Do not be deceived by the modest cover design and restrained prose of Dr Rolph’s latest book.
As should be expected from an author whose previous publications include Dirty Pictures: Reputation, Defamation and Nudity (2006), (10 Law Text Culture 101), this is a lively and thought-provoking account of the history and problems of defamation law in Australia.
It is also a work of detection: who is responsible for Australian defamation law being (to quote the sub-headings in Chapter 1) so “technical”, “artificial” and “complex”?
The investigation starts with the historical development of the cause of action in the United Kingdom and its application in Australian legislation and case law.
And what a remarkable history it is – from our humble convict days, to the modern success of being crowned the libel capital of the world by academics (Roy Baker’sThird Person Singular, 17/10/2003) and bloggers (Inforrm, 12/10/2010); and, finally, to the enactment of a uniform code which Dr Rolph tells us is “characterised by haste and compromise”.
To quote Justice Kiefel (pic) in the book’s Foreword, our defamation law can now confidently be called “arcane, complex, technical and obscure”.
Who can we blame for the parlous state of our defamation law?
The history section of this book tells us that Australia actually began well in terms of defamation reform.
For example, in 1847, showing a healthy suspicion for principles developed in the ecclesiastical courts and the Star Chamber, Australians came up with the defence of triviality, a defence drawn from Australia’s convict past, where nobody had much of a reputation – or, as Rich J more diplomatically put it, “to meet the hard conditions of pioneer days” (Lang v Willis (1934) 52 CLR 637 at 650).
However, those early reforms were state-based. Dr Rolph next wades into the swamp of regional protectionism which dominated Australian politics, both before and after Federation, to show how individual state reforms (such as codification) were neutered by geographical limits.
By the end of the twentieth century, there were eight substantially different defamation laws in Australia, which Dr Rolph describes, in his usual restrained style, as “undesirable, if not indefensible” in a country where mass media and internet publications usually covered all eight jurisdictions.
Dr Rolph’s account of the tortuous process by which uniform defamation law was achieved in 2005 leads us closer to an understanding of the problem, by explaining that, until Commonwealth Attorney-General Philip Ruddock threatened to draft Commonwealth legislation based on the communications and corporations power, defamation law reform was rarely seen by state politicians as having any sort of priority.
Terrified by Mr Ruddock’s attack on their state power base, the states responded with a hasty draft which was little more than the Defamation Act 1974 (NSW) “exported nationally”, with all its pre-existing problems.
The result, Dr Rolph warns, is that “the task of further substantive defamation law reform still lies ahead”, a problem growing increasingly urgent with the rising number of internet and social media defamation actions.
When the 2005 uniform legislation did not provide a quick fix, legislators, commentators and judges began casting about for some “usual suspects” to blame: the jury system, celebrity plaintiffs, bad pleadings, massive damages.
However, early fears of lengthy/perverse jury trials (Fierravanti-Wells v Channel Seven Sydney Pty Ltd  NSWDC 143) and of a deluge of celebrities suffering from what Justice Kiefel calls “a certain tenderness of feelings” in the Foreword, have dissipated.
There have been no jury mis-trials, and hardly anybody famous is suing, so we can’t blame juries or celebrities.
Dr Rolph also refers us to the Honourable David Ipp AO QC’s choice of suspects in his famous “Galapagos Islands” attack ((2007) 87 ALJ 609) on defamation law: disproportionate damages, Dickensian pleadings and “massive delays” in getting to trial.
But David Ipp’s article was written before any cases under the uniform legislation were heard or the impact of new case management legislation had taken effect to reduce delays and pleadings issues in litigation generally.
And, thanks to the cap, defamation damages appeals are rare, and still more rarely successful (unlike other torts such as personal injury).
So, why is defamation law still accused of being technical, artificial and complex?
The answers, in my view, can be found in the book’s step-by-step analysis of the problems in defamation law.
Dr Rolph (pic) gently leads the reader through the relevant principles and associated law reform issues, demonstrating that the problems arise from poor legislative drafting and political (or curial) timidity rather than bad pleadings or big damages.
First, Dr Rolph identifies problems in the Lange (Lange v Australian Broadcasting Corporation (1997) 189 CLR 520) defence, noting it was not followed in Reynolds v Times Newspapers Pty Ltd  2 AC 227, a decision which the Australian courts have in turn refused to recognise, and which the High Court of Australia has declined opportunities to consider ever since, despite hinting at it in 2002: Skalkos v Assaf  HCA Trans 649 (13 December 2002).
Australian law reform is lagging so far behind that parties are still forlornly asking courts to consider applying Reynolds (most recently, in the Hockey defamation trial), even though Reynolds principles have actually been replaced by the United Kingdom’s Defamation Act 2013.
Second, Dr Rolph sets out examples of the failure to legislate for internet publications, such as the problems with innocent dissemination and the need for a “single publication” rule.
Dr Rolph’s discussion of alternatives to damages, such as declarations, apologies, corrections and a right of reply (at [17.100] [17.130]) is also particularly pertinent in the electronic age.
The legislative failure to consider remedy reforms given the wholly different nature of electronic publication and role of the defendant (especially in social media cases) is as hard to understand as their continued reluctance to confront privacy and breach of confidence issues.
Third, Dr Rolph sets out the many drafting problems with the defences, notably s 26 contextual justification, fair comment and honest opinion, and offer of amends.
Fortunately, despite Justice Kiefel’s animadversions in the Foreword about specialist lists, Justice McCallum has recently got rid of the Hore-Lacy defence, so NSW readers can skip paragraph [9.80]).
Reassembling the suspects in the library, in true Agatha Christie style, who can we blame for the complexity and artificiality of defamation law?
The juror, the tearful footballers, the parliamentary draftsmen, the politicians, the specialist list judge and/or history?
History does make a contribution in that, for centuries, anyone with access to a printing press was a potential subversive, and legislation was drafted accordingly.
However, that is only the beginning of the problem. As Mr Justice Eady explained in his 2010 speech to City University, London:
“The recent communications revolution is comparable to the invention of printing, just on a vaster scale numerically and geographically.
The conflict is not between princes and people, as it was in the 16th and 17th centuries, but between individual communicators and a multiplicity of laws”.
However, I think the problem is that the uniform code legislators were, in the words of the Skyhooks song, still “living in the seventies” and consequently used already-obsolete 1974 legislation for a 2005 networked society.
Aware of their haste, they added s 49 to enable the legislation to be revisited in 2010, but failed to follow this up, and the impetus to return to the drawing board is now well and truly lost.
The need for fair defamation laws goes beyond the need for a level playing field; freedom of speech is a right which transcends individual claims.
Concern about Australia’s increasingly out-dated defamation laws has coincided with Australia slipping out of Transparency International’s “Top Ten” nations for combating corruption.
The impact of inadequate and out-dated legislation on the chilling of free speech on public speech about major societal issues (such as corruption) is easy to prove; there is a “vast” literature (as Gabriele Gratton noted in her 4/9/2013 review of the topic) on the interaction between defamation law and corruption.
And, as Professor Vai Lo’s landmark 2009 study ((2009) 11 Public Management Review 155 – 172 at p.156) shows, researchers agree that a free press is more successful than anti-corruption bodies in exposing wrongdoing; in fact, as Professor Lo points out, a free press is more successful in combating corruption than the democratic process itself.
Dr Rolph’s publication is a vital contribution, not only to the identification and clarification of defamation law, but to the law reform debate generally.
He has set out the issues for reform in the wider framework of how the legislation and case law succeed – or fail – to deal with the tension between protection of reputation and freedom of speech, and this dispassionate and objective approach means that the problems – and the solutions – are clear.
If defamation law reform is to go back onto the legislative drawing board, this book will be an essential reference text.
*Judith Gibson is the NSW District Court’s Defamation List Judge. Defamation Law (2015) is published by Thomson Reuters, Australia.
This review originally appeared in the Gazette of Law and Journalism, Australia’s leading online media law publication