David Ipp, the former judge and anti-corruption commissioner, once wrote that “defamation litigation is a fact of Australian life”. Whatever our self-perception may be that we are a laid-back people, many of us are swift to threaten defamation action.
Sydney has a good claim to the title of being the defamation capital of the world. (Privacy is now the claim of choice in London, but that’s another story.) There is enough defamation litigation in Sydney to have specialist lists in the Supreme and District courts.
Ipp also once famously described defamation as “the Galapagos Islands division of the law of torts”. Unlike other areas of law, defamation is yet to evolve. Defamation law has a deserved reputation for being complex, technical and artificial.
There is renewed appetite for defamation law reform. This is welcome but overdue.
What principles should guide the reform process? And what are the major problems?
A defamation law process underpinned by a commitment to simplification and rationalisation would be a sound start. Defamation law is complex and technical partly because it imposes liability for words by using still more words – lots of words. In some ways, this is perhaps unavoidable.
But defamation law should aim to be as comprehensible as possible to people who are not defamation lawyers.
Defamation law applies to all forms of communication. It is medium-neutral – from the front page of a newspaper to the Facebook status update to the conversation over the back fence.
It seeks to balance two competing interests: reputation and freedom of speech. Everyone has an interest in his or her own reputation. Everyone has an interest in freedom of speech.
Any system of law imposing liability for an everyday activity and touching upon fundamental interests like that should try to be accessible, rather than arcane.
There are some technical issues about defamation law that need addressing. For instance, the defence of contextual truth is an unglamorous but necessary issue requiring reform.
But there are also some areas of defamation law that raise important issues of principle. The need for a public interest defence, which has not been developed by courts in Australia, unlike the UK, Canada and most recently New Zealand, is an obvious example.
Effective remedies for defamation should also be addressed. It is still the case that an award of damages is the principal remedy for defamation. But few people who are defamed would want to sue, with all the attendant time, costs and anxiety.
Alternative remedies such as corrections, retractions, declarations of falsity and, importantly for online defamation, take-down orders, should be explored.
A defamation law reform process should be open to learning about what other jurisdictions are doing. Defamation law reform has been of considerable interest to law reform bodies around the world in recent years.
In 2013, the UK Parliament passed new legislation, the culmination of a three-year review process. (All three major parties in the UK went to the 2010 general election with defamation law reform as part of their platform.)
Since 2015, the Law Commission of Ontario has been conducting a full-scale review of defamation law in the internet age. Law reform bodies in Scotland, Northern Ireland and Ireland have also recently examined their respective to shortlist
There is a lot to learn from these reform processes because many of the problems Australia faces are ones faced in those jurisdictions. In particular, all the jurisdictions are facing problems presented by the application of defamation laws to online technologies and platforms.
The last consideration of defamation law by the Australian Law Reform Commission was almost 40 years ago, decades before the advent of the internet. Its last consideration by the NSW Law Reform Commission was in 1995, when the internet was in its infancy.
Reforming Australian defamation law is not straightforward. The problems raised involve fine balancing.
How do you enlarge the scope for free speech and stop the chilling effect of defamation law? How do you support responsible journalism ventilating public abuses and undetected crimes?
How do you ensure that trivial cases do not consume the time and resources of courts and defendants, whether those defendants be media companies or private individuals? Equally, how do you ensure that people who have had their reputations unfairly damaged, whether by mass media outlets or by private individuals, can have some form of effective redress?
These are not simple questions to answer.
That is why any defamation law reform process needs to be considered and thorough. Hasty reforms can lead to unintended consequences, as the history of Australian defamation law shows.
Tinkering and tweaking will defer dealing with the problems. As the old proverb goes, nothing is ever settled until it is settled right.
David Rolph is a professor of law at the University of Sydney Law School.
This post originally appeared in the Sydney Morning Herald and is reproduced with permission and thanks.