Submission of the Australian Press Council to the ACT Legislative Assembly Standing Committee on Justice and Community Safety on the Defamation Bill 1999.

16 October 2000

1. Executive Summary

The Australian Press Council strongly supports the general thrust of the legislation and recommends that the Committee strongly support the underlying principles in the Bill.

In respect of the particular references sought by the Committee, the Council

• argues that truth alone should be a sufficient defence in defamation matters and that, separately, there should be an additional defence for matters published clearly in the public interest (para 3.1);
• endorses in principle the concept of a "no negligence" defence but suggests that it needs to be more fully detailed in the Bill (para 3.2); and
• proposes that the offer of amends procedure be seen as a substitute for an award of damages and the only recompense allowed under such a procedure be for expenses; and it further notes that such a procedure can only work if the plaintiff undertakes not to take action in any other jurisdiction on the same matter (para 3.3).

2. General Comments

"The degree of permissible freedom of speech is a fundamental indicator of a society's preference for freedom over regulation."

Justice Tony Fitzgerald.

The freedom encapsulated in the concept of a free press is not, as is often suggested, some self-serving licence for the press to act without constraint. It is a principle that is adopted in free and democratic societies for the benefit of the people. Defamation law acts as a marked constraint on freedom of the press and for that reason in turn constrains the public's safeguard against abuse of power.

Defamation law in Australia is widely recognised to be in a mess. The law is different in the different jurisdictions. Attempts over many years to obtain a uniform code have been unsuccessful. This inability to agree on a common approach despite protestations as to its desirability has reached such a pass that the attempt at uniformity has been removed from the agenda of the Standing Committee of Attorneys-General "until such time as something new can be presented".

In the view of the Australian Press Council the Bill now before the ACT Legislative Assembly represents this new step that is needed to awaken interest in a topic that should not be allowed to pass from consideration by Australian governments. It may not be the law that all sectors of the community would embrace as their ideal defamation law but it contains new ideas that are worth testing and which could, if found to work, lead the way to a new approach across the country.

It will always be possible for bodies that have a vested interest in preserving the current unsatisfactory law to assert their appreciation of those problems while raising objections to proposed changes. The Assembly should not allow itself to be swayed by bodies that claim to be concerned with the present position but oppose attempts to rectify those concerns. The opportunity is here for the ACT to become a leader in the debate and prompt the establishment of some balance in the freedom of speech in Australia.

Two other matters suggest that a new approach is necessary.

First, the ease of transmission of information makes it possible to read any newspaper in almost any part of Australia no matter where the paper has been produced. Geographical divisions no longer have any relevance. This is a strong argument for having uniform law because the publisher of a paper in Western Australia knows that it must comply with the law in New South Wales as much as in Western Australia. In addition, most major papers are now published on the Internet as well as in print form. Such publication occurs then instantaneously across Australia. The defamation law of each jurisdiction applies to the publication. The result of this is that plaintiffs are able to choose the jurisdiction to bring an action that is most convenient to them regardless of the law applicable to the place where the paper is produced. This has a chilling effect on the ability of the press to choose the matters that it thinks appropriate to bring to the public's attention.

Second, this capacity to pick where an action is commenced has a significant economic impact on the ACT. At present, many actions are started in the ACT Supreme Court in respect of papers produced in other jurisdictions but available in the ACT. The cost to the ACT community of these actions is very high without there being any commensurate return in income from the parties. The ACT pays a substantial cost if its law is such as to attract defamation actions to its courts.

For these reasons the Press Council is of the view that the underlying principles reflected in the Defamation Bill should be supported by the Committee. It provides an opportunity to try a fresh approach to an obdurate problem that could lead to the adoption throughout Australia of defamation law that provides a proper balance between freedom of speech and the invasion of personal rights. It will also advantage the ACT in removing from its court system cases that should properly be brought in, and paid for by, the jurisdiction in which the newspaper is produced.

3. Specific Provisions

3.1. Truth and public benefit

At present, under ACT law, it is a defence to an action for defamation if a paper demonstrates that the matter published is true and that it is for the public benefit to disclose that information. It is claimed that it should not be a sufficient answer to a defamation action for the publisher of the material to show truth alone as this allows the gratuitous disclosure of old or personal information that has no public interest but is being published for malicious or prurient reasons. In NSW where this dual requirement for the defence also applies, the test adopted is one of "public interest", not "public benefit". However, it is doubtful whether anything much turns on the distinction in wording.

In some other Australian jurisdictions, where the common law rules relating to defamation have not been displaced by statute, most notably Victoria, it is sufficient to defeat a defamation assertion to show that the statements made are true. There is no requirement to prove also that there is public benefit in publication.

The Press Council is of the view that the present ACT law acts as an unreasonable constraint on the freedom of communication. Truth alone should be a defence. If a statement accurately and fairly presents information to the public, there should not be some other hurdle that the conveyer of that information should have to overcome. People should be prepared to live with true statements about them. The press has the ability to judge whether what it is saying is correct. It has much greater difficulty in assessing whether the information that it wishes to present is for the public benefit.

This need to guess what the view of a judge or jury might be on the issue of public benefit, many years after the event, acts as a significant constraint on selecting what can be conveyed to the public. Barriers of this kind placed in the path of communication serve to constrain the exchange of information that is essential in open democracies.

The Council would go further. It suggests that it should always be a defence to the publication of material that it is in the public interest that it be disclosed. The marrying of truth and public interest has diverted attention from the real interest of the public in freedom of communication. Truth alone should be a defence. However, separately from, and regardless of the availability of, that defence, where it is in the public interest for information to be brought to the attention of the public, this should be possible. This prevents governments using excuses such as cabinet secrecy and commercial in confidence as a ground for hiding information from public consideration.

3.2 Negligence defence

The Defamation Bill proposes that it should be a defence for a defendant to establish that the published matter that prompts a defamation action was not published negligently. The adoption of this defence would be novel in Australia but the basis for its adoption is argued cogently in the explanatory memorandum of the Bill. While the test of negligence is at first sight a reasonable basis for reaching a conclusion on a defendant's responsibility for published material that causes harm to a person, the Council sees it as possibly causing some problems in its practical execution. It first needs to be made clear that the establishment of a duty of care to the plaintiff must be a responsibility that lies on the plaintiff. This is not something that lies within the capacity of the paper to establish. What the nature of that duty is will need to be established by the courts and this will lead to a period of uncertainty.

The defence of no negligence must also not impinge on the defences that are otherwise available to a publisher. A failure to make out the defence should not mean that other defences are not available. In particular, the defence of taking reasonable steps to ensure the accuracy of the publication should not limit a publisher's ability to argue that it acted reasonably and that what it published was true or in the public interest. Nor should a failure to establish the defence be read as an establishment of the reverse - that the paper or its employees have been negligent.

The Council is attracted by the general notion of a no negligence defence but it thinks that its detail needs more spelling out than is at present to be found in the Bill.

3.3 Offer of amends

The Press Council is strongly of the view that it should not be possible for a person to seek damages in addition to recompense for expenses in relation to an offer of amends. Indeed, if such a provision were included in the Bill, it would almost certainly negate the efficacy of the offer of amends procedure. A potential defendant would be obliged to wait and see what damage a claimant had suffered before considering whether to publish an apology or clarification if damages were to be an integral part of the remedy. The basic concept of an amends procedure is that it is a substitute for an award of damages. It is said to recognise that it is the plaintiff's reputation that is being vindicated. The award of damages for a claimed economic loss is not compatible with this approach to resolution of defamation claims.

The offer of amends procedure also has inherent problems for a paper where it is possible to bring actions in more than one jurisdiction relating to the same publication. An apology published for the purpose of one jurisdiction can be used as an admission of guilt in an action brought in another. The proposed procedure could only work if it were accompanied by an undertaking by the plaintiff that no other action would be brought in relation to the claimed defamation.

4. Conclusion

The Press Council considers that the proposals for change in the ACT Defamation Bill warrant close attention as a step towards bringing some rationality to defamation law. The Council invites the Committee to take into account the matters referred to above but it sees them as proposals for improvement of the Bill. It would be a pity if this attempt to advance the cause of defamation were to be lost.

See also
1999-2000 Freedom of the Press Report - Defamation Law
For the current state of the law: Press Law in Australia
Index of material on the site on defamation law

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