According to defamation lawyers currently embroiled in their own high-profile matters, the sweeping changes to the law will spell trouble, increased costs and even more confusion for both sides, even if it promises to significantly reduce the number of matters making it into the courtroom.
In announcing that Australia had surpassed the UK to become the new “defamation capital of the world”, former Victorian Bar president Matthew Collins QC quipped that “we inherited the English common law and then made it worse”. While it remains to be seen whether Attorney-General Mark Speakman’s reforms will hinder or help, some defamation lawyers are predicting an unnecessary uphill battle.
The four-year study that led to Australia’s new-found position revealed that while the UK had 268 references of libel cases in its superior court split between its 66 million population, Australia had 577 references amid its 25 million residents. Staggeringly, this means Australia is 10 times more frequently handling defamation cases. In delivering the reforms, Mr Speakman said he hopes Australia is at its “turning point”.
“Many commentators suggested that it was stifling free speech at one end, with a lack of defences for responsible journalism and, at the other end, the cost tail was wagging the dog with so many cases that involved small amounts of money,” Mr Speakman said on a recent episode of The Lawyers Weekly Show. Who and what does Australia owe to this new title? According to principal Barrie Goldsmith and senior solicitor Stewart O'Connell, it’s partly an increase in social media platforms, partly for an increase in societal issues – like the Me Too and Black Lives Matter movements – partly because politicians have lost their thick skins and partly because high-profile individuals have “fostered a culture” of using the laws to stifle public opinion they don’t agree with. If the new laws do foster more courageous journalism, the latter two will need some serious adjustments moving forward.
In the last three years in particular, defamation law has frequently become front-page news. First, Rebel Wilson won a record payout of $4.7 million from Woman’s Day (it was eventually reduced to $600,000 on appeal). Geoffrey Rush took home a $2.9 million payout after successfully suing The Daily Telegraph. Radio personality Alan Johns and two radio stations were also made to pay up, forking over $3.75 million to the Toowoomba Wagner brothers for alleging they were responsible for 12 deaths.
Then there are some more recent cases brought by highly public (and often just as highly controversial) figures like Peter Dutton, Ben Roberts-Smith and John Barilaro. Former attorney-general Christian Porter also cannot seem to escape the headlines after fronting media to confirm he was the federal minister obscurely mentioned in an ABC article and that he would be considering defamation action. He followed through on the threat and triggered his own controversial legal saga with no end in sight.
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<p>After Andrew Laming threatened his own defamation action against The Chaser for publishing claims he “upskirted” a woman by taking a photo of her bending over and posting it online, Marque Lawyers Michael Bradley tweeted that once it would have been “far-fetched” to hear of a politician considering this route, “but it is now barely worth a passing mention… because, these days, that’s what they do”. This, according to Mr O'Connell, is spot on: “There seems to be this culture developing among politicians that they can use defamation law to stifle public opinion.”</p>
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<p class="f20">Andrew Laming is suing for defamation, a phrase which would have seemed far-fetched not long ago but is now barely worth a passing mention. Because, these days, that's what they do.</p>
<p class="p-highlight-name">marquelawyers | @marquelawyers Jun 28</p>
<p><a class="a_link orange" href="https://twitter.com/marquelawyers/status/1409282873199267841?s=20">VIEW ON TWITTER</a></p>
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<p>Mr O'Connell’s firm is currently representing refugee activist Shane Bazzi from action brought by Mr Dutton after the latter took to social media to issue a stern warning: he wouldn’t hesitate to file defamation action against users who refused to take down posts alleging he was a “rape apologist”. Mr O'Connell said that the action comes down to one man “merely expressing his opinion” and the hurt feelings of a politician.</p>
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<p class="f20">Advice we always give clients who want to sue for defamation: whatever you've done that you hope they don't know about or won't find out, assume they already know about it or will find it out. If you sue, it will come out.</p>
<p class="p-highlight-name">marquelawyers | @marquelawyers Jun 17</p>
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<p>“In my view, it should only be under rare circumstances that a politician chooses to use defamation law and that’s because we expect our politicians to have thick skins, we expect them to be able to absorb public criticism and public comment. Some of that public comment can be quite nasty at times, but that’s the nature of their job. It should only be where they have suffered some serious and quantifiable loss as a result of something that is blatantly untrue,” Mr O'Connell told Lawyers Weekly.</p>
<p>Mr Goldsmith, who at the time of writing was involved in a case dubbed “Melbourne’s bizarre soap opera” packed with lurid sex and drug use allegations, said the new-found popularity is a “phenomenon of social media” fuelled by the ability of almost anyone across the country to jump online and post their own opinions. Mr Goldsmith said Mr Dutton’s current legal action is part of some “very serious allegations”, which itself is a “system of the internet” and it’s many, many users.</p>
<p>“Something goes online, and it stays there. A lot of these claims obviously have some sexual foundation to them and there’s no doubt whatsoever that a lot of things are coming out of the woodworks,” Mr Goldsmith said, referring to the Me Too movement and how it fuelled its own controversy. “This is happening repeatedly to politicians – a lot of them with some truth to them. Obviously, some are not true.”</p>
<p>Mr O'Connell mirrored this, explaining that defamation has increased because the ability to defame has increased. Not only are there numerous social media platforms that didn’t exist before, but there are also numerous issues people are passionate about “which creates an environment where it’s more likely going to be defamatory”.</p>
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<p class="f20">Andrew Laming is suing for defamation, a phrase which would have seemed far-fetched not long ago but is now barely worth a passing mention. Because, these days, that's what they do.</p>
<p class="p-highlight-name">marquelawyers | @marquelawyers Jun 28</p>
<p><a class="a_link orange" href="https://twitter.com/marquelawyers/status/1409282873199267841?s=20">VIEW ON TWITTER</a></p>
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<p class="f20">Advice we always give clients who want to sue for defamation: whatever you've done that you hope they don't know about or won't find out, assume they already know about it or will find it out. If you sue, it will come out.</p>
<p class="p-highlight-name">marquelawyers | @marquelawyers Jun 17</p>
<p><a class="a_link orange" href="https://twitter.com/marquelawyers/status/1405318507554697217?s=20">VIEW ON TWITTER</a></p>
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<blockquote class="twitter-tweet" data-theme="dark"><p lang="en" dir="ltr">Managing director Michael Bradley addressed the <a href="https://twitter.com/hashtag/March4Justice?src=hash&ref_src=twsrc%5Etfw">#March4Justice</a> in Sydney today, commenting on how the system treats survivors and what the rule of law really means. Our journalist <a href="https://twitter.com/NaomiMNeilson?ref_src=twsrc%5Etfw">@NaomiMNeilson</a> captured the below. <a href="https://twitter.com/hashtag/auslaw?src=hash&ref_src=twsrc%5Etfw">#auslaw</a> <a href="https://twitter.com/marquelawyers?ref_src=twsrc%5Etfw">@marquelawyers</a> <a href="https://t.co/zmiN3cuvWC">pic.twitter.com/zmiN3cuvWC</a></p>— Lawyers Weekly (@LawyersWeekly) <a href="https://twitter.com/LawyersWeekly/status/1371335361599660034?ref_src=twsrc%5Etfw">March 15, 2021</a></blockquote> <script async src="https://platform.twitter.com/widgets.js" charset="utf-8"></script>
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<h2><span class="orange">How do the reforms play into this popularity – and will they work?</h2>
<p>In a conversation on The Lawyers Weekly Show, Mr Speakman said the door to reform is “never closed” and the legal profession essentially has to “wait and see if they work in practice and whether there’s any further tweaking involved or needed”. These tweaks can’t come a second too soon, according to the defamation lawyers – particularly those assisting plaintiffs – with reforms already showing some cracks. More than that, defamation lawyers who protested the reforms are frustrated that the NSW government didn’t take into account their many concerns on the issue.</p>
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<h2 class="h2-30 grey">NSW A-G Mark Speakman on defamation law reform</h2>
<p class="f20">On this episode of The Lawyers Weekly Show, host Jerome Doraisamy speaks with Mr Speakman about why reform to defamation laws in the states and territories was necessary</p>
<p><a class="btn btn-orange" href="https://www.lawyersweekly.com.au/podcast/31906-nsw-a-g-mark-speakman-on-defamation-law-reform">LISTEN NOW</a></p>
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<h2 class="h2-30 grey">The ‘public interest’ defence to defamation</h2>
<p class="f20">On this episode of The Lawyers Weekly Show, host Jerome Doraisamy is joined by Marque Lawyers managing partner Michael Bradley and senior associate Daisy von Schoenberg to discuss the introduction of defamation reform in numerous Australian jurisdictions.</p>
<p><a class="btn btn-orange" href="https://www.lawyersweekly.com.au/podcast/31954-the-public-interest-defence-to-defamation">LISTEN NOW</a></p>
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<p>“The bottom line is that the reforms are not necessary. They were not well thought out. They are likely to create a lot of uncertainty and a lot of extra costs. We really won’t know the full impact until we are a few years down the track and there have been a lot of judicial decisions,” Mr O'Connell said. “It also bewilders me why any defamation experts weren’t listened to in relation to these reforms. The reforms seem to be primarily driven by media to make defending defamation easier on them.”</p>
<p>The key changes included in the reforms include greater clarity on the operation of the cap on non-economic damages, the introduction of a new public interest defence, the introduction of a serious harm threshold for defamation claims, a new single publication rule, requirements that concerns notices be served with sufficient time for amendments and a new defence for peer-reviewed matters in journals.</p>
<p>Mr Goldsmith said that the new reforms will introduce a suite of new obstacles for the plaintiff and their lawyer. The biggest obstacle so far is the serious harm test, which was mirrored after something the UK has had in place for some time now. Still, Mr O'Connell said the UK laws are still missing “crystal clear” definitions. How Australia shapes them could work out – but more likely will spell doom for the new laws.</p>
<p>The public interest defence has become an obstacle for plaintiffs too – but Mr Goldsmith said it could also create some confusion on the part of the defendant who will have to spend the next few years navigating murky legislation until it is clarified what roles count as being in the public interest and what jobs should be excluded.</p>
<p>“There’s a general anticipation that Christian Porter, being the Attorney-General, would certainly be a public interest case. There is less certainty and more doubt about the Geoffrey Rush case because the consensus appears to be that Mr Rush is well-known and is famous, but he’s an actor and not a public official. Admittedly, he’s a successful and well-known person, but where’s the public interest about what he allegedly did? A defendant can’t simply say that they believe the matter was of public interest because there has to be a reasonable belief of that,” Mr Goldsmith said.</p>
<p>Speaking of Mr Porter – and his legal saga, in and outside defamation law – he said that seeing the process of going through the legal system as a plaintiff shone a light on what could be done better. Instead, it may have shone a light on how often politicians have used defamation threats to clamp down on public opinion. At least in this respect, for Mr Porter but also for other public servants, the defamation reforms could stop this from moving forward – particularly under the new public interest defence. “A lot of cases that haven’t been run as well is because of the restricted atmosphere. These are all cases of clear public interest, so far as the allegations are concerned, and that’s sort of the first hurdle of the public interest defence.</p>
<p>It must be a matter that is of public interest, meaning genuinely of public interest as opposed to interest to the public. But when you’re talking about whether it’s corruption or misconduct in public office or war crimes, these are inherently public interest,” Mr Bradley, who had a big role in a Federal Court trial against Mr Porter’s barrister, said.</p>
<p>From the publisher perspective, Mr Bradley said on an episode of The Lawyers Weekly Show that the position under the previous laws has been “unsatisfactory” and difficult, “particularly when you look at investigative journalism. It’s really hard to get stories up and published without taking an unacceptable risk of being sued”.</p>
<p>Back to the plaintiff, Mr O'Connell said that because the new laws are essentially setting defamation back to square one – at least where precedents are concerned – it will mean hefty costs while the court determines the parties’ way forward. This, he added, will start from day one with the plaintiff’s concerns notice.</p>
<p>“When you set up concerns notices now, it has to include all of the imputations that you will then put into your statement of claim, because under one of the reforms, we can’t include in a statement of claim any imputations that are different from what was in the concerns notice. So, what does that mean?” Mr O'Connell said.</p>
<p>“For me, the way I have been practising up until now is that a plaintiff will come to me and want to draft a concerns notice. Now because we can’t add things to the statement of claim, I will have to say to prospective clients that we have to be extremely careful about what we put in and, because of that, we’re going to have to engage a barrister to go through the imputations and make sure everything is there.”</p>
<p>As for Mr Speakman’s rationale that the new defamation laws will clear out trivial matters – a “classic example”, according to Mr Goldsmith, being a Facebook post in a community group – Mr O'Connell said that he has rarely come across matters that could be considered trivial, and not nearly enough to warrant this reform. More than that, however, is that until Australia sets a precedent for what a serious harm threshold is, how does a plaintiff determine what is and isn’t serious harm?</p>
<p>In that same conversation on the Lawyers Weekly podcast episode, Mr Speakman said that as practitioners, their job is to read the legislation and apply it in the best interests of their clients by using it “as they see fit”. He said what they have been trying to drive in the legislation is a “less chilling effect on responsible interest journalism on one hand, and encouraging faster resolution, particularly for less serious allegations” on the other. Either way, according to defamation lawyers, all there’s left to do is wait and prepare for the worst: “Time will tell.”</p>
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<h2 class="h2-30 grey">NSW A-G Mark Speakman on defamation law reform</h2>
<p class="f20">On this episode of The Lawyers Weekly Show, host Jerome Doraisamy speaks with Mr Speakman about why reform to defamation laws in the states and territories was necessary</p>
<p><a class="btn btn-orange" href="https://www.lawyersweekly.com.au/podcast/31906-nsw-a-g-mark-speakman-on-defamation-law-reform">LISTEN NOW</a></p>
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<h2 class="h2-30 grey">The ‘public interest’ defence to defamation</h2>
<p class="f20">On this episode of The Lawyers Weekly Show, host Jerome Doraisamy is joined by Marque Lawyers managing partner Michael Bradley and senior associate Daisy von Schoenberg to discuss the introduction of defamation reform in numerous Australian jurisdictions.</p>
<p><a class="btn btn-orange" href="https://www.lawyersweekly.com.au/podcast/31954-the-public-interest-defence-to-defamation">LISTEN NOW</a></p>
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- Stewart O'Connell, senior solicitor O'Brien Solicitors