The proposals to reform defamation laws in NSW are welcome, but they carry a small danger for the ACT.
Changes to defamation laws came into effect in the ACT on July 1. The ACT changes seemed likely to bring a welcome toppling of the ACT as the defamation capital of Australia. Hitherto, many allegedly defamed people brought their actions in the ACT because it was the jurisdiction seen to be most friendly to plaintiffs. The law itself, until July 1, was the toughest in Australia for defendants. The track record of the ACT Supreme Court reveals a marked reluctance to find for media defendants and a record of general generosity to plaintiffs. Moreover, the fact that the ACT – with rare exception – does not have juries means plaintiffs who might not cut well with juries prefer to come to the ACT to sue – even if they are suing publications based in other places. Politicians, senior public servants, lawyers and other professionals invariably chose the ACT where they would not have to face a jury of ordinary people who would be more likely to view them with disfavour. It meant that the ACT defamation list was much longer than it should have been – imposing un unwarranted burden on the ACT courts and ACT taxpayers.
The ACT changes give media defendants more defences and might have scared a few interstate plaintiffs away. However, under the changes proposed in NSW, corporations are to lose the right to sue for defamation. It is a sensible change. Corporations are not people and do not suffer hurt feelings, loss of self-esteem and loss of personal reputation. They might well suffer loss of business and under the NSW changes they would still be able to sue for actual, proven business losses. If the NSW changes go ahead, the ACT could once again become the favoured forum of “defamed” corporations.
The answer is for the ACT to watch NSW law closely and make similar changes.
Other than that NSW proposed to cap damages in line with personal injury matters at $350,000 for general damages. Even that is far too high. If people can still sue for proven economic loss if a publication harms them, it is difficult to see how any publication could cause damage requiring the same amount of monetary compensation as the worst personal injury – quadriplegia, for example.
It would be too much to hope – in this age of mass communications – for the states, territories and federal parliaments to arrive at a uniform law that is more in keeping with freedom of speech in an information age. But at least the ACT’s changes and now the NSW changes are a step in the right direction.