The decision in Geoffrey Rush’s defamation case against the Daily Telegraph was handed down this week. This, of course, got many people all a-chattering about defamation law. Particularly journos. Many felt that this was yet another example of the law’s failures, a key reason why the ‘me-too’ movement hadn’t taken off in the way that it had overseas. After all, when was the last time a newspaper won a defamation case?
Followers of defamation law would know that only a month earlier we had the case of Charan v Nationwide News, a resounding victory for the newspaper. Most people would not have heard about that case because the newspaper won…
The high profile losses recently have often skipped over any criticism of the newspaper’s conduct. In the Rush case, the Court found the newspaper published the allegations in ‘an extravagant, excessive and sensationalist manner’: ‘It is difficult to see how the front page image could possibly be considered to be justifiable in light of the relative paucity of the information apparent from the content of the articles.’ Further, the Court found that the newspaper was ‘reckless as to the truth or falsity of the defamatory imputations conveyed by the articles and had failed to make adequate inquiries before publication’.
Another major case was decided this year, Chau v Fairfax. The Court again found that the newspaper had been unreasonable in the way it went about forming conclusions about Dr Chau.
This is a problem because public perception of the law is, of course, influenced by the way it is presented in the media. Here, the media has a clear interest in presenting the law in an unfavourable light, just as all industries argue against regulations which get in the way of their profits.
Framed differently, a reasonable and cautious publisher could have printed the stories about Rush and Dr Chau in a way which would not have fallen victim to defamation law.
Rather than grill through the legal aspects of the case (which are fascinating, don’t get me wrong), let’s get wild and run naked through the fields of legal theory: is ‘truth’ the right yardstick for defamation law?
Continue reading “Close your, close your, close your eyes… Is truth the right standard for defamation law?”