Australia’s defamation laws are often cited as one of the biggest threats to freedom of speech in this country. And if they’re not updated, Melbourne University associate professor and media expert Jason Bosland believes Australia, and especially Sydney, is likely to become the libel capital of the world, including for “libel tourism“. It’s a dubious honour, previously held by London before laws there were updated in 2013.

High-profiles cases over the past few months have kept defamation law in the news. Last week’s case between Rebel Wilson and Bauer Media, the publisher of Woman’s Day, made headlines again when the Victorian Court of Appeal reduced her record payout of $4.5 million to $600,000.

That’s not to mention almost daily coverage of the case against 2GB broadcaster Alan Jones in Brisbane, the Chau Chak Wang case against Fairfax and its former correspondent John Garnaut, and cases brought by actors Geoffrey Rush and Craig McLachlan over allegations of inappropriate behaviour levelled against each of them.

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Last week, the NSW government also released a review of defamation law, proposing changes to address new technology, but also, worryingly, looking at whether corporations should be able to sue.

Bosland told Crikey that the first step to defamation law reform would be a review by the Australian Law Reform Commission — something he said hadn’t been done since 1979. Even then, there’s no guarantee the law would change. Similar reviews of privacy law that suggested a tort of privacy in 2004 haven’t led to any changes.

He said the Wilson case could be a backwards step, away from reform. “I see it as a threat to defamation law,” he said. “Everyone seems to think, ‘poor Rebel, isn’t it great the Bauer Media has been held to account’. But that’s created an impression in the minds of the public that defamation law is a good thing. It’s absolutely not — we have the most restrictive defamation laws in the developed world.”

Lawyer Sam White, whose law firm MinterEllison acts for publishers including Fairfax, said there were few defamation cases where he thought the media defendant had a good chance of winning.

“From where I sit, acting for the media, we really feel as though our backs are against the wall quite often in defamation cases,” he said. “[The Rebel Wilson decision] effectively threw the statutory cap out the window for cases where aggravated damages is found”. The cap, which in Victoria is $389,500, does not apply if the court decides that aggravated damages should apply, which it did in the Wilson case.

[Roundtable: what does the Rebel Wilson payout mean for the media?]

Even defamation payouts that come in under that cap are an issue for publishers, though. The defamation case against Victorian newspaper the Benalla Ensign from Sophie Mirabella came to $175,000, plus legal costs. “Putting that in the context of a regional publisher, that defamation bill alone is a number of staff members’ wages for a year. You can see how it could have a chilling effect.”

Bosland said high payouts had been having an impact on editorial decisions for years in Australia. “Media organisations don’t have enough money now, so they’re being risk averse. News organisations are less willing to publish and take a risk than they were 10 years ago.”

White said the first Wilson damages decision had already had an impact on current cases. “In the context of the Rebel Wilson decision, plaintiffs might think there’s no harm in including a special damages claim.”

White said that defamation reform was needed to address problems in the current legislation, including the difficulty of succeeding on the qualified privilege defence.

“It’s essentially a defence designed to protect responsible journalism, if a journalist is reporting on a matter in public interest and that reporting has been responsible,” he said. “The issue is that when it comes to assessing reasonableness of conduct, it’s almost impossible to demonstrate to a court that the journalist has acted reasonably. As far as I know, a mass media defendant has never succeeded with a qualified privilege defence in Australia in the 15 years since uniform defamation was introduced.”

Bosland agrees, saying that the defences written into the law are almost impossible to prove. “It’s the area of law that’s most in need of reform. It’s so easy for a cause of action to be made out, and so difficult to establish the defences. The defences available have been interpreted so narrowly that they’re practically useless.”

There is also the issue of dealing with new media and new technology, something that White said could be address by introducing a single publication rule.

“The difficulty with all of this is that defamation law, like many laws in Australia, are state-by-state laws. The uniform defamation legislation in 2005 required all state attorneys-general to be on board at the same time, which is a huge feat to achieve. It’s a challenge to even think about an amendment like this.”

Bosland said reform to defamation law was unlikely without a politician championing it — “but they have a vested interest in being able to sue,” he said — or a big case that captures public attention, which in part prompted reform in the UK.

“The public are pretty apathetic about press freedom except for reporting court cases,” Bosland said.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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