This week a committee of the ACT Legislative Assembly rejected government proposals for reform of the defamation laws. The Government had proposed a new defence for publishers. If a publisher could show that it had not acted negligently then it could not be successfully be it sued for defamation.
It would mean that that a publisher would have to show — in the case of the media — that the journalist had given the plaintiff a reasonable opportunity to respond to any allegations and that after the response that the journalist still had an honest areasonable belief in the truth of the allegations.
In short, and defamation or would become like other areas of the law where the plaintiff has to prove the that the defendant was negligent and that the negligence caused damage. This is what plaintiffs have to show if they sue a doctor for a medical mishap or a driver for road injury, for example.
At present, defamation is different. All the onus is upon the publishing defendant. The law presumes that everything published is false until it is proved to be true. And the law presumes that everything published a is damaging. Plaintiffs can sue over any statement that would cause ordinary people in the community to think less of them – which gives them a lot of scope.
It makes publishing a risky business. The law acknowledges this. Judges often say, “”You publish at your peril”. They regard publication as something inherently nasty. They do not say, “”You practise medicine at your peril, or drive a car at your peril and you will be liable irrespective of fault.” In those cases they require proof of fault.
If everyone who could sue did so, it would be impossible for media publishers. Only the high cost of lawyers and deep media pockets prevent it. In the meantime, it’s a bit of a lottery.
It is a shame that the committee rejected this proposal because, as the committee its itself acknowledged, “”The ACT is not well served by the current defamation laws.”
There were no government members on the committee and as the Government requires a crossbench support for a majority in the assembly, it appears that the proposed reform is now dead.
The committee heard from a three classes of people: media, defamation plaintiffs, and lawyers. The committee said it ”was placed with the challenge of trying to reconcile the positions of two opposing positions (the media verses of the law words) where both sides (and particularly the lawyers) did not want to concede any ground.”
As it happens, in my capacity as deputy editor I made a submission to the committee supporting the reform.
I argued that it would be likely to improve the standard of journalism because the focus would be on the conduct of the journalist – – whether he or she had been negligent –whereas the present law is concerned purely with whether the published matter was true. Usually, that involves long and expensive hearings. Look how long it has taken to get to the truth of the hospital implosion, the Thredbo disaster and Bruce Stadium, for example – they have all been expensive lawyers’ field days. If the publisher losers, the journalist can usually shrug and say, “”I knew it was true I just could not prove it under the onerous the rules of evidence.” If negligence were the test, however, editors and journalists would go out of their way to ensure they were not negligent. In particular, they would insure that the other side got an adequate opportunity to put its case. Further, if that party made a convincing case, the publisher would be negligent to go ahead with publication.
In all, the public would be better served. Politicians and others in the public arena could not hide behind a wall of silence, and journalists would be under greater pressure to take more care.
But the interest of the public always takes a back seat when defamation law is under discussion. The politicians, including the three committee members in this case, have a vested interest in continuing with a law that makes it more difficult for publishers. They have a vested interest in a regime where the legal costs of proving the truth of something are often prohibitive. And they have a vested interest in gaining pots of money if the media fail in that burden.
Lawyers, too, have a vested interest in a complicated, costly truth-based legal regime. Small wonder they were against reform.
It sounds reasonable to demand that publishers prove that the truth of whatever they publish, but in our legal system that proof is often so costly that it is often easier to succumb to silence and leave that the public in the dark. There are many examples of publishers and individuals being cowed into silence through threats of defamation actions in cases where later events proved them right but by which time so much more damage had been done – pre-Fitzgerald corruption in Queensland, Chelmsford, NSW police corruption qnd so on.
A negligence based system would strike a more reasonable balance between freedom of speech and reputation. The present system strikes no balance at all. It is no concession whatever to allow only publication of the provable truth.