Only The Sangfroid

Mark is of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. He does live in an ivory tower.

These are his draft thoughts…

Close your, close your, close your eyes… Is truth the right standard for defamation law?

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?

I should pause here one second to say that this is not the only — or even the most interesting — pathway leading from Rush.  There is a lot of meat to unpack carefully and thoughtfully.  As I’ve also been spending time thinking about those other pathways, there might be a bit of bleed over into the discussion about truth here.  For example, what should we make of the issue of the alleged sexual assault in the middle of the case?  Did defamation law become a proxy for a different case?  Is the toolkit for defamation law appropriate for analysing sexual harassment cases?  And, on top of all of that, was Rush really the story or was it the (alleged) ineffective complaints handling process of the Sydney Theatre Company?  And then, to bring the human aspect back into it, there’s the damage done to Eryn-Jean Norville and Geoffrey Rush.  Under what circumstances would be believe Rush to be innocent?  Has this process just absolutely destroyed Norville’s social and professional life?  How do we do this better to stop an outcome where everybody is trashed?

Anyway, back to my castle in the clouds.  Ask any hot-head on the Internet about their wildly defamatory statements and, more often than not, they’ll utter the Magic Sentence: ‘Truth is an absolute defence.’  This turns out not to be true.  There are so many twists and turns, arcane rules, and byzantine procedures.  Just because something is true does not necessarily mean it is provable.  Certainly not in court, at least.

So is truth the right standard?  I don’t mean this in a legal sense.  The statutory test for ‘justification’ is that the imputations (don’t ask) ‘are substantially true’.  So in a legal sense, truth is the right standard.  But maybe the law does not reflect how we operate in the real world, and maybe it fails to reflect our expectations about how we are supposed to behave.

Imagine a world in which the test for ‘justification’ was not ‘substantial truth’ but, instead, mere reasonableness.  Forget whether or not it’s actually true, we just say that you can publish if you were reasonable in doing so.  You weren’t reckless as to the truth of the claim (as The Daily Telegraph and Jonathan Moran were), and you weren’t just unreasonable.  You thought that there was a good reason to believe that the claims were true and you published.  When evidence came out that the claims were likely false, you retracted them with the same level of prominence as the false claim.

What’s really wild is that even true statements might be unreasonable.  In a speech called ‘Dancing in the Streets — The Defamation Tango‘, Justice McHugh (then of the High Court) took aim at the idea that truth was this all-important ideal that always outweighed the protection of a person’s reputation.  The classic statement is by Justice Street in Rofe v Smith’s Newspapers: ‘[N]o wrong is done to him by telling the truth about him. The presumption is that by telling the truth about a man, his reputation is not lowered beyond its proper level, but is merely bought down to it.’  Justice McHugh noted the reasoning of an English case:

I do not believe that ‘the character that a man ought to have’ or to enjoy had any intelligible meaning. It is not possible for a jury, learning, perhaps long after the event, of this or that discreditable action in a man’s life, to remake the
current public estimation of him by some ideal piece of analysis.

McHugh advocated for the public interest test to be retained in defamation law: the idea that it wasn’t enough that something is true, it also has to serve some legitimate purpose in being published.

Those who disagree with the view that truth alone should be a defence to a defamation action think that, if truth is to be a defence to that action, there has to be a tort of privacy. They argue that a defence of truth provides no protection against the publication of private facts about a person when those facts are published primarily for their scandalous nature and sensationalist value. We are all familiar with the scandalous revelation of some indiscretion, real or imagined, concerning celebrities. While questions of privacy are undoubtedly of great importance in an age of ever-increasing media pervasiveness, defamation law is aimed at different ends. The ultimate role of defamation law is to provide a level of protection for a person’s reputation.

There is something appealing in this view.  McHugh noted the ‘typical example here is a reputation being destroyed by the publication of the details of a youthful indiscretion when the individual concerned has otherwise led an entirely blameless life.’ I definitely think we are seeing this a lot with journos raiding Facebook and old Twitter posts looking for mud to throw at people who enter the political arena.

If you set the standard at ‘reasonable’ rather than ‘true’, you provide a protection to people who make reasonable claims that are not strictly provable, and you provide a protection to people who have a reasonable expectation to be able to participate in political life without having unreasonable intrusions into their privacy.  Everybody wins!

Well… not everybody.  There are those who genuinely do think that truth (however defined) is this panacea to all ills.  They look at political conflict, radicalisation, and outbreakings of violence, and they genuinely think that these problems could be solved with more ‘Truth’.  I think that this is naive — especially in our current environment where factual material is used in completely unreasonable ways — but it’s not irrational.  Truth might be so central to your value system that you would find it completely repugnant to be punished for telling the truth.

But I don’t think this can go both ways.  Either we prioritise people being reasonable, and we protect those who are reasonable.  Or we prioritise truth, and we don’t protect those who make reasonable errors.

At any rate, we should start telling the truth about defamation law and stop misrepresenting it to the wider public.


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