An irritating feature of the mainstream media is the way that some stories can get extensive, even obsessive, coverage, without any of it going below the surface or asking any interesting questions. So it is with the Tania Zaetta defamation case.

The papers all had the story yesterday: defence chief Angus Houston met with Zaetta on Tuesday to offer a personal apology for claims made last year in a defence briefing paper that she had had s-x with Australian soldiers while on tour in Afghanistan, after the defence department paid her “an undisclosed sum” to settle her defamation claim.

Even sceptics about defamation law (like me) generally accept that there should be some remedy for people defamed by the government, but this case raises a host of problems that the media reports gloss over.

First there’s the usual problem about burden of proof. To win a defamation suit, you don’t have to produce any evidence at all to show the claims were untrue; the defence has to prove that they were true.

Difficult at the best of times, and pretty much a lost cause in a case like this.

The defence department is now quoted as saying the problem was an “unacceptable breach of privacy”, but that almost sounds as if it still thinks the claims were true. Houston’s remarks this week, however, clearly constitute an admission that they were false.

Then there’s the problem of confidential settlements, made more serious by government involvement. It’s not Joel Fitzgibbon’s own money here; the taxpayers are paying for this, and absent some compelling reason for secrecy, we should be entitled to know how much.

But the most obvious unasked question is, what’s defamatory about an allegation of having s-x with soldiers?

Think about it. Zaetta was on tour to entertain Australian troops and boost morale. If she had taken that mission further than her official duties required, so what? No-one has suggested anything non-consensual.

If it was consensual violence, for example — if she’d participated in a training exercise, or amateur boxing — no-one would see anything amiss.

Do we really want the law to send the message that s-x is uniquely disturbing, while violence is routine and acceptable?

Nor is it credible to say the allegations have harmed her professional reputation: on the contrary, the story has given her the sort of publicity that entertainers will kill for. But that’s another peculiarity of defamation law; you don’t have to prove any actual harm to win damages.

It’s not only Stephen Conroy who wants the law to control what people are allowed to think. Defamation law works on the presumption that you have “property” in your reputation, and that you should be the judge of whether you’ve been harmed by what’s going on in another person’s mind.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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