It is a pity that only NSW adopted the approach of the ACT Attorney-General, Gary Humphries, in agreeing to let the Commonwealth enact uniform defamation laws. Because the other states and territory insisted on keeping their own laws, the proposal for a uniform law has now been abandoned. A 30-year objective is now still a long way.
Mr Humphries said he would now turn his attention to separate reform in the ACT. This would be most welcome. But the course of reform of defamation law has never been a smooth one. The meeting of the standing committee of attorneys-general in Perth last week which rejected the uniformity proposal was just another example of that. The prime reason for it, of course, is that the politicians in whose hands reform lies are among the greatest beneficiaries of restrictive defamation laws.
So we will continue to have the absurd situation where material published in one state will be actionable, but just across the border in another state it will not be. With national television networks and radio broadcasts and newspapers circulating throughout the country, it is ridiculous.
The only significant reform in defamation in the past 30 years came from a High Court interpretation of the Constitution in the Theophanous case which has now been substantially overturned. At present there is no balance between free speech and reputation. The law is weighted almost totally on the side of reputation. The law works on the basis of “”publish at your peril”. Unless it is a court or parliamentary report all the burden is on the publisher to prove the truth of what is being published, with only minor exceptions. That is no concession at all for freedom of speech.
It means that people in positions of power remain unaccountable. They can say nothing and put publishers to the test of proving the truth of what they publish upon peril of huge damages and costs. So publishers often err on the side of silence.
The law should allow publication where a publisher has reasonable grounds for believing the truth of something and the person defamed is given a reasonable chance to respond. Provided the publication is not negligent or malicious, there should be some protection for publishers.
Something must be done about the huge costs in defamation cases. The fear of costs awards deprive all by the very rich from the protection of defamation laws. Media organisations can starve out those of modest means. The best way to reduce costs is to change the remedy for defamation. The remedy should be court-ordered corrections and very limited damages. At present the prospect of high damages ($2.5 million was awarded in one case earlier this year) attracts big-name, expensive lawyers.
With lower damages and a remedy more suited to the problem, more people could seek redress for media misdeeds, perhaps improving media performance.
There wold be no harm to introduce privacy protections, provided they were introduced as part of a overall package of reform.
One fairly simple reform would be to reduce the time period within which someone is allowed to sue. At present it is six years. Surely if someone has been damaged by a publication they should be seeking a remedy quickly. The limitation should be a year, or two at most. It is quite unfair to put a huge burden of proving truth on publishers and expect them to do so years after the event.
The ACT has a chance to lead the way. In doing so, it could also save a lot of time and money in its own courts. Quite a few defamation cases that have very little to do with the ACT are run in the ACT. Indeed, most of the media defendants are from outside the ACT. Often politicians prefer the ACT because there are no juries.
Mr Humphries should consider a reform here. If you sue in the ACT, the ACT should be deemed to be the jurisdiction in which you suffer most damage. So if someone sues The Sydney Morning Herald here, they get damages based on the ACT circulation of that paper. That would not deprive and ACT resident, but it would stop the present situation of out-of-territory residents suing here.
Australia needs a modern defamation law that acknowledges were are living in an information age; that huge damages are not an appropriate remedy; that privacy is a concern; and that costs and delay make a farce of the defamation law which is supposed to protect reputation.