The changing landscape of defamation

O ne year ago, NSW Attorney-General Mark Speakman declared that, for almost all Australians, a “turning point” for defamation law was upon us, as we enter a “new era”, having spearheaded reforms that are “fit for purpose in a digital age”. However, recent cases give rise to questions about how much things are actually changing, or whether such change is a good thing.

Defamatory imputations interfere with the watchdog function of the media; that is, their capacity to hold the government accountable for their activities. In addition, the media are a part of the fourth estate, which refers to their important role in providing checks and balances to the executive.

In turn, some commentators do not understand the vital role of the media, seeing journalists as being only interested in making a profit.

The risk of unrestricted litigation recently was seen in the case of Ajaka v Channel Nine – which, as one firm mused, involved “unprecedented” press freedom proceedings. In that decision, the Supreme Court of NSW held that Channel 9 and other media entities had to hand over copies of publications before going to air, effectively creating an action for defamation before publication.

Justice Rothman in the Ajaka decision – which originally found for the plaintiff – suggested in preliminary hearings that the level of damage incurred by Dr Ajaka and his cosmetic clinic was so great that it was necessary to hand over the draft content immediately. The findings related to cosmetic legal procedures that left victims scarred and deformed.

This decision was eventually overturned by Chief Justice Andrew Bell at the Court of Appeal, who suggested that the orders “made by Justice Rothman on the afternoon of 13 May 2022 were not sustained by any jurisdiction in this court. Those orders must therefore be set aside.”

The high stakes were acknowledged by Justin Quill, partner at Thomson Geer, who stated that “Nine are to be congratulated for not just accepting the judgment. The media and therefore the public are better off as a result.”

International law protects the media from over-zealous application of defamation proceedings. The case of Lingens v Austria before the European Court of Human Rights (ECHR) said that the journalist must not overstep the bounds for “the protection of the reputation of others”. Yet the ECHR also said that journalists get a large leeway in respect of their duty to impart information on political issues.

Australian courts do not, however, refer to constitutional protections for media freedoms. The case of Theophanous v The Herald & Weekly Times Ltd found that there is an implied freedom of political communication in the constitution. This protects the discussion of government and political matters.

This decision has been widely criticised because of the failure to find a constitutionally engrained right to freedom of expression. The repeated failure to uphold the right to freedom of expression of media networks has been said to be a result of this lack of protections.

The proposed bill of rights might go some way to addressing this discrepancy.

Stewart O’Connell, senior solicitor and defamation expert at O’Brien Criminal and Civil Solicitors, affirmed the importance of reputation from the perspective of the plaintiff.

Mr O’Connell believed that defamation could have a range of impacts, with those at the extreme end being absolutely devastating. He said, “reputation is an indirect result of anything and everything that we do and that we are perceived to do or have done. Reputation determines a person’s social standing in society, their measure of influence and the success or otherwise of their business ventures, political aspirations and personal relationships.”

In 2018, the council of attorneys-general reconvened the Model Defamation Law Working Party to act as a forum for discussion of issues affecting the protection of reputation, freedom of expression and publication.

In 2019, the council of attorneys-general released a discussion paper. The authors of the discussion paper said that “the model defamation provisions attempt to strike a balance between protecting individuals from reputational harm from defamatory publications, while also ensuring that freedom of expression is not unduly curtailed, and that information in the public interest is released”.

The discussion paper stated that “national consistency is also a key policy objective and, as noted above, one that continues to be important”. There were 44 written submissions to the discussion paper, including media and the digital industry stakeholders, legal practitioners, academics, and individuals who have been impacted upon by defamation claims.

The Defamation Amendment Bill 2020 – introduced by Attorney-General Mark Speakman – has referred to how “the growth of social media has paralleled the rising number of defamation matters in our courts”.

Mr Speakman stated in the second reading speech for the Defamation Amendment Bill 2020 that “the Model Defamation Amendment Provisions agreed by the CAG are far‑reaching. The ultimate aim is to strike a better balance between, on the one hand, providing fair remedies for a person whose reputation is harmed by a publication and, on the other hand, ensuring defamation law does not place unreasonable limits on freedom of expression, particularly about matters of public interest.”

Some of the first stage amendments to the Model Defamation Provisions include “by introducing a serious‑harm threshold, generally to be determined by the judicial officer as soon as practicable before the trial”. Other reforms include making the concerns notice mandatory, introducing a defence based on the public interest, introducing a single publication rule and clarifying the cap on damages.

Stage 2 of the Model Defamation Law refers to the need to strike a balance between abuse of power by the media and the need to report on activities in the public sphere. In many views, the reforms do not go far enough in the context of protecting media freedoms.

Mindful of the threat to plaintiffs posed by social media platforms, Mr O’Connell said, “we remain firmly of the view that big media should have a responsibility to ensure people are not defamed on their platforms and we oppose how the stage 2 reforms seem to be aimed at abrogating that responsibility”. For the Attorney-General, there is the concern that the impact of social media platforms appears to be creating a new avenue for holding media companies accountable.

This is despite the practical recommendations offered by the many submissions to the process. For example, a coalition of media entities under the umbrella of “right to know” recommended that media networks suggested that “posts made into Facebook groups can be set to private, turning off comments entirely”. However, such pragmatic recommendations may be lost because of the difficulty of reaching a consensus amongst stakeholders.

Ultimately, many defamation causes should be finalised through mediation, especially because of the expense. Trivial, spurious and vexatious defamation matters should never proceed to trial. Mr O’Connell said that “mediation is the best alternative to a defamation trial and many defamation matters settle in this way. We are not aware of any other alternatives that would work well in relation to such a complex area of law where everyone has a different interpretation of the impact of words.”

This sentiment was reflected in the second reading speech by Attorney-General Speakman, who stated that “as the objects of the Model Defamation Provisions make clear, a person whose reputation is harmed by the publication of defamatory matter should have access to effective and fair remedy but this needs to be balanced against the spiralling numbers of expensive, stressful but ultimately minor matters in our courts, many of which could be solved better over a coffee or a barbecue or even a handshake, the legal costs of which are nil”.

Similarly, Ms Marshall stated that “in most cases, I’d advocate for a responsive publication rather than a court action. Litigation can’t actually fix a defamation. You can’t erase people’s memories. And worse, the case itself often brings far more attention to the issue than the original publication.”