A.C.T. Defamation Reform

A journalist and a lawyer look at the A.C.T. proposals

(Editor's Note: Gary Humphries, the ACT Attorney-General, has proposed a radical rewriting of the territory's defamation law. Among the changes mooted are encouragement for early settlement through apology or correction; the introduction of a defence of truth alone; and a "non-negligence" defence. In co-operation with Mr Humphries, the Press Council convened a seminar to discuss the proposals. The Herald & Weekly Times' Chris McLeod and Ric Lucas, Chairman of the ACT Law Society Defamation Committee, each gave their views on the suggested changes.)

Chris McLeod's paper

First and foremost I am not a lawyer so what I have to say is purely a publisher's perspective and not based on any legal propositions. I am sure those in the legal profession will be able to correct any misconceptions I have.

I can say that the ACT's Bill is the best attempt at defamation reform I have seen in my years in this business.

Not everyone will be entirely happy with it of course. And the lawyers probably will have a different view to that of publishers, particularly on the technical detail.

I should say too that I am not talking as a publisher's representative who has a lot of defamation activity in the ACT. Rather I speak as someone who wants to see some level of uniformity of law from state to state and territory to territory in the field of information distribution where technology is making state boundaries increasingly irrelevant.

I appreciate that the ACT attorney-general has particular interests in reforming his defamation law but in terms of the possibility that what he is doing could become a model for national reform, I think publishers might support its thrust. Obviously we can't pass final judgment until we know a little more about how it will work.

The reform has already been welcomed by a number of commentators as a move to encourage responsible journalism, if indeed it is accepted that journalism until now has been irresponsible.

I do have a couple of reservations and I will come to them.

It is not realistic to ever think that defamation law will come down entirely in favor of publishers. And the trade off for whatever we get out of any defamation reform is almost certainly going to be a discrete privacy law that will impact on us if not directly, then indirectly.

We must accept that there is public support for such things as protection of privacy and for the media to be accountable for anything damaging and harmful that it publishes. I don't think publishers have a problem with that concept although the way those checks and balances are implemented do concern us.

The first point I note about the ACT's proposals is that it offers a brand new defence. And that's a big plus.

And the removal of the public interest override on the old "truth" defence will no doubt be welcomed by those in the media here in the ACT. We haven't had this override provision in Victoria but from my understanding the problem has been that the courts give a pretty tight - even unworkable - definition to public interest.

Let's not get carried away with truth as a defence.

It's just too simplistic to say "publish what is true and you won't have a problem". This puts an incredible onus on a publisher and I don't think there are many outside journalism who appreciate just how difficult it is. I'm not asking or expecting any sympathy on this point of course.

But the reality is if we had to prove the absolute truth of everything we published we probably wouldn't publish anything.

That's because truth is a little like beauty - it's in the eye of the beholder.

Look at a newspaper - it is a forum for the public to receive and impart information. If we report someone as saying she is concerned about plans by a leading community identity to fence off his beachfront property so that the public won't have access, where is the truth?

But the identity says he has been defamed as the statement made him appear selfish, uncaring and holding disregard for the interests of others. If a court found these imputations were capable of arising we would have to prove he is selfish, uncaring and holds disregard for the interests of others.

Truth by itself is not a practical defence we end up having to prove the truth of some meaning we never intended in the first place.

Moreover, much of what we publish is the comment of others. Proving the truth of their statements and the facts on which they make their comments is a big ask. Couldn't we defend saying we published the article not believing it to be untrue?

Wouldn't that be more workable than having to prove truth? In other words we would be in strife for publishing something we knew was untrue but we wouldn't if we could show we had no reason to believe something was untrue?

And that's why I think publishers will welcome the new defence that the ACT Government is proposing - the defence that the defendant was not negligent.

This defence of course places even more liability on the publisher but if it is an alternative defence to truth alone then its worthwhile looking at.

But I have some concerns about it.

Would a defendant's failure to prove lack of negligence equate to a finding of negligence and take us down a brand new line of penalties, damages or compensation on top of defamation? Could this not lead to longer and more expensive trials?

I note that three ways of mounting this defence are offered.

I can't see the duty of care provisions being used all that often. It will also be open for a defendant to mount this defence by establishing that the plaintiff did not or is not likely to suffer harm and I just wonder how practical this is going to be. Surely a publisher would need access to fairly comprehensive discovery or interrogation for it to work.

The most significant way of using this defence I think however is the opportunity for a publisher to establish that it took reasonable steps to ensure the accuracy of the publication.

It will require publishers and journalists to be extremely careful and responsible in the newsgathering processes. They will have to take great care over fairness and balance, in addition to accuracy. They will need to verify claims and allegations independently, get the reaction of those about whom allegations are made and so forth, in line with what the High Court has told us will be necessary to sustain an extended qualified privilege defence when reporting on political matters.

And really this is just good journalistic practice anyway isn't it?

Journalism has always been about checks and balances and what publisher or journalist is going to complain about having to check and balance a story?

The no-negligence defence therefore is quite a step forward, keeping in mind my worry about costs and damages..

But there are some other changes that likewise are significant.

The provisions relating to publication of a proceeding of public concern are also welcome. Again, I will be interested to see how this works in practice.

But it seems to me that if our report is fair - a basic principle of journalism - we should have a defence.

It is relatively simple to see how political discussion might be in the public interest but extending public interest to matters and issues that the public might merely be concerned about or in which there is not universal interest has been a great challenge.

The proposed Act lists a wide range of reporting in which this defence might be relevant, clarifying some of the grey areas that have surrounded the reporting of various tribunals and international courts. It also brings the proceedings of sporting and recreation associations, trade associations, public meetings and so forth under clearer protection.(the football tribunals have always been a worry).

If we conduct ourselves reasonably - there's that word again - we can expect protection.

Of course the other significant feature is the provision for making amends and offering apologies.

What has always concerned me is that defamation law is supposed to be about protecting and restoring reputation. In my experience it is nothing of the sort. It is about money.

For every case we run in court there are ten settled out of court and for every writ settled out of court there are probably two threats of action that are settled before a writ is issued.

And what is the basis for all these settlements? Sometimes and only sometimes is it about setting the record straight. There are usually two main points agreed at settlement - the payment of some money to the complainant and a confidentiality agreement that says neither party will tell anyone else the terms of settlement.

What's the result of this? The last thing anyone has read or heard about the complainant is the material that caused offence. The money eases any hurt, sure, but what has happened to the reputation?

And this leads me to question just how effective the ACT's provisions on offers to make amends will be.

If defamation is about reputation I think the ACT's proposals might work. But I'm betting it will be some time before we see the end of the "let's sue and get some money" approach. Nevertheless, it should work if publishers are prepared to use it to good effect.

Offering to pay someone's costs is not an uncommon practice anyway and this may well not be a concern to us. Making an offer to correct or even apologise for errors will have to be given serious consideration if it will stop an action in its tracks. I fear though that once a complainant gets hold of a solicitor the financial ask will be something more than just costs. There are questions, too, about what constitutes an adequate apology and the payment of the other party's legal expenses.

On the plus side, making a reasonable offer of amends will be a complete defence to an action. Earlier attempts at this kind of thing left the way open for plaintiffs to use such admissions against defendants to continue an action with the defence of truth wiped out.

I would suggest that publishers are still going to want a "full and final settlement" deal in any amends agreement to prevent a complainant using something from an ACT resolution to mount an action over the border and this highlights why a national approach is needed to defamation.

The amends provisions are important because so many of our defamation problems arise from fairly simple errors - identifying the wrong person, quoting others etc - that could in fact be fixed quickly if it would end any action.

A process whereby an aggrieved person can apply to the ACT Supreme Court for an order to vindicate his or her reputation on the face of it might be acceptable to the public but if the court has the power to then order a newspaper to publish particular words or statements there will be concerns about freedom of speech - being directed what to publish remains repugnant in our industry.

I query one small part of the making-amends provisions and that is in section nine (page 4) where it is stipulated that a publisher must not knowingly make a false statement in a correction published under an amends agreement. I would have liked to have seen some accountability placed on plaintiffs too so they are discouraged from supplying false information for such an agreement.

As usual with anything that involves reasonable conduct on the part of journalists and publishers, sources becomes an issue. I note the provision that the plaintiff may ask the editor for the name and address of the contributor of an article and that a judge may direct an editor to provide this information.

I am a little confused about this. If it is designed to allow plaintiffs to discover sources of information rather than articles - and I hope its not - then the wording is off the mark. A source won't necessarily be someone who "supplied the article, letter, report or writing to the newspaper". That request would merely identify the author of the article - for what purpose? Identifying the author then would probably only be an issue if there was a question of malice.

A source however may contribute to an article and the heading on section 26 on page 12 of the draft bill would seem to bring a source into the equation. And that's going to be a problem.

Further on sources, any provision that provides for a publisher to prove they weren't negligent takes us down the path of having to reveal our sources. And we will still have the problem of contempt of court that hangs over the head of every journalist and in fact discourages a lot of investigative reporting..

Protection of sources is often derided by those outside our industry - they see it as a smokescreen for us to hide behind but to the whistleblowers who see wrong and injustice being done and want to do something about it, it is all they have. I might add at this point that this problem also arises in the privacy law proposals that have been made recently - while there are exemptions and exclusions for publishers and broadcasters there is no protection offered for whistleblowers who act in the public interest.

Overall I think the ACT Defamation Bill goes a long way towards a greater level of fairness in defamation.

There's a little more pressure on a plaintiff to make out a case and/or to settle - we know of a tiny number of lawyers who are prone to issue writs and let them run to trial to ensure they maximise their return.

And there's encouragement and incentives for publishers and journalists to conduct themselves reasonably. We can't really complain about that.

The positives in the ACT's initiatives are welcome. Time will tell how effective the approach will be. I believe it is a step forward for fairness in defamation and I think all publishers will applaud the Attorney-General, Gary Humphries, for grasping the nettle of reform in an area where there is generally little mileage for reformers.

We have seen a lot of previous attempts at reform and uniformity all founder. One of the key reasons why there hasn't been progress has been the lack of a model set of defamation laws that can be held up as workable.

Is this the answer? I don't know that I am ready to give the ACT version ringing endorsement just yet. I'd like to hear more on the concerns I have raised - but , I do think this legislation has the potential to get the support of publishers.

Chris McLeod

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Rick Lucas' Comments

This submission in response to the Defamation Bill 1999 tabled by the Attorney General on 10 December 1999, has been prepared for consideration by the Law Society's Defamation Committee. It represents my own views, and not those of the committee, and still less those of the Law Society, except where it expressly cites the Society's views.

The Law Society has on earlier occasions when considering reform of the law of defamation, strongly advocated the interests of plaintiffs. Defendants are largely media organisations which must defend on a regular basis the conduct of their journalists. Accordingly they are a well organized pressure group, who are well able to speak for the advantages to them, of fewer claims and lower costs. On the other hand, it is in the nature of things that plaintiffs are not an organized pressure group, and rarely have had more than one experience of defamation proceedings. It is important that the ACT Legislative Assembly, and the community, should carefully weigh the interests of plaintiffs and defendants, when considering any changes. Victims of defamation have suffered the humiliation of an unproven public attack on their reputation, and if they are refused a correction and compensation by the media (as so often happens) they must face the trauma of court proceedings and cross examination in order to vindicate themselves. In their enthusiasm for the concept of freedom of speech, journalists are apt to downplay the damage which their stories can do. And in our experience, it is very rare indeed that defamation litigation is not directly the result of lack of care by the media. Too often plaintiffs are victims of the deadline, or the live interview.

The theory which underlies our commitment to freedom of speech, is that it is the best means of ensuring the publication of the truth. There is no value whatever in the publication of a false statement. If it causes injury why should the victim not obtain redress? It is because the truth may otherwise be suppressed, that fair comment and qualified privilege are permissible defences to an action for defamation. In the Law Society's view, there is an onus on those who seek a further extension of qualified privilege or the application of the law of negligence, to show that as a practical matter, significant facts are being suppressed because of the common law, and that it is necessary to give greater freedom to falsely defame, simply in order to prevent the suppression of significant facts. No such evidence was provided in the discussion paper which preceded this Bill, and in general it is the Law Society's view that the absence of evidence - even anecdotal evidence - of the suppression of facts weighs against a general defence of qualified privilege.

It is little comfort for a person subjected to a false publication, that they may be offered a right of reply. Even an apology will rarely undo the damage done by a false imputation. The false claim has been made, and many people who hear of it, may not learn of the apology, or may wonder whether the claim may in fact be true. "There is no smoke without fire", is a popularly held belief. A prompt court ordered correction would be of some value, but it will be costly to procure, and is incapable of completely undoing the damage, embarrassment and distress, suffered by those falsely accused in the media. It is proper that there should be serious consequences for the publication of unchecked, defamatory allegations.

In the Law Society's view, there is no doubting the importance of freedom of speech. An important aspect of that freedom is the absence of any substantial prior restraint on publication. But a person injured thereby is entitled to a meaningful right of reply, to adequate investigation and acknowledgement of errors by the media, and to compensation by the award of damages for the media's mistakes.

Plaintiffs are entitled to seek a judgment from a court, as a way of vindicating their reputation. They are entitled to have their claim dealt with efficiently by the court system, and if successful, they should have their properly incurred legal costs paid by the defendant.

Truth

The Defamation Bill 1999 eliminates the requirement that publication of the truth must also be for the public benefit. (See section 16)

In Mr Humphries' discussion paper it was suggested that the establishment of a separate tort of privacy, then being canvassed in the Standing Committee of Attorneys General, would provide a simple process of redress for those whose privacy is invaded. But of course that was always an empty promise, because COAG has a lamentable history of failure in this area. There was no mention at all of any progress with a tort of privacy by Mr Humphries following the recent meeting of COAG.

The Society considers that it is not appropriate to remove public benefit, until the separate tort of infringement of privacy has been enacted. The tort of privacy must be introduced by legislation, and that legislation can at the appropriate time remove the requirement of public benefit.

The Society has previously expressed the view that a defence of truth alone, without adequate protection of privacy, would have most unfortunate consequences.

The Society supports the view of the Mr Humphries' own Community Law Reform Committee in its report on defamation, that the law on this subject should be the same as in New South Wales, at least until there is a statutory right of privacy.

It has often been suggested that one of the reasons the prurient tabloid Truth survived so long was that it was based in Melbourne, where there is no requirement of public benefit or public interest for a defence of truth.

The lack of such a requirement allows a defence for the unfair and very damaging publication of stale and irrelevant criminal convictions, of youthful indiscretions, and of sexual and other peccadilloes irrelevant to any matter of public interest. The Law Society has strongly opposed this proposal. The current law serves a valuable purpose in discouraging muckraking.

The suggestion that the change is justified by complexity and cost in preparation for trials, and the need to simplify procedural rules, is farfetched in the Society's view. It is simply not the case that this is an issue that looms large, whether at trial or in preparation. It is many years since the issue arose in a trial. My own view is that to argue, as does Mr Humphries' explanatory memorandum, that "the lack of cases based on the issue of public benefit points to the ineffectual nature of defamation to protect privacy" is specious. One might just as readily conclude that it shows the law is working so well, that journalists are afraid to engage in muckraking irrelevant to any matter of public interest.

Timely Resolution of Disputes and the Offer of Amends

The discussion paper asserted that barriers to an action in defamation are so great that few can realistically expect to sue. In fact many actions are conducted on behalf of plaintiffs against the media, on the basis that payment of professional costs will be made only upon settlement or judgment. People who have been seriously defamed by the media can find legal representation. The more common problem is the expense of litigation, when only limited publication or damage has occurred. These cases will normally be conducted in the Magistrates Court, where procedures are simpler, and costs are less. Even so, the Law Society has supported any proposals which improve procedures, without undermining a fair trial.

One "structural incentive" for early settlement would be rules which put parties at greater risk of indemnity cost orders, if they fail to settle when a reasonable settlement offer is made. This applies to both plaintiffs and defendants. As Kelson v David Syme and Co and Costello and Abbott v Random House illustrate, at present even if a party behaves unreasonably in negotiation, they will not necessarily suffer any penalty.

The Defamation Bill 1999 is heavily slanted in favour of media defendants in this respect. Section 10 (2) provides for orders for indemnity costs against victims of defamation if they fail to accept a reasonable offer of amends. The unbalanced nature of the Bill appears from the fact that despite the Law Society's earlier representations on the point, no such provision is made for victims to recover indemnity costs against a defendant who fails to make a reasonable offer of amends.

There is no current reason why defendants should not unilaterally correct or apologise. (They need to be careful not to aggravate the injury to the plaintiff by an inadequate apology. On the other hand failure to apologise at all is a factor in assessing aggravated damages).

The Defamation Bill's proposal in section 10 for a defence for rejection of a reasonable offer of amends will severely punish plaintiffs who seek a more generous apology than that offered by a defendant, and in their state of hurt and humiliation, refuse to concur in a reasonable apology proposed by the defendant. It is particularly draconian (and productive of uncertainty and risk) to punish the victim of the libel by conferring a complete defence to their defamation claim. The risk and uncertainty results from the difficulty in predicting in any defamation action how the evidence will emerge at trial, and accordingly, what is the appropriate form of apology and likely award of damages. Consequences in costs are far more appropriate, given what is at stake. To provide a complete defence may be completely disproportionate, to the plaintiff's failure to mitigate their damages.

Technical problems

There are some important technical problems with the form of the proposed offer of amends, and I must say I regret the refusal of Mr Humphries or his officers to consult with the Society about the drafting of the Bill before it was tabled.

Section 5 does not include a satisfactory definition of publisher. In common parlance to publish is to "1. Make generally known; declare or report openly; announce; disseminate...5. Prepare and issue a book, newspaper etc...place before the public". It would be a disaster if either of these meanings were adopted as the meaning in respect of Part 2 of the Bill. A proper definition would adopt the rule that liability in defamation arises for the communication of the defamatory matter to a person other than the plaintiff, which is a much wider concept than either definition of to publish.

Section 6(3)(h) provides that the offer may include an offer to pay the expenses of the aggrieved person, which it is clear the drafter thought largely involved the victim's legal costs, but it gives no such authority to include an offer to pay compensation for the damage done to the victim's reputation and business. Neither of these constitute expenses. The Bill should provide that an offer of amends may include an offer of monetary compensation. The explanatory memorandum states that an offer of amends may include an apology, correction, and an offer of settlement, so the omission appears to be an oversight.

Section 6(4) will allow a defendant to make an offer of amends up until the filing of a defence in the action. In other words a defence may become available to an action after it has been commenced. That is productive of confusion, uncertainty and expense. It is much to be preferred that the offer of amends should be made within say 14 days of the victim informing the publisher of the complaint of defamation. The remedy should be prompt, and even under the procedures contemplated by the Defamation Bill a defence may not be filed for many months after publication.

Section 8(1) only allows for the Supreme Court to make an order for costs. The drafter has overlooked the Magistrates' Court. It appears the mistake continues in the rest of the section.

It is difficult for any supporter of freedom of speech to understand why it is necessary to create a new criminal offence as contemplated in Section 9. As a signatory to the International Covenant on Civil and Political Rights, Australia has agreed in Article 19 that freedom of expression shall only be subject to such restrictions as are necessary for respect of the rights or reputations of others, or for the protection of national security or of public order, or of public health or morals. Criminal sanctions for a false or misleading statement in a correction scarcely seem necessary for these purposes, especially when no evidence has been produced that such untruths occur.

Section 10 fails to deal with the situation where a reasonable offer of compromise is rejected, and thus becomes a complete defence. The victim of the defamation thus loses the action, gets no remedy from the Court, must pay the legal costs of both sides, and does not even get the apology, correction and costs and damages contemplated by the offer of amends. Once again, the Defamation Bill is unbalanced. It seems its proponents have forgotten that the plaintiff is the victim of a false and hurtful libel, which one may expect was published by negligence.

Fair Reports

I support this reform. However section 17(2)(b) is likely to prove particularly difficult to apply and unfair to victims. It is surely no hardship to insist that those who wish to publish defamatory reports of public proceedings should go to the trouble of ensuring those reports are fair. If an earlier report is unfair, malicious or grossly inaccurate, why should there be a defence for someone else perpetuating it?

Apology and Payment into Court

This section contains a serious drafting error. It should require a payment into Court, as did section 8 of the 1901 Act. As it stands, it could be persuasively argued that it is a complete defence simply to publish an apology. Apologies are rarely sufficient to adequately remedy the effects of a serious libel. Does anyone believe that the huge losses found in the Abbey Bridal case would have been addressed merely by an apology?

Lack of negligence

The drafting of section 23(1) might be improved. As it stands, it appears to provide that if any non-criminal allegations are made, lack of negligence will be a complete defence to both the non-criminal allegations and any criminal allegations as well. No doubt this is not what is intended, so a drafting correction should be made.

Section 23(2)(a) raises extraordinary and unnecessary obstacles for a plaintiff, which will greatly lengthen trials. Liability for negligent words is the subject of a 264 page book by Barbara Hocking, published by Federation Press. It would have been a good idea for the proponents of the Bill to have read it before making this proposal. She quotes the High Court's statement that there is "a special problem in defining the circumstances in which a duty of care arises in the context of statements..." There are problems in defining the special nature of the relationship necessary between publisher and victim. There are issues about pure economic loss. Why should all this be imported into the law of defamation, when the High Court has given us a far simpler formulation in Lange v ABC? That test simply requires the defendant to show that its conduct in publishing the defamatory material was reasonable. It is already part of the law of defamation, and involves none of the draft Bill's complexity.

Section 23(2)(a) may also mean that no plaintiff can ever succeed in a defamation action. One really must question how Mr Humphries' advisers came up with this proposal, given that no reference was made to it in the discussion paper or his press releases earlier in the year. In Sattin v Nationwide News (1996) 39 NSWLR 32 Levine J referred to various authorities which hold that "a claim for mere loss of reputation is the proper subject of a claim for defamation, and cannot ordinarily be sustained by means of any other form of action". His Honour expressed the view that the law of negligence is fundamentally "confined to the Hedley Byrne situation or perhaps others in which freedom of speech is not a legitimate consideration." In other words no action for negligence would be available, and therefore Section 23 would provide a complete defence, regardless of how serious was the defendant's misconduct. Mr Humphries' advisers surely cannot have intended this result. Sattin's case needs to be read in full to appreciate the sheer complexity of Mr Humphries' proposal. The High Court's formulation of a defence of reasonable publication in Lange v ABC is much to be preferred.

Assessment of Damages- Section 25

It is startling that the Attorney thinks it necessary to legislate to require the court to ensure there is an appropriate and rational relationship between the relevant harm and the damages awarded. Or is this code for saying damages should be reduced? There is no evidence for the proposition that the damages awarded by the judges in the ACT are excessive. Jury verdicts are another matter - and that of course is the real difference between the ACT and New South Wales and why New South Wales has changed its system to remove jurors as the arbiters of damages. Indeed from the High Court down, judges are well aware that awards of damages must bear comparison with those in personal injury cases. And a majority in the High Court in Carson v John Fairfax said that providing basic information on the general damages component of personal injury awards to jurors, would be helpful. Nevertheless, the Law Society has no objection to Section 25.

The real point is that the New South Wales experience is not relevant on this issue, yet the discussion paper and now the Bill rely heavily on it. There is no evidence of excessive awards in the ACT. The judges are well aware that it "is offensive to public opinion...that a defamation plaintiff should recover damages for injury to reputation greater, perhaps by a significant factor, than if that same plaintiff had been rendered a helpless cripple or an insensate vegetable".

Section 26(3) says that a judge may order disclosure of the name of a contributor. But it may be better to allow a Registrar or Master to make such orders as well.

Section 44

The procedural rules currently applying to defamation trials are effectively no different to those in other matters. And indeed it is probably more important that a seriously injured victim of a motor vehicle accident should obtain an early trial date. The Bill imposes mandatory provisions regarding time. The Law Society has previously said it would prefer to see a thorough reform of all causes of excessive cost and delay in our courts, than to institute a special system for defamation cases, which may prove a trap for the unwary. It needs to be remembered that few defamation cases have come to trial in the ACT in recent years. Case management and an "expedited list" for some complex matters, defamation or commercial, selected by the Court for their suitability, is probably likely to produce the best results, (including the best use of scarce judicial time).

Ric Lucas

See also
Index on defamation matters on this website

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