Alas, they will be uniformly unsatisfactory.
The new law was introduced into the ACT Legislative Assembly yesterday. Similar legislation will be introduced in all other states and territories.
Chief Minister Jon Stanhope and other state and territory leaders had no choice. If they failed to enact uniform laws, the Federal Government threatened to introduce its own law which was much less conducive of free speech.
The new law has major advantages over existing law, but in the case of the ACT, it takes away a defence and a better way of looking at defamation.
First to the good points. Under the new law, corporations will no longer be able to sue for defamation. This makes obvious sense. Companies do not have a character reputation, but a commercial one. Therefore, they should seek remedies in trade practices law for actual commercial damage.
Secondly, damages for general loss of reputation will be capped at $250,000. That will be fine provided the courts accept, first, that that amount is only for the very worse cases – false accusations of major crime, for example, and, second, that defamation asserting a person was not very good at their job would attract much lower damages.
Thirdly, wider protection is given for reportage of public proceedings and documents.
Fourthly, uniform law will mean an end to forum-shopping where plaintiffs would take their action in the jurisdiction that best suited their case. For a long time the ACT suffered because plaintiffs like this jurisdiction. The ACT Supreme Court has a history of rarely finding for media defendants. Other jurisdictions have juries and juries do not especially like politicians, professionals, public servants. So these people come to the ACT. Increasing our costs.
But that difficulty has been largely overcome since the ACT introduced a one-year statute of limitations, instead of six years and since judges gained wider power to remove cases to more appropriate jurisdictions. In all, the ACT Supreme Court has had only half a dozen defamation cases in the past five years – though half of them were not local.
Now to the not-so-good point.
For most of the 25-year debate, politicians have made much of the “public interest” test.
In defamation law, some states allowed a defence of truth alone. That was the old common-law test inherited from England. Other states required an additional test that the publication had to be in the public interest, or for public benefit, or be about a matter of public interest.
The states roughly divide according to their convict heritage. Those with a big convict past usually have a public interest requirement – the politicians who legislated to change the common law thought it would be a good idea to make it more difficult for the grubby press to dig up and publish long past convict backgrounds.
Anyway nothing much turns on it now. The courts give a wide meaning to public interest so it is an easy hurdle for a publisher to get over. I have only ever come across one case where a publisher proved truth but did not show public interest.
The big problem, however, remains: truth.
With few exceptions, under the new law, truth remains the core defence. It sounds reasonable. Why shouldn’t you have to prove the truth of everything you publish? The trouble is that, under our evidence laws, it is extremely difficult and costly to prove truth.
Moreover, under defamation law, the publisher is required to prove the truth not of what is published but of whatever defamatory imputations that the defendant can extract from the publication. Thus, for example, an accurate description of a company director leaving the country on the day the company goes bust might carry the defamatory imputation that the director was guilty of some wrong-doing and fleeing the scene.
Extracting imputations is a high legal art form which adds cost and delay. The onus is too high, so publishers are cowed into silence. They give up on investigative journalism.
It would have been better if the new uniform law had improved on the ACT’s “no-negligence” defence.
Under the new law, a journalist can be given a lot of information, have very good grounds for believing it to be true and honestly believe it to be true. The journalist can go to the alleged wrong-doer and put the allegations. The alleged wrong-doer can say, “Publish and I’ll sue.” If it turns out that the publisher cannot get enough admissible evidence together, the plaintiff will get damages – often for a publication that was most likely true.
The effect of this is that bad journalism gets a cover: “We were right but we just could not prove it because of the strict evidence laws.”
If, on the other hand, we had a defence of reasonable belief in the truth of what was published, good journalism would be rewarded and the public would get better information. Bad journalism would be exposed for sloppiness, negligence, failure to get the other side’s view, or reckless publication in the face of reasonable explanation or denial.
In short, defamation law should look more at the behaviour of the publisher – whether matters have been put to a person before publication and the person given a fair chance to respond, and having got the response whether the publisher still has reasonable grounds to believe the truth of what is published.
Defamation law’s search for the elusive truth is too costly. Worse, it is frightening off good journalism which is being replaced with too much inconsequential rubbish in the media.