The extraordinary Abbott and Costello defamation case has done a lot in the past week to bring the law of defamation into the hatred, ridicule and contempt it so richly deserves.
It may even be a catalyst for reform.
Hatred ridicule and contempt, of course, is one of the tests for libel. Did the published imputations bring the plaintiff into hatred ridicule and contempt? There are others: were the imputations likely to cause right thinking people to shun the plaintiff. Was the plaintiff adversely affecting in his trade profession or calling and so on?
Well, there has been plenty of hatred, ridicule and contempt about this case.
Letter writers and talk-back respondents have expressed hatred of the idea of politicians getting large sums of money.
The ridicule has come with several very pertinent observations, mostly by members of the public.
They wonder what the courts are doing wasting so much time on a book that few have heard of, fewer would read and none would take the slightest notice of. They find it ridiculous that it is the court case, not the book, that is giving such airplay to the allegations. “”Can I have some money please because this case I have brought has aired these allegations so widely?” seems like a ridiculous appeal. Besides, no-one seems to be taking the allegations with any seriousness. The allegations, like law, are being treated with the ridicule they deserve.
The serious issue is why do we allow the courts to be used in such a way. In this case one plaintiff is from Sydney, the other from Melbourne and the defendant is from Sydney. Why tie up the ACT court’s time when the list for people waiting for serious trials of personal injury and crime grows longer?
Let’s not hear another squeak out of the judges or the Attorney-General crying poor over court resources.
The ridicule expressed by the public for the whole process was directed at members of the power elite suing for large sums of money when others with real injuries would get less. And more pertinently, they express contempt for a system that allows people to sue for large sums when it is quite apparent they have suffered no injury. It was a delicious coincidence that smack in the middle of this case in which Costello and Abbott assert their political careers have suffered because of this silly book, they marched off to Government House to get sworn in as Ministers. Abbott was promoted into the Ministry despite the book.
It was like Labor MP Andrew Theophanous asserting that a Letter to the Editor of a Melbourne newspaper by Bruce Ruxton have grievously affected his reputation. Since then he has twice been re-election with his usual 65 per cent of the two-party preferred vote.
There is a delicious contrast between the public’s view and the way the law and the courts are treating it. The public has a far more dismissive view of the 33 words in question. It has a fine sense of the ridiculous. The law and the courts take it so seriously, arguing at huge expense as if something really serious was at stake, like an injury in a work or car accident where some might not be able to work again or whether someone is guilty of an armed robbery.
The contempt from the public for the whole process, and by media commentators for this case in particular, arose out of the comments by former Governor-General Bill Hayden. He used the hypothetical example of false rumours about former Prime Minister Paul Keating to illustrate how rumours can be damaging and hurtful. Whether this was artful or artless we will never know. Certainly, Keating’s friends in the Labor Party thought they should come to his rescue and condemn Hayden.
The next day Hayden expressed dismay and shock at how widespread his evidence had been reported and the reaction to it. This dismay, incidentally, was coming from a man who had been brought in to give expert evidence on the nature and effect of rumours in political life. You would think such and expert would have known the effect of his own use of the rumours.
This case could come to some good, however. It has got the public interested in defamation law. It has got them watching two politicians (the people who control defamation law reform) suing for large sums of money for a slight which they think does not amount to much.
The case comes shortly after the Australian Press Council called for reform of defamation laws and for a uniform Australian law. And that call came shortly after the ACT Attorney-General Gary Humphries abandoned any hope of reform or uniformity and put out an issues paper for reform of the law in the ACT.
The Costello and Abbott case poses several questions. Do people take gossip-making and rumour-mongering with the seriousness that defamation cases suggest they do? Sure, people are hurt and embarrassed when thing are said publicly about them. But generally mud does not stick. It gets washed off with rain and time, as the swearing in of Abbott to the ministry and the re-election of Theophanous to Parliament illustrate. A few very mean-spirited people might believe every rumour, but those people’s esteem is not worth having, and besides, no court order or damages award would change their gullibility and mean-spiritedness.
As a general rule, people’s actions determine what others think of them, not what others say about them.
Even if that is wrong, what is the best remedy against public slurs? Certainly not a pot of money. And certainly not days and days of expensive court hearings which only profit the lawyers.
Once you take away the large pile of damages from defamation, the lawyers will quietly disappear, too.
The whole base of defamation law needs to be changed. Present law results in most cases being about finding out whether what was said was true. (Though that is not so in the Costello and Abbott case. The publisher acknowledges that it is not true, all they are arguing about is money — how much damages should be paid.)
Usually truth is the only real defence. You might think that publishers should have to prove the truth of everything they publish, but it not a good test. Look how long, for example, it has taken to get to the truth of the hospital implosion. Proof of truth is too costly.
And awarding amounts of damages plucked from the air with no reference to the injury is unsatisfactory.
A better approach is to ask the question: did the publisher behave reasonably? If the publisher was negligent or reckless, then the publisher would have to pay the damages that actually flowed from the publication (in lost trade, for example) and publish with equal prominence a retraction and apology.
Such a test would not preclude a Costello-and-Abbott action. Indeed, it would be easier for them. Having established that the publisher failed to contact them about the allegations before publication, it would be enough to show negligence.
The test of negligence is the standard one in our tort law (civil injuries). It is quite a good one. In the professional practice of medicine, law, surveying and so on, it is the standard test, and the professionals know they have to guard against negligent practice or they will be found liable. So they improve their practice.
Journalists and other publishers, however, have to meet a higher test: truth. When they fail to meet it, they usually shrug their shoulders and blame the law. If negligence were the test, they would have to blame themselves.
If courts could order publication of corrections and apologies, their negligence would be further exposed, providing further incentive to good practice.
And we need to narrow the present wide-range of imputations that can give rise to an action. It would be better to restrict actions to cases where criminal conduct is asserted or assertions that are shown to affect livelihood.
The Press Council is seeking a uniform law, but it is searching for the wrong sort of uniformity. We do not need uniformity among the states so much as uniformity between the principles of defamation law and the principles of the other areas of the civil law of injuries.