Is it time to reform defamation laws in Australia?
The concerns have been raised in the context of the number of defamation actions taken over social media publications, the imposition of liability on search engine and website operators, and the introduction of the Defamation Act 2013 in the UK which implemented a number of significant reforms.
However, the Rebel Wilson case has emphatically challenged those concerns with the self-evident need for the laws to protect reputation.
With an award of $4.56 million, the trial judge hoisted Bauer on its own petard after it failed to prove the truth of the imputation, published in its various magazines, that Rebel was a ‘serial liar who had invented fantastic stories in order to make it in Hollywood’ (Wilson v Bauer Media Pty Ltd  VSC 521).
In its defence, Bauer had also sought to suggest that the imputation was trivial and unlikely to cause Rebel any harm and that its conduct was reasonable in publishing such an imputation in any event.
On any view, the imputation is seriously defamatory. The jury found that not only had Bauer been motivated by profit in publishing the imputation, it had run a campaign against Rebel calculated to generate commercial benefit for itself when it knew the imputation was false and understood the probability of the rapid and massive spread of it over the Internet. The trial judge agreed (at ).
For those concerned about the threat of defamation laws to freedom of speech, it could not have been a worse result. It is the highest defamation award in Australia’s history. Why should defamation laws be relaxed when a media publisher engages in such conduct? The capacity to inflict harm internationally through the Internet and social media was recognised by the trial judge with the size of the award.
Notwithstanding the stunning result, it is timely for a balanced review of the defamation laws in Australia. They were unified almost 12 years ago under the Defamation Act 2005, enacted in each State and Territory. At that time, social media was a curious novelty, Facebook only established in 2004, and Twitter not established until 2006.
Since the Act came into force, the courts have made many decisions which provide substantial guidance on the law. The passage of time provides a reasonable perspective on those aspects which might be modified or improved. These aspects are examined in detail in the new edition of Defamation Law in Australia (3rd ed. by Patrick George).
It has been suggested that Australia should embrace a number of the reforms embodied in the UK Defamation Act 2013, particularly the statutory threshold of serious harm (Section 1) on which the plaintiff bears the onus of proof. There are other reforms such as the single publication rule (Section 8), the defence of publication on a matter of public interest (Section 4) and special provisions protecting operators of websites (Section 5) which could sensibly improve freedom of speech in Australia.
However, it has to be appreciated, that there is a fine balance between freedom of speech and protection of reputation, which are both recognised as primary objectives of the Australian Defamation Act (Section 3(b) and (c)).
While some of the UK reforms might be an improvement to freedom of speech, it might necessitate the removal of some unfair elements on claimants which do not apply in the UK, such as the arbitrary cap on damages and the exclusion of most corporations from bringing actions.
It is also not a straight forward matter of Parliament deciding to change the law in Australia. The law sits ‘uniformly’ across eight jurisdictions, a primary objective of the Act (Section 3(a)). The uniform set of Acts was a political compromise reached at the time between the States and Territories after much negotiation. It would require the agreement now of the eight Parliaments to introduce reforms uniformly.
The differences between jurisdictions is evident in the use of juries. Some jurisdictions use them and some do not. It would be sensible to adopt the UK position to overcome the inconsistency that currently exists, so that juries would only be used at the discretion of the court.
It would be sensible to add simplicity and affordability as primary objectives of the law. In this respect, the courts apply the ‘overriding objective’ to ensure that the rules of court ‘facilitate the just, quick and cheap resolution of the real issues in the proceedings’. However, improvements to ‘access to justice’ should be pursued in respect of the practice and procedure of defamation proceedings particularly.
Costs of defamation proceedings are oppressive to all parties. Clear guidance is required in respect of the principles for the award of costs, partly to fulfil another primary objective of the Act of seeking speedy and non-litigious resolution of disputes (Section 3(d)), but also to provide substantial if not complete recompense for the actual costs of the successful party where no alternative to trial is ultimately possible.
The NSW Defamation Act 2005 expressly provided for a review of the Act to be carried out after 5 years and a report be provided to Parliament. No such review has been completed and no such report provided. However, the singular nature of such a review in NSW, alone, may not lead to consensus amongst the other States and Territories.
It is possible, particularly in this day and age and this media environment, with traditional and social media and the Internet, for the Commonwealth Government to introduce a Commonwealth Defamation Act, which for the sake of consistency would be proposed in substantially the same terms as the uniform Acts of the States and Territories, but with reform where desirable or necessary (and without a plebiscite).
This article was originally published in the Gazette of Law and Journalism 29-09-17. Patrick George is the author of the definitive text Defamation Law in Australia (3rd ed). Read Media Release