Apaper seeking comment on defamation law in the ACT is now before the public. In putting the paper, ACT Attorney-General, Gary Humphries lamented that 30 years’ effort by politicians, lawyers and media to agreed on a uniform reformed defamation law reform had come to nought. They have only ever agreed on one thing: the present system is grossly unsatisfactory and should be reformed.
Mr Humphries has rightly identified the core problems: the defamation law is so complex that only the very rich can afford to seek redress against bad journalism and that when they do seek redress the law tends to favour reputation against free speech and public information; that the remedy under present law is large damage awards years after the publication; that the courts have no power to give effect to the preferred remedy which is prompt correction and apology for bad publication. Mr Humphries further highlights another grave defect of the present law: that there is no remedy for breaches of privacy by an overly intrusive media.
It is one thing, however, to state the problem. It is another to get the solution right. Responsible media in Australia would have little problem with a new tort of breach of privacy provided it went hand in hand with significant reform of the defamation law reform. At present only those legally funded or those who are very rich can afford the risk of a defamation action. This is a damnation for media organisations. When the legally funded or very rich sue the courts and the law are invariably weighted in their favour. Invaribaly the media are put to the onus of proving the truth of what they publish. It sounds a reasonable test, but when one considers, for example, that the inquest into the hospital implosion has had 100 days of sitting to find the truth and is no closer than on Day One, it can be easily demonstrated that such a test is a prohibitively expensive lawyers’ field day that achieves very little for publisher or complainant and the costs of which are invariably passed on to the consumers and advertisers of media products.
It would be much better to have a procedure that focuses on media conduct; that is much cheaper and one that gives a remedy commensurate with the damage, namely timely publication of corrections and apologies. It also gives an incentive for improvement in journalistic standards. Journalists found negligent will cost their employers. Under the present test of truth, invariably journalists shrug and say, “”We were right but we could not prove it.”
Mr Humphries’ paper addresses these issues head on and is worthy of community and Assembly debate and a resolution that better balances freedom of speech, reputation and privacy. Under present law there is no balance whatever. It is totally weighted in favour of reputation, putting the total onus on the published to prove truth or that it was a fair and accurate report of a court of parliamentary proceeding with a limited right of fair comment. In short, there is no room for the slightest publisher error. It is no concession whatever to freedom of speech to say you can publish something if you can prove it true or prove it to be an accurate and fair report of the cours or parlaiment. So what. That much shoud be taken as given and then the balance should be an allowance for error provided you have acted without negligence or malice. That is the principle that pertains in most other areas of the law. You cannot successfully sue a doctor just on the fact of a bad result, you have to prove the doctor acted negligently.
Mr Humphries also proposes reducing the time after publication in which must sue from sis years to six months. Given the immediacy of reputation, this seems a sensible limit.
Mr Humphries has put forward his proposals after decades of futile attempts by state and federal attorneys-general to get a uniform reformed defamation law. He now rightly feels that the ACT should go it alone. The ACT has a lot to gain from reform. The ACT law has many advantages for some classes of plaintiff. At present the ACT Supreme Court attracts a large number of out-of-town cases. Indeed, more than half of the ACT defamation list arises out of out-of-town publications. Why should ACT taxpayers fund these cases that more properly belong in other states Supreme Courts?
Several other proposals of Mr Humphries deserve serious consideration.
He wants to extend the protection given to fair-and-accurate reports to a wider range of public-interest material (especially from official bodies).
Courts would be instructed to award damages more in line with personal injuries cases rather than being allowed to award open-ended damages.
A separate action for invasion of privacy would be considered. It would be a low-cost affair with a simple process to avoid the complexities of defamation law.
Corrections and apologies would be encouraged. If people suing did not engage in serious discussion about apologies, the publisher would get a defence to the action.
Mr Humphries should consider several other points. The present pot-of-gold-for-the-rich defamation law is probably supported by many people as the only restraint available to a media which is mistrusted, often for good reason. People fear intrusions on their privacy. If, however, a privacy law were introduced which was not dominated by high damages and expensive lawyers, people would be more confident in relaxing the defamation laws with caps on damages.
It might be a good idea to have two classes of defamation: serious defamation which asserts criminal conduct and other defamation that, for example, might assert poor job performance. The former might retain present requirements to prove truth and the latter might require mere absence of negligence and malice.
Mr Humphries is right to take on the defamation law to improve freedom of speech and to encourage greater responsibility in journalism.