Reputation is an idle and most false imposition; oft got without merit and lost without deserving.
Othello.
Shakespeare’s assessment is far better than the lofty words of defamation lawyers who declare that reputation is more important than anything. After two centuries, though, the view that puts reputation on a pedestal and prices it with huge damages awards is becoming less widely held.
Last week at a defamation conference run by the Free Speech Committee, the ACT Attorney-General, Gary Humphries, took an interesting line as a throwaway teaser amid more serious questions of reforms proposed in NSW.
Humphries said that the right to a good name must be very low on the list of human rights.
When one considers the right to be free from arbitrary arrest, to sue if someone negligently injures you, the right to sue for breach of contract, the right to obtain divorce, the right to marry and so on, the right to reputation is fairly small beer.
Humphries said if there is no progress towards sensible defamation laws with effective correctional remedies and which are cheap to apply, why should we have defamation laws at all. If it is all too expensive, ties up public courts and serves on the very rich, why not abolish the right to sue for loss of reputation? Humphries, somewhat tongue in cheek, suggested that instigating defamation proceedings was more a privilege (for the rich) rather than a right. He thought that the Internet, where anyone can publish sting and counter-sting in robust debate, would obviate the need to have a defamation law at all and that the courts could be freed up to deal with more important rights.
Humphries was not being entirely serious, by I have a lot of sympathy for that view. On a more realistic plane, Humphries thought at least that people suing should have to prove actual loss before they got huge damages.
Perhaps his attitude arises after going through the defamation mill himself after a local television station made unfounded assertions against him. The case went to the Federal Court. Humphries won, but at the end of the day there was not much change after lawyers’ cost. More significantly, Humphries presumably realises that his reputation does not depend on a fleeting mention in one telecast, but on his long-term conduct in public life. Few, if anyone, would remember what was even said on the telecast.
Humphries’ attitude augurs well for freedom of speech in the ACT. He politely put the kibosh on the more ludicrous suggestions of the ACT Law Reform Committee on defamation. The committee recommended that there be an action for defamation of the dead, to widen the sorts of things people could sue over, a separate action for invasion of privacy, taking the correction process away from direct informal dealing between the parties into a court-supervised arrangement, higher costs awards some circumstances, and aggravated and exemplary damages.
Humphries said the committee’s work had been “”controversial” and he doubted the extent to which the government would pick up its recommendations. Rather the ACT would concentrate on procedural reforms.
This is very sensible given that many of the ACT committee’s recommendations might fall foul of the High Court, given its recent ruling on freedom of political communication.
That point was made by the chairman of the Press Council, Professor David Flint, with respect to reforms proposed by the NSW Law Reform Commission on defamation.
The NSW commission wants a reverse onus of proof, so that the plaintiff has to prove the publication is untrue before getting damages. In fact, this means nothing, because all defamation is of or concerning the plaintiff and the plaintiff therefore is in the best position to deny the imputations on oath leaving the defendant to rebut … much the same as the present position.
It also proposed that plaintiffs be able to ask the court for a declaration of falsity and the defendant be required to publish it. Flint argued that forcing a defendant to publish something could fall foul of the High Court’s freedom-of-political communication ruling.
Flint thought also that under the NSW proposals a lot a judges would soon have egg on their faces after ordering publication of a declaration of falsity only to find down the track that what was published was basically true. The declaration of falsity would, to quote Othello, itself be a false imposition of reputation.
This would not be unusual. Indeed, The Canberra Times experience is that many miffed plaintiffs are miffed precisely because they have been caught out, not because they have been wronged. They want to “”correct” the damaging truth, not the falsity. For example, we applauded the death of Laurie Connell because (for practical purposes) eight defamation writs died with him. And there are others.
NSW should follow the ACT lead and do nothing. The High Court has done more in two cases to reform defamation law in favour of free speech against the idle and false imposition of reputation than the parliaments of the states and territories have done in two decades.