing a media organisation describing it as the best attempt to achieve uniformity since 1979.

On defamation of the dead, it needs to be recognised that damages cannot be claimed. However, it is not right that someone’s reputation should be destroyed simply because they can no longer defend themselves against lies, especially when that can impact on family members. The examples given in the paper are simple and compelling.

You have asserted that the defence of truth alone has been “largely accepted”. This is not the case. Opinion is largely divided among practitioners depending on their State of origin. Practitioners from Victoria, South Australia and Western Australia prefer truth alone because that is what they are used to. However, either truth and “public benefit” or truth and “public interest” constitutes the defences in NSW, Queensland, Tasmania and the ACT. The division among the different State regimes is evident in the paper they recently released. I believe that truth and public interest provides the best balance between protection of reputation and freedom of speech.

You have also asserted that privacy concerns can be overcome through the Privacy Act. This Act does not deal with privacy concerns in a defamation context. It deals with the way in which personal information is handled by businesses and government agencies.

I am surprised at your stand on courts ordering correction orders given your own stated policy of immediately correcting errors. Not all publications subscribe to this view, but I believe defamation laws should be primarily aimed at restoring reputation, not lining someone’s pockets. If a publication is unwilling to correct the record after findings against it by a jury or court, that cannot be defended as an exercise of free speech. Freedom of speech carries with it important responsibilities to be fair, balanced and accurate.

Finally it may interest your readers to know that I have never sought to file an action for defamation in more than 30 years of public life. There is no hidden personal agenda; nor is this an attempt to stifle media commentary.

Philip Ruddock
Attorney-General
5 August 2004

Why the dead shouldn’t be able to sue

By Stephen Mayne
The Crikey Editor who lost his house to a defamation action

We’ll publish a broader response in a couple of days but for now let’s just focus on the issue of allowing the dead to sue, which Ruddock defends merely because there will be no provision for damages.

Kerry Packer, Bob Hawke and Sir Joh Bjelke-Petersen are the three living Australians who have made the most money from defamation actions. When they die, some things will be said that haven’t been said before because they are controversial figures with colourful pasts.

James Packer would not be interested in getting $100,000 from the publisher of an unfavourable biography published after the death of his father, but he would be interested in stopping the book from being published and that is the real danger of allowing the dead to sue. And how would a judge decide whether to injunct a forthcoming book when the key witness is dead?

The other point is that defamation actions are often about the costs rather than the damages. A small outfit like Crikey could be bankrupted by James Packer racking up huge legal bills trying to force us to apologise and say his father was an angelic figure.

This ties in with the forced corrections argument, where Ruddock’s logic is again misplaced. Crikey voluntarily runs corrections and other outlets should do likewise but we are always in control of those corrections.

No court should be able to force you to say something you don’t believe. And because this would be a court order, a publisher could be jailed for not publishing. Under the current law, Crikey could publish what we like about Kerry Packer after he dies.

Under Philip Ruddock’s proposal, we could be sued for months by his family, forced to pay millions in legal fees, ordered to publish something we don’t believe by the courts after a legal battle lacking the key witness and then jailed for not publishing it.

How on earth is that a step forward? Given that the Howard government is so supportive of all things American, why on earth can’t we have the American defamation laws where free speech is enshrined in the constitution?

This is debate that we really need to have so send you feedback to boss @crikey.com.au.

Finally, News Ltd lawyer Michael Cameron, the former Tele chief of staff whose footsteps we so miserably tried to fill in 1999, had an interesting column in The Australian’s Media section today but unfortunately it is not online. Presumably, Ruddock will also write to The Oz as Cameron was scathing of his proposed national defamation laws.

Peter Fray

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