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Partner-turned-author on the complex intersection of law and media in defamation cases
JWS partner Eve Thomson, who recently published a novel, She Too, discusses the complex intersection of media involvement in defamation cases, the implications of the new “public interest defence”, and the importance of lawyers pursuing their out-of-work passions.
Jess Feyder
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Eve Thomson, a partner at Johnson Winter Slattery (JWS), has experience in commercial disputes across different sectors and jurisdictions, including media.
One part of her practice has involved acting for media clients in relation to pre-publication clearance of stories and defamation advice, which is where the idea for her novel, She Too, was born.
“I’ve always loved to write, and I had an idea for a novel about a high-profile defamation case that I just couldn’t get out of my head,” Ms Thomson told Lawyers Weekly.
“I thought that some of the key themes of reputation and truth which play out in and around defamation cases, as well as some of the characters involved, would make a great basis for a novel,” she explained.
Ms Thomson discussed the complexities of media involvement in defamation cases. “Media outlets are almost always involved in high-profile defamation cases — either as defendants or by reporting on cases from the sidelines.” She added, “The media industry is therefore at the forefront of defamation law.”
“Complexities can arise either from the application of the law (as in the testing of the new public interest defence in Murdoch v Crikey) or because the facts are extremely complex, as in the Ben Roberts-Smith matter,” outlined Ms Thomson.
She continued: “There are also complexities which can arise from the continued reporting of matters where a defamation claim is already on foot.
“If the media defendant is the one doing the reporting, there could be questions of aggravated damages involved. Or quite independently of that, there could be contempt of court challenges arising from reporting on a defamation trial that is being heard by a jury,” explained Ms Thomson.
Ms Thomson noted that new amendments to the public interest defence are of particular importance in how media is utilised in the running of a case.
“The new public interest defence was in part intended to address some of the difficulties media defendants encountered when relying on the qualified privilege defence, which until recently was the main defence available for public interest reporting (in the absence of other defences).
“In practice, establishing qualified privilege came down to a detailed examination of the reasonableness of the journalist’s conduct, rather than necessarily the public interest nature of the reporting,” she explained.
“The new defence is yet to be tested, and it’s expected Murdoch v Crikey will be one of the first cases to consider it in detail,” noted Ms Thomson.
“The new defence requires a media defendant to prove that they reasonably believed publication of the matter was in the public interest, so watch this space as to whether courts will approach the defence in a similar way to qualified privilege,” Ms Thomson told Lawyers Weekly.
“One thing to keep an eye on will be the court’s consideration of any commercial considerations at play behind a publisher’s decision to publish an article,” she continued.
“Based on reports, it appears Murdoch’s team will argue that Crikey was motivated by commercial drivers in publishing the article in that case.
“I would think commercial factors are almost always going to be at play at one level or another for publishers, so how the Court deals with Murdoch’s argument will be important for cases to come,” she noted.
Ms Thomson detailed why it is pertinent for lawyers to keep their out-of-work interests flourishing and discussed how employers and partners can support this.
“All good lawyers are creative thinkers,” she explained. “Lawyers need to come up with solutions for clients, or advocate for their position, against an endless array of factual scenarios and often jigsaw-like laws.”
“It’s therefore not unusual for lawyers to have a creative passion on the side,” she posited.
“My thing has always been writing. I find myself much happier and more productive at work if I’m pursuing my creative writing on the side, which is in the firm’s interest as well,” Ms Thomson stated.
“Lawyering can be all-consuming, and there was once a time when all lawyers had to fit into the same mould, meaning that the profession probably lost some great minds,” she mused.
“If we can create environments where lawyers can feel like themselves, rather than like they’re spending their days in ill-fitting suits, then I think both firms and clients will be better off,” stated Ms Thomson.
