Last year the High Court ruled in favour of freedom of political communication. In effect, it means no more easy defamation politicians. It removed one of the greatest impediments to reform of defamation law … the self-interest of politicians who had most to gain from a restrictive law. Their conduct was less open to comment and they could pick up defamation damages.
Politicians are now more likely to think, that if it is good enough for us to be subject to a free-speech regime, it is good enough for everyone else.
So reform is now more likely, but it must be the right sort of reform. Last week, the NSW Law Reform Commission reported. It recommended that the onus of proof which presently falls on publishers to prove the truth of what they publish be reversed. It would mean plaintiffs would have to prove the falsity of the publication. This has problems.
The report recommends that corrections be the main remedy, not large damages; that there should be some recourse for breaches of privacy, and actions must be taken promptly. Fine.
The truth-falsity proposal is very much a lawyers’ proposal.
The commission said, “”The principal issue . . . should be the truth or falsity of each imputation pleaded. . . . The commission recommends that the plaintiff will generally have to prove the falsity of the imputation in order to succeed in a defamation action.”
This approach has two major defects. The first is the question of “”imputations”. At present lawyers draw up generalised imputations about character from the particular incidents described in the publication. For example, lawyers for Paul Keating might say the article about the Northern Territory legislature and the Loans Council carries the imputations that he is duplicitous, not fit to be Prime Minister, dishonest etc etc. Then you have an esoteric linguistic fight over whether those imputations arise out of the article.
Secondly, if it is shown the imputations arise, you then have another fight over whether they are true or not. Note: not whether the article is true, but whether the imputations are.
Invariably, these inquiries are expensive and time-consuming. Usually, they are not satisfactory or inconclusive, with some imputations proved and others not. Often they are plain wrong because the evidence law excludes a lot of the evidence that most reasonable people would use to draw their conclusions.
In short, all the difficulties of present defamation law will remain, but plaintiffs with have the onus of the proof. And it is a huge and expensive onus (ask any publisher). Plaintiffs will be scared off and the media will behave as badly as it as ever done.
The commission recommends these action be in the Supreme Court … where costs are higher and delays longer.
The commission was right to focus on corrections as the main remedy, restricting damages to proven economic loss and to recommend an action for privacy invasion. But you will not achieve this while elusive truth is the basis and higher courts have the jurisdiction.
Defamation should focus on the conduct of the publisher, just like any other area of the law. To succeed a plaintiff would have to show the publisher published negligently or recklessly. Failure to seek or publish the plaintiff’s side of the story before publication would generally be fatal for the publisher. (Incidentally, that is the single biggest complaint against publishers.) Publishers would have to show an honest belief, reasonably held, in the truth of the matter. This would mean giving evidence of what steps were taken by reporters before publishing, it would not be the same as expensive determination of the actual truth.
In other words, defamation should centre around what the publisher did, not some search for an objective truth which is inevitably elusive.
It should be done in the lower courts. Courts should be able to order corrections, usually in the form of statements by the plaintiff. They should be able to award damages for proven economic loss (loss of trade, for example) and, say, $10,000 for hurt feelings or invasion of privacy.
On invasion of privacy, once again the reasonableness of the publisher’s conduct would be tested, especially on the public-interest element. If the law focuses on media conduct it will perhaps improve it.