“”Call me a whore for $90,000.”
“”I’d admit to having an affair with John Howard for $90,000, but I might draw the line at Mal Colston.”
“”Say what you like for quarter of a million.”
“”I wish someone would say it about me for that.”
These were some of the reactions in our newsroom at the verdict in the Abbott and Costello defamation action.
They poignantly illustrate the unreality of defamation law and practice in Australia — the hideous amounts of money paid to the upper middle class and their lawyers arguing over mere words.
Surely, no sensible person would have waded through the Bob Ellis book to find the libel and if they had done so would take the slightest notice of it.
The proof of that, of course, is that the Prime Minister, John Howard, took no notice. He promoted Tony Abbott to the ministry and kept Costello as his right hand man as Treasurer.
Yet $237,000 in damages was paid to the Costellos and Abbotts and the lawyers all round would have got as much again on top — half a million dollars over a paragraph in a book by a patently biased-to-Labor author.
I accept fully Justice Higgins’s statement fully that the story in the Ellis book “”has no foundation in fact and should be totally deleted from the annals of the Australian political mythology, if indeed, it still lingers there”. But do we have to spend half a million dollars to come to that conclusion?
Can we get a reality check here? The case chewed up two weeks in the ACT Supreme Court while cases involving serious matters of people injured at work or on the roads seeking redress for injuries involving real pain and real loss of income.
Mr Costello is still Treasurer and Mr Abbott is still a Minister. And their wives are still held in the high regard they deserve. They simply do not need the money. And the community does not need the valuable time and talent of its judges and lawyers wasted on this tripe.
I don’t want to hear a squeak out of a judge, magistrate or lawyer’s mouth about stretched court resources while they continue to indulge in this sort of trivia.
When you boil down the judge’s reasons he awarded $90,000 to Mrs Costello and $47,500 to Mrs Abbott for the defamatory imputation that they lacked chastity. Is it 1999 or 1899?
He awarded $74,000 to Costello and $66,000 to Abbott for the accusation that their “”political commitment was so shallow that for sexual favours they were willing to abandon their principles”.
And $10,000 was awarded to Costello in aggravated damages for the way the publisher conducted the trial. As if Peter Costello – master parliamentarian – would allow a few questions from a QC to worry him.
The courts and the law need to get into the information age. Both Abbott and Costello said in evidence that they were not only concerned about Ellis’s book, but also the rumour mill. That is a fair concern. But defamation actions will not stop a rumour mill. Indeed, they make it worse. It was only through the defamation action that the allegations became widespread.
The internet will ultimately make defamation law obsolete and faintly ridiculous. Legal action cannot stop people passing on rumours, gossiping and trading in unfounded rumours. It has never done so in the past. It has managed, with a heavy, heavy bias against publishers to prevent unpalatable assertion going into print, but the dinner tables of the information rich have always been beyond the law. Now, e-mail is virtually beyond the law. We may see an isolated case, but e-mail and publication on the Internet is a far harder target than printed material published by a corporate publisher.
One of the main reasons for the high-level farce (half a million dollars to resolve a dispute over 35 words on Page 472 of a book with a circulation of a few thousand) is that courts are willing to award such high amounts of money without proof of any economic damage. The high awards attract high-priced lawyers. If the whole lot were removed to the magistrates court with a cap on damages of $10,000 unless you could prove economic loss, the big name lawyers would drop out. The law would be less convoluted.
Most of defamation law is semantics. The plaintiff’s lawyers drag imputations from the published words. The defendant then argues that they do not arise or if they do that they are not defamatory.
In this case, three of the four defamatory imputations against the women were held not to arise or were not defamatory (these were the ones about using sex to recruit Labor people to become Liberals) and the fourth (an assertion of promiscuity) had to be watered down to an assertion of guilt of unchastity. In the case of the men only one of the three imputations was said to arise and be defamatory.
The big trouble is that an imputation only has to give rise to the likelihood of ridicule to be defamatory. In the information age, surely, we should demand more that this before some gets damages. Abbott and Costello are held up to ridicule in Parliament (and they hold others up to ridicule) all the time. They are not the worse for wear.
We should change the law so that only allegations of criminal conduct are actionable unless you prove actual economic damage. So many words are floating about in so many mediums these days that the reading and listening public are sceptical enough not to take everything as gospel.
The only lowering of Abbott and Costello’s esteem in my eyes arising from this case comes from the fact they were silly enough to take Ellis’s nonsense seriously.
By the way, don’t think that the pay-out in this case or in other defamation cases will teach the publishers or media a stern lesson. Ultimately it is you, dear reader, who pays – in higher cover prices and advertising costs (which are in turn passed on). Only the lawyers gain.