In the past week or so we have seen emerge the first couple of cases under the reformed 2006 uniform defamation law.
Alas, the law is not much reformed, nor is it entirely uniform.
The cases were high profile because they involved celebrities, insofar as one would regard Mercedes Corby, the sister of a convicted drug smuggler, a “celebrity”. The plaintiff in the other case was Judy Davis, an accomplished Australian actress.
The lack of uniformity arises because NSW (unlike the ACT) still relies on juries to determine if the published matter was defamatory and if any defence succeeds. More of that anon.
Unfortunately, the Corby case was settled before it moved to the damages stage. I say unfortunately because there were a few critical questions of law upon which it would have been worth hearing a judicial voice.
Mercifully, judges, not juries, assess damages under the new law. In the past juries have been all too ready to dollop large amounts of other people’s money into the undeserving purses of celebs and sports people.
The new law caps general defamation damages at an indexed $250,000, now about $270,000. Word had it that Corby’s lawyers were going to argue that Channel Seven had three current-affairs broadcasts, and further three broadcasts on Sky and a further news broadcast, making seven in all, and therefore the cap should be seven times $270,000, or nearly $2 million, rather than one lot of $270,000.
It would have been nice to see that argument banged on the head. Until it is, the media will again be put in fear and trepidation of mad defamation damages as under the old law.
I don’t care much about media freedom to publish grubby slanging matches between the sister of a high-profile convicted drug smuggler and her former friend. But if we are going to have an effective media and freedom of public discussion, we have to take the ugly with the good. One of the reasons that the “uniform” law capped damages was to stop the intimidatory effect of the threat of huge damages awards on freedom of speech.
Another reason was to prevent the sort of disrespect for the law that happened a decade ago when a footballer got several hundred thousand for the publication of him in the shower when a worker who lost his testicles in a work accident could get just $30,000 or so.
The new law says the court should ensure there is an “appropriate and rational” relationship between harm caused and damages awarded.
Well, there would be nothing appropriate or rational about awarding a young woman who has admitted possessing and smoking marijuana anywhere near $2 million for the unproven accusation that she smuggled drugs and used harder drugs – especially when you would have to be consigned to a wheelchair to get that amount in a personal-injury case.
If in a personal injury case you have seven fingers torn off one-by-one you suffer seven times the pain and suffering as having one finger torn off. In a defamation case, however, if someone calls you a drug smuggler and hard-drug user one day and repeats it in seven programs over the next few days, you don’t suffer seven times as much.
Nor will the Davis case help us on the multiple-caps issue, but it might help on the “appropriate and rational” front. With any luck, the courts may look at maximum damages in defamation in the same way they look at maximum sentences in criminal law. The maximum is for the worst case imaginable. For example, shop stealing carries a maximum penalty of five years’ jail, but no-one gets anywhere near that most of the time.
In the Davis case, the jury found the Daily Telegraph had imputed she had acted in an unreasonable, selfish manner and was heartlessly indifferent to the safety of children in the way she objected at a council meeting over the erection of floodlights at an oval near her home.
It appears the reporting was done in such a way that the jury held that the reporter did not believe Davis had acted in this way. So the Tele would have lost this case even under the freedom-of-speech rules in the United States. So it should not get too much sympathy.
Nevertheless, on the scale of nasty things one could say about someone – pedophile, rapist, murderer, arsonist and so on — the accusation that one behaved unreasonably, selfishly and with heartless indifference to the safety of children must rate at the lower end, perhaps in the lowest- or second-lowest decile – so between $27,000 and $54,000 of the $270,000 cap.
But, you watch. Don’t expect anything appropriate or rational like that. The judges hate the media and will always go for the punishing high end, no matter what the scale of the defamatory imputations.
Also, they will inevitably bear in mind is that even if a plaintiff wins with costs, the difference between court-awarded costs and the actual costs charged by lawyers is often quite large. So damages have to be padded a bit if the plaintiff is to come out with anything at all.
Leaving aside the unanswered questions on damages, the troubling thing about these cases is that they were jury cases and juries do not have to give reasons. They can sway with the prejudice. They are more likely to see themselves in the position of the plaintiff and care little about the importance of freedom of expression.
And once a jury decides, it is difficult to win an appeal. Appeal courts do not like overturning jury decisions. Moreover, you have no stated reasons to attack as faulty.
It seems odd that we entrust people randomly chosen to make important deliberations because we trust their good sense, yet that same good sense cannot be trusted to shut out pre-trial publicity when dealing with criminal matters. The law should make up its mind on these – abandon juries because they can be swayed by prejudice, or allow them and allow more leniency with pre-trial publicity. And if they are of such good sense, it should not be too much to ask for them to provide reasons for their decisions.
Thank heavens the ACT does not have jury trials for defamation. The transcript in the Corby case would probably run to nearly a million words. It is unlikely that all of the randomly selected jurors (after most professional have excused themselves) would be equipped to deal with that. Why wouldn’t they rely on sympathy for the plaintiff or prejudice against the media to make a decision?
So here we are two and half years after the new uniform defamation law and we are not much wiser.