The Council of Attorneys General Review of Model Defamation Discussion Paper was released on 25 February 2019. The Discussion Paper sets out a list of 18 questions, as a guide to the areas of interest to be discussed, and invites submissions, which are due by April 30, 2019.
What law reform issues have been raised by the Discussion Paper? Does it come to terms with the sociology of the competing issues in defamation law in an online age? Does it address the shortcomings in the legislation? Is there anything new arising from the discussions following the publication of the s.49 review on June 7, 2018? Or is it just a reshuffling of the deckchairs on the Titanic?
The consultation period for submissions – April 30, 2019 – is very short, as was the case with the s.49 review back in 2011.
For this reason, the Gazette of Law and Journalism will publish a couple of op-eds from experts in the field, who have written and spoken about these issues following the publication of the s.49 review last June.
The first in this series comes from Judge Judith Gibson, Defamation List Judge of the District Court of New South Wales.
Judge Gibson is the author of the Bulletin for Australian Defamation Law and Practice (Lexis Nexis). During 2018 Judge Gibson wrote two discussion papers (both now published in the Media and Arts Law Review) on defamation law reform and spoke at seminars for the University of New South Wales, the Law Council of Australia and the Walkley Foundation; she will also chair a seminar on defamation law for the College of Law, 111 Elizabeth Street Sydney, on Wednesday March 6, 2019 at 1.30 pm.
Most people agree that the already complex issues of defamation law reform have been made more difficult in the past few years by the pervasive impact of online technology in general, and social media in particular.
However, the authors of the Discussion Paper have relied on the submissions made to the long-delayed 2011 s.49 review, rather than call for new submissions. As those submissions were made before March 31, 2011, they are not only out of date but limited in scope – as Professor David Rolph noted in his submission, calling for “a further, more detailed review of defamation law”.
The one exception is the submission from Australia’s Right to Know, which was sent to the s.49 Review in 2016, ostensibly to mark the tenth anniversary of the uniform legislation – although probably the intention was to try to kick-start the stalled s.49 review process.
This is the only submission to raise “modern” issues such as social media, the single publication rule and serious harm, but it predates events since 2016, such as the Hore-Lacy problem, Federal Court jury issues and Durie v Gardiner.
It is a slender platform for the kind of discussion of issues that the Discussion Paper needed to have.
There are other gaps arising from the decision not to call for fresh submissions.
First, defamation has always been “a distinctively sociological tort” (see: J. Skolnick The Sociological Tort of Defamation, (1976, 74 Cal L Review 677); the profound lifestyle changes driven by online publication (for example, issues such as “internet rage”) would benefit from analysis.
Secondly, the online intermediary liability issues seen in defamation also occur across a whole raft of causes of action and defences, and the resultant inconsistencies and uncertainties in the law can only be described as “a mess”.
The absence of understanding of technology and resultant social change becomes apparent when looking at the first of the 18 questions in the paper, which deals with the “big picture” issue of the legislation’s policy objectives. This is central to the Discussion Paper, so what do the authors say?
Question 1: the legislation’s policy objectives
The Discussion Paper opens with the big question for defamation law reform, namely the legislation’s policy objectives. These are set out at 1.12: uniformity, a fair balance between freedom of expression and publication on matters of public interest, effective remedies and promotion of speedy non-litigious processes.
The Discussion Paper notes (at 1.14) the s.49 review’s opinion that the objectives of the uniform legislation “remain valid”, but then adds that it “would benefit from some amendments to clarify the application of terms, reduce ambiguity, and better articulate” those principles, phatic terms that tell us little.
This is deckchair shuffling, rather than original thinking.
What “big picture” policy issues could the Discussion Paper look at? Here are a couple of suggestions:
- What place does defamation have in an online world where everyone is a publisher and can be sued? What about the social cost of defamation actions – litigants in person tying up court resources, or people selling their homes to pay the unchecked legal costs that are such a feature of defamation litigation? Abuse of process and costs reform do not get a mention in the Discussion Paper.
- How do Australians balance the tension between the right to know and protection of reputation? The frequency with which truth defences are struck out (in the Federal Court) is novel and disturbing. Is the role of the media to be the canary in the mineshaft, or to be the inquest report after the mineshaft has collapsed? The Discussion Paper does not deal with justification, although the increasing number of challenges to this defence is one of the main battlegrounds in defamation litigation.
- As to qualified privilege, what exactly is good journalism? Does it really matter if John Garnaut is guilty of “smugness” about his internationally recognised Chinese expertise? (At least he was able to get Dr Chau’s name right). Should there be a constitutionally guaranteed right of freedom of speech? Lange v ABC and Gardiner v Durie do not get a mention.
- Why are only damages awarded when what many plaintiffs really want is for the false publication to be taken down, or corrections? This is not a problem for claims under the ACL of misleading and deceptive conduct. The Discussion Paper does not refer to alternative remedies to damages, and its discussion of takedown procedures does not appear to acknowledge the confused state of the law in relation to internet service providers, social media behemoths, etc.
- How do you fit the policy directives for defamation legislation into the wider context of both online publication and reputation law? Courts and legislators need to be on top of the problems for online publication across the board: this is one of the points of the Commons Digital, Culture, Media and Sport Committee on Disinformation and Fake News.
- How do you fit the policy directives for defamation legislation into the seething cauldron of State-Federal politics if the Federal Court, which is not a party to the Intergovernmental Agreement, disregards the decisions of other courts on juries, justification, Hore-Lacy and imputation arguments? And what damage is done to the standing of the Australian legal system if we continue to be derided as the “libel capital of the world”?
Professor Newcity’s 1990 study The Sociology of Defamation in Australia and America (summarised by John Slee (1990) 2 Press Council News under the heading Sydney as World Libel Capital) first used this phrase. During the second reading speech in the Legislative Council of NSW Mr Henry Tsang MLC described Sydney as “the libel capital of Australia” and hoped that the uniform legislation would change this. However, in 2010, the United Kingdom website Inforrm said that New South Wales was still “the libel capital of the world”. The basis for this claim was that, when compared to the number of American libel cases proceeding to verdict in 2009 and 2010 (11 cases), New South Wales courts are handing down more defamation judgments than England, Wales and the United States combined.
Questions 2-18 in the Discussion Paper
I make some brief observations:
• Corporations (Question 2): Corporations already get a pretty good run in terms of their entitlement to bring claims under the Competition and Consumer Act 2010 (Cth) and injurious falsehood. They will be further advantaged if the loopholes in injurious falsehood are not plugged. Whether or not they are all permitted to sue, why not refer to injurious falsehood in the legislation, as is the case in New Zealand?
• Single publication rule (Question 3): A single publication rule solution, although important, is a “finger in the dyke” solution to online technology and multiple publications. To give another example, hundreds, perhaps thousands, of persons can be sued; there are currently 54 defendants to the Sandmann defamation claim but the number is growing.
• Offers to make amends (Questions 4 – 6): Offers to make amends are undercut by online technology. As fast as you apologise, another claim pops up, and the offers can be made to hundreds of potential defendants. In addition, if juries cannot determine damages, why are they able to look at whether the compensation included in an offer is reasonable for the purposes of the amends defence?
• Juries and the Federal Court (Questions 7 and 8): One issue upon which the 2011 submissions are still current is that plaintiffs seek non-jury venues, whether in the ACT, the Federal Court and/or certain magistrates courts and the ACAT and VCAT, all of which are hearing an increasing number of defamation claims. Juries have got liability right every time under the uniform legislation (except for Watney v Kencian – but the second jury gave the same result); most judges (including myself) would like to be right that often. And no long wait for reserved judgments. Also, good luck to the Discussion Paper authors getting the Federal Court to agree to have juries – they are not parties to the intergovernmental agreement and the right to a jury is procedural, not substantive.
• Contextual truth, fair report, honest opinion (Questions 9 – 13): The Discussion Paper has taken up piecemeal issues here; for example, there is no reference to the Hore-Lacy debate or the striking out of so many justification defences in the Federal Court.
There is, however, an astonishing admission (at 5.6 and 5.8) that s.26 was “intended to mirror former section 16” and that “the current wording of clause [sic] 26 appears to have clear unintended consequences”. In other words, McColl JA’s statement in Besser v Kermode that the legislative intention was to follow the limited Tasmanian defence is just plain wrong, and has been known to be wrong since 2011.
All the defences (including common law defences and potential alternatives such as a public figure defence) need a complete redrafting. And that includes absolute privilege and its applicability to a wide number of complaints procedures, common law defences such as consent and a Durie v Gardiner or public figure defence, not just sticking with the defences we already have.
• Serious harm and triviality (Question 14): Good luck getting the serious harm reform to work here in the same way that it does in the United Kingdom; thanks to the Federal Court’s admiration of the docket trial system, it will be just another trial issue: Herron v Harpercollins Pty Ltd.
• Innocent dissemination (Question 15): These issues need to be looked at in the context of law reform in relation to online intermediary liability law generally.
• Damages (Questions 16 – 17): The whole question of pecuniary damages needs to be reconsidered in an online world where taking down the publication and an apology are remedies of a significant nature, for the reasons explained by Dr Matt Collins QC.
• Question 18: The authors of the Discussion Paper ask if there are “any other issues” that should be considered. Hopefully, they will be hearing from a lot of us shortly.
Finally, it is helpful to remember that Dr Collins QC first published The Law of Defamation and the Internet in 2001, coincidentally the year I became a judge. Was he onto something that nobody else saw at the time?
I’m afraid so. And until the Discussion Paper catches up with him, the prospect of effective defamation law reform remains a distant and unrealised dream.
This post was originally published in the Gazette of Law and Journalism, Australia’s leading online media law publication.