Fair bal­ance be­tween speech and law

The Weekend Australian - - INQUIRER - CHRIS MER­RITT

The na­tional re­view of defama­tion that is now un­der way will be judged by the main­stream me­dia on whether it de­liv­ers on key re­forms. Ri­val pub­lish­ers and broad­cast­ers have al­ready pre­sented a series of pro­pos­als to NSW At­tor­ney-Gen­eral Mark Speak­man, whose gov­ern­ment is lead­ing the re­view. The pro­pos­als have been drawn up by the Right to Know coali­tion of pub­lish­ers and broad­cast­ers. The key pro­pos­als in­clude:

1) Re­form of the in­ef­fec­tive cap on dam­ages

Of­fi­cially, defama­tion dam­ages are al­ready capped at $389,500, a fig­ure that is ad­justed from time to time. But law firm Min­ter El­li­son has an­a­lysed the way this mea­sure is be­ing ap­plied and has con­cluded that it is al­most use­less. “The statu­tory cap has, to a sig­nif­i­cant de­gree, been re­moved,” says the anal­y­sis. The word­ing has not been changed. But the ef­fect has. The prob­lem, par­tic­u­larly in Vic­to­ria, is that judges have in­ter­preted the words of the Defama­tion Act in a way that has the ef­fect of mak­ing the cap dis­ap­pear when­ever they con­clude that“ag­gra­vated” ag­gra­vated dam­aged is present. The Vic­to­rian Court of Ap­peal spelled out this ap­proach in the Rebel Wil­son case and then took the ex­tra­or­di­nary step of in­form­ing the na­tion’s par­lia­ments, in a unan­i­mous judg­ment, that if they dis­agreed they could pass an amend­ment. So while the cap stands at $389,500, Wil­son re­ceived al­most twice as much: $600,000. Un­til the na­tion’s gov­ern­ments agreed to launch the cur­rent re­view of defama­tion law, amend­ing this law to re­store the ef­fect of the cap was eas­ier said than done. The uni­form Defama­tion Acts are cov­ered by an in­ter-gov­ern­men­tal agree­ment that re­quires all states to agree on any changes. The new in­ter­pre­ta­tion of the cap has been seized on by plain­tiffs, even though the Right to Know Coali­tion has pointed out that it is in­con­sis­tent with four de­ci­sions of the NSW Supreme Court. Crick­eter Chris Gayle em­braced the cap-bust­ing ap­proach dur­ing his re­cent defama­tion case in the NSW Supreme Court. Gayle won but the NSW Supreme Court sidestepped the ques­tion of whether it should join the Vic­to­rian cap busters. How­ever, it may be­come a live is­sue again in the $6.5 mil­lion claim lodged in the Supreme Court by ac­tor Craig McLachlan over al­le­ga­tions about his con­duct to­wards fe­male cast mem­bers. Min­ter El­li­son says the dis­ap­pear­ing disa cap means pub­lish­ers are “in­ca­pable of weigh­ing up the com­mer­cial risk of pub­lish­ing a par­tic­u­lar story be­cause dam­ages are at large and un­pre­dictable”. The me­dia coali­tion favours re­solv­ing the in­con­sis­tency and restor­ing the cap.

2) Stamp out fo­rum shop­ping

The me­dia coali­tion is call­ing for a change to the Fed­eral Court Act to o pro­vide for a pre­sump­tion in favour of jury tri­als dur­ing Fed­eral Court defama­tion cases. This would bring thee Fed­eral Court into line with most state Supreme Courts andd pre­vent plain­tiffs, suchch as ac­tor Ge­of­frey Rush in his ac­tion against The Daily Tele­graph, avoid­ing ju­ries by launch­ing their claims in the Fed­eral Court.

3) Thresh­old test

To weed out triv­ial cases at an early stage, the me­dia coali­tion is call­ing for a thresh­old test re­quir­ing plain­tiffs to show they have suf­fered se­ri­ous harm. This would align with British prac­tice.

4) A pub­lic in­ter­est de­fence

Be­cause courts have ap­plied a re­stric­tive ap­proach to the de­fence of statu­tory qual­i­fied priv­i­lege, the me­dia coali­tion favours aban­don­ing it and adopt­ing a new de­fence used in Bri­tain. Statu­tory qual­i­fied priv­i­lege is in­tended to ppro­tect pub­li­ca­tions whose con­duct is rea­son­able. But be­cause this has rarely suc­ceeded, the me­dia coali­tion wants this re­placed with a British de­fence that pro­tects pub­lic in­ter­est ma­te­rial tthat the pub­lisher rea­son­ably be­lieved was in the ppub­lic in­ter­est. The ef­fec­tive­ness off statu­tory qual­i­fied priv­i­lege is set to be tested in the Fed­er­alal Court where busi­ness­man Chau Chak Wing is su­ing the ABC and Fair­faxx Me­dia (which now iss owned by the Nine Net­work) over a pro­gram re­broad­cast on Fair­fax web­sites. The pro­gram has been found by a judge to be ca­pa­ble of con­vey­ing the im­pu­ta­tions that Wing was a mem­ber of the Chi­nese Com­mu­nist Party and en­gaged in cor­rupt ac­tiv­ity. To suc­ceed, Fair­fax and the ABC may need to re­veal con­fi­den­tial sources to show their con­duct was rea­son­able.

5) 5 Lim­i­ta­tion pe­riod

The me­dia coali­tion is call­ing for Aus­tralia to fol­low in­ter­na­tional prac­tice and to re­store the ef­fec­tive­ness of the lim­i­ta­tion pe­riod for launch­ing defama­tion claims. In NSW claims can be launched only within a yyear of pub­li­ca­tion. But that was ren­dered in­ef­fec­tive by a High Court rul­ing in an early in­ter­net case in­volv­ing Dow Jones and min­ing en­tre­pre­neur Joe Gut­nick. The court ruled that pub­li­ca­tion takes place when­ever an ar­ti­cle is down­loaded from the in­ter­net, which means the lim­i­ta­tion pe­riod can be ex­tended in­def­i­nitely by sim­ply read­ing an ar­ti­cle on­line. It also means plain­tiffs can sue in Aus­tralia for ma­te­rial that ap­pears on the in­ter­net, re­gard­less of where it was orig­i­nally pub­lished. The me­dia coali­tion is call­ing for a “sin­gle pub­li­ca­tion rule” that ap­plies to the first pub­li­ca­tion of the ma­te­rial, re­gard­less of the medium. This would bring Aus­tralia into line with the ap­proach in Bri­tain, Ire­land and sev­eral US states.

Craig McLachlan

Ge­of­frey Rush

Chris Gayle

Chau Chak Wing

Rebel Wil­son

Newspapers in English

Newspapers from Australia

© PressReader. All rights reserved.