NOW that Joe Hockey is on his way to be Australian Ambassador to the United States and that the appeal period has run out, it might be a time for some sober reflection on his defamation action against Fairfax publications, including this newspaper.
There are lessons all around here.
Media organisations frequently complain about the chilling effect defamation laws have on the free flow of information that is so important in a democracy. Hockey’s win in July cannot be described in such a way. To the contrary, it was a victory for diligent, serious journalism and a defeat for sensationalism and tabloid journalism.
Hockey sued over articles published in The Sydney Morning Herald, The Age and The Canberra Times that said that Hockey was providing “privileged access” to a “select group” at a networking event in return for donations to the Liberal Party via a “secretive” fundraising body, the North Sydney Forum, whose activities were not disclosed fully to election-funding authorities.
Justice Richard White found that the articles did not carry the defamatory meaning asserted by Hockey that Hockey was corrupt and open to bribery.
But he did find that a Sydney Morning Herald poster and Age tweets carried those meanings because they baldly used the words “Treasurer for Sale”.
In short, the very detailed research done by the Fairfax journalists about the donations held up. What did not stand up was the sensational advertising of the story for the purposes of selling more papers.
They went too far. Taken by themselves, the poster and tweets carried the bribery and corruption imputations. The judge held that many readers would only see the poster and tweets and not the whole story.
The judge excused the words “Treasurer for sale” in the print and web versions of The Sydney Morning Herald and The Age because the headline had to be taken in the context of the whole story.
The Sydney Morning Herald and The Age were a bit lucky in that finding. The judge held that taken as a whole the articles did not convey the corruption or bribery imputations despite the headline. Another judge could easily have thought otherwise.
Several earlier cases involving advertising of articles (promos as they are called in the media) have cause media organisations grief. Once you strip away the detail and beat up a story to attract more interest, it is so much harder to plead fair comment, truth or that the imputations do not arise.
Interestingly enough, The Canberra Times did not fall into that trap. The Canberra Times did not use the words “Treasurer for sale” in its headline or promos.
The culture at The Canberra Times is one that is more interested in governmental processes than personalities and sensationalism. So rather than the “Gotcha” type headline, the journalist responsible for headlining the article, Mark Uhlmann, used the headline: “Paying their way: how a select group buys access to the Treasurer”.
The sensationalising and promo activity proved utterly counter-productive.
Because of it, the message “We gotcha, Joe” was transformed to Joe being able to say, “I gothcha, Fairfax”.
The underlining message is that Joe scored $200,000 in damages from Fairfax. This is extremely unfortunate. The real story was that the Liberal Party allowed a situation in which big business could make donations and get a special place at small functions where the Treasurer was available for them to put their views. Moreover, the Fairfax journalists had done the work to prove that.
More broadly, it is an example of something that pervades politics in the US and is increasing in Australia: where special interests can get special access to plead for special treatment which is almost inevitably not in the public interest.
The media needs to take away some lessons from this. Do not overstate the case. Do not sensationalise. Be careful with social media, especially Twitter.
More importantly, Justice White laid out some of the conditions you need to meet to attract the constitutional defence of freedom of political communication. Critically, you need to give the person you might be defaming a fair chance of response and to publish the response fairly and fully.
Every politician has an office with phones and emails. So there is no excuse for not giving them that opportunity. Very often, the response improves the story rather than denigrates it. Further, if the responder is given that opportunity, who knows, they might show you the story is wrong and save you the grief of a defamation action.
But in this case the story was right. Business can buy access, even if the Minister to whom they get access is unaware of the purchase. Sadly, that message was buried because of the over-reach.
The lesson for plaintiffs, on the other hans, is not to get too outraged. Alleging an article accuses you of murder and mayhem when it only asserts jay-walking may result in huge damages if you can show it. But the higher the level of imputation the more difficult it is to show that those imputations arise.
Hockey asserted the articles imputed corruption. The judge disagreed. Only a few newsagents’ posters imputed that. If Hockey had just sued on lesser imputations – that he was careless about the financial reporting of donors who came to dinners he spoke at, he would have been able to show that. But the potential damages would have been much lower.
The other lesson for plaintiffs is that the defendant is not their only enemy. The system can result in vast legal costs that usually outweigh the amount of any verdict awarded.
More broadly, though, the Hockey case shows that the days of big defamation cases by politicians against media organisations are a thing or the past or at least going to be very rare in the age of internet and social media. Justice White did a pretty good job of putting these publications into that context. In days of yore judges would happily award politicians, public servants, sports and entertainment celebrities vast amounts of damages for trifling slights only to see them prosper in their careers despite their supposedly tarnished reputations.
It is good those days are over. After all, the reputation of the man whose lawyers asserted had been trashed is off to Washington as the nation’s highest representative.
And no doubt he will make a good fist of the job.
CRISPIN HULL
The article first appeared in The Canberra Times and other Fairfax media on 31 October 2015.
www.crispinhull.com.au