The latest High Court decision on defamation takes us back 20 years to the grim days of lawyer-take-all to the detriment of the public and all but a very few wealthy and lucky plaintiffs.
The decision over-turns or questions the few advances made in the past five years towards a better balance between reputation and the right to know.
The case was about a report in the Adelaide Advertiser on the Royal Commission into the near collapse of the State Bank. It has all of the elements of the complete failure of the courts and law to give reasonable remedies to the victims of bad journalism while ensuring the public right to know is not stymied.
For a start the article was published on July 18, 1992. It has taken nearly six years to resolve the matter. That on its own shows the system fails. Imagine any business that failed to deliver what it is supposed to after six years. It would be out of business.
Secondly, there will be no change out of $400,000 in legal costs. The costs will be higher than the damages at stake. That is a failure. When you prang a car and it costs more to fix than the car is worth, you scrap the car. Any panel-beater that charges more than the car is worth goes out of business.
But our courts and lawyers have a monopoly so they can get away with these failures.
Those sorts of costs and delays are numbing. People wanting to bring media organisations to book for bad journalism are terrified. Media organisations facing those costs are terrified. The result is that victims of bad journalism who are on moderate incomes or without legal backing from a powerful organisation have to suffer in silence.
On the other hand if a plaintiff is rich and powerful the effect on the media organisation can be quite chilling. Don’t publish. Or water it down.
The Advertiser case is in sharp contrast to the 1994 Theophanous decision which has been watered down if not overruled by cases in the past year.
The Theophanous case said there was a constitutional implication for freedom of political communication. In political matters, therefore, publishers did not have to prove the truth of what they publish. Rather they only had to show that they acted diligently; had an honest belief in the truth of what they published; and gave an opportunity to anyone affected to have a say before publication.
That seems to me to be an excellent way of dealing with all defamation cases.
The Advertiser case, on the other hand, was not a political case, so not even the watered down Theophanous principle could be used. Worse than that, it applied and strengthened arcane rules about defamation which make it very difficult for both plaintiffs and defendants, but a rich field for lawyers.
Let me explain. Defamation is not about what is published, but the defamatory imputations that flow from what is published. So I might write an article saying a used car dealer refused to repair my car when it broke down and I found sawdust in the gearbox. That carries the defamatory imputation that the dealer is dishonest. So I do not get off by proving the car broke down, there was sawdust in the gearbox and the dealer refused to repair it. I have to prove the dealer was dishonest. Alternatively, I could argue that the article did not carry the imputation that the dealer was dishonest.
Defamation cases go on for ages arguing about whether certain imputations arise from the words. And cases run for days proving the truth of them. It is a lawyers’ field day. The lesser the imputations the easier they are to prove, but the lower the damages. The higher the imputations the harder they are to prove and the higher the damages.
Plaintiffs often list many imputations. They only have to win one and they will get damages and usually costs.
Since 1986, the courts have allowed publishers to adopt a defence of sorts. They can put up their own alternative meanings and imputations (sometimes greater) and then set out to prove them. This can defeat a claim or water down damages. This is called the Polly Peck defence.
Publishers do get protection if they publish fair and accurate reports of courts and parliament. Otherwise, as a general principle they have to prove the truth of every imputation the other side’s lawyers manage to extract from the publication. Finding the truth about anything in our legal system is a long and expensive process. It is a completely absurd way to go about the balance between the right the reputation and the right to free speech. Indeed, there is no “”balance”. Only being allowed to publish what is true is no concession at all to free speech. It permits no latitude; it permits only the obvious. It is the old rule of Lord Mansfield: you publish at your peril. That adage, surely, is no longer appropriate in the information age.
The Advertiser case, moreover, has questioned even the Polly Peck approach. Two of the five judges rejected it and the other three made no ruling.
It now means that a plaintiff can extract a low-level imputation, for example, that he was negligent as a director in not handing out information to shareholders, and the publisher cannot meet that claim by bringing other evidence to show that the director was dishonest because he lied to the bank to get a loan, lied to other directors and stole money from the company. If the article says he breached a trivial regulation in not giving some notice to the shareholders as well, the director can isolate that alone and the publisher has to pay damages irrespective of the other related misdeeds.
All the judges in the Advertiser took a technical approach. They demanded that plaintiffs state their imputations precisely and that defendants meet those imputations. The whole-of-article approach was frowned upon.
Absurdly, the judges allowed the plaintiff to get damages for the loss of his job following the publication. They just presumed it was caused by the publication. The plaintiff did not have to give any evidence linking the two events.
That is plainly unjust. In a lot of defamation cases the plaintiff is usually harmed by other events and they seek a scapegoat in the media. It is very common and a very human reaction: who can I blame? Of course, the media is the easiest target. Everyone hates the media.
But strict defamation law will do nothing to improve the media. Indeed, it makes it worse. Under present rules, the journalist and media will argue: We were done on a technicality. And to a large extent they are right.
It would be far better to throw away the requirements of imputations and truth and put in their place the approach taken in every other branch of the law. You ask: was the defendant negligent? Did the plaintiff suffer damage? This is what happens in car-accident cases or if you sue a doctor or solicitor.
If the answer is yes, not only must the publisher pay damages but there is an attachment of blame: it was bad journalism. Fix it. Change the way you do things.
I’m not alone in thinking this. Acting Justice Donovan in the NSW Supreme Court said after a 12-day defamation hearing recently: “”The financial effect on one or other (and perhaps both) parties will be utterly catastrophic. The costs will be overwhelming. No litigant (be they plaintiff or defendant) should be exposed to such costs in a matter of this type. . . . This raises a question whether the time has come for a re-examination of the whole law of defamation, which might be” better resolved by using general principles of negligence law.
Hear. Hear.
We should focus on conduct and proven damage, like we do in all other torts. It would be far cheaper and gives a better balance between free speech and reputation, but that’s why the lawyers and politicians will resist it.
But this has got to be a two-way street. Media will get no concessions for a change in the law while they behave so badly. In the Advertiser case, the newspaper made a bad error of reporting. It made reference to all four directors of a company when the witness at the royal commission was slamming only two of them. And the paper refused to publish the plaintiff’s explanatory letter, let alone an apology.
Media executives have got this completely wrong. They imagine the publication of corrections and apologies do the paper harm because it shows that it makes mistakes. In fact, corrections and apologies do the paper’s reputation good. They indicate that the occasional error is admitted and apologised for which gives rise to greater confidence in everything else that is published.
Corrections and apologies should go in a consistent place. It might be better to put them on Page 1 because you are always going to get a whinge (especially from plaintiffs’ lawyers) that the apology is not prominent enough. Putting them on Page 1 would end that.
But while we have a reluctance to apologise, there will be no change in the law, to the detriment of all but the very wealthy and the lawyers, as Acting Justice Donovan has pointed out, and to the detriment of improving journalism.