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Defamation Law in Australia: arcane, technical and in need of fundamental reform – David Rolph

RolphDefamation law has a reputation for being the most arcane area of private law. Its reputation is deserved. Described as the ‘Galapagos Islands Division of the law of torts’ by New South Wales Court of Appeal judge, Justice David Ipp, defamation law can be forbidding for lawyers and judges alike. With the introduction of national, uniform defamation laws, the sense of confusion inherent in defamation law may now apply more generally, rather than show any simplification or improvement.

Defamation law has been justifiably criticised for its technicality. Perhaps more than any other area of law, it is fixated upon pleadings. The prolixity of pleadings increases the number of interlocutory disputes, delaying a trial on the underlying matter.

Beyond pleadings, defamation law has a highly particular approach to language. A key feature of liability is the “single meaning” rule, whereby the tribunal of fact determines the “single meaning” ascribed to the matter published. Given that the same words can reasonably mean different things to different people, this reductive approach to language contributes to the artificiality of the tort. Stranger still, defamation law imposes liability, not for actual damage to reputation but for conduct that tends to cause damage to reputation. By focusing on the objective tendency to damage a reputation, rather than the actual damage, a defendant may avoid liability for actual damage to reputation, or a plaintiff might be compensated in respect of damage not actually done. The disparity between the way defamation law protects reputations and the way reputations are actually experienced heightens the artificiality of defamation and undermines its legitimacy.

Intertwined with artificiality is complexity. Defamation law emerged in English law from multiple sources and has never undergone thorough revision. It is a product of historical accident, piecemeal reform and comparative neglect. Yet given the fundamental importance of the interests involved, the law regulating reputation and freedom of speech should not be so complex that ordinary people require specialist legal advice to understand it.

Australian defamation law is in need of fundamental reform. The last large-scale review of Australian defamation law occurred in 1979. In the intervening decades, the High Court of Australia has identified the implied freedom of political communication emerging from the Commonwealth Constitution and developing internet technologies have profoundly changed the way people communicate. Although the commencement of the national, uniform defamation laws in early 2006 began this process, the reforms were aimed towards securing uniformity and as a consequence, the resulting laws are not radically different from what existed before. Defamation law reform is difficult as the fitful attempts over several decades demonstrate, and there is rarely political will to make it a priority. The task of substantive law reform lies ahead and it is hoped that providing a comprehensive account of Australian defamation law will contribute to that process.

Any reform must be informed by a commitment to freedom of speech. There are many areas of law that impinge upon this fundamental freedom, however defamation law presents one of the greatest challenges. The substance of Australian defamation law favours plaintiffs over defendants, privileging the protection of reputation over freedom of speech. The plaintiff’s case is often straightforward, having the advantage of the presumption of damage to reputation and the presumption of falsity – the plaintiff does not need to prove that the matter was false, the defendant needs to prove that it was true. Defences to defamation are thus vital to protect freedom of speech fairly. Yet the defences to defamation are highly technical, working against the effective protection of speech.

The reach of defamation law is more extensive than many realise. Private individuals can and do find themselves being sued successfully for defamation over low-level everyday speech, such as casual remarks in conversation or a Facebook post or tweet. This provides a powerful reason for rationalising defamation law. It also provides a powerful reason to ensure continued community involvement in defamation litigation. Unlike the United Kingdom, the majority of jurisdictions in Australia have maintained the right to trial by jury. While the abolition of juries may better promote the just, quick and cheap resolution of disputes, requiring judges and advocates to explain principles to juries of laypersons helps to prevent defamation law from becoming more complex.

Of course, defamation law is of particular relevance to media outlets in their daily operations. At the pre-publication stage, the threat of litigation can inhibit media outlets from publishing legitimate stories on matters of public interest. Defamation law also serves an indirect regulatory function on media outlets, implemented by private plaintiffs seeking to hold media outlets accountable for their publications. If the requirements of defamation law are so onerous that they lead media outlets, or indeed private individuals, to self-censor, this should be a cause for concern and an indication of the need for reform.

This is an edited extract from David Rolph’s Defamation Law, which was published by Thomson Reuters on 18 November 2015

1 Comment

  1. Benjamin

    Would you consider that one of the main reasons for reluctance in the area of reform is the fact that lawyers and judges are capable of negotiating the present difficulties? Why make something simpler if it is still going to be played out in the domain of experts? With regard to litigation over casual facebook posters, the problem in these cases generally is not that the publisher didn’t understand the defamation law; rather, that they didn’t consider it at all. Perhaps adding ‘YOU COULD BE SUED’ to all online blogs and micro-blogs would be much more useful than law reform.

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