It is rare for a defendant to win a defamation action. It is even rarer for a media defendant to win one.
Judges are usually quick to find defamatory imputations arising out of a publication; require a huge amount of evidence to find they have been proven true and are reluctant to give any leeway for unproved imputations on the grounds of fair comment, honest belief, reasonableness and so on.
In the 70-year history of the ACT Supreme Court (and lower courts) you can count the media victories in defamation cases on the fingers of one hand.
So it was quite refreshing last week to see a defendant win a defamation case in the ACT. The case was decided by Justice Margaret Stone – one of the many Federal Court judges who also hears the occasional ACT Supreme Court case under arrangements made when the Full Federal Court was the court of appeal for the ACT.
The case was a brawl between two developers: Terry Snow who controls the Canberra “International” Airport and Bob Winnel, who owns the Village Building Company.
Winnel wants to build houses at Tralee, just over the border in NSW. The airport says these will be “under the flight path” and will result in complaints and the redirecting of flights over Canberra. Winnel says his houses would meet all residential noise standards.
They have been arguing for some years.
As it happens, the NSW Government has agreed with Winnel and has permitted his development.
There was a fair amount of money at stake. Changing farmland to housing is invariably profitable. Quarantining a lot of other people’s land from development so you can have a curfew-free airport is also likely to result in higher long-term profits, particularly as one day Canberra might be able to receive freight or even passengers in the middle of the night and ship them to Sydney CBD earlier than if they landed after Sydney’s 6am curfew.
During the ding dong an advertisement was placed in The Canberra Times under the name of the Master Builders’ Association, the Housing Industry Association and the Village Building Company indirectly supporting Tralee and attacking the airport. Snow wrote to then Planning Minister Simon Corbell saying the advertisement did not reflect private-sector views and has Winnel’s fingerprints all over it. The letter oleaginously praised Corbell’s new spatial plan. Corbell asked Snow if he could make the letter public, got permission and put out a press release which The Canberra Times reported.
Winnel was affronted and sued for defamation saying Snow’s letter carried the defamatory imputation that he had procured an advertisement for discreditable purposes, concealed his role in placing an advertisement which he knew misrepresented the private sector and that he was a hypocrite.
Usually plaintiffs go after the republishing media, because they have the deeper pockets. In this case, Winnel, to his credit, went only after his direct progtagonist: Snow.
Hitherto, it has been as easy as pie for a plaintiff to extract defamatory imputations out of any, even slightly, derogatory article. All you have to show is that the publication lowers the reputation of plaintiff in the opinion of ordinary reasonable people. My guess is that 10 years ago, Winnel would have succeeded, especially if he had joined a media outlet as defendant.
The most dangerous articles for media are ones that say someone is not doing a good job, especially public servants, sports people and entertainers, all of whom often have thin skins.
Media walked a tightrope.
Fair enough, you should get done if you accuse someone of dishonesty or some criminal activity, but if someone says you are doing a bad job, so what? They should not get a pot of gold.
The trouble is that once the defamatory imputations are made out, the plaintiff invariably wins because it is so hard to get the evidence together to prove they are true. And media so often publishes what others are saying, and those others often go to water at the first sign of a law suit.
Other defences, like fair comment or the constitutional defence of reasonable political communication, are often too difficult to make out.
Sure, when the media are publishing serious allegations they should check and double check and expect to have to prove truth.
But a lot of low-level defamatory material often gets bandied about and you never know when a plaintiff will spring. Examples abound. Media regularly report people saying a policy is wrong or poorly implemented or shows favour to one side or the other. But that carries the defamatory imputation that the minister and the top public servants are incompetent. Broadband policy is an obvious example. Fortunately, the Minister, public servants and regulatory chiefs have not sued, even though the law might be on their side.
In the Winnel case the judge took what seemed like a traditional approach but with an important rider which should please media defendants. She asked the usual questions: do the imputations arise out of the publication and are they defamatory. So often you get a yes-yes answer and the defendant is left with the burden of proving truth or another defence.
But here Justice Stone added an important rider. The imputations have to be seen in their context.
This context was one of a vigorous political debate. No-one would think any less of Winnel for being on the receiving end of some vigorous political debate, she said. So the imputation that he had his fingerprints all over an advertisement purporting to represent the private sector was not defamatory, even if it may have been false.
Under this reasoning, it may be, for example, that quoting someone as saying the Government has made a hash of broadband policy and the regulator is biased against Telstra is not defamatory of Minister Helen Coonan or ACCC boss Graeme Samuel in the context of hot political debate.
So instead of the media having to rely on the good sense of people not to be thin-skinned and sue over low-end imputations of incompetence, there may now well be a solid legal defence.
A small victory for freedom of speech in what has been a decade of mostly backward steps.