Treasurer Joe Hockey, the latest politician to take on
the media for defamation, has been awarded $200,000 in damages from
Fairfax for publishing defamatory promotional tweets and a poster
advertising articles about the 'Treasurer for Sale'. But it
is a hollow victory for Mr Hockey (he went down on most of his
claims), and an even worse outcome for defamation law in
Hockey lost on his claim that the articles and headlines were
defamatory. The articles reported the damning details of his
relationship with the North Shore Forum –so we count this as
a loss for Hockey.
The promotional captions (ie.' Treasurer for Sale') were
published independently to the articles, but hyperlinked. The Court
thought this enhanced the defamatory imputations which arose from
the captions. If the reader didn't go on to read the article,
their impression that Mr Hockey was 'corrupt' would not be
We struggle with this. On their own, those words are open to a
number of interpretations. Without having read the underlying
article, we think the reader was unlikely to detect the defamatory
imputations which Hockey argued arose.
But surely there is some protection for the media to be
able to freely report on our politicians?
You'd think so, it seems pretty important to a
well-functioning democracy for the press to be free to investigate
and report on methods by which politicians skirt (legally or
otherwise) political party funding laws. In the US, there is very
strong protection for reporting on "public figures".
But Fairfax wasn't able to rely on the qualified privilege
defence in the Defamation Act or the implied freedom of political
communication in the Australian Constitution. Emails surfaced
during the proceedings showing SMH staff aggressively pursuing a
damning article about Mr Hockey and the NSF, which the Court
thought was motivated by Mr Hockey's demands for an apology
about an earlier SMH article. This meant malice, and Fairfax
couldn't persuade the Court that its conduct in publishing the
articles and captions was reasonable.
In our view, it's a prime example of the failures of our
current defamation laws when it comes to protecting bold reporting
in the public interest. Bring on reform.
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