... But Words Will Never Hurt You
Anyone who has been the subject of gossip (or worse) probably wouldn't agree with this. Words can do great harm. Imagine, for example, that a national current affair program said you were a paedophile. That's what happened in arguably the gravest Australian defamation case in recent times. That kind of damage and suffering is hard to undo.
On the other hand, the inescapable truth is that smut and depravity sells. Deep down, we all want to know what Britney will do next. For media organisations, defamation settlements are just a cost of doing business.
Newspapers, television stations, and other media outlets are usually in the firing line in defamation suits. So when you read that The Age has received just one defamation writ in 18 months, you get the distinct feeling that some kind of cosmic balance has shifted in favour of the publishers1.
So What Has Changed?
From 1 January 2006, uniform defamation laws came into effect in each state and territory. In practice, fewer defamation cases are being brought under the new laws. Why? We can think of a few reasons.
First - money. Court proceedings are expensive - particularly defamation proceedings. You would need to have a war chest of at least $70,000 - $100,000 to see a claim to hearing. But that's always been the case. The problem for claimants is that under the new laws their damages are capped at $250,000. And you would need to have been pretty seriously defamed to get that kind of money. Your garden variety of defamation suit just isn't commercially viable.
Secondly - a general fear in potential claimants that their case might be used as a test case for the new laws. Key areas of the uniform laws remain untested, and this means less certainty of a successful outcome. Claimants run a real and unquantifiable risk of watching their legal costs go down the toilet if they lose.
Thirdly – since 2002 corporations are generally not permitted to bring actions for defamation. Under the old regime corporations often used court proceedings as a strategic measure to stifle debate or criticism, called "SLAPP writs" (standing for Strategic Lawsuits Against Public Participation). This is no longer an option.
Finally – the truth defence. Previously in New South Wales, a defendant could avoid liability for defamation by proving what was said was both true and in the public interest to disclose. Under the uniform laws, a defendant need only prove that what was said was true. There is no longer any public interest element. This is great news for publishers. It basically gives them a carte blanche to disregard people's privacy. It may also make claimants more wary of having their dirty laundry aired in Court. Previously they might have tried to avoid this by emphasising the public interest element.
Has The Balance Really Shifted?
Defamation laws intend to strike a balance between promoting the freedom of communication and protecting people's reputations.
In Australia, however, there is no guaranteed right to freedom of speech. Instead of granting such a right, by way of a Bill of Rights or similar, the balance is tipped towards the media by granting them latitude under defamation laws. If you're a celebrity or a politician, you ought to be feeling a bit worried right now.
According to Andrew Dodd of Crikey2, the number of claims against media organisations since the uniform laws came into effect is actually decreasing. The commercial restraint on claimants, combined with the broader defences now available, shows that the balance has shifted towards the media organisations and away from individual rights.
With their prospects of succeeding in a defamation claim limited, claimants are forced to consider other causes of action. One alternative is the tort of 'injurious falsehood'. The problem is that you need to prove that the damaging statement was made maliciously and that you have actually suffered damage - two things that can be very difficult to prove.
Another alternative would be a claim for misleading or deceptive conduct under the Trade Practices Act. The difficulty is that the media are effectively exempt from liability for misleading or deceptive conduct under section 65A of the TPA, provided that they 'carry on the business of providing information'.
Recently, in WA, Alan Bond and the Lesotho Diamond Corporation commenced proceedings for misleading or deceptive conduct against News Limited in relation to an article published by News. According to media reports, Mr Bond intends to challenge the extent to which media organisations and freelance journalists can rely on section 65A to avoid liability. If successful, the decision will reflect a huge swing in favour of the protection of individuals' and companies' rights to protect their reputation. We will watch and report the progress of this case with interest.
In contrast, the UK, which has similar defamation laws, has tempered this shift in balance by introducing new laws protecting people's right to privacy. These laws exist in addition to defamation laws. No right to privacy has been legislated in Australia, although the High Court has suggested that an action for invasion of privacy might exist at common law.
We predict that there will be a call for privacy laws to be enacted in Australia in order to respond to the perceived imbalance. But for the time being, defamation suits are on the decrease and publishers are in a position of increasing power against the people they write about. So we suggest you avoid doing anything controversial.
1. Dodd, Andrew "New Uniform Defamation Code Calms Litigants", Crikey. 13 July 2007.
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