ICAC has made three separate corruption findings against
former NSW Minister for Resources Ian MacDonald. He's pretty
much a journalist's dream. Misuse of ministerial power, dodgy
deals, prostitutes, the works.
It was a bit surprising then that he sued the ABC for defamation
over a news broadcast last year that falsely claimed he made
millions of dollars from a coal deal with Eddie Obeid. The ABC
broadcast a correction the next day but MacDonald filed suit
regardless, saying his reputation was gravely injured.
It's now reported that the ABC is defending the claim on the
basis that, among other things, MacDonald's reputation was so
bad already that it couldn't get any worse. Genius.
This kind of argument could defeat a defamation claim at the
outset. A key element of the cause of action is defamatory meaning.
That is, the publication has to make reasonable people think less
of you. This implies a necessary negative change in the quality of
your reputation. Logically then, if your reputation is at rock
bottom already, it can't get any worse no matter what people
It would be a novel approach. Bad reputations have been raised
in the past, but generally as a basis to mitigate damages rather
than to defeat a claim outright. In this case, MacDonald's
reputation was already tarnished on account of corruption findings
about dodgy dealings. As such, an article that imputes that he was
involved in corruption and dodgy dealings might not actually harm
his reputation any further. As a result you could say it did not
carry a defamatory meaning.
If the article had been on a different topic altogether, then
the argument would be harder. Having an existing reputation for
corrupt dealings wouldn't help if the ABC had suggested that he
was a terrorist. But they didn't. The publication was closely
tied to related ICAC corruption findings.
It's kind of a crazy idea to suggest that someone is
undefamable. But, in some cases, it just might work.
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