Around the time that devastating bushfires were tracing their way through Victoria and Tasmania, a wildfire of a very different kind was spreading through Australian media law circles yesterday.

I received four emails in the space of six minutes regarding the landmark decision of the UK House of Lords in the case of The Wall Street Journal Europe v Mohammed Jameel. The case is expected to breathe new life into investigative journalism in the United Kingdom as a result of the establishment of a new “public interest” defence to defamation claims.

In a unanimous judgment, the House of Lords installed a public interest defence for serious investigative journalism, so long as the material is published responsibly, and even if the material proves to be incorrect or cannot be proved to be true. The ruling radically revises the approach taken by the UK Courts in this area.

Jameel, a billionaire Saudi car dealer, had been identified by the Wall Street Journal in a front page story as a holder of bank accounts which were the subject of monitoring at the request of United States authorities so as to ensure that funds were not being provided, whether intentionally or unwittingly, to terrorist organisations. The newspaper could not prove the truth of its story at trial because its sources in Saudi Arabia were reluctant to give evidence. The House of Lords nonetheless ruled that because the material was of public importance, and had been published fairly and responsibly, a public interest privilege should attach to it and thereby excuse the publisher from liability for defamation.

In a statement unlikely to be heard in an Australian court, the five Law Lords said that judges, with leisure and hindsight, should not second-guess editorial decisions made in busy newsrooms.

The decision by the House of Lords provides a stark contrast with the more limited and narrowly construed form of public comment defence available in Australia, which is derived from the “implied freedom of political communication” in our Constitution and preserved in our new uniform defamation laws. This implied freedom is comparatively weaker than the positive rights to free speech provided by the UK Bill of Rights and the European Convention on Human Rights.

Ironically then, it was famed Australian barrister, Geoffrey Robertson QC, who represented the Wall Street Journal, and who was the first to comment after the handing down of the Law Lords’ decision that, “Australian law now lags behind Britain as well as America in protecting freedom of speech.” He said Australia now has the most antiquated libel laws in the English-speaking world.

This is probably the most significant decision ever in the United Kingdom favouring freedom of speech. The views expressed by the Law Lords are far removed from a long line of views expressed by Australian judges. It is hoped, but with little confidence, that Australian judges with embrace the thrust of those views adopted by one of the most highly regarded courts in the world.

Peter Fray

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