Under our current laws of defamation one needs to prove, not just the truth of what one actually says, or writes, but of the ‘imputations’ of what is said or written – and generally, it is the plaintiff who gets to decide what those imputations are. And, under our current defamation laws (due to be updated in July but it is feared will make little difference to the near unwinnable status quo) it is almost impossible to prove the truth of what you say, even if in the public interest or to expose wrong doing. The court requires proof of not just the truth of what you say or write, but of the imputations of what is said or written. And it is the subject, the plaintiff, who gets to decide what those imputations are, unless truth can be proved on the balance of probabilities; A very hard call, rarely won. Vexatious litigants who threaten to sue at the drop of a hat know this. And too often act upon it, often driven by greed rather than concern about their reputation.
Vincent O’Donnell reflects…
WHAT’S IN A NAME?
“What’s in a name? That which we call a rose. By any other name would smell as sweet”, so reasoned the love struck Juliet. Didn’t do Juliet much good though, and neither do our increasingly outmoded defamation laws, when it comes to just outcomes rather than legal ones.
Defamation is a legal mechanism to defend, perhaps restore, personal reputations when they have been damaged and soothe the hurt with a monetary salve.
Sometimes that damage is just: revealing a truth that has been wilfully hidden, like the aberrant sexual practices of a minister of religion who otherwise preaches the sanctity of the family. Such revelations have brought down evangelical preachers in the US, grown rich on their public sanctity and private corruption. Gerry Falwell Jr looks set to join the line-up.
Other times, it is unjust: the use of legal action to undermine the credibility of whistle-blowers or prevent public knowledge of personal dealings or beliefs, especially of politicians, that the public has a right to know. The list is long of politicians and business figures who have used defamation laws to avoid legitimate public scrutiny.
Interesting though, researchers at the University of Technology Sydney found that public figures fighting media companies were no longer the main users of defamation laws. Defamation actions between private individuals have grown rapidly.
Between 2013 and 2017, only 21 per cent of plaintiffs were public figures. More than half of defamations actions involved digital publication, and of 189 defamation cases studied,16 arose from Facebook posts and four from tweets.
Those defamation actions are frequently trivial and used to settle personal feuds about beliefs, opinions, or practices that are, of themselves, legal, but hurtful to one or other party. In 2013, a music teacher from Orange, NSW, was awarded $105,000 because of a tweet from a former student made about her. It was the first Twitter case. In 2016, a Queensland man’s comments on his own Facebook page that his ex-wife was a “thieving, lying, money-crazed bitch” cost him $10,000.
However a settlement in favour of the plaintiff does not necessarily constitute a clear cut case of fault by the defendant.
Sometimes, matters of higher principle are at stake, but defamation is no way to settle them. The three year war between Drs Mourik and von Marburg, in Albury, was about an abortion clinic and Facebook posts about the issues and personalities. It cost Dr Mourik a public apology to Dr von Marburg and $180,000 in damages. Though settled just before trial, the legal costs were hundreds of thousands more, and the emotional cost higher still.
And in Adelaide, in 2020, barrister Gordon Cheng won a $750,000 payout against a woman who gave his firm a one-star rating on Google in English and Chinese, along with an extensive negative review. According to evidence given in the South Australian Supreme Court, the woman was never a client.
But things are better than once they were, even if the law of defamation is now, increasingly, in need of huge changes.
The good ole’ days
Australia’s defamation laws were once the exclusive domain of the states, and varied widely in legal detail. NSW used to be a great place to prosecute, success was easy to achieve for the plaintiff. Our former Prime Minister Bob Hawke, who was something of a professional defamation plaintiff, named various of his home improvements after the hapless defendant, frequently the media, whose settlements financed the work.
This weighting in favour of the plaintiff may be historic in origin. As political power in NSW shifted in the 19th century from British-born citizenry to ticket-of-leave men and women and their descendants, defamation laws may have been crafted to prevent an person’s family convict past being given undue prominence.
Victoria, on the other hand, was a great place to defend a defamation, perhaps reflecting the ascendency of wealth, property and business after the gold rushes.
In 2004, the then Commonwealth attorney-general, Phillip Ruddock, achieved a high point of his career when the state attorneys-general agreed to introduce into state laws Model Defamation Provisions. These achieved great uniformity to defamation laws, nation-wide. But things change. By 2019, the model provisions were wanting.
Social media has a lot to answer for here. Anonymity and ease of posting has created an atmosphere of consequence-free shouting of insults. That has all arrived since 2004, and defamation laws have no accommodation and social media few restraints on defamatory postings.
In turn, ideas and ideals of free speech have come to the fore and restrictive defamation laws are at least as problematic as the rigorous national security law that have been legislated in the past decade.
Here, public figures from politicians to criminals and dodgy developers continue to use defamation laws to suppress debate. In the US, politicians can’t sue for defamation at all. In the UK and Canada, the available legal defences are far stronger and better serve the public interest than here.
Since 2005, court decisions, setting precedents, have undermined defences in the Model Defamation Provisions. The qualified privilege defences, like an honestly held opinion formed for good reasons, have lost ground. And the concept of truth or, more correctly, the way truth may be discovered, has acquired unexpected conditions.
Some judges have demanded that the truth of a published statement be known before publication. Many important stories have been broken but the full truth only established in the consequences of publication. Unfortunately, in Australia, the truth, ab initio, seems the only viable defence, but is very often difficult to prove to the court’s satisfaction.
And, no matter where the action is taken or defended, money talks, and networks of influence can be deployed to support one side or the other.
Things are changing (again)
In 2020, the Council of Attorneys-General agreed to the amendments to the Model Defamation Provision. The major changes include:
1, the introduction of a serious harm threshold to weed out trivial cases;
2, the introduction of a new “public interest” defence based on UK law, as well as a new defence for peer reviewed matters published in academic journals;
3, amendments to the cap on damages to more clearly establish that the cap on non-economic loss sets the upper limit, and that aggravated damages are awarded separately;
4, a new requirement that parties must issue a concerns notice prior to commencing a claim and new opportunities for responding offers to make amends;
5, providing additional clarity to a number of matters in the existing Acts, including the defence of honest opinion.
Missing from this lawyers’ laundry list is any mention of public figures. The “public interest” test does not go far enough. Our public sphere has suffered because public figures have used defamation to stifle debate about their malfeasance. These reforms are a chance to put an end to this legal shelter from political accountability at all levels of public life from local councils to the highest office in the land.
However, plans to introduce the amended provisions are on hold. The changes have been derailed by… a defamation case. The previous Commonwealth attorney-general, Christian Porter, who had carriage of the issues, is himself taking defamation action under the old law.
Cui bono, who benefits from these delays? Not justice.
Vincent O’Donnell is a media commentator and analyst