On Thursday the Victorian Court of Appeal overturned a Supreme Court decision to award actress Rebel Wilson a record defamation payout of $4.5 million over articles published by Woman’s Day in May 2015. It was reduced to $600,000 (a decision Wilson has said she would appeal).
The original award prompted serious questions about the impact of the extraordinary payout on the media, not least the precedent it set. It had already been referenced in a current defamation trial running against Sydney broadcaster Alan Jones.
We asked some informed media watchers what they thought yesterday’s decision means for the Australian media.
Sam White, MinterEllison associate
While the Court of Appeal’s decision may, on its face, appear to be a win for media defendants, it will also have negative consequences for the media.
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A critical part of the national uniform defamation reforms (introduced in 2005) was the introduction of a statutory cap on damages for non-economic loss in defamation cases (currently it is around $389,000). This includes, for example, damages for a plaintiff’s hurt feelings or embarrassment. The cap was introduced to deal with a community perception that damages in defamation cases were high when compared to damages awards in personal injuries cases.
The Court of Appeal has found that the statutory cap on damages in defamation cases does not apply when a court finds that aggravated damages should be awarded. A court can award aggravated damages if a defendant publisher’s conduct is found to be unjustifiable or lacking in bona fides. This means that in some cases, the cap on damages has no effect and the reason for that reform is unfulfilled.
Alex Wake, RMIT journalism senior lecturer
It’s a win for journalists, but not for the publishers of faux journalism. This is a wake up call for all those who try to make money in the media by peddling gossip and half truths and try to pass it off as journalism. For journalists working on stories where there is a public interest (and there was little real public interest in Rebel Wilson beyond curiosity), I’m glad that the amount has been reduced.
A multi-million dollar payout is a truly frightening thought for any media company wanting to tell an important story in the public interest. However, I think we need to make a distinction here between the Rebel Wilson case — which was about a series of made-up stories in a salacious gossip magazine — and serious journalism which is in the public interest. The Rebel Wilson stories were a disgrace to hard working journalists everywhere, and only brought us further into disrepute with the general public.
Although most journalists won’t see it this way — the ruling is a kind of win for journalists, because it has clearly told the world that we can’t just make things up (and if we do we’ll get a fine), but the payout isn’t too large to stop really great journalism from continuing. I am very sorry that the charities she’d promised the large payout to won’t get it, but ultimately we actually need a strong and vibrant journalism scene in Australia (and clearly one that doesn’t make stories up).
Bernard Keane, Crikey political editor
Whatever the merits of the individual case, anything that diminishes the resources of media companies diminishes their capacity to engage in public interest journalism — which includes not merely funding journalists and editors, but in fighting the litigation of powerful individuals, corporations and governments in the courts to prevent transparency.
There are some things that only large media companies can do — challenge injunctions, risk defamation suits by litigious figures, push back against efforts by governments and courts to shroud things in secrecy. Given the collapse of the media business model and the government’s relentless war on the ABC, the capacity of the mainstream media to do this is already undermined, and an expansion of the range of defamation payments will accelerate this. At a time when governments are ever more aggressively pursuing whistleblowers, journalists and those who would hold them to account and corporations have extraordinary power over individuals, it’s the last thing we need.
There will always be a tension between the need for the media to hold the powerful and privileged to account, and the need to hold the media itself to account for the way it conducts itself; a tension that parallels that between the need to protect privacy and the need for transparency and free speech. We seem to be going in the wrong direction on those at the exact historical moment when the media’s capacity to play a public interest role is under threat like never before.