Focus: Defamation ?¢‚Ç¨‚Äú March 2004 Uniform defamation law?
In brief: The Federal Government's proposed uniform defamation law could have important ramifications for free speech and freedom of the press, according to Partners Belinda Thompson and Roy Williams and Lawyer Chris Bacon. Some of the more controversial proposals announced by Federal Attorney-General Philip Ruddock have been criticised by the media, defamation lawyers and Mr Ruddock's State and Territory counterparts. * Background * Some controversial features of the Federal Government's proposal * Where to from here?
In Australia, the answer to the question 'is this an actionable defamation?' is often dependent on the jurisdiction in which the relevant matter was published. This is because the States and Territories have divergent defamation laws founded, to varying degrees, on the common law and State and Territory legislation.
The NSW Law Reform Commission first endorsed unifying defamation law in 1968 and their call for uniformity has been widely endorsed by other law reform bodies, academics, politicians and members of the media and business communities. However, while virtually everybody agrees that uniformity is a good idea, the stumbling block to achieving it has been reaching agreement on the content of a national defamation law.
It is in this context that the Federal Attorney-General has announced that, unless the States and Territories can agree on a uniform defamation scheme rapidly among themselves, the Federal Government will develop a draft Bill for a codified national defamation law. The Attorney-General's discussion paper outlines the proposed substance of this code.
To toptop of page Some controversial features of the Federal Government's proposal Abolition of truth alone as a defence
At common law, an action in defamation is able to be defended by establishing that the defamatory matter is true. The discussion paper proposes that this defence be abolished and, instead, that a defendant must establish not only the truth of the defamatory matter but also that it was published for the public benefit. This is the current position in NSW,1 Queensland, Tasmania and, arguably, the ACT.2 It is unlikely that those jurisdictions that retain the common law defence will support its abolition. Abolition of juries
Under the Federal Government's proposal, juries would have no part to play in defamation actions. This reflects the current position in SA and ACT. There is likely to be opposition to this proposal. Many feel that juries are the symbolic and practical embodiment of the community in the court process. As one of the basic purposes of an action for defamation is to vindicate a person's reputation in the eyes of the community, it is argued that it is imperative that juries play a key role in determining whether or not a person has been defamed.
Further, the discussion paper suggests that the abolition of juries will increase the speed and efficiency of defamation trials. Many argue, however, that jury trials are often shorter than those before a judge alone, at least where truth is in issue, because juries, unlike judges, do not have to give reasons for their decision.
A spokesperson for Mr Ruddock is reported to have indicated that there is a degree of flexibility in relation to this point.3 Abolition of the defence of fair comment and creation of a defence of honest and reasonable opinion
The Federal Government proposes to narrow the common law defence of fair comment, claiming that this defence protects prejudiced, biased and grossly exaggerated opinions. The discussion paper states that the new defence would only protect opinions and comments that a reasonable person might have formed. In broad terms, the defence of fair comment is presently available where a fair-minded person could express the defamatory opinion, even if it is exaggerated, prejudiced or obstinate. Any proposal to narrow this defence has the potential to significantly impact on freedom of speech and the freedom of editorial comment, particularly given that under the Federal Government's model, it will be a judge rather than a jury who will decide whether an opinion is 'reasonable'. This could well have a chilling effect on free speech and freedom of the press. Abolition of the concept of each defamatory 'imputation' constituting a separate cause of action
The meanings that a publication conveys are called imputations, both at common law and under NSW legislation. In most cases at common law, all meanings form a single cause of action. In NSW, however, each imputation is a separate cause of action. This approach has been subject to some strong judicial criticism and has resulted in a proliferation of pre-trial interlocutory hearings. The abolition of the NSW approach has the potential to reduce the costs of defamation litigation. However, a consequence of doing away with the NSW approach is that consideration will need to be given to the codification of the Polly Peck and Lucas-Box defences, an issue that is not considered in the discussion paper. Correction orders
The Federal Government proposes to grant the court the power to make correction orders, including the power to determine the prominence to be given to any corrective statement. Introduction of a limited right of action on behalf of deceased persons
It is proposed that a cause of action will be made available to a representative of a deceased person or a surviving spouse, parent, child or sibling. This cause of action would only be available within three years of the person's death. Damages would not be available; the remedies would be a correction order, declaration and/or injunction. Replacement of the common law defence of qualified privilege with a defence of 'reasonable publication'
The discussion paper proposes that there be a defence when the publication of the defamatory matter is reasonable in the circumstances. The proposed defence is similar to the statutory qualified privilege defence currently available in NSW. While the wording of the NSW defence and the proposed reasonable publication defence appear to offer greater scope for protection of mass media defendants than the common law defence of qualified privilege, in practice, judges have rarely regarded the conduct of the media as 'reasonable'.