Your right to know: how Australia’s defamation law stifles public interest journalism | Richard Ackland | Media

Charles Blondin (aka Jean François Gravelet) was a tightrope acrobat who reached peak fame when he successfully walked on a rope strung across Niagara gorge in 1859. The nerve-wracking trip was 340 metres long and the rope was set 49 metres above the waters below.

He repeated the stunt numerous times, getting progressively bolder in the process. He did it blindfolded, walking on stilts, carting his manager on his back, pushing a wheelbarrow, cooking an omelette halfway across, walking in a sack, and standing on a chair with one of its legs perched on the rope.

At any moment he could have slipped and plunged into the roiling waters below. On one occasion during a show in Dublin the rope snapped, bringing down the scaffold. Blondin survived but two others were killed.

We have a Blondin Society in Australia, a meeting ground for another group of tightrope walkers – lawyers who do pre-publication work for media organisations.

Its creation was the idea of Brian (Twitch) Gallagher, aka Mr Justice Galley-Proofs, the pre-publication lawyer for newspapers in what is now known as the News Corp stable.

Members of the Blondin Society consider their work has the same uncertainty, risk and possible dreadful consequences as tightrope walking across Niagara.

The work of these unsung lawyers plays a critical role in making sure that difficult-to-report but important stories find the right words and images to get safely – without indefensibly harming anyone’s reputation – onto the page, through the airwaves and past the courts. To do this they have to navigate the most media-hostile laws in the common-law world.

We have “uniform” defamation acts throughout the country that have been interpreted by the courts in the most punishing ways, at least for media defendants. Defences of honest opinion, the public interest where stories are published in a “reasonable” manner, and even defending the truth, have been made blindingly complicated and largely unworkable by the legislation itself and the courts. Protections for “innocent disseminators” such as internet service providers or social media platforms are uncertain, with problems compounded by drafting anomalies.

Actions in defamation can be brought against articles that remain in online archives years after they were first published, making them almost indefensible because witnesses and even the journalists have long vanished. Multiple actions for separate awards of damages can be launched over the same article if it is published in different newspapers and platforms within the one group.

The legislated cap on defamation damages for non-economic loss stands at $389,500, but this has been subverted by appellate decisions that have found that the sky’s the limit where “aggravated damages” are awarded. And it doesn’t take much for courts to turn up a bit of aggravation, including the way the journalists go about their work, the conduct of the case at trial, withdrawing defences and even publishing “for a profit”.

In means every commercial publisher is in the firing line for awards of unlimited damages.

Larina Alick, editorial counsel for Fairfax in Sydney, says that journalists are always talking about the “public interest”.

“I keep telling them it’s worthless to me because we don’t have a defence for that,” she says.

Professor David Rolph at the University of Sydney agrees: “There is no point in having a statutory defence which, in theory, provides protection for public interest speech, if in practice it does not.”

Quite apart from the ruinous expense and the expenditure of emotional energy, it is journalism that pays the real cost, and here we’re not talking about backyard disputes or fake news, but responsible, public interest reporting.

If it is accepted that the media, for all its imperfections, is an essential component of a liberal democracy, then the publication of well-researched, probing stories on all aspects of our complex political, social and economic mix – health, transport, cities, politics, corporations, creative endeavours, sport – is nothing short of crucial.

Most of us would find it difficult to imagine what life would be like in a society without a free press, although there are plenty of places where this is a reality. Here it is taken for granted, except that, like the boiling frog, the erosion of freedoms are incremental and unremitting.

And it’s impossible to know how many important stories in the public interest have not been chased by journalists because of “the chilling effect” – the fear of a prohibitively expensive loss in a defamation suit.

To hand are pieces of analysis and research that give an understanding of the free speech imbalance, of how out of kilter the law is with the right to know.

In the 10 years between 2008 and 2017 media organisations in Australia defended or partially defended almost 300 cases in the courts. Of these cases, there were successful verdicts for defendants in 29% of the them – but the imbalance is worse than that because most of those 300 cases were settled privately before verdict with settlements that overwhelmingly favoured plaintiffs.

Of the 51% of cases that were settled in this period, a conservative calculation would be that plaintiffs would be paid out at least 70% of the time.

Then there are the complaints that pour into the offices of newspaper lawyers, many of which are settled even before they see the inside of a courtroom.

And the amounts of money involved are eye-wateringly large. Over the same 10-year period, at least $17m was paid out in damages, awarded at trials and at settlements where the amount of dollars are known. Last year the average damages awarded and settlement paid was $137,500, and that is discounting the erroneously high $4.7m award of damages to Rebel Wilson by the Victorian trial judge, later reduced on appeal to $600,000.

The smaller jurisdictions had much lower overall average payouts over the 10 years, while the average court-ordered awards in busier jurisdictions were significantly higher – in NSW $243,466, in the ACT $277,500, and Victoria $278,333.

The legal and other costs for all this are unimaginable but would make the total damages payments look pale by comparison – and this at a time when the economics of newspaper publishing is on its head.

‘Frankenstein’s monster’

Dr Matt Collins QC, one of the country’s leading defamation barristers, the one who acted for Rebel Wilson and for Fairfax in the Joe Hockey case, points out that the law neither adequately protects the fundamental human rights of free speech or of reputations when matters of public interest are exposed. The current legal framework he describes as “Frankenstein’s Monster”.

“If you were starting from scratch, the defamation laws you would draft would bear no relationship at all to those we are saddled with,” he says.

Judge Judith Gibson, who manages the busy defamation list in the NSW district court, has done work that shows the overall shape of the defamation scene Australia-wide.

She found that in the four months between 1 May and 31 August, 2018, there were 91 judgments in defamation cases, 10 of which were final judgments and 14 were appeals.

Among the trends she identified were that defamation is no longer the preserve of the rich and famous because only a dozen of the 75 plaintiffs could be called famous. Some 39 (43%) of the actions involved the media, 70% of the cases involved online platforms and 40% were litigants in person. Twelve percent of the cases were summarily dismissed as an abuse of process.

Judge Gibson identified a “feral” tone to much of the litigation, with defamation cases increasingly being “weaponised” – vexatious, or designed to annoy or cause financial harm to an opponent rather than seek vindication for a damaged reputation.

Clearly, big attention-grabbing cases such as Lloyd Rayney v The State of Western Australia (damages of $1.8m, including damages for economic loss, with another $773,866 in interest), Rebel Wilson v Women’s Day, Women’s Weekly, New Weekly and OK! Magazine ($4.6m including economic loss, later reduced by $3.9m), Wagners v Alan Jones ($3.7m) and now Rush v Daily Telegraph (judgment reserved) are not the whole story.

In the Rayney and Wagner cases the defendants were not journalists – it is inconceivable that Alan Jones could be regarded as a journalist.

There are other big cases in the wings and it looks like 2019 will be a bumper year for defamation litigation: Craig McLachlan v Fairfax and the ABC, Chau Chak Wing v Fairfax and the ABC, Ben Roberts-Smith v Fairfax, Sarah Hanson-Young v David Leyonhjelm, John Herron and John Gill v HarperCollins – to mention a handful.

The recently completed Rush trial in the federal court is as good an illustration as any of the inadequacies of the law, for both the media and, it must be said, for Rush.

Entering what might be called #MeToo litigation is akin to watching everyone’s house being burnt to the ground. For Rush in his case against the Daily Telegraph, there were strenuous denials that he had engaged in “inappropriate behaviour” during the 2015-2016 production of the Sydney Theatre Company’s King Lear, and at the same time the evidence of the complainant, actor Eryn Jean Norvill, was strong and unwavering and she was significantly backed up by another actor.

In this instance the Telegraph’s stories was unusually straight and showed every sign of having someone from the Blondin Society going through them with a fine-tooth comb before the presses rolled. There were fulsome denials, however the headlines were among the cheekiest in the tabloid tradition: KING LEER and STAR’S BARD BEHAVIOUR.

Rush’s lawyers said the articles conveyed meanings that might not have been recognised by the “ordinary reasonable reader”: that he was a pervert, behaved as a sexual predator and committed a sexual assault. For the newsstand poster the meanings suggested were that Rush had engaged in “scandalously inappropriate behaviour of a sexual nature in the theatre” and in the context of wider #MeToo revelations it could be understood that he had “committed sexual assault in the theatre”.

The Telegraph’s lawyers variously described these meanings as “tortured … strained … forced”.

For her trouble, Norvill was repeatedly accused by barristers for the applicant of being a “liar” and telling “disgusting lies”. If Justice Michael Wigney finds for Rush, then he must not have accepted her evidence, which would be personally crushing for someone who came forward, even if reluctantly. The personal risk associated with pointing the finger at a well-regarded celebrity is incalculable.

Much the same happened in the successful case brought by West Indian big-bash cricketer Chris Gayle against Fairfax over articles that he had flashed at a team masseur in the dressing room. The woman who was the prime witness for the publisher, and who gave credible evidence in a truth case, was accused by the plaintiff’s counsel as a person who is “mentally fragile … plainly neurotic … bitter … vengeful”. Little wonder women in this country are reluctant to speak out to redress deeply held grievances.

Increasingly, those who feel their reputations have been dented are bringing their cases in the federal court, where there are no juries and the judge makes determinations in the guise of the “ordinary reasonable reader”. This jury-free zone is now the preferred shopping mall for applicants in search of a bargain. For federal judges, who have had to slug away in the dry fields of commercial, taxation, bankruptcy and migration law, defamation presents a new and exhilarating environment, where the authorities and procedures of the supreme court can be blissfully swept aside.

What Rush, Gayle and other cases demonstrate is the difficulty the media have in defending their journalism with the defence of substantial truth. It is really the only defence available, because the required standard of “reasonableness” in the qualified privilege defence is set so high as to be unworkable.

Yet truth can be a malleable concept in defamation trials. Plaintiff lawyers often seek to circumscribe the facts that a jury could hear and great chunks of “tendency” evidence tend to be expunged from the process.

Judge Gibson recently told the ABC that the #MeToo movement and defamation laws are “out of sync” and there is no guarantee that the litigation process gets to the truth. She thinks that trying to “solve these problems in a defamation framework is not going to achieve much” – the framework “may prevent the truth coming out”.

Even where sources are not whistleblowers or require their identities to be kept confidential, they can expect to be attacked quite mercilessly as witnesses in the hope of driving a chisel into a chink in their story.

While the mud-wrestle between the right to know and the right to a reputation goes on, it should not be overlooked that in the middle are the lawyers, for whom the process is a business – particularly for those dedicated to chasing the media for pots of gold. For a devoted few, this is a highly lucrative business model.

The hope is not that there be a legal landscape that allows the freelance trashing of reputations, rather one where the media can defend good, well-researched, competent public interest journalism – something that is not possible at the moment in a society where democracy is struggling to keep its head above water.

Tomorrow in part two, Richard Ackland looks at the defamation law of other countries and charts a way forward to reform in Australia