Journalists watch out.
The Defamation Bill tabled in the ACT Legislative Assembly this week is a radical change. For the first time journalists’ conduct will be the core issue in defamation trials.
Present law, with few exceptions, requires publishers to prove the truth of what they publish. Well, what is wrong with that? Plenty.
Proving truth is a difficult, expensive and time-consuming exercise, especially with our complex evidence rules and court procedures. Look how long it took the coroner to get to the truth of the hospital implosion or the Thredbo disaster.
The truth requirement has some very poor side-effects.
First, media organisations self-censor because if it. It is not too hard to dig for the truth, but it is often too hard to get the material to a stage where it is admissible in a court of law.
Secondly, the high burden enables people in public positions to respond to media questions with the answer: “”publish one word of that and I will sue”. There is no accountability.
Thirdly, if a media organisation loses a defamation action, invariably the journalist who wrote the article can say, “” The law is an ass; the story was right, but we just could not prove it to the satisfaction of the law.” This can be a cop out for bad journalism. You just blame the law.
Fourthly, only the very rich or those funded by someone else can afford to sue.
Fifthly, wealthy media organisations can evade the consequences of poor journalism against all but the rich and powerful by giving all other plaintiffs an expensive legal run-around until they give up.
In short, the defamation law is a dud. It favours the rich and powerful and it does nothing for good journalism and for exposing matters of public importance. It provides no remedy for most people who are badly affected by unfair and reckless journalism.
Further, the rich and powerful have ensured there is no impetus for change because they have been able to play on people’s fear that any concession to the grubby media will be a bad thing.
The Bill tabled by Attorney-General Gary Humphries goes a long way to addressing these defects.
The Bill comes after the Government’s defamation discussion paper put out a year ago after Humphries quite reasonably concluded that a uniform law was unlikely ever to emerge, so each state and territory should go it alone.
The Bill will provide a defence of no-negligence for publishers.
It will be a defence to a defamation action if the publisher shows he was not negligent in the publication. The law of negligence focuses on conduct and fault. So this Bill should be welcomed by people and organisations who get badly treated by the media, in particular, people who feel they did not get a chance to put their view or that their side of the story was not published. It will also help people who feel the media should not have published at all after they demonstrated that the story was rubbish.
The negligence approach to defamation should have two beneficial effects.
First, media organisations will want to use the defence. But to use it successfully they will have to smarten up their practice of journalism. Quite simply, publishers will never be able to use the defence if they have not given the other side a fair opportunity to respond and not published the response.
This is one of the most persistent complaints about the media: “”Why wasn’t I given a chance to respond before publication. Why wasn’t my side given a fair run?”
Secondly, it will put some onus on people in public or powerful positions to respond to assertions of poor performance. They will not be able hide behind the defamation law. If they are given a full opportunity to put their side of the story, and choose not to, the publisher can get a defence of no-negligence.
Importantly, the law will focus on what steps the journalist took to get a fair, balanced and accurate story. It will not focus purely on whether the story is true. The new law will be able to take account of what the journalist says various people told him or her. At present much of that evidence is inadmissible.
If the publisher loses, the journalist will not be able to shrug and blame the law. Rather the blame will go to a failure of professional standards by the journalist.
Humphries’ Bill, quite reasonably, does not extend the defence to allegations of criminal conduct. For those the publisher must prove truth to get a defence. The new defence is geared a performance of work that affects the public, rather than muck-raking.
Another proposal in the new Bill is for a cheap and quick mechanism for an offer of amends and apology. At present media organisations are sometimes reluctant to publish apologies because the apology can become an admission in a defamation case, often precluding a defence. Under the Humphries proposal the offer of amends and apology will become a complete defence. There will be an onus on people aggrieved to deal in good faith with such offers, rather than holding out for a big damages award. And under this proposal, the days of huge damages are over, unless they are proved commercial damage.
The Humphries proposals will also have the effect of driving away interstate defamation plaintiffs who have clogged our courts for some time. The ACT has played host to some major trials because our law is among the strictest in Australia and also because politicians and public servants prefer facing Canberra judges than the juries they might face in their home states. It should save ACT taxpayers a packet.