Declarations Of Falsity

In his regular column, Professor David Flint looks at suggestions to amend the NSW defamation law.

The Attorney General Jeff Shaw QC has a refreshing approach to law reform. He predicts that large defamation damages where there is no proof of actual loss will be a thing of the past when new legislation implementing the NSW Law Reform Commission's 1995 report is enacted.

In 1992, the Press Council drew attention to a novel American proposal for a declaration of falsity as an alternative remedy in defamation. What the Law Reform Commission finally recommended was very different. Their version could be sought only by a plaintiff - and the plaintiff does not have to first try to deal with a newspaper (or broadcaster), seeking a correction. And there would be every incentive for the plaintiff to sue. A successful plaintiff would be awarded - unless the court ordered otherwise - indemnity costs (not the usual party/party costs which cover only those necessarily incurred and for a reasonable fee). Whatever costs the lawyer incurred, and at the fee agreed, would have to be paid by the newspaper or publisher.

No reciprocity

To make matters worse, there was no reciprocal provision for the winning publisher to be awarded indemnity costs - or any costs it seems! The current trend is for lawyers to take on work on the basis that fees will only be charged if the case is won. Coupled with a defamation plaintiff not being liable for the defendant's costs, you could expect a cosy little Bar would quite quickly develop to exploit this. Just as we had years ago in money-lending and in landlord-and-tenancy, when badly drafted laws resulted in injustice for many, and riches for the lawyers who specialised in these fields. This would be bad enough if the defendants were a media conglomerate (or the tax-payer funded ABC or SBS). The burden of indemnity costs could destroy some small country or suburban newspapers, small radio and even TV stations, newsletter publishers - even people who put information on the Internet.

But there is more. Having got a declaration of falsity, there are different ways it could be used. One would be to require the losing defendant to pay the costs of publishing it before it could use it as a barrier to a further action for damages at large. (The plaintiff could still sue for economic loss - the sort of provable damages plaintiffs are restricted to in most other litigation.)

Orders to publish

The Law Reform Commission went one step further. The judge could order the defendant to publish the judgment. Now this really outrages newspapers and broadcasters. It would involve judicial interference in the editorial process. While they will grudgingly pay damages, there are far too many cases where they have lost the case but known in their hearts that what they published was fundamentally true. And sometimes in the long run they are shown, conclusively, to have been right.

Mr Shaw has decided not to go as far as the Commission. If the newspaper publishes the declaration, it will be a bar against any action for damages at large. A distinct improvement. But how will it stop a plaintiff from then suing, say, the ABC for damages in every other state and territory where the programme was heard?

Uneasy judges

The prospect of issuing a declaration of falsity will make many judges uneasy. Unlike the inquisitorial French juge d'instruction, our judges have no investigative role. (That's why some judges will not serve on Royal Commissions.) It's one thing for a judge to find that some technical defence was not made out in a defamation case, and to award damages. It's another for a judge to lend his or her weight, and that of the courts of justice, to a declaration of falsity. One which may well be based on the flimsiest of evidence.

Let me give an example.

On Sunday 21 April 1996 The Sun-Herald published an expose about paedophilia in the diplomatic service. If diplomats, claiming the story identified them, brought an action, it's highly likely that the newspaper could not defend itself.

Defences

One researcher found that at one time 80 percent of defended cases in NSW raised the defence of qualified privilege. Today, defendants may also plead the constitutional defence of freedom of political communication. These defences depend on reasonable behaviour, and on a right or duty to inform, and not on truth or falsity. But the only defence to an application for a declaration of falsity is truth. Now it's probable that the paedophilia story is based on leaks - on confidential sources. The sources may be well-placed and highly reliable. They probably have revealed all on the basis of confidentiality - they don't want to be dragged in. They may be in fear of losing their jobs - or worse. Who knows? So the newspaper could find itself unable to bring any evidence. The diplomats may be impregnable under cross-examination.

The judges, after an expedited hearing, would have to make detailed declarations that the paedophilia story is false and issue orders that the declaration be splashed across the pages of The Sun-Herald.

Let's imagine, just for the sake of argument, an inquiry eventually finds the story justified, and successful criminal prosecutions follow.

Does the unfortunate Supreme Court judge then revoke the declaration? And what confidence will the public have in justice?

It's not surprising that on reflection a similar proposal in the US was not met with much enthusiasm there. Perhaps there are other reforms which could be attempted. For example:

• reforms to make the statutory qualified defence work as it was intended to;
  
  
• a compulsory early preliminary hearing to weed out "stop writs" (perhaps up to a half of all defamation writs issued);
  
  
• requiring proof of fault, as in many other civil wrongs;
  
  
• that costs and damages at large only be awarded to a successful plaintiff who has requested a retraction, provided sufficient grounds and this is unreasonably refused;
  
  
• that an innocent disseminator be granted protection from action for publishing defamatory matter unless and until a judge grants an injunction against such publication.

David Flint

see also
Index on David Flint's material on the website

Index of material on defamation

[ return to top ]

Return to APC News 1996 Index

Documents with the icon require the Acrobat Reader, a Free Utility from Adobe. Click here for more information.