Today the new Act Defamation Act comes into force. It is perhaps the most radical reform of defamation law in any Australian jurisdiction since 1788.
The law passed in the last session of the Legislative Assembly before the election in October last year.
To explain the sea change, it is perhaps best to start with a description of the existing law.
As things stand, you publish at your peril. This doctrine approved by English and Australian and judges over the centuries has meant that all of the onus is upon the publisher to justify publication. If someone feels that anything detrimental and has been published about them, a publisher is a required to prove the truth of everything published. As a concession, if the matter arises out of a parliamentary or court proceedings, the publisher has to prove it is a fair and accurate report of those proceedings, not the truth of what is said. Proving truth sounds a reasonable requirement, but it is very costly given the complexity of our evidence law and the ease with which evidence is excluded. It makes it very easy for the rich and powerful to say, publish one word and we will sue.
Proof of truth requires a very deep legal pocket. So, indeed, many publishers prefer not to publish matters of public importance that they have very good grounds for believing to be true, because of the sheer costs. The requirement also means long and costly trials with the result coming often years after the original publication, which is not a good way to restore reputation.
The new Act will bring the law into line with what most people say the defamation law should be about — namely a balance between reputation and freedom of speech and where reputation is threatened to provide speedy and restorative remedies rather than big damages years after the event.
First there is a defence of making amends. It must be done promptly. If a publisher publishes a correction and apology, pays costs and pays for any provable loss to the aggrieved defendant, it is a complete defence. As a reward for prompt apology there is a reward of no general damages – which can often be very high. Under present law the aggrieved person could still seek general damages for loss of reputation. The new law is a great improvement because it provides an incentive for publishers who have made a mistake to rectify it quickly. Under present law such an admission could be very expensive.
A under the new law, publishers would get a defence if they could show that they were not negligent; that they took reasonable steps to insure the accuracy of the published material; and they gave the defendant a reasonable opportunity to comment on the matter before publication. This should address one of the constant complaints that people make about the media – – that they did not get a chance to put their view before publication.
Under the old truth rule when a publisher lost a defamation action the journalist escaped easily by saying we knew it was true but we could not prove it. Under the new ACT law, there will be no excuses for journalists. The test of whether a publication was justified will centre around the conduct of the journalist: was the journalist negligent; did the journalist have a reasonable grounds for believing the truth of what was published; was the journalist malicious; did the journalist give the other side a reasonable chance to respond. These tests are more quickly, cheaply and easily determined by a court than the truth test. These tests should encourage fairer journalism.
The new ACT law will also provide protection for publishers who in good faith publish reports of public proceedings and reports of public documents. The protection is called qualified privilege. Under present law this protection is uncertain and limited. We know it applies to court and parliamentary reports, but its scope beyond that is uncertain.
The protection is an important one. It works as follows. If I say Smith is a liar, I have to prove that he is a liar and it is for the public benefit that I publish it. If, however, the Member for Canberra tells the House of Representatives that Smith is a liar, one only has to get the transcript to prove the name telling, one does not have to prove the truth of the proposition that Smith is in fact a liar. Without the protection, even if you could prove that the Member for Canberra made the utterance, you would still have to prove that Smith was a liar.
Under the new law, qualified privilege will be widened to include statements by public bodies such as regulatory boards and to include fair and accurate reports of what is said at public meetings, company meetings and meetings of professional bodies without being put to the test of proving the truth of everything that is said at those meetings.
This is a very significant reform that at last gives some concession to freedom of speech in the interest of the public at large over the interest of the individual.
The law gives aggrieved people the chance to get a vindication order if no offer to correct or apologise is made. This is a quick way of restoring reputation; something the law of defamation should be about.
In short the new law heads in the direction of encouraging restoration of reputation where errors are made and encouraging good journalism, rather than the present costly, adversary stand-off. It won’t be perfect, because human nature is difficult, but it must be an improvement.