Twice in week the defamation laws have been found spectacularly ill-suited to modern politics and the information age.
They are as out-of-place as a bewigged Jacobean in silk breeches and lace-sleeved coat at a corporate tele-conference.
Mind you, I don’t have a great deal of sympathy for Victorian Premier Jeff Kennett because he has thrown around a few defamation action in the past so he knows how fickle the roulette wheel can be. But must it cost $150,000 or more for the system to deal with what should be a straightforward privacy complaint?
Kennett lost his defamation action against The Australian which the day after the Kennetts split up ran a story citing unfounded rumours of extra-marital affairs with two named high-profile women. The women, presumably, have got more brains and guts than Kennett, treating the report with the contempt that such trivia deserves.
After five days of hearing, the jury threw it out in under 50 minutes. That was a very short time. Remember, Justice Higgins in the Abbott and Costello case has had since the hearing in October to mull over his judgment.
Juries are a very silly way of determining legal matters. Any pollster will tell that a jury of six or in criminal cases a jury of 12 can never be representative of the community view. Indeed, every effort seems directed to the contrary, with the self-employed and professional classes easily ducking out of jury duty – leaving the ill-educated and easily swayed in the box.
Juries don’t have to give reasons. We may never know whether the jury thought it was okay to repeat rumours as long as you made clear they were unsubstantiated, or whether the jurors were card-carrying Trotskists who hated Kennett politically, or whether they thought that as blokes usually swaggered about their female conquests it could not possibly be defamatory to describe some of them, or whether they just wanted to get home early.
In any event, we have no lessons to take to new cases. Kennett says he is going to cop the jury verdict and not appeal.
The Australian argued that the article did not carry any defamatory imputations because the article stressed the rumours were false, but it was necessary to mention the false rumours to put the separation announcement into context.
Nationwide News editorial manager, Warren Beeby, said the verdict “”has obviously allowed the press to comment on areas that were a bit dangerous to step into”.
That is a brave comment six days after Random House copped a bill for about $1 million for commentary on precisely that area: the sexual conduct of political figures Costello and Abbott.
The two cases illustrate the key to defamation law: it is not what you say but how you say it.
Lawyers pick over the words. To frame a defamation action the plaintiff’s lawyer first has to extract imputations from the article and then show that the imputations are defamatory.
This can be a highly semantic, technical and legalistic exercise with little to do with the real world. The Australian said there were unsubstantiated rumours that Kennett had affairs with X or Y. Does that carry the imputation that he actually had the affairs? Maybe not. Or if it does carry the imputation, is the imputation defamatory in these post-Christian times? Justice Higgins in Abbott and Costello thought that being accused of unchastity was defamatory.
Then comes the defences. The publisher can plead truth. It is usually very hard to prove the truth of anything in court these days. Look how long it has taken the coroner to get to the truth of the hospital implosion for example. And look how much it has cost.
A publisher faced with those burdens would have to pass on a lot of cost to subscribers and advertisers. (Bear that in mind next time you cheer a big pay-out against a publisher.)
Defamation law uses as a test “”the ordinary reasonable reader” as to whether the imputations arise and the “”right-thinking person” as to whether the imputations are defamatory.
Neither of these is satisfactory in the age of mass information.
For someone like Kennett, or indeed an elected public figure, the ordinary reasonable reader is not a fair test. Kennett and other public figures have to appeal to a mass constituency which includes a lot of unreasonable and wrong-thinking people.
Moreover, in the age of interactive mass information (the internet) allegations become easy to repeat and often wilder in nature so people have become far more sceptical about what they see and read.
Big damages might have been appropriate in an age where the bulk of the reading people were reasonable and right-thinking and believed everything they saw in print. Nowadays the mass audience and interactive publication make damages less important than meeting information with better information: court statements.
The highly technical approach that defamation law takes to resolving differences between aggrieved and publisher should also be abandoned. We should replace it with a general tort of unjustified publication. We should clear out the high-priced lawyers, and the best way to do that is to cap the damages to $10,000 maximum unless you can prove economic loss. After all, Kennett himself said he was not after the money, but just the principle. Why should his only remedy be defamation law and to avail himself of it why should he be exposed to a $150,000 costs order? The present system means there is no remedy for those of modest means and the media can get away with it.
We need quick and cheap remedies which are effective because they come in the form of a statement from the court about the conduct of the parties.
Kennett’s gripe was a breach of privacy and the real possibility that a swag of people outside the law’s realm of reasonable reader would think he was having extra-marital affairs. But the defamation law does not see it that way.
The defamation law is a lottery based on semantics.
Under a system of unjustified publication, run in the magistrates court without the big name lawyers, the argument would be whether it was reasonable to publish in the circumstances. Privacy, public figures, the honest belief of the publisher, the public’s right to know and the conduct of the journalist could all be balancing factors. (We might even improve our media that way.)
The two cases about politics and sex have shown what a lottery the defamation law is. In one the publisher is crucified and the politicians whose careers and reputations have not been affected one jot get the loot and in the other the politician cops a huge legal bill from the publisher.
The only common thing is — you guessed it — the lawyers from both sides in both cases laugh all the way to the bank.