As part of my slow transformation into the next Dr Gerard Henderson (for a doctor he is), I’m writing yet another blog entry about Media Watch. Last week, it was about anonymous speech. This week, it’s about defamation law.
Australia has some of the weakest media regulations in the world. Especially for print media, Australian companies largely self-regulate. The major form of regulation in Australia has been private litigation: individuals and organisations harmed by media content sue.
The Finkelstein Inquiry in 2012 noted that this approach was ‘protracted, expensive and adversarial, and offer redress only for legal wrongs, not for the more frequent complaints about inaccuracy or unfairness.’ The result is that polls consistently find very low level of trust in the media — you simply cannot believe what you read or see in the media because, unless the media slips into a legal wrong, there is no method of correcting misinformation.
Australian discussions of defamation law routinely ignore the broader context of media regulation. This is because our discussions of defamation law are largely driven by very large companies who oppose any and all regulation of their industry.
Let’s start at the start. In 2005, the legal standard to establish the defence of ‘justificiation’ (or what we’d colloquially call the ‘truth’ defence) was lowered. Until 2005, some Australian jurisdictions had a two part test: first, that the claim was substantially true; second; that publishing the claim was in the public interest or for the public benefit.
The standard was lowered to just the first limb: if you can show that the claim is substantially true, you do not need to show that the claim was in the public interest or for the public benefit. In ‘Dancing in the Streets – The Defamation Tango‘, Justice McHugh explained why this balance was needed:
The additional public interest/public benefit requirement is intended to reflect the fact that a statement, while true, can destroy a reputation while conferring little or no public benefit. 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.
The view taken was that this ‘public interest’ aspect should be shifted into a statutory tort of privacy. Make defamation law simpler by having ‘truth alone’ as a defence, and shift questions about whether or not a person had a reasonable expectation of privacy in a different legal framework.
Of course, the moment that a tort of privacy was advanced, media companies savaged it. The result was a lowering of the standard in defamation law and no corresponding pay off to the broader public.
Despite this lowering of the bar, media companies have argued that it is not low enough. Instead, they have lobbied governments to create a new defence that will protect them even when what they have published is false.
The new defence — a ‘public interest defence’ — will apply if the defendant proves that:
- the matter concerns an issue of public interest, and
- the defendant reasonably believed that the publication of the matter was
in the public interest.
In deciding this, the court must take into consideration all of the circumstances of the case. It will be interesting to see how this defence develops in the case law, and whether or not it will be defeated by malice.
But, importantly, truth is not a factor of the defence. This defence is a protection of false reporting.
This is a question for public debate, but the media has not facilitated anything resembling a reasonable debate on this topic. Instead, let’s look at what Media Watch presented as a debate:
And as lawyer Justin Quill says, it rarely ends well:
JUSTIN QUILL: I’m never shocked when the media lose in court. The odds are nearly always stacked against the media.
– Ten News First, 2 July, 2020
This is a claim that can be tested empirically. I know it can be tested empirically because I tested it empirically. Using a sample of 372 reported judgements, we conducted a pilot study of outcomes in defamation law. Disappointingly (because we had some theories about why media companies lost more in defamation cases), there was no observed statistical difference in outcomes for media and non-media defendants.
The problem — which Media Watch exacerbated — is that the discussion of media companies and defamation law is almost always dominated by statistical outliers. The study used the federal president (media) of the Media, Entertainment & Arts Alliance, Marcus Strom, as a demonstration of ‘public attitude’ towards defamation law. He drew particular attention to three cases:
- Wilson v Bauer Media Pty Ltd  VSC 521, in which Rebel Wilson, an actress, was awarded a total of $4.6m in damages against the publisher of, inter alia, the Women’s Weekly website and Woman’s Day magazine. Justice Dixon found that the publisher ‘ran a campaign against the plaintiff that was calculated by it to generate commercial benefit for it. It knew that the imputations were false and understood the probability of rapid and massive spread over the internet’.
- Gayle v Fairfax Media Publications Pty Ltd (No 2)  NSWSC 1838, in which Chris Gayle, a cricketer, was awarded $300,000 in damages against several publishers. The publishers were found to have made false claims about Mr Gayle behaving indecently towards women during the 2015 World Cup.
- Chau v Fairfax Media Publications Pty Ltd  FCA 185, in which Chau Chak Wing, a Chinese-Australian philanthropist, was awarded $280,000 against the publisher of the Sydney Morning Herald for publishing sensational claims with a ‘lack of any demonstrable care and caution’
The original award in Wilson was such an outlier that it broke our graphs as about 50% of awards paid out were less than $100,000.
This ‘hot take’ approach to law reform in defamation is not unique to Australia. In 2018, Hilary Young noted the approach to defamation law reform in Canada ‘tends to be based on principle (we are undervaluing free speech) or on anecdotal evidence (important speech is being chilled due to fear of litigation)’, rather than on empirical evidence. That is perhaps not surprising in legal scholarship given Andrew Martin and Lee Epstein’s comment in ‘Quantitative Approaches to Empirical Legal Research’ in the Oxford Handbook of Empirical Legal Research that there are distinct challenges for empirical legal work, ‘most notably, how to communicate complex statistical results to a community lacking in statistical training’.
Finally, by putting together the equivalent of a ‘manel’ on defamation law (Justin Quill, Matt Collins, and David Rolph), Media Watch was unable to spot the gendered failures of the proposed law reform. Specifically, the McLachlan v Browne problem.
At the moment, a person who comes forward and says that they were the victim of some crime committed by another person is potentially setting themselves up for a defamation case. This has been a problem for #MeToo cases around the world: women said that they had been sexually assaulted or sexually harassed, and were then sued for defamation (or threatened with litigation). This has the effect of silencing these allegations.
Here we have a known problem with defamation law with a simple solution, but it predominantly affects women and so wasn’t discussed by Paul Barry or his male interviewees.
Fundamentally, you cannot trust the media to present a balanced, fair, or contextually informed discussion about defamation law because journalists want to scrap defamation law completely, and the media industry wants to burn away any and all forms of regulation. In its haste to misinform viewers about defamation law and its effects on the media, Media Watch failed to recognise the way that the reforms would leave the most vulnerable behind once again.