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Free press backwater: how to change the defamation laws that stifle Australian journalism – Richard Ackland

Geoffrey Rush would have zero chance of securing a successful libel verdict if he sued in the United States over the “inappropriate behaviour” story. The same would apply to the cricketer Chris Gayle and the actor Craig McLachlan.

The first amendment combined with the supreme court’s 1964 landmark case of New York Times v Sullivan means that the bar is set very high for celebrities or public figures who want to sue for defamation. Essentially they have to prove that the publication was actuated by “malice” in the false reporting of a news story.

Forget it. Celebrities, officials and politicians just don’t win libel cases against the big media companies in the US. That’s why we don’t have Harvey Weinstein suing the New York Times.

After his lawyer, Charles Harder, threatened an action against the paper for its reports on his abuse, sexual aggression and worse, nothing much happened and shortly Harder was off the case and no longer acting for Weinstein.  Harder was the lawyer that got Gawker in a camel-clutch on behalf of Hulk Hogan in a privacy action.

Sarah Palin recently tried to sue the New York Times and, even though the newspaper made a mistake in its editorial about a gunman who opened fire at a baseball event attended by congressional Republicans, associating it with a Palin campaign flyer, the judge threw out her case, saying: “Nowhere is political journalism so free, so robust or, perhaps, so rowdy as in the United States.

While visiting Australia, Farrow said of reporting developments in the #MeToo and #NotHimToo movements:

“There’s a really stark difference between [the US] and Europe and even, I gather, in Australia … I feel very fortunate to be working in the US because we do have this extraordinary protection of the first amendment and it does make a vast difference. I hope people pay attention to how vital the press has been in the United States. I don’t think it could have happened almost anywhere else.”

In England and Wales, Canada and New Zealand, Rush et al would be met with a tough hurdle – a defence of responsible public interest journalism, whereby even if the story contains errors of fact it would be defensible if the journalism was conducted responsibly and the information was in the public interest.

No such law has been discovered in the free press backwater of Australia.

The English also have a “serious harm” threshold for plaintiffs to jump over before proceeding to sue, although it is currently under attack in the UK Supreme Court. In Australia, there has been fiddling at the edges with abuse of process, triviality and proportionality but there is no clarity about how they should be applied and some judges just ignore these elements entirely.

Judge Judith Gibson, from the New South Wales district court, says abuse of process needs “urgent consideration”. Of the 91 judgments she examined in the four months to the end of August 2018, 12% of the defamation cases were summarily dismissed as having no merit.

Since the UK defamation reforms took effect in 2013, there has been a decline in libel actions and only a tiny number of media trials.

In 2017 there were 10 defamation trials and only two against the media, one of which was a small Polish language newspaper, and there was a “damages only” assessment involving the Daily Mail with an outcome of £54,000.

In 2016 there were eight defamation trials in Britain with two against the media. There was one against the BBC where the claim was dismissed and another against a broadcast in Urdu where the claim succeeded.

Craig McLachlan is seeking special damages of $6.5m in his defamation case against Fairfax Media, the ABC and The Rocky Horror Show co-star Christie Whelan Browne

In 2014, there were only two media trials – one against the Daily Mail which lost and one against the Sun, which won on a preliminary trial issue.

In the period between 2014 and 2017 in England’s green and pleasant land the mainstream media fought four libel cases and lost one.

The media is in a much stronger legal position in UK court contests for libel than is the case in Australia, except for privacy actions, which is another story altogether. Members of the Blondin Society in Australia would be turning chartreuse with envy, even though the underlying position with settlements is not known.

The New Zealand court of appeal earlier this year extended the public interest defence, taking it beyond reporting on political issues to all matters of “significant public concern”. The court said it was time to strike a new balance between protection of reputation and freedom of expression.

Undeniably, the advent of social media has changed the defamation landscape and fired-up numerous small cases with self-represented litigants fighting over insulting remarks posted on Twitter, Facebook or on blogs. As to the bigger issue, whether Google or Facebook are “publishers”, there is still uncertainty as we wait on appellate decisions trying to grapple with the fact that the media has changed while the law stayed static.

The dire state of the legislation, and its acceptance by much of the judiciary, has seen a growing recognition that something needs to be done to better restore the capacity of the media to investigate and report.

A statutory review of the NSW Defamation Act was released in June, six-and-a-half years late and with submissions that were closed off years before publication.

The whole thing had a musty odour, nonetheless it made 16 important recommendations for reform, most of which are well trod: a threshold serious harm test; a single publication rule so that ancient articles sitting in news archives on the internet cannot be sued on years after publication; protections for social media platforms and internet service providers; and strengthening the reasonable journalism defence.

The NSW Bar Association put in a submission wanting to return the law to a golden era that would greatly assist barristers’ business models. The bar wanted to see large corporations having the right to sue, along with dead people, that juries should decide damages, and the reintroduction of privacy protections into the truth defence. And naturally, they want the statutory cap on general damages to be removed, so that the money could fly freely.

Minter Ellison, a large law firm that does a lot of work for media defendants, is urging adoption of some of the English reforms to strengthen the defences of truth, honest opinion and publication of matters of public interest, saying that meaningful change, not “tinkering at the edges” is required.

The firm quoted from a Media Entertainment and Arts Alliance survey in 2018 that found 72% of the respondents believed Australia’s defamation laws made reporting more difficult.

Minter Ellison said in its report: “What is more difficult to measure is the chilling effect that defamation laws may have on stories that are not pursued by journalists and editors. They represent a pervasive limitation on journalism and are the single greatest threat to press freedom in the country.”

One of our leading defamation silks, Dr Matt Collins, has also called for a radical redesign and simplification of the law.

“If you were starting from scratch, the defamation laws you would draft would bear no relationship at all to those we are saddled with,” says Collins, who recommends that falsity becomes the key component of the cause of action.

“For those subjects of public interest journalism who hide behind the fact that they know that the media will not be able to prove in court that what they have published is true, because the media is reliant on whistleblowers and confidential sources, surely it would be better to impose upon them the burden of establishing the falsity of what has been published, so that we can be sure that plaintiffs are not compensated for the publication of the truth?”

Politicians in this country have not shown much interest in enabling the media to do a proper job. The Packer swimming pool or the Fairfax tennis court are still fond memories for parliamentarians who, in the good old days, cleaned up against the newspapers and other media – Tom Uren, Jim Cairns, Joh Bjelke-Petersen, Arthur Calwell, Tony Abbott, Peter Costello and Eddie Obeid to name a few.

There’s a belief that there are no votes in liberating the media, yet at the same time it is unlikely that any votes would be lost if this corner of the democratic process was unshackled.

Conservative politicians in particular scratch off their fleas with declarations of “freedom” and “free speech” but this is quite meaningless unless the fourth estate can probe and report on matters that are of importance to the public, without having to spend millions of dollars defending their journalism.

Curiously, in 2010, the UK Conservative, Labour and Liberal Democrat parties all went to the election with defamation law reform as part of their platforms.

Australia’s Right to Know, a coalition of media organisations, is currently pressing the case with attorney generals around the country to bring defamation laws into the digital era. The current “uniform” state acts came into force on 1 January 2006. In those years the internet has changed the way we communicate and informed our understanding of the world.

The Coalition is hoping there can be candles on the cake of a new Defamation Act by 1 January 2020. However, the prospect of corralling nine governments in this country to arrive at a consensus on a uniform national defamation code may take till the next ice age – that’s why the commonwealth’s constitutional powers are being explored to see whether its possible to have a single “cover-the-field” act from Canberra.

Whether any of this can cure the judges of their cultural scepticism, and occasional outright hostility, towards the media is another question for another day. There is also an array of other impediments that a “free” press faces in this country, including bundles of court suppression orders and security and secrecy laws that take the state right into the telephone calls and emails between journalists and their sources.

Still, if the reptiles of the press can be held partially responsible for rissoling a prime minister or two, why can’t they campaign against the very laws that bind them far too tightly?

This post originally appeared on and is reproduced with the permission of the author.  Part One of this post was published on Inforrm on 2 January 2019

1 Comment

  1. Harold Burton

    I’ve heard really wonderful things about Japan! Ugh yeah here in Taiwan people aren’t that rushed either but Korea was a whoooole different story when it came to riding the subway or bus! Sad story, we actually had a CS lined up for Busan but then our host crapped out on us the last minute 🙁 I would have loved to try CS there but guess it wasn’t in the books for us to do it.

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