If Campbell Newman were an elected official in America, he wouldn’t be able to sue Alan Jones after the broadcaster called him a liar. If he were an elected official in the United Kingdom, or New Zealand, or Canada, he’d be more likely to win a case. But the burden of proof on him would be higher, and the political culture far less prone to issue writs than it is here.
Australia has a far higher incidence of politicians suing media outlets for defamation than is the case in many of its comparable jurisdictions. That’s overwhelmingly because of our legal framework, which contains only an implied right of political communication, and a narrowly interpreted one at that.
The right was established through a letter to the editor. In 1995, Victorian federal MP Andrew Theophanous sued the Herald Sun over a letter it had published claiming he wanted to dilute the British base of Australian society — in their judgement, four of the seven High Court justices agreed that an implied freedom of political communication should be read into defamation law. But further judgments put limits on just how far this could be taken. The implied right was always pretty weak anyway. And Griffith University professor of journalism Mark Pearson tells Crikey it has in recent years worn very thin.
The flurry of writs issued by politicians like Campbell Newman, Clive Palmer and Joe Hockey were likely helped along by the fact that several recent High Court decisions have shown the court is reluctant to strongly interpret the freedom of political communication defence. Interestingly, it hasn’t been defamation cases that have cemented the trend, Pearson says. It’s arisen in cases brought by bikies, by street preachers in Adelaide, and by people like Sydney siege instigator Man Haron Monis, who unsuccessfully argued in the High Court that he had the right to send abusive letters to the families of fallen Australian soldiers. “Through a series of decisions, the High Court has continually refused to uphold the freedom to communicate on matters of government,” Pearson said. “I think this is being read by politicians as a green light to launch legal action, because defendants are less likely to want to defend them all the way to the High Court.”
Of course, the majority of defamation cases never make it to court. Most are settled, and many more exist merely in the form of threats to sue, dangled in front of editors to force a retraction. Because of this, politicians don’t always need to win a case to benefit from suing a media outlet. Often there’s more to be gained from settling than taking the case to court, Michael Bradley, the managing director of Marque Lawyers, tells Crikey.
He cites the example of Sydney lawyer John Marsden, who sued Channel Seven after Witness and Today Tonight falsely accused him of being a paedophile. He won the case, but only after Channel Seven threw everything it had at him in court, including many things the station held back from its original report. “He got enormous damages — in the millions,” Bradley said. “But it killed his reputation. That’s why I always advise defamation plaintiffs to take a cold shower.”
“It’s a strategic question, ultimately.”
For politicians, election strategy will play into the legal strategy, Pearson says. The public can give the benefit of the doubt to a politician who’s willing to fight untrue statements about him or her in court. Defamation suits can give politicians a platform to loudly decry a claim, before the case is settled, quietly, after the next election.
The issue of damages can also be tricky for politicians. The ideal defamation litigant is a private citizen who is falsely accused of something and then loses his or her job over it. That way the financial and reputation damage is easily calculated. But politicians are often seen to have bad reputations to start with, and it can be hard to pin an election result on one piece of coverage in a manner that will satisfy a court. But even if a case is settled out of court, as most are, it can still lead to a chilling effect on further coverage and function as a tax exacted by plaintiffs and the legal profession on media outlets conducting investigative journalism into public officials.
Pearson says it is a danger to press freedom that comes at a time many media organisations are struggling financially. “Media outlets today are unlikely to go to court on anything but the most clean-cut defence,” he said.
Professor Andrew Kenyon, the director of the Centre for Media and Communications Law at Melbourne’s Law school, says whenever a case like Newman’s makes the front pages, he’s reminded how “out-of-kilter” Australian defamation law is to places like the UK or Canada. Defences in places like the United Kingdom are stronger, but he says, the follow-up litigation has often also acted as a deterrent to suits being used to strategically shut up critics. Politicians who have sued in the United Kingdom over allegations that are later proven true have sometimes been then charged with perjury. The history of Australian defamation law is full of allegations media organisations have been unable to defend that are later proved true. But there are few comparable instances of plaintiffs being punished for winning cases when the imputations are later proved true.
Kenyon has little hope the legal framework in Australia can change on these issues. “In Australia, we have uniform defamation law in every state. It was brought in after decades of arguing about it, and politicians at the time agreed to keep it uniform. That makes it very hard to change. Of course, you can have change through how the courts interpret things. But in legal terms, it’s not that long since they last did that. I think it’ll be some time.”