Defamation nation: why are Australian politicians so quick to sue?
When he was attorney general, Christian Porter told the National Press Club Australia’s defamation laws didn’t strike the right balance.
After extensive consultation, states agreed to make the laws more defendant-friendly, promising to introduce a new public interest defence and a threshold of serious harm to weed out trivial claims.
But in May Porter said he had developed a more “nuanced” view once he had “experience inside the system”, initiating a high-profile case against the ABC and journalist Louise Milligan.
Before he reached an agreement to drop the case, Porter told Sky News on 26 May that defamation law can pit an innocent person against a “pretty seriously financially equipped opponent to try and clear their name”. “And it is an expensive business.”
Despite the expense for plaintiffs, business is booming for those representing Australian politicians, their political opponents, media outlets and social media users, who are increasingly drawn in to litigation and face high stakes if they lose.
The defence minister, Peter Dutton, is suing refugee activist Shane Bazzi over a tweet labelling him a “rape apologist”; New South Wales deputy premier John Barilaro is suing the YouTube comedian Jordan Shanks for videos he believes are racist; Nationals MP Anne Webster won a case against a conspiracy theorist who falsely accused her of being “a member of a secretive paedophile network”; and Liberal MP Andrew Laming has sent concerns notices over claims that an incident in which he took a photo of a woman bent over in her workplace constituted “upskirting”.
‘A definite explosion’
Michael Bradley, the principal of Marque Lawyers, says there is a “definite explosion” in defamation cases involving politicians, with many now “resorting to litigation or threats at the drop of a hat”.
Bradley, who acts for a media figure in Laming’s sights, says the number of cases took off after then treasurer Joe Hockey’s win against Fairfax in 2015 over tweets and posters advertising an article on his fundraising activity with the phrase “Treasurer for sale”.
“There is a general trendiness about defamation litigation – it’s come into vogue in the past few years, driven in part by how much publicity there has been attached to high-profile cases and a sense that plaintiffs always win.
“It’s brought defamation to the front of consciousness – that it’s a really viable option for [politicians] if they’re unhappy about something someone said.”
Social media has also created an “outlet for public expression that didn’t previously exist” where “people feel far more free … to say whatever they want”, Bradley says.
But a defamation expert at Sydney University law school, Prof David Rolph, says defamation suits or threats thereof have been “fairly characteristic of Australian political life” for “a long period”.
The list of defamation alumni includes former prime ministers Bob Hawke and John Gorton, former deputy Labor leader Tom Uren, former Whitlam minister Jim Cairns, and Howardera ministers Tony Abbott and Peter Costello, he notes.
Rolph says the propensity to sue is an “unusual” feature of Australia’s political culture, and the same is not true in the UK, where it is “rarer for sitting politicians to sue”.
Bradley notes in the US freedom of the press is enshrined in the first amendment, meaning public figures “essentially can’t sue for defamation because it is inherent in the nature of democracy, the need for openness and even messy, ugly debate – including the ability for the media to get it wrong, as long as they are not acting with malice”.
While Porter’s case involved a serious allegation of criminality, which he denies and police are no longer investigating, Bradley believes some other cases are symptomatic of Australia defamation law being wielded as a “political weapon” more by the conservative side of politics, to fight culture wars or to protect the government.
“There’s an obvious irony that the party of free speech is currently being so willing to shut it down when it suits,” Bradley says.
‘It was time to stand up’
But defamation suits can start on either side of the political aisle. Greens senator Sarah Hanson-Young success
fully sued Liberal Democrat senator David Leyonhjelm over comments she said slut-shamed her, a matter he is still seeking to appeal to the high court.
More recently, Hanson-Young received an apology from Liberal senator Jonathon Duniam for his false claim her niece had been put in harm’s way at an anti-logging rally. Because Duniam is assistant minister for forestry and fisheries, his legal costs will be picked up by taxpayers.
Hanson-Young tells Guardian Australia Leyonhjelm’s comments were “incredibly hurtful and distressing” and she had no other recourse because “there is no [human resources] department to complain to, no code of conduct for MPs, and I couldn’t make a complaint of bullying to the Fair Work Commission”.
“After years of putting up with being harassed and bullied I decided it was time to stand up.
“I had a responsibility to take it on. What he said was not OK, it happened so publicly … and the message for women was a very dangerous one.”
Hanson-Young says she was in a privileged position compared with most women, but agrees with Porter that bringing a suit costs an “exorbitant” amount.
“Money is one thing, but the time and energy is another. I spent three days in the witness box, in the middle of an election campaign, after pre-poll had started … It was not an easy ordeal. I’ve never done anything so difficult.”
In response, Leyonhjelm says he was offended by Hanson-Young’s earlier comments about men.
‘This could potentially bankrupt me’
Conservatives also present defamation action as a matter of taking a stand. In late March, Dutton explained his new aggressive stance, warning he had had enough of social media abuse. Dutton told 2GB radio that although he “let a lot” go through to the keeper “there has to be a floor, there needs to be a red line”.
“I’m not going to be defamed in that way, and people should know that if they want to do that, there’s a price to pay for it,” he said.
Bazzi tells Guardian Australia he feels Dutton is “trying to make an example out of me to send a message to those who dare criticise the government”.
Bazzi says he deleted the tweet and also committed not to repeat the “rape apologist” claim – but Dutton sought an apology and damages, and pressed ahead with the case anyway. Bazzi is now defending the case on the basis it was a fair comment or honest opinion.
“The case has taken a significant toll on me,” he says, citing harms to his mental health, anonymous hate mail and abuse online.
“There is a huge power imbalance – Dutton is a wealthy cabinet minister … And I am an unemployed activist … This could potentially bankrupt me.”
NSW Greens upper house member David Shoebridge has started a crowdfund for Bazzi, already raising $135,000 to fund his legal fees, while HansonYoung also accepted and declared donations to fight her case.
Hanson-Young says defamation law shouldn’t be used to “silence criticism or stifle accountability” and thinks politicians should show a “higher standard of acceptance of public commentary” and interest in how they behave.
Peter Wicks, a blogger and former Labor staffer on the receiving end of a Laming threat, says he “expects flak from running a blog site, but not from a tweet”.
“This is something I wouldn’t have expected in a million years, because I would’ve thought a federal MP would have better things to do with his time than chase Twitter users – especially months after the tweet was sent,” Wicks says.
Wicks’s original tweet accusing Laming of “upskirting” received 78 retweets and 214 likes – dwarfed by a tweet complaining about Laming coming after him, which received 465 retweets and 1,500 likes.
Wicks has so far refused to delete the tweet and has doubled down in public comments, but Hanson-Young accepts she was wrong to describe Laming’s behaviour as “upskirting” and has apologised.
Rolph says politicians suing each other or media outlets may be old hat, but cases against social media users are a “new permutation”. Whether or not it’s worth the bother is a “forensic decision plaintiffs have to make”, he says.
“They have to make an assessment about the wisdom or otherwise of suing in the first place and their choice of defendant.”
Barilaro’s case includes a claim against Google for its failure to remove Friendlyjordies videos despite requests from the deputy premier’s lawyers – a potential new front in the war to correct the public record.
Despite the changes ushered in by Porter before he resigned as attorney general to pursue his case, the future balance of the law is still unclear.
Bradley says the “jury is out” over whether the current crop of reforms will curb case numbers, although there is “a good chance” the public interest defence could “slow down the ardour of politicians to sue when they’re the subject of serious allegations”.
Bradley hopes the serious harm threshold will “kill off petty claims”, suggesting that in the complaint about “upskirting” Laming “might struggle to establish serious harm, given the context”.
Rolph says neither the serious harm nor public interest defence have a basis in the common law of Australia, so it will be difficult to tell how these “transplants” from England and Wales will be interpreted here.
“Even though the purpose … is to protect public interest journalism and weed out marginal and trivial claims at the outset – and that may in fact occur in the longer term – in the short and medium term, the statutory construction of both will have to be litigated and will be hotly contested.”
Bradley wants “more profound reform”. Without entrenched civil rights in Australia “the right to reputation has taken on by default a status protected by law and courts which seems completely disproportionate to the protection for a more fundamental right of free speech and important role to democracy of a free press”, he says.
Bradley calls for a reassessment of the freedom to discuss matters of public importance and interest “without fear of being sued into bankruptcy if you get your facts wrong or go slightly overboard with your language, which is where we are at the moment”.