Australia has come to be known as the defamation capital of the world. The abundance of laws and the lack of inscribed rights is considered by many to be a deadly mix, especially for Australian journalists.
Bernard Keane, political editor of Crikey magazine, is one of many Australian journalists who has been through a defamation case. He says that when you are in the firing line, it can weigh on you quite heavily.
“It is distressing. It is distressing personally. It is distressing for your publication. Afterwards it leaves you with a sense that you are performing without a net.”
Fear of defamation can impact the types of stories told in Australia. A survey conducted in May 2018 by the Australian journalists’ union found that almost one quarter of respondents said they’d had production of a news story stopped within the previous year due to defamation fears.
What is defamation law?
Defamation law has been around in Australia for hundreds of years and intends to serve as a way to balance Australia’s democratic right to free speech and the need to protect a person’s reputation against harmful speech or writing.
Jeremy Haughty is a barrister in the UK and a law tutor at La Trobe University. He says the crux of defamation law is protecting someone’s reputation. It can occur, he tells upstart, when “person A makes written, oral or other kinds of statements for example, pictorially or by video, about person B, which would make ordinary reasonable people think less of B.”
Essentially, if someone believes something has been written or said about them that could damage their reputation then they can take the person who communicated the defamatory statement to court and sue them for defamation.
Defamation law is a section of civil law. Civil law deals with behaviour that results in injury to an individual or other private party. This injury could be physical or metaphorical like an injury to someone’s reputation. Examples of a civil wrong would be defamation, breach of contract, negligence resulting in injury or death, or property damage. They are usually settled with a monetary payout rather than jail time.
Defamation is a civil wrong that is extremely hard to defend. This is because of what is known as “reverse burden of proof”. The complainant does not need to prove that what was published was false, instead the defendant must prove that it is true.
A recent example of this would be the Christian Porter versus the ABC case. Porter claimed that an article published on the ABC included false allegations against him in relation to a historical rape. His lawyer said in a statement at the time that, although he was not named, the article made allegations against a senior cabinet minister “and the attorney-general was easily identifiable to many Australians”. In this case Porter did not have to prove that what was said about him was false. Instead, the ABC had to prove it was true. Proving an instance of rape or sexual assault is hard when the alleged victims are alive. Thus, it would be impossible for the ABC to prove that the actions of Porter detailed in the letter given to parliament, about an alleged rape of a woman who has since passed away, did actually occur.
Defamation and its role in journalism.
In journalism it is often hard to prove things to the standards of the court because you can be working with whistle blowers or anonymous sources. Even when sources aren’t anonymous they can be subject to intense scrutiny for speaking up.
Dr Johan Lidberg has been involved with the media freedom inquiry and has been investigating how journalists and investigative journalists use freedom of information laws for 20 years.
Freedom of information laws are laws which allow people to request information that is in possession of ministers, State Government departments, local councils, public hospitals, most semi-government agencies and statutory authorities. Usually, people use these laws to request information regarding themselves. However, journalists sometimes use them to get information about government policies, programs and decision-making processes.
Australia currently has a Freedom of Information Act which gives citizens the right to request information. However, Lidberg says it is still extremely difficult to obtain certain kinds of information—sometimes information that is crucial to journalists. He says that improving freedom of information laws in Australia would benefit journalists when trying to defend defamation.
“If we have an extensive and well-functioning Freedom of Information, you could have a whistle blower contact a journalist and say, ‘I know that this is going on in this department or agency and there are documents to back this’,” he tells upstart.
“The journalist could then obtain these documents to back up what the whistle blower is saying and probably wouldn’t even have to float the fact that they got this from a whistle blower,” he says.
Public interest journalism lacks a universal definition but is widely accepted to be the pursuit of information, by journalists that the public have a right to know. This is not merely stories that are interesting to the public but stories which benefit the public in a collective way.
For example The Sydney Morning Herald’s stories on MP Eddie Obeid. It was alleged that Obeid corruptly lobbied former Maritime NSW boss, Steve Dunn, and others over cafe leases his family secretly owned at Circular Quay. Obeid has now been convicted. However, writing about this case before the conviction proved risky, as he could have sued for defamation. But the paper decided that the public knowing about the corrupt behaviour was more important than any potential defamation repercussions.
In the UK there is a defamation defence for work done in the public interest, no such defence has existed in Australia until the current round of reforms.
Australia does have a long standing defence known as qualified privilege. This defence allows for free communication in some circumstances, where the person communicating the statement has a legal, moral or social duty to make it. Journalists often have legal, moral and social duties to write and publish information. However, the defence is contingent on the fact that the journalist acted in an appropriate way. This defence has never been used successfully in a case pertaining to the media.
In the current reforms to Australia’s defamation law there is a public interest defence being introduced. NSW Attorney-General Mark Speakman told the Sydney Morning Herald that the defence will “require a defendant to prove both that the statement was on a matter of public interest and the defendant reasonably believed that its publication was in the public interest”.
For example, on 22 February 2019 the Federal Court ruled against The Sydney Morning Herald in a defamation action brought by Australian businessman Chau Chak Wing. The article alleged that Wing, who has been a major political donor in Australia, was involved in bribing a United Nations official. The newspaper attempted to use the defence of qualified privilege, but the court ruled that their conduct was unreasonable and therefore the defence was rejected.
In this case, if there had have been a stronger defence for the public interest, The Sydney Morning Herald could have argued that what they published was in the interest of the public.
Where Australia differs
Compared with the rest of the world Australia “stands out in a very unflattering way” when it comes to defamation law, Lidberg says. This is because of the reverse burden of proof that does not exist in places like the US and UK.
There were reforms made in 2006 to try and uniform defamation laws in Australia, but Lidberg says until this reverse burden of proof is gone, we won’t see much improvement in how the law operates. Brendan Clift, a graduate researcher at the University of Melbourne, focuses on media law. He says that the laws in Australia might not make it hard for Australian journalists to do their jobs, but they certainly makes it risky.
“Australian defamation law is titled very much in favour of reputation and less in favour of free speech,” he tells upstart.
It is also important to mention that Australia does not have any inscribed right to free speech like the US does in their constitution.
“Australia lacks a bill of rights or a charter of rights in the constitution. We are the only liberal democratic mature system in the world without such a legal instrument,” Lidberg says.
Having these rights inscribed in our system would not only mean better protection for journalists and the media, but for everyone.
“This goes beyond just media and free speech, it goes to those other core civil liberties too,” Lidberg says.
Journalist Bernard Keane believes in Australia we have the worst of all worlds.
“In the United States there is a bill of rights that entrenches certain basic protections around things like free speech and free press and therefore you have a lot of court rulings around those rights and their application,” he says.
“Defamation law in the US strikes a pretty good balance because it recognises the need for protection of reputations, but it also recognises the right to free press and it recognises that it is actually possible to get it wrong.”
That recognition that the media can get things wrong is something that the UK also recognises. According to Brendan Clift, they have a reasonable publication defence which makes allowances for editorial judgment.
“It tries to take into account the realities of what it is like to be a journalist and the kind of decisions that editors make, sometimes under extreme time pressure,” he says.
Accountability for those in power.
In a democracy, a journalist’s role is supposed to be to hold power to account by allowing the public to be privy to what’s happening in the halls of power, but the fear of defamation action may stand in the way of this.
Keane, having spent most of his career working as a press gallery correspondent, is a fierce advocate for proper functioning journalism and says without it, it is near impossible to function as a democracy.
“There is no alternative. There are very few other mechanisms by which the public can receive information about what the powerful are doing. The media is the least worst way we have come up with of routinely subjecting the powerful to some sort of scrutiny and accountability in a way that will reach the wider public,” he tells says.
Lidberg also says that properly functioning journalism is essential to the health of a democracy.
“There would’ve been no royal commission into the institutional abuse of children if it hadn’t have been for the reporting of investigative journalists, there wouldn’t’ve been a royal commission into the practices of banking if it hadn’t of been for investigative journalism, there wouldn’t’ve been a royal commission into the treatment of juveniles in the detention centre up in the northern territory if it hadn’t of been for investigative journalists,” he says.
The cost of defamation.
So, journalists have to hold the powerful to account, but how do they balance this with the fear of retribution? And if there is no threat of jail time or criminal punishment for the journalist or editor why is it such a threat to journalism?
It really boils down to money. Defamation cases in Australia are expensive and especially if you are a small media company, even a threat of a case could put you out of business.
“They don’t have any kind of a war chest for fighting a defamation action,” Clift says.
“If your legal budget is exhausted then you have to spike any story that has a whiff of defamation about it.”
But if stories that are in the public interest are not being told because of a defamation threat, should this be seen as an indication of a non-functioning, non-democratic media landscape?
“The whole endeavour of journalism in Australia is thus subject to this risk averse culture where you have to be very careful and if it comes down to a line ball call, you don’t publish. And that is the chilling effect of defamation law,” Keane says.
“It plays out quite routinely in Australian newsrooms because there are no safety nets, there is no recognition of the importance of holding the powerful to account.”
Whist Keane admits the story contested in his own defamation case was wrong, it is impossible to know how many public interest stories have not been pursued because of this “chilling effect”, that Keane describes.
“One slip and it might not be a quickly settled case, it might be something that destroys a company,” Keane says.
So, how do we fix it?
Well, there are current reforms in place for Victoria, New South Wales and South Australia. These are working in two stages, the first of which has been implemented already, stage two is in the pipeline.
Jeremey Haughty explains these changes will include a serious harm threshold, which plaintiffs must prove. A serious harm threshold would mean that plaintiffs must prove that serious harm was cause by the allegedly defamatory material, currently harm is presumed in a defamation case.
“They also include the introduction of a separate defence of public interest publication, which is likely to be welcomed by the media,” he says.
However, despite these changes there is still a great deal of scepticism around whether they will make much difference to journalists and media companies.
“We still have quite a ways to go,” Keane says. “It’s not just about a bill of rights protecting journalists and media publications, it’s about having something like a tort for privacy, so people have alternative mechanisms for seeking justice against than media than simply defamation,”
Clift also agrees that the reforms are a step forward but that we shouldn’t hold our breath on their effectiveness.
“We really should redirect emphasis away from damages, a money payout being the main way that you compensate someone, and direct it towards other remedies,” he says.
Lidberg believes that until the reverse burden of proof is erased, defamation suits won’t get any easier for journalists.
“We have seen both major parties back restrictions on journalism practice here in Australia,” he says.
“Until the reverse burden of proof has been addressed nothing much will change in Australia.”
Article: Brittany Carlson is a third-year Bachelor of Media and Communication (Journalism) student at La Trobe University. You can follow her on Twitter @medi_brittany.
Photo: White and black printed paper photo Michael Dziedzic can be found HERE and is used under a creative commons licence.