Broken defamation laws threaten our democracy
Reform to strengthen the public’s right to know is overdue
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.