Geoffrey Rush’s Australian record for a defamation payout, just under $2.9 million, may end up standing for all time. We may finally be getting some well overdue law reform on defamation.
NSW Attorney-General Mark Speakman has been pushing for big changes to the uniform national laws (defamation law is state law, so the ideal is that all the states agree to pass the same legislation to avoid the problem of plaintiffs going forum-shopping). Speakman and his state and territory peers will consider the issue at a COAG-style meeting today.
The biggest ticket item is the creation of a defence the media desperately needs. Currently, it is ham-strung by the fact that the only viable defence it can run when sued is “truth”. That is: the media outlet has to be able to prove, on the balance of probabilities, that each defamatory imputation it publishes is objectively true.
That’s way too high a bar and it stultifies investigative journalism to a destructive degree. Trust me on this: I spend much of my days telling clients they can’t publish material which is clearly in the public interest.
“Qualified privilege”, a different defence that is supposed to help, has been interpreted by the courts into impotence. The media can’t use it.
Speakman’s plan, apparently, is to import the UK model of a defence for public interest journalism. The UK defence has two elements: the matter must be one of public interest (which is not the same as “of interest to the public”); and the publisher must have reasonably believed that publishing it was in the public interest.
If those elements can be proved, then the defence is complete. It won’t matter whether what was published was true or not.
This would take us closer to the US position, which allows a complete defence where the target of the defamation is a public figure, but not quite that far.
The key issue in practice will be what constitutes reasonable belief; that is, what steps must the journalist and publisher take to satisfy themselves that what they’ve got should be published? At a minimum, it will probably require putting the allegations to the target to allow them to respond.
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Fingers crossed this one gets through. It would be an absolute game-changer for freedom of the press in Australia, allowing legitimate investigative journalism to prosper in fields such as political corruption and Weinstein-type scandals.
Other big changes are also mooted and unlikely to meet any resistance. One is the introduction of a threshold requirement that a plaintiff has suffered “serious harm” from a defamation before they can sue. This would curtail the plethora of petty “Facebook” defamation cases clogging the lower courts, usually resulting in damages awards that are multiples less than the legal costs incurred on both sides.
Another is a “first publication” rule. The law only gives a plaintiff one year from the date of publication to start defamation proceedings. But that’s not really what happens in practice. In a 2002 case, the High Court ruled that there is a fresh publication of a web page every time someone accesses it online. The practical consequence: there is no limitation on defamation claims for online publication (which is almost everything).
The planned reform is simply to say that the one-year limitation starts when the material is first published, and doesn’t keep reviving just because it stays live online forever. Again, this is a sensible measure to rein in the litigiousness.
Damages (for non-economic losses i.e. hurt feelings) are also likely to be capped. This was the original design of the current law, but has since been interpreted out of existence by the courts in cases (like Rush’s) where aggravated damages are awarded. It’s an anomaly with an easy fix.
It’ll be interesting to see what else makes it to the table. Hopefully we won’t see the range of defamation plaintiffs expanded to include all corporations. This is being pushed by certain lobby groups. Currently, only corporate entities with fewer than 10 employees (and not-for-profit entities) can sue for defamation.
The argued reason for expanding that is that corporations have reputations, just like people, and should be able to defend them.
The real reason is that the law has a hole in it: when a corporation is attacked by non-profit activists groups, such as environmentalists or anti-gambling campaigners, it has no viable legal basis for redress if it feels that what’s being said about it is unfair or wrong. Allowing it to sue for defamation would plug that hole.
However, it is a hole that should remain wide open. It’s called free speech. Corporations aren’t people!
In my opinion, even the existing limited right for small businesses and non-profit entities to sue for defamation should be removed. Only humans should have the protection of defamation law.
Overall, this is looking promising. Accepting the political realities of inertia and lobby group power, what Speakman is said to be proposing is a really good start.
If it gets through, the playing field of public interest will have been profoundly levelled. Then we just have to hope the courts don’t stuff it up…