The Attorney-General, Gary Humphries, revealed his determination this week to push ahead with reform of the ACT’s defamation laws.
Mr Humphries is right to do so. He correctly points to 20 years of failed efforts to get a uniform reformed defamation law in Australia. Clearly there is no hope of such an achievement. Moreover, a glimmer of hope at reform through a change in the interpretation of the Constitution by the High Court in 1994 has been watered dawn to virtually nothing. So the situation is that we have a law more suited to the 19th century in the middle of the information age and as we head into the 21 century.
Mr Humphries pointed to faults in the present law: complexity, high cost, delay and the wrong remedy (high damages) being applied for damage to reputation. These he rightly points out have resulted in a law for wealthy plaintiffs, leaving the less well off powerless to do much to protect their reputation and privacy. Moreover, the ACT has become a favoured jurisdiction for many of these plaintiffs causing a drain on our public resources.
Mr Humphries is right to want to do something about it. However, only some of the changes he has flagged will go tot hat end. Other changes will do little to help and still others could make the problem worse.
A good suggestion is to codify a range of materials that get protected publication. At present publishers have to rely on the common law. In some cases, like reports of court and parliament, it is clear cut. A publisher can publish a fair an accurate report of a parliamentarian or a barrister saying defamatory things about someone else without having to prove the truth of those things. So if MP John Smith tells Parliament that businessman Bill Jones is a business cheat, there is no need to prove Jones is a business cheat, just that Smith said that in Parliament. MP John Smith tells Parliament that businessman Bill Jones is a business cheat, there is no need to prove Jones is a business cheat, just that Smith said that in Parliament. Other occasions are not so clear cut: statements made at shareholders’ meetings, public meetings, by public servants in the line of duty, by professional boards and so on. Mr Humphries move to clarify this is a welcome one and perhaps he should push ahead soon with just that one change and get at least some runs on the board because he is bound to run into strife with some of his other proposals.
Mr Humphries best suggestion, though, is to make plaintiffs prove they have suffered damage before they can get large awards, otherwise damage for loss of reputation and hurt feelings should be very limited. This one step would have a dramatic effect. The big-name lawyers and the big-name plaintiffs would quickly move to another jurisdiction. These lawyers and plaintiffs always say their actions are to protect reputation, but without the big awards of damages, they would flee the scene. Defamation actions would be better dealt with in the magistrates courts which deal with cases far more cheaply and quickly — the latter being essential in matters where reputation is at stake.
Mr Humphries’s other suggestion — to remove the requirement for publishers to show their publication was for the public benefit — has less merit. True, he wants to replace it with a new action for breach of privacy, but that make the balance between freedom of speech and reputation even more lop-sided. Besides, there has never been a case in the ACT which turned on the public benefit test. Mr Humphries wants truth alone to be the defence. The ACT Law Society, however, has rightly pointed out that it would enable publishers to drag out the deep past, such as convictions long ago, even though they might have no possible public benefit.
Mr Humphries would do better to leave the public benefit test in and abandon the right to privacy unless he can come up with substantial reforms that strike a better balance between reputation and freedom of speech. At present that balance is all in favour of reputation with very few concessions to free speech, especially if you have enough money to enforce the very strict defamation law.
A very worthwhile suggestion was made by Acting Justice Donovan in the NSW Supreme Court last year after a 12-day defamation hearing involving two moderately well-off people. He said, “”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.”
Mr Humphries should follow this through. The biggest problem with the present law is that, by and large, it requires publishers to prove the truth of everything they publish. This inevitably involves huge costs and long hearings, given the difficulty of our evidence law. Inquiries like those into the hospital implosion and the Thredbo disaster indicate how long and expensive is the task of seeking the truth.
A better approach is to ask: did the publisher behave negligently or did the publisher behave reasonably? That would put the onus on the journalist to make diligent inquiries and to give people a chance to be heard before publication. The publisher would still have to have grounds for honestly believing the story to be true and would have to publish the statements of the aggrieved person. If the aggrieved person demonstrated good grounds for falsity before publication, it would be negligent to go ahead and publish.
People are sick of bad journalism. But democracy does not function as well as it could if the high and mighty are able to hide behind a wall of silence and threats to set the lawyers on to publishers.
The law should start focusing on the behaviour of publishers and abandon the elusive and expensive search for the truth.