Amazing but true. The Age newspaper has received just one writ for defamation in the last 18 months. How could this be? In the same period the paper has seen a resurgence in investigative reporting and some gutsy sleuthing on gangland killings and religious cults.
The answer, according to the paper’s legal advisor, is the new uniform defamation code and especially the cap it puts on damages for plaintiffs.
Peter Bartlett of Minter Ellison says the upper limit of $250,000 for loss of reputation has had “a sobering effect” on potential plaintiffs because after legal costs they would need to win at least $100,000 before “seeing a penny in their pocket.”
The cap on damages is just one benefit of the uniform defamation code, which came into effect in every state and territory at the beginning of 2006 and which is now beginning to prove its true value for publishers and readers alike.
Get Crikey FREE to your inbox every weekday morning with the Crikey Worm.
However the benefits have not stopped people suing in the defamation capital of Sydney, where the Fairfax “night lawyer” Richard Coleman says the six statements of claim against Fairfax’s three main publications in the last financial year is “right on track.”
“We had ten in the previous year and two the year before that. That makes an average of six a year,” he said.
Of the six received last financial year, five relate to material published after the 1 January 2006.
The consensus among lawyers and academics is that Sydney is the aberration and that the laws are proving fairer and reducing litigation. As Associate Professor Andrew Kenyon of the Centre for Media and Communications Law puts it; “My sense is that the number of actions has probably fallen everywhere except Sydney.”
He says this is because litigants and their lawyers may be nervous of becoming a test case under the news laws.
The uniform code replaces all the old inconsistent legislation meaning that you can’t be sued in different jurisdictions with different results. Truth is now a complete defence in NSW, replacing the old law that demanded newspapers also prove there was a public interest in defaming someone’s reputation.
Another benefit is that corporations can’t sue and there is now an improved defence for stories that probe public officials.
Elizabeth Beal, the new editorial legal counsel at Herald and Weekly Times, points to section 30 of the uniform defamation code which enshrines a statutory defence of qualified privilege, extending the so-called “Lange defence” under Common Law. In other words the new Act makes it easier to investigate and criticise people in public office – not just politicians – so long as the story is handled “reasonably”.
Although, on this score, some express caution because the clause has not been tested before the courts.
Perhaps the most useful part of the uniform code is the process of “offering to make amends” whereby publishers can print retractions and apologise early without admitting liability. If an offer to make amends is refused by a potential plaintiff it will count against them in a trial, making it a powerful device to settle early and for media companies to admit errors.
Beal reports that since the new laws, Herald and Weekly Times in Melbourne has settled four cases by quickly making an offer of amends. Coleman at Fairfax agrees. “The Amends regime is proving useful to us, where things have conspired against us.”
So whilst the initial report card is healthy, everyone agrees that the real test will come when the first cases finally come to court.