NSW District Court Judge Judith Gibson has rebuked successive governments’ failure to review and reform Australia’s defamation laws in the face of the revolutionary impact of social media on modern communication.

Noting the antiquated nature of the New South Wales Defamation Act (it refers to communications via fax almost as much as it does to electronic communication), Judge Gibson said that it both failed to protect increasingly vulnerable media defendants from vexatious litigation and legitimate plaintiffs from online abuse.

According to s.49, the Defamation Act 2005 is to be reviewed five years after it begins operation.

In her paper, Judge Gibson explained that no review has been published in any state or territory that adopted the uniform legislation. Indeed, NSW was the only state that accepted submissions on the Act, and even then it was subject to a desultory consultation period, lasting just two months.

No consultation paper was written, and only a small number of submissions were received. Nonetheless, on the basis of this modicum of input dating from 2011, Judge Gibson said, “there is anecdotal evidence that this review report has recently been either completed or tidied up”.

However, she warned that it is unclear how a review that did not grapple seriously with the implications of social media can adequately address the challenges it poses to defamation law.

Amongst the issues with the current legislation that Judge Gibson identified were:

  • The inability of defendants to plead back the plaintiff’s imputations for the purpose of contextual truth after Besser v Kermode.
  • The forum-shopping that has resulted after Chau Chak Wing v Fairfax substantially allowed plaintiffs to evade defendants’ right to a jury trial in several states.
  • The challenge of “anonymous and/or penniless” attackers, against whom damages are an ineffective remedy, and the associated challenge of compelling third-party internet businesses to identify defendants making defamatory posts on their sites.
  • The lack of clarity around the defence of honest opinion, and whether it is necessary to join the opinion-holder to the proceedings in addition to the primary publisher.
  • Costs from internet-based defamation that are out of all proportion to the loss suffered, thereby providing an avenue for wealthy businesses and individuals to silence criticism online.

The most sobering critique of existing provisions detailed by her Honour was through her examination of the case of former Welsh Police Superintendent Gordon Anglesea. Anglesea was accused of being a paedophile in the early 1990s by a number of British publications, leading to a payout of almost £400,000 for defamation in 1994.

However, in 2013, Angelsea was arrested and convicted of the abuse of several young boys. Referring to Angelsea and other British paedophiles who were able to intimidate journalists through the courts, Judge Gibson noted:

“The chilling effect of inadequate defences … may still protect high-profile abusers, as has been noted recently in the #MeToo movement.”

The judge was also critical of some “traditional” proposals to alter defamation proceedings. She noted that Justice Michael Wigney’s Federal Court decision in Goodfellow to save matters normally determined in interlocutory hearings for the main trial was likely to substantially increase costs for both parties

Justice Wigney himself appears to have taken a different tack in his more recent interlocutory decision in Rush to strike out the defence of truth.

Judge Gibson was sceptical about proposals for a right to free speech, given Australia’s constitutional apparatus, and for a public figure doctrine. She said:

“Instead of harking back to pre-internet concepts of news being written by actual journalists about people who were famous because they did something important, defamation law reform needs to adapt to the modern interconnected world.”

Judge Judith Gibson’s paper can be found here [pdf].

This post was originally published in the Gazette of Law and Journalism, Australia’s leading online media law publication.