I am told the existing one is awful. also i’m on a new computer so character count may be out. cheers.
The NSW Premier John Fahey announced last week that he would go ahead with defamation law reform. Both his arms were twisted. One arm was twisted by Independent John Hatton who has threatened an potentially ugly sitting of Parliament just before next March’s election unless defamation is dealt with, as required under the agreement the Liberals signed with the Independents after the previous election.
The other arm is being twisted in a more subtle and interesting way. Fahey said he would like to legislate to give effect the High Court’s recent free-speech judgment.
The High Court ruled that the Constitution had an implied right of freedom of political speech. At its crudest it meant that if a publisher honestly believes political matter to be true and had taken reasonable steps to verify it and had otherwise acted reasonably the publisher could not be sued for libel if the matter in fact turns out to be false and defames someone in the political process.
In short, there is now one rule for the politicians and another for everyone else.
This fact, I opine, is of far more import to the future of free speech in Australia than the ruling itself. This is because the ruling has taken away the one great stumbling block to defamation law reform: the avarice and insecurity of politicians. They like collecting big libel payouts and the like a restrictive libel law with which to keep journalists in line. So, to date, the politicians, in whose hands it lies to change the law have failed to do so, despite numerous attempts over the past 20 years.
Following the High Court’s decision politicians will be less likely to collect and will have less to lose. In short they can treat the issue impartially instead of with the taint of self-interest.
The removal of the impediment of self-interest is likely to be joined by another factor in the move to reform.
The High Court’s ruling only affects political communication; it is not a general writ of freedom of speech. It means the ugly unreformed law still applies to sportspeople, entertainers, businesspeople, people in the professions and the ordinary person in the street.
I suspect politicians in most states will not like this state of affairs. They will be jealous that while they, the politicians, are open to the cleansing winds of free speech, sports stars, singers, lawyers, architects and others will still be able to pick up fat sums when their fragile egos are dented by words in the media.
What is good for the goose will become good for the gander. The less restrictive rules the High Court has applied to politicians will stir the jealous politicians into making them apply to all. No more hundreds of thousands of dollars for pictures of penises, burnt lobsters or allegations of affairs with Argentinian polo players.
Before media people stand and cheer at Fahey’s statement about reform, however, they should look at his approach. He said that “”truth” should remain an essential element in the reformed law. This misses the whole point of libel law reform.
At present truth is the only defence that counts, but truth is hopelessly difficult and expensive to prove. But the time lawyers chew over an issue in court for a week no-one knows where the truth lies.
And given the difficulty of proving truth, people are intimidated into silence.
To reform the law properly, libel should not be about the truth of the published matter, or worse the truth of what the plaintiff’s lawyers says is contained in the published matter. Rather it should be about the conduct of the publisher. Did the publisher make reasonable inquiries; believe the matter was true; give the defamed person a reasonable chance to respond and so on.
Nearly every other area of the law works this way. Did the defendant act negligently causing damage. If yes, the defendant pays.
Damage is the other aspect of libel requiring reform. In every other area of the law you have to prove damage before you get paid. In libel damages (of out of all reasonable proportion to damages paid for personal injury) are assumed. Once the big damages are limited, another wholesome development inevitably flows: expensive top-of-the-range lawyers desert the field for more lucrative fields.