The move by Attorney-General Gary Humphries to reform the defamation laws is very welcome. So, too, are his stated aims — to make the law simpler and more accessible; to stop the ACT from becoming a Mecca for high-profile defamation cases like the recent Abbott and Costello case; and to better balance freedom of speech with the right to reputation.
However, Mr Humphries seems to be going about it the wrong way and has isolated the wrong elements of defamation law as the culprits in causing the problems he wants to fix.
The ACT is a Mecca for big-name defamation actions that have little or nothing to do with the ACT and involve out-of-town publications. The problem should and can be fixed, but not by the Humphries method.
Further, the Humphries plan does nothing to deal with a very big problem — the poor standards of the media and journalists in Australia.
At present in the ACT, a publisher has to prove the truth of what he publishes plus show that the publication is for the public benefits. Other states require truth plus that the information was in the public interest. Victoria, though, requires only that the publisher prove the truth of what is published.
Mr Humphries wants to remove the test of public benefit and only require truth. Instead, he will grant a separate right to sue for breach of privacy.
This, he argues, will stop the likes of Abbott and Costello swarming to the ACT to sue for defamation.
It will do nothing of the kind. Indeed, it is more likely to attract the power elites because they will be able to sue for breach of privacy as well as their defamation actions. And the removal of the public benefit test will not make one whit of difference to defamation in the ACT.
There is not one single case in the ACT of a publisher proving the truth of something but failing to prove the matter was for the public benefit.
In the past 20 years, to my knowledge, there is only one such case in NSW.
The public-benefit or public-interest test is of no moment. It adds virtually nothing to the publisher’s burden. Its removal will do nothing to deter big-name plaintiffs.
No; the real reason big-name plaintiffs come to Canberra is because we have no juries and our judiciary is more familiar with federal politics, politicians, and senior public servants. It is likely to be more sympathetic to them than the average juror plucked from western Sydney. Lawyers advise an action in Canberra for these sorts of people — Gorton, Smith, Hewitt, Abbott, Costello, Kelson, Evans (the department head, not the ex-foreign minister), to name a few. Sportspeople and entertainers, on the other hand, prefer juries and head to Sydney.
The way to stop the big names coming here and to make the justice system more accessible lies in a fairly radical change to the law, which no politician seems prepared to embrace.
Essentially, defamation law requires the publisher to prove the truth of every nasty thing he publishes about somebody else (unless it is a report of parliament or the courts). When I say “”nasty thing”, lawyers call is “”defamatory imputation”, that is anything which will result in right-thinking people thinks any less of the aggrieved person.
So why shouldn’t publishers have to prove the truth of every thing they publish? That is a fairly reasonable requirement, surely.
Well, no, it’s not. The reason is that the way our legal system works it takes a lot of time and money to prove the truth of anything. Our evidence law makes it very difficult to prove anything at all. To take a topical example, a coroner has been sitting for 18 months trying to sort out the truth behind the hospital implosion, and similarly for the Thredbo disaster. And they have still not brought down findings. It has cost hundred of thousands of dollars. A defamation action in NSW over the Fine Cotton affair has been set down for eight weeks of hearing. That will cost hundreds of thousands, much of which will be passed on to consumers if the media organisation loses.
So media organisations often find out things but are very reluctant to publish because they cannot prove the truth of them to the satisfaction of our courts.
As an open society, however, there is a public interest in quick dissemination of information. That comes at a price — usually some inaccuracy.
Now I don’t think you should be able to publish anything about anyone and get away with it. I just think that in most cases the test should be different. It should not be truth.
It would be better to bring defamation in line with most other areas of the law. In other areas of the law (like car accidents and doctors making mistakes) it is up to the injured party to show three things: the defendant was negligent; the negligence caused damage; and the quantity of the damage.
So with defamation the aggrieved party would have to show that the publisher published negligently. The test for that would be that the publisher did not hold an honest belief in the truth of the matter; that the publisher did not have good grounds for believing it to be true and that the publisher failed to talk to the aggrieved party before publication or failed to put his side of the story or did not abandon the story if the aggrieved party gave enough material to demolish it.
This is a far better way to deal with defamation in a democratic society. There are two elements to this approach which improve on the present system. First, it focuses on the conduct of journalists. It deals with the most objectionable element of Australian journalism: why didn’t you grubs in the media give me a chance to put my side of the story before you published?
Secondly, it also makes people more accountable to the public. Politicians, professionals, entertainers, sportspeople and so on cannot hide behind the onerous requirements of the present law by saying: publish and I’ll sue.
If they say that, the publisher can say: Well, you had your chance.
The other defect in the present law is the question of defamatory imputations. The law allows you to sue for ANYTHING that lowers your esteem in the eyes of right-thinking people. So people regularly sue because a publication suggests they are incompetent at their job, or not fit to hold public office, or in the case of Abbott and Costello that they so lacked integrity they were willing to change political allegiances in return for sexual favours.
It would be better to sort imputations into the serious (breaches of the criminal law) and the non-serious. Perhaps publishers should only be required to prove the truth of allegations of breaches of the criminal law and for other matters show only that they were not negligent.
The other problem, which Humphries has commendably addressed, is that under the present law the aggrieved person does not have to prove damage; it is just assumed. Moreover, there is no cap to the money they can get. A lot of defamation awards are huge compared to those for people who have suffered broken bones and bodies in car and work accidents.
Abbott and Costello do not have to prove damage. They can get large sums of money even though their careers have blossomed since the publication they complain of.
We should have a cap on damages of $5000 or $10,000 unless you can prove the publication caused actual economic damage like loss of business.
If Humphries manages to achieve that, he will certainly clear the ACT courts of big-name plaintiffs. One of the reasons defamation attracts high-priced lawyers is because the awards of damages are so high. Worse, I suspect that judges know that legal fees are so high (even for the winner) that they pad the award so the successful plaintiff can take a little home. Usually, the lawyers take a very large chunk out of any damages award.
Once you take the big awards out, the big lawyers disappear. And surely if it is a matter of reputation, not money, the prompt publication of a court’s judgment should constitute the lion’s share of the remedy.
Humphries has tackled the question of apologies from both angles. The failure to seek a correction and apology could be used as a defence. But if publishers refuse an apology their can be an immediate court application for a court order to vindicate reputation. How that will work in practice will need some work.
At present the courts are fairly mean in the discount they give for the publication of an apology. But ultimately, it will require a change of heart by the media to be more generous, prompt and prominent with apologies. Only when this happens can the media expect some relief from onerous defamation laws which will benefit society as a whole.