Defamation in Transition

In March, the Macquarie University School of Law's Centre for the Comparative Study of Law and Culture held a conference, "Defamation in Transition", focussing on defamation and free speech issues. Chris McLeod, the representative on the Council of the Herald and Weekly Times (HWT) attended the conference.

This probably was the most significant defamation law forum held in Australia.

I attended the conference as a publisher and as someone with knowledge of the cases before the High Court Three journalists from other publications attended.

However, most of those there were media law practitioners, some specialising in defences and others specialising for plaintiffs. There was also a smattering of law students, three judges, members of the NSW Law Reform Commission (LRC) and a number of law professors.

It was disappointing that more publisher representatives didn't attend. Without publisher involvement the whole debate about defamation reform in Australia will be hijacked by practitioners and we won't get the results that many in publishing advocate.

It will be a difficult task to convince politicians, who often use the defamation laws to their own advantage, to change them. It just may be that if the HWT's High Court action (which was the subject of two papers at the conference) is successful in removing such protection for politicians they might be more amenable to changes.

The conference heard from a raft of speakers, from Australia, the UK, South Africa and the US on what was happening in the area of press freedom around the world, particularly the development of constitutional rights to free speech. From the outset, it has to be said that Australia lags well behind in terms of a constitutional guarantee of free speech.

NSW law reform

A significant revelation at the conference came from Mr Justice Samuels, head of the LRC, which is working on defamation reforms arising from the attempt by the Attorneys-General of the eastern states to enact uniform defamation laws.

Mr Justice Samuels said the LRC would most likely (it's still writing its latest report and recommendations) propose that defamation actions take two forms: one where a plaintiff would seek a declaration to restore character (such a declaration would be published in the form of a court-ordered correction, retraction etc) and the other where a plaintiff would claim damages through loss and harm suffered.

The first, of course, would require a fast-track mechanism. Interestingly, it would involve pretty much what the Press Council does, but with the power to make orders. The second, importantly, would appear to shift the onus of proving damage to the plaintiff. At present, defamation is one of the few laws where a defendant is guilty until proven otherwise.

Now it appears that the LRC is saying that if there is a suit for damages, the plaintiff will have to make out a solid case as to what that damage is and, apparently, how the published article got things wrong. Under the suggested scheme, all defences would be open to a defendant in the argument for damages.

A successful action for a declaration would bar a prosecution for damages. Any admissions or facts established in an unsuccessful declaration case could be used in a subsequent damages case.

The LRC also is likely to propose some mechanical changes: a jury could decide whether the imputation pleaded by the plaintiff could be found and a judge would decide whether the defendant had made out the defences pleaded and award any damages.

The LRC is reviewing a number of areas of law and one matter common to a number of them is a move away from juries in civil matters. The defamation proposals seem likely to limit the role of juries.

Mr Justice Samuels made no reference to what the LRC might do about privacy in relation to defamation - most at the conference believed it would be excluded but that the states might develop their own torts of privacy.

Public Figures

Unfortunately, the LRC is still not in favour of a public figure test. One concern is that such a test, and the need to show public interest, all reasonable care etc, may draw journalists into the question of revealing sources.

A point worth noting about shifting onus to plaintiffs was made by an American law professor. He said that in the American situation where plaintiffs were required to prove fault (actual malice in that a publisher knew what was published to be false) this tended to intrude into editorial processes - plaintiffs would seek to determine more about how articles came to be written and published during the discovery processes.

This gives rise to the sources question, obviously, but it seems in the US the plaintiff would have to know the source anyway before suing if he/she/it was gong to base a claim of malice was being based on the fact that an informant was maliciously spreading falsehoods subsequently published by a newspaper. A plaintiff would not be able to sue first then find out the source.

Obviously, publishers need to get hold of the NSW LRC's report as soon as it comes out and examine it closely. For HWT's part, we will take up some of these drawing-board proposals with the Victorian Attorney-General at first opportunity.

U.S. reform

The conference also received a copy of the new uniform defamation law proposed for all states in the US. [See Prof Flint's column in the APC News, Vol 6 No 1, February 1994, for more details on this suggestion.] It is called the Uniform Correction or Clarification of Defamation Act. It was agreed by the National Conference of Commissioners on Uniform State Laws on February 7 this year and already has been adopted by four states.

One interesting feature of it relates to the fixing of deadlines for action. If a plaintiff does not seek a retraction within 90 days of publication, the plaintiff can only seek recovery of provable monetary losses.

A 45-day limit is fixed for the publishing of corrections, clarifications and so on. A court order can determine the wording, placement and edition with the aim of trying to reach the same people who may have read the original offending article.

Free speech

The conference heard a number of reports about defamation and freedom of the speech from around the world. Most countries with a constitution are moving to include freedom of the press and/or free speech provisions if they don't already have them.

Emerging republics in eastern Europe have in fact contracted the American Bar Association to draw up constitutions which make such references (e.g. Latvia, Czech Republic and Tajikistan). Even the new South African Constitution will expressly refer to freedom of speech. The US already is covered by the First Amendment to its Constitution.

The UK doesn't have a constitution as such (which explains the difference between press freedom in the UK and the US), while Australia, which does have a constitution has no express reference in it to freedom of the press or freedom of speech.

The best we have been able to achieve in Australia is High Court recognition of an implied guarantee of freedom of speech on political matters (Nationwide News and Political Advertising decisions of 1992). The cases brought to the High Court by HWT and West Australian Newspapers try to push the limit of that implied guarantee a little further - to see its impact on the use of defamation law by politicians.

High Court cases

There were some mixed views about the outcome of these cases, although all felt the High Court would make a decision that would benefit publishers.

HWT's main hope is for a decision that further refines an implied guarantee into an express guarantee of freedom of speech on political matters and ideas. This would effectively stop politicians from suing unless they could prove a publisher knew what was being published to be wrong.

This is a big ask of the High Court. A favourable decision would probably invalidate most existing state defamation laws to some extent.

Leading Constitutional expert, Professor Tony Blackshield, is not so sure the High Court will go as far as we would like mainly because, in four recent decisions, the Full Bench gave only very restricted weight to implied guarantees in the Constitution. He believes a more likely outcome would be an interpretation of common law which would provide a better qualified privilege defence for publishers. This option was included in the HWT case.

The High Court's decision is expected sometime in the next six months - the judges are believed to be writing their reasons at present.

Differences

In discussing the differences between the system caused by their approaches to constitutional guarantees and to defamation law, it was noted that defamation damages awards in the US can be incredibly high - millions of dollars. But an award at all is rare. Most plaintiffs fail because they cannot prove actual malice - that a publisher knew what was published to be false.

The UK system, and ours to some extent, fosters a large number of defamation actions, many of which are settled on economic grounds before they get to court.

The US, too, makes it a little easier for investigative journalism by not allowing an injunction process. Suppression orders, too, would be in contravention of the First Amendment.

Another point made by a visiting American authority at the conference was in relation to what they call hate-speech legislation. (It appears similar to the proposed Racial Vilification Act we have.) Questions have been raised that such legislation may in fact breach the First Amendment.

The papers from the Sydney conference should be available in two to three months.

Chris McLeod

See also:
Index of material on defamation

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