It is a walk of only 25 metres to courage, according to Senator Robert Ray.
He was quoted on this page yesterday by Senator Stephen Loosley referring to MPs using parliamentary privilege instead of walking 25 metres and making their statements outside where they could be sued for libel.
Loosley argued that the smearing of former Senator Graham Richardson under parliamentary privilege showed a need to curb the excesses of parliamentary privilege and the abuse of what has been called the coward’s castle.
In his argument he laid down some very worthwhile and pertinent tests about when privilege should apply, but applied them to the wrong group of people. Let me explain.
Loosley said MPs should be vulnerable to legal action for defamation if they transgressed three principles: matters raised should be in the public interest; MPs should not be allowed to make statements they know to be untrue, rather they should honestly believe their statements to be true; and thirdly, there should be an absence of malice.
Excellent, Senator Loosley, absolutely excellent. I could not have framed principles of defamation law that should apply to everyone in Australia better myself.
I would, however, leave absolute privilege in the hands of MPs and they can be judged on how they use it, as they are being now. The Richardson allegations seem to be damaging Bob Katter and Grant Chapman more than Richardson.
But let’s us go back to the Loosley principles to see how they could apply generally, to see what they would replace, and to see how beneficial they would be for Australian journalism and democracy in general.
Under present rules, publishers are required to prove the truth of what they write. There are some other defences, but they are very limited in scope. For the broad brush of everyday reportage you have to prove truth.
It sounds easy and its sounds reasonable. But it is not. It is an extremely expensive, hit and miss affair. But the time both sides lawyers have been to town on all the witnesses no-one can tell where the truth lies. And in those circumstances the law and practice is to say the defence has not been made out and the defendant newspaper must pay (usually large damages out of all proportion to the real injury).
The result of that is that speech and writing are inhibited. If you can only publish and say what you can prove to be true, you say nothing.
This was elegantly put by Justice William Brennan in the US Supreme Court in 1964:
“”Erroneous statement is inevitable in free debate. It must be protected if the freedoms of expression are to have the breathing space that they need in order to survive. . . . A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions _ and to do so on the pain of libel judgments virtually unlimited in amount _ leads to a comparable self-censorship. . . . Under such a rule, would be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true, and even though it is in fact true, because of doubt whether it can be proved or fear of the expense of having to do so.”
Instead of putting the onus on the publisher, as in Australia, the US puts the onus on the person suing, just like every other area of the law (medical malpractice, breach of contract and so on). The person suing has to show “”malice”, “”negligence” or no public interest _ broadly the Loosley principles, but applied to all.
Those principles mean that if the publisher would be safe if he or she made reasonable inquiries, gave the other side an opportunity to respond, honestly believed the truth of what was being published on at least some grounds (even if they could not be proved) and published in the public interest.
What effect would that have on Australian journalism if applied broadly?
At present, the truth requirement does result in self-censorship. The public, of course, cannot see that because it is censored. The main evidence of it, though, is looking through the news pages of Australian newspapers and seeing the high percentage of it that is reportage of protected courts and parliamentary reporting, government hand-outs and reports, human interest pap and the odd science bit.
With the truth test, journalists give up or self-censor because it is too hard, or if they publish and lose a defamation action they shrug it off saying: “”Bad luck we could not prove that, but we knew we were right.”
The truth test does nothing to erase the smug self-righteousness of Australian journalism.
The Loosley tests, however, applied broadly would put journalists and journalism to the test. Journalists’ conduct would be questioned, whereas under the present rules the lawyers go off in an idiotic search for an elusive objective truth.
Under the Loosley tests applied broadly, journalists would be asked: Did you behave reasonably? Did you give other side a reasonable opportunity to respond? Did you make reasonable inquiries? Were you malicious? Did you honestly believe your story? And editors would insist on journalism being conducted this way so their defamation defences are secure. Under present rules there is no security other than self-censorship.
Also with the new principles, people confronted with allegations cannot just say: publish and I’ll sue or you try and prove it. They would have to respond or the defence of absence of malice would be made out. These changes can only improve public discourse.
Senators Ray and Loosley’s cowards’ castle metaphor is misapplied. The real cowards’ castle is the refuge of those who shelter behind the onerous tests of the present law.