Fair balance between speech and law
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.
Chau Chak Wing