The US Too Wants Defamation Reform

In his regular column, the Council's Chairman, Prof David Flint, looks at recent American attempts at defamation law reform.

It may come as a surprise that the state of their defamation law concerns American as much as Australian law reformers. Randall P Bezanson, Dean of the Washington and Lee University Law School, says American defamation law is fundamentally "broken and dys-functional". Procedural complexities and costs are such that only those desperately interested in protecting their reputations or positions sue. With noted US defamation law reformer, Professor John Soloski, he has made a major study on defamation law reform. They found that plaintiffs often have motivations other than damages in suing for libel.

John Soloski is planning a forum on US and Australian defamation law reform during the International Communication Association's convention in Sydney in July 1994. By then the NSW Law Reform Com-mission should be well on its way to producing its proposals for reform here. All eyes are on the Commission to come up with solutions which cut through the current morass of law and procedure and high costs which means that only the rich and powerful may join in the defamation lottery. Worse, there remains the impact the law must have on the media's ability and willingness to pursue and publish matters of public interest.

The Americans are at the cross roads in the reformation of their defamation laws which were modified significantly by the Supreme Court in 1964 in New York Times v. Sullivan. The Court ruled that public officials (later public figures) had to show that an allegedly defamatory statement was published with knowledge of its falsity. Alternatively, the plaintiff must show the defendant published with a reckless disregard for the truth. Thus the central question in US cases is whether the newspaper or station entertained serious doubts about the truth of the publication. (In two recent Australian High Court cases, similar but narrower arguments based on the implied freedom of political communication the Court has identified in our Constitution were put by West Australian Newspapers and the Herald and Weekly Times. The Court has reserved its decisions.)

Later the Supreme Court required private plaintiffs (as distinct from public figures) to show the media acted at least negligently when publishing false statements.

As a result, the media lose few defamation cases in the US. When they do, damages are often reduced on appeal. However, American trial procedures, especially discovery of documents, are long, complicated and extremely expensive. In one notorious case, discovery, and discovery related litigation, continued for thirteen years! The deposition of a TV producer filled twenty-six volumes, totalling 3,000 pages and 240 exhibits - all about the state of mind of the editor and journalists on whether they seriously doubted the truth of the publication.

It is the fear of the cost of a libel suit itself which discourages US media pub-lishing or pursuing controversial stories of public importance. To overcome this, US law reformers produced draft legislation, the model Uniform Defamation Act (1991).

The key to the model was to be a new "vindication action". Plaintiffs could sue for a court declaration establishing the truth or falsity of a story. Defendants would thus lose their constitutional defences because the reason for them - the chilling effect on newspapers of the prospect of heavy damages - would disappear. The action was to be simple, and was not to be clogged by procedural issues. Plaintiffs would be attracted by its speed and lower costs. However, there was little support from any sector and rigorous opposition from media groups. The model Act was doomed. With little hope of being adopted, it was eventually withdrawn.

The largely unnoticed retraction provisions were, however, revived in another draft model, the Uniform Correction or Clarification of Defamation Act. This model has attracted wide support and was approved by the uniform state law commissioners this year.

If it is adopted by any state legis-lature, a plaintiff will be limited to recovering out of pocket losses (economic loss) provided the defendant publishes a sufficient correction or clarification within 45 days after a timely and adequate request. Publishing a sufficient correction or clarification without a request will have a similar effect. The request must be made within 90 days of the plaintiff becoming aware of the publication. To be "adequate" it must specify with particularity the statement alleged to be defamatory and the alleged defamatory meaning of the statement. The circumstances of any implied meaning is to be specified. The request has to say that the alleged defamatory meaning is false.

An offer to publish a sufficient correction or clarification may also be made after legal action is instituted, but before the trial. Damages would then be limited to out of pocket expenses and reasonable legal costs.

The characteristics of "a sufficient correction or clarification" will vary depending upon the frequency and nature of the original publication and the correcting or clarifying pub-lication. The essential test is whether it is "reasonably likely to reach substantially the same audience".

The fact of a request, or its acceptance or refusal, is not admissible in evidence at a trial. The fact of a correction or publication is only admissible in mitigation of damages.

This procedure will apply to all claims for damages arising out of harm to personal reputation caused by the publication of falsehoods. Thus, certain actions for emotional stress and breach of privacy could be covered, although not defamation as such.

The model act has attracted significant media support. Henry Kaufman, general counsel of the New York-based Libel Defence Resource Center, which represents media defendants, is cautious. He says:

"It is possible to envision that more potential claims will be resolved without litigation and that what litigation does go forward - despite publication of a correction or clarification - will be less costly and less extended. It is even possible ultimately to envision that, with the fear of costly and extended litigation lessened, both the accuracy of journalism and the protection of reputation will be enhanced."

The unacceptability to the media of the earlier proposal for a "vindication action" and the lack of support from other quarters for the Uniform Defamation Act demonstrate the difficulties of defamation law reform whether here or in the US. The latest American proposal does seem to have the advantage of stressing the vindication of reputation as the primary justification for defamation law - a point made by the NSW Law Reform Commission. The quid pro quo in the correction procedure of limiting damages to economic loss would have a bigger impact here where plaintiffs have a more successful record. The great gain could be the pursuit, and the early publication by the media, of matters of public interest. If, for example, the Australian public had earlier notice of some of the major financial debacles of the 1980s, it is possible that the losses could have been lower. The beauty of the current US proposal is not that the media's power would be unlimited - it would still be liable for losses - but that plaintiffs would have to prove loss. This is food for thought for reformers here.

David Flint

See also:
Index of material on defamation

Return to APC News 1994 Index

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