Bro­ken defama­tion laws threaten our democ­racy

Re­form to strengthen the pub­lic’s right to know is over­due

The Weekend Australian - - COMMENTARY -

The push for defama­tion re­form is gain­ing mo­men­tum at last. A broad me­dia coali­tion, in­clud­ing this news­pa­per, has come to­gether to urge changes that would em­power jour­nal­ism in the pub­lic in­ter­est. The so­cial me­dia hon­ey­moon is over and, at a time of fake news and po­larised pol­i­tics, there is a re­dis­cov­ery of the need for ac­cu­rate re­port­ing, in­formed com­men­tary and pro­fes­sional edit­ing. But tra­di­tional me­dia’s tough busi­ness model, made worse by bro­ken defama­tion laws, threat­ens to price out in­ves­tiga­tive jour­nal­ism and de­ter pub­lish­ers from in­vest­ing in break­through projects such as our pod­cast The Teacher’s Pet. Rep­u­ta­tion cer­tainly has to be pro­tected — just look at Twit­ter — but a re­bal­anc­ing in favour of free­dom of ex­pres­sion is over­due. Me­dia free­dom is not a priv­i­lege; it is a duty to ful­fil the pub­lic’s right to know. Without that right, fact­based de­bate falls away and demo­cratic pol­i­tics be­comes pop­ulist. Hence the me­dia coali­tion launched un­der the ban­ner Aus­tralia’s Right to Know and em­brac­ing ven­tures as dif­fer­ent as our par­ent com­pany News Corp, the ABC, free-to-air TV and Bauer Me­dia.

It’s true that one prob­lem in the present defama­tion regime is a lack of un­der­stand­ing on the part of some judges who ap­ply utopian stan­dards in ret­ro­spect to the pres­sured busi­ness of news-gath­er­ing. But it would be a mis­take to frame the cause of re­form as a strug­gle be­tween jour­nal­ists and lawyers. Prom­i­nent bar­ris­ter Matt Collins QC, who rep­re­sented ac­tress Rebel Wil­son in her case against Bauer, has de­scribed our defama­tion scheme as “Franken­stein’s mon­ster”, say­ing: “If you were start­ing from scratch, the defama­tion laws you would draft would bear no re­la­tion­ship at all to those we are sad­dled with.” Min­ter El­li­son part­ner Pe­ter Bartlett, an ad­viser to The Age news­pa­per, has said: “The courts are not a level play­ing field in re­la­tion to defama­tion tri­als. Time and time again, you get the feel­ing that the me­dia are de­fend­ing defama­tion cases with both hands tied be­hind their backs.” NSW Dis­trict Court judge Ju­dith Gib­son has made a study of defama­tion cases, dis­cern­ing a “feral” tone in re­cent lit­i­ga­tion and more plain­tiffs whose goal ap­pears to be to ha­rass or dam­age a me­dia de­fen­dant rather than pro­tect their rep­u­ta­tion.

A full-blown trial can cost a pub­lisher as much as $150,000 a week. In the 2000s, this news­pa­per was forced to spend an un­re­cov­er­able $1.5 mil­lion run­ning a de facto war crimes trial to de­fend a defama­tion claim by Dra­gan Vasiljkovic — known as Cap­tain Dra­gan — who ul­ti­mately was locked up by Croa­tia for atroc­i­ties in for­mer Yu­goslavia. The av­er­age court-awarded sum of dam­ages last year was $243,466 in NSW and $278,333 in Vic­to­ria. The real to­tal is much higher be­cause many cases are set­tled with pay­ments on the quiet. Me­dia or­gan­i­sa­tions paid out $17m in dam­ages across the decade to last year, not in­clud­ing court costs, ac­cord­ing to one es­ti­mate. And how are pub­lish­ers to weigh the risks when, in a case such as Wil­son’s, the judge can award dam­ages of $4.5m, re­duced on ap­peal to $600,000 — still far above the $389,500 leg­is­lated cap?

For­mer Fair­fax coun­sel Gail Ham­bly has warned: “If some­thing isn’t done to ur­gently ad­dress defama­tion law in Aus­tralia, to ad­e­quately ac­knowl­edge the es­sen­tial work jour­nal­ists do bring­ing into the light is­sues of pub­lic im­por­tance, there is a real risk that in­ves­tiga­tive jour­nal­ism will just be­come too risky and too ex­pen­sive. The out­come will be se­ri­ous for the func­tion­ing of our so­ci­ety.”

Aus­tralia has the most il­lib­eral defama­tion laws in the com­mon law world. The US has its long-en­trenched con­sti­tu­tional guar­an­tee of press free­dom, and in 2013 Bri­tain re­bal­anced its defama­tion laws to give due weight to pub­lic in­ter­est jour­nal­ism. New Zealand and Canada have more sen­si­ble, up-to-date schemes than we do. This is the re­al­ity be­hind a be­lated in­sti­tu­tional ac­knowl­edg­ment that re­form must come. Some of the vi­tal changes on the agenda — to do with us­able de­fences — are sim­ply at­tempts to res­cue the in­ten­tion of the law from mis­guided ju­di­cial in­ter­pre­ta­tions. NSW At­tor­ney-Gen­eral Mark Speak­man is lead­ing the first re­view of the uni­form state defama­tion laws that took ef­fect in 2006. Its ob­jec­tives in­clude mak­ing sure “the law of defama­tion does not place un­rea­son­able lim­its on free­dom of ex­pres­sion and, in par­tic­u­lar, on the pub­li­ca­tion and dis­cus­sion of mat­ters of pub­lic in­ter­est and im­por­tance” as well as en­cour­ag­ing “speedy and non­l­iti­gious meth­ods of re­solv­ing dis­putes”. If noth­ing else, re­form is needed to make bet­ter use of court re­sources.

A Mar­tian wan­der­ing into a defama­tion trial might think de­fence a straight­for­ward mat­ter if the ar­ti­cle when pub­lished was true. But it is al­to­gether an­other thing to prove truth in court ac­cord­ing to labyrinthine rules and ju­di­cial in­ter­pre­ta­tions obliv­i­ous to the fact that in­ves­tiga­tive jour­nal­ism of­ten re­lies on con­fi­den­tial sources to pen­e­trate of­fi­cial de­cep­tion or guilty si­lence. Clever work on im­pu­ta­tions by a plain­tiff lawyer can ren­der an ar­ti­cle al­most un­recog­nis­able in court. As Mr Bartlett says: “The me­dia has to de­fend a case based on what the plain­tiff says the pub­li­ca­tion sug­gested, not what the me­dia in­tended to pub­lish.” The or­di­nary mean­ing of words is lost in a

The courts are not a level play­ing field in defama­tion tri­als Scan­dal and cor­rup­tion will pros­per if ro­bust jour­nal­ism is muz­zled

search for out­rage. When it comes to par­tic­u­lars for a de­fence of truth, some judges have im­posed stan­dards of speci­ficity more ap­pro­pri­ate to ev­i­dence in the trial it­self. And in re­cent cases — such as Rush v Na­tion­wide News, and Wing v ABC and Fair­fax — ev­i­dence rel­e­vant to the truth has been ex­cluded be­cause of a ju­di­cial view that the de­fence must be lim­ited to in­for­ma­tion the jour­nal­ist had at the time of pub­li­ca­tion. Why should a pub­lisher be pro­hib­ited from fur­ther le­gal in­ves­ti­ga­tion be­fore go­ing to trial?

The de­fence of con­tex­tual truth has been re­stricted to the point of use­less­ness. As things stand, a plain­tiff can win dam­ages even though the ar­ti­cle as a whole is sub­stan­tially true but in­cor­rect in some nar­row as­pect un­likely to do fur­ther dam­age to rep­u­ta­tion. That can’t be right. Qual­i­fied priv­i­lege — once held out as the shield of pub­lic in­ter­est jour­nal­ism — has be­come so di­vorced from the re­al­i­ties of this hur­ried craft that some me­dia lawyers have been re­luc­tant to plead it as a de­fence. The prob­lem is to sat­isfy a judge that a jour­nal­ist has be­haved “rea­son­ably”. In the 2006 case of John Fair­fax v Zunter, the re­porter had tried to reach the plain­tiff by road and tele­phone in a re­mote area af­fected by bush­fire. A pho­tog­ra­pher did reach plain­tiff John Zunter by river be­fore pub­li­ca­tion, urg­ing him to con­tact the re­porter, but to no avail. Yet the court found pub­li­ca­tion was not rea­son­able.

There is a strong case for the sub­sti­tu­tion of an aptly named pub­lic in­ter­est de­fence mod­elled on the British scheme. The me­dia or­gan­i­sa­tion would have to show the sub­ject mat­ter was of pub­lic in­ter­est and was pub­lished with a rea­son­able be­lief it was in the pub­lic in­ter­est. Cru­cially, the test of what’s rea­son­able should be holis­tic and flex­i­ble — tak­ing ac­count of the real-world cir­cum­stances of good jour­nal­ism — and not a rigid set of judge-im­posed con­di­tions, each of which has to be sat­is­fied. Er­rors of fact should not be fa­tal to this de­fence, as long as the jour­nal­ism was car­ried out re­spon­si­bly and the topic fell within the pub­lic in­ter­est. Jour­nal­ists must strive for to­tal ac­cu­racy but some­times a risk of in­ci­den­tal er­ror has to be tol­er­ated if the pub­lic is not to be de­nied an ur­gent and im­por­tant story. It’s in­evitable that some re­ports will have short­com­ings, but think of the scan­dal and cor­rup­tion that will pros­per if in­ves­tiga­tive jour­nal­ism con­tin­ues to be muz­zled by re­stric­tive defama­tion laws.

An­other British re­form worth fol­low­ing is a thresh­old test for se­ri­ous rep­u­ta­tional harm to stop triv­ial, vex­a­tious or spu­ri­ous claims. In our sys­tem, this fil­ter­ing has to wait un­til trial, wast­ing le­gal costs and court time. Fo­rum-shop­ping is an­other vice that has to be tack­led. As­sum­ing judgealone tri­als to be more sym­pa­thetic, plain­tiffs have made the Fed­eral Court the desti­na­tion of choice. The re­sult is more con­fu­sion be­cause of in­con­sis­tent ap­proaches in fed­eral and state courts. The so­lu­tion is to adopt a demo­cratic pre­sump­tion in favour of jury tri­als in the Fed­eral Court. A new “sin­gle pub­li­ca­tion” rule would recog­nise how jour­nal­ism to­day is dis­sem­i­nated on­line and dis­cour­age un­fair lit­i­ga­tion.

It’s also vi­tal to re­store cred­i­bil­ity to the cap on dam­ages. Courts have ig­nored it by award­ing “ag­gra­vated dam­ages”, some­times for noth­ing more than a mi­nor de­fect of news-gath­er­ing to a dead­line. By far the more se­ri­ous pub­lic pol­icy is­sue is the dam­age that defama­tion laws do to the vi­a­bil­ity of re­spon­si­ble jour­nal­ism. It’s time for par­lia­ments to bring on the pow­er­ful case for re­form and de­cide in favour of the pub­lic’s right to know.

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