Publishers of newspaper internet sites face indefinite liability for defamation actions, Justice Michael McHugh of the Australian High Court warned at a legal conference in Dublin this week (Subs: Thursday June 30).
The normal limitation of one year in the ACT or six years in most other Australian jurisdictions would not apply in the case of internet use of a newspaper site as it did with the paper version, he told a joint conference of the Australian and Irish Bars in Dublin.
He said this was the consequence of the High Court’s decision in the Dow Jones case. It meant that, in the case of the internet, publication took place at the time and place at which the reader downloaded the article, not the date of the original newspaper article.
For example, a download today from a newspaper site of a defamatory article contained in a paper version more than six years old would still be actionable.
Justice McHugh said this would pose a great difficulty on publishers.
He said that the national defamation law being proposed by Attorney-General Philip Ruddock and the counter proposals by the states and territories had not addressed the question.
More generally, he said the fact there were different defamation laws in Australia showed that there was no single objective answer to the question of balancing freedom of speech with reputation.
He thought, however, that the Australian doctrine of the constitutional implied freedom of communication struck the balance better than the US “public figure” test.
In the US defamatory statements about public figures are not actionable unless the person can prove actual malice or reckless indifference to the truth.
Justice McHugh said it was unfair to have one class of citizen with fewer rights than another. The status of the plaintiff had little to do with the public expression of ideas.
In Australia discussion of government and political matters was protected provided the publisher acted reasonably; took steps to verify the truth of the matter; had a reasonable belief in its truth; and was not acted by malice. That test focused on the matter being published, rather than who it was published of.
He thought that the Australian defence was more likely to promote responsible journalism.
However, the US doctrine was appropriate for the US because it arose out of a great social need in the 1960s to stop racist officials in the southern states using libel laws to prevent criticism of their abuse of things like voter-registration laws.
Professor William Binchy of Trinity College, Dublin, told the conference, that reputation should be seen as a human right, not merely as a qualification to the right of freedom of expression.
He said the right to reputation related to other rights because an unjustifiably maligned reputation affected rights to association. It damaged personal relations, work relations and could even imperil life.