Defamation laws must be updated for the internet age

Date published

21/03/2018

Locations

At first it was all so easy and cost little to participate, but then unidentified strangers took it to another level and social media became a forum for abuse, bullying and hate. Now these channels can be used as a weapon to spread vile accusations against innocent people, with the ugliness spreading quickly and widely.

Criminal laws apart, defamation law provides a means to stop this abuse and malice. Money is awarded to restore reputations, vindicate victims in the eyes of the public and provide some solace for the harm suffered. It is not a perfect remedy but, for those ordered to pay damages, money speaks.

A recent study by the Centre for Media Transition at UTS found there has been a substantial increase in digital defamation cases in recent years and that many of these have arisen from social media conflicts between individuals. It has been suggested that these cases are clogging up the courts and, given the excessive costs of these cases, it is time to reform the defamation law.

At the same time, a coalition of media companies has sought to intervene in Rebel Wilson’s case where she was awarded $4.56 million, and she is reportedly seeking $1.4m in costs against Bauer Media. This has also sparked calls for reform as the award is expected to lead to a surge in cases with plaintiffs seeking similar amounts.

Yet this needs perspective and balance having regard to the -incredible change in the way we communicate since Facebook was created in 2004 and Twitter in 2006. The increase in digital defamation cases is an inevitable consequence of the freedom of speech which social media and the internet provide.

Reform is not as simple as saying these cases should be stopped and people’s rights removed. The law provides a delicate balance between freedom of speech and freedom from attack on reputation. The present Defamation Act involved compromises of both freedoms, and while uniform throughout Australia, it was a political compromise reached at the time by state and territory governments after years and years of debate and disagreement. It is not now a straightforward matter of a state government deciding to change the law in Australia.

The quickest route to reform is by the commonwealth government legislating its own defamation act, which would override the current uniform acts to the ¬extent of inconsistencies. This it may do under the constitutional power over communications.

Social media, and for that matter the internet, were not the force they are today when the commonwealth last considered reform of the defamation laws.

Another suggestion is that we should, by way of reform, adopt the UK threshold, and a claimant must prove serious harm to reputation as part of the cause of ¬action. But the threshold in practice has not lived up to expectations. It is also worth noting Australian law already has a defence for trivial claims. Bauer sought to rely on it in the Wilson case. It argued she did not suffer serious harm.

While some proposals for reform of defamation law may improve freedom of speech, it should not be assumed restrictions on claimants currently imposed by the act will remain. There is a need, however, in view of the detrimental impact social media has had on truth in news and on responsible journalism, for a better defence of reporting in the public interest. It is essential in these times of manipulation of the news and reputations by those with power that there be protection to professional, independent and ethical journalists.

Beyond this, the single most important issue for reform is the cost of defamation cases, whether social media related or otherwise. A cheaper more efficient process needs to be found for all cases. It is not simply a matter of removing people’s rights for bringing digital defamation cases. Access to justice is vital to the rule of law.

Patrick George is the author of the leading text Defamation Law in Australia (3rd ed).

This article was originally published in The Australian on Monday 19 March.