The use of juries in defamation proceedings in America and Australia

Following a unanimous verdict in his favour in June 2022, Johnny Depp said that ‘the jury gave me my life back’.

That might be thought a strange thing to say.  It seems to suggest the verdict was not inevitable but some sort of gift; one which was given voluntarily and therefore might have been withheld.  It reveals an uncomfortable reality about juries – they have a choice.  And if they have a choice, they (or a different jury) might have decided otherwise. 

Johnny Depp’s defamation proceeding against Amber Heard was tried by a jury of seven in the Fairfax County Circuit Court in Virginia (although, because it was live streamed, it was effectively also tried by many millions of other people around the world, who could watch snippets of the testimony online and then reach and share their own ‘verdicts’ in the court of public opinion).

The jury (and much of the internet) sided with Mr Depp.

They found he had been defamed by Ms Heard and awarded him US$15M in damages (which was reduced to US$10.35M because of a cap on punitive damages in Virginia[1]).  They also found that Ms Heard had been defamed by Mr Depp and awarded her US$2M. 

More recently still, in August 2022, there was another jury verdict, this time in Texas.  A jury of 12 ordered Alex Jones - a far-right conspiracy theorist - to pay a total of US$49.3M (US$4.1M in compensatory damages and US$45.2M in punitive damages) to the parents of Jesse Lewis, a victim of the Sandy Hook shooting in 2012.  He had claimed they lied about Jessie’s death and that the shooting was a US government hoax (staged using actors to serve as a pretext for taking away American guns).

These eye-watering sums could not have been awarded in Australia - where the award of damages must have a ‘rational relationship’ to the harm suffered (s.34[2]) and is at any rate subject to a maximum upper limit (s.35), and where plaintiffs cannot be awarded punitive damages (s.37).

They also could not have been awarded by a jury.  Even in the (increasingly rare) instances of jury trials in defamation proceedings in Australia, it is still the judicial officer not the jury who will award damages.

The American position – a right to trial by jury

In America, the right to trial by jury is enshrined in the United States Constitution.[3]

The US Declaration of Independence (1776) had accused King George III of ‘depriving us in many cases, of the benefits of trial by jury’.

Article III of the US Constitution (1788) provided that all criminal hearings shall be by jury. 

Later, the Bill of Rights (1791) enshrined the right to civil hearings by jury (‘where the value in controversy shall exceed twenty dollars’).[4] 

This did not create a right to a jury trial, but rather ‘preserved’ the right which already existed in 1791 at common law.  Even prior to the American Revolution, that law had included that cases of libel may be heard by jury (a precedent established in a 1735 case involving publisher John Peter Zenger – who had been imprisoned in 1734 for printing political attacks on the colonial governor of New York before subsequently being acquitted when he successfully argued, for the first time, that a publication could only be libellous if it was proven to be false).

Australia’s ‘uniform’ defamation laws

American law varies across its 50 states.  

By contrast, thankfully for Australian defamation lawyers, we have substantially uniform defamation laws which were enacted in each State and Territory in 2005 and 2006. 

One area which is not uniform, however, is whether defamation proceedings are to be tried by judge or jury.  

In all but three of the least populous jurisdictions[5], the parties may elect to have a jury trial.

For example, in New South Wales, s.21(1) of the Defamation Act 2005 (NSW) (the NSW Act) provides that, unless the court orders otherwise, a plaintiff or defendant in defamation proceedings may elect for the proceedings to be tried by jury.[6]

In proceedings involving a jury, the jury is to determine whether the defendant has published defamatory matter about the plaintiff and, if so, whether any defence raised by the defendant has been established (s.22(2)), but the judge is to award damages (s.22(3)).

The position in the Federal Court of Australia

But there is a tension between the position under the NSW Act and under the Federal Court of Australia Act 2011 (Cth) (FC Act).

Section 39 of the FC Act provides that civil trials in the Federal Court of Australia (FCA) shall be by a judge without a jury (unless the court otherwise orders). 

Under s.40, the FCA has a broad discretion to direct a jury to hear either a particular issue of fact or the whole suit, but only where ‘the ends of justice appear to render it expedient to do so’. 

In Wing v Fairfax Media Publications Pty Limited [2017] FCAFC 191 (Wing), it was said not only that ss.21 and 22 of the NSW Act were directly inconsistent with ss.39 and 40 of the FC Act, and were therefore inutile or inoperative to the extent of the inconsistency[7], but also that the provisions of the NSW Act ‘are not relevant to the exercise of the discretion in s 40’ of the FC Act.[8]  The applicant seeking to depart from the usual mode of trial by judge alone bears the burden of bringing the claim within s.40 of the FC Act.  He or she ‘must do so not by reference to general considerations relating to the virtues of a jury trial, but by reference to the particular case’.[9] 

We are not aware of any defamation proceeding which has been tried by jury in the FCA.  While Rares J granted an application for a jury trial in Ra v Nationwide News Pty Ltd [2009] FCA 1308 (Ra), those proceedings were resolved at a mediation (and Ra has been criticised and not followed subsequently[10]). 

A choice of judge or jury

The end result is that, by choosing the jurisdiction in which they sue, Australian defamation plaintiffs can in effect also choose whether they wish to be heard by a judge or jury - they can choose to sue in a State or Territory court and then elect for a jury, or they can choose to sue in the FCA[11] and be heard by a judge. 

The question which follows is, which is preferable?

There are, undoubtedly, strong arguments in favour of juries. 

Our system of democracy relies on the participation of the people – by voting, we participate in the election of the legislature; through jury service, we participate in the administration of justice.  Lord Devlin once said that each jury ‘is a little parliament’ and ‘the lamp that shows that freedom lives’.[12]

These arguments perhaps apply with more force to criminal proceedings, where a person’s liberty is at stake, but in any event are not to be dismissed lightly.

Even so, when it comes to defamation proceedings in Australia, we think there are factors which weigh significantly in favour of trial by judge rather than trial by jury.

First, it seems to have been accepted in some cases that trial by jury is likely to take longer, and therefore be more expensive, than an equivalent trial by judge.[13]  If that is right, it is obviously undesirable for defamation plaintiffs in particular – given the statutory cap on damages, there is a risk that legal costs could be disproportionate even to the maximum amount of damages under s.35.

Secondly, juries might also be seen as more likely than judges to be susceptible to influence by emotional or irrelevant factors, such as media reporting.  For example, albeit in a criminal context, the trial of Bruce Lehrmann, accused of raping Brittany Higgins, was delayed following the storm of publicity that surrounded Lisa Wilkinson’s Logies acceptance speech in June 2022.  This is a particular risk in defamation proceedings, which are often the subject of heavy media reporting. 

Determining the meaning of the publication

A third, and we think significant, advantage of judge over jury, at least in defamation proceedings, is that it makes it more feasible, at an early stage of the proceedings, to separately resolve the question of defamatory meaning (rather than the parties being put to the additional cost and difficulty of empanelling a jury to do so, as was previously the practice under the now repealed s.7A of the Defamation Act 1974 (NSW)).

In the UK, in Bokova v Associated Newspapers Ltd [2019] QB 861, it has been said that one of the principal benefits of s.11 of the Defamation Act 2013 (UK) (the UK Act), which abolished the ‘right’ to trial by jury in libel and slander proceedings, has been to clear the way for the court to decide the meaning of the publication as a preliminary question.[14]  It was said (at [10]):

The benefits are obvious.  Indeed, if there is no factual dispute on the issue of publication (e.g. a dispute over the actual words published, reference or innuendo), I struggle to see circumstances in which the parties would want to proceed through the stages of defamation litigation without having meaning determined.  Its determination can lead to the parties resolving the dispute without the need for further litigation.  Even if the claim cannot be settled at that stage, there remains significant benefits for the future conduct of the case.  A defendant would know, for example, what would be required for any truth defence to have a real prospect of success…But most importantly, it avoids the spectre of hugely wasteful litigation (perhaps requiring up to a year’s preparation and several weeks of trial) of a meaning that the words are found not actually to bear.

In Australia, this ‘spectre’ too often materialises in proceedings in which defences are pleaded and run, and there is a trial, only for the court to find that the imputations were not conveyed or were not defamatory.[15]  This can be avoided if meaning is resolved one way or the other at a preliminary stage, which in turn is facilitated by the absence of a jury.[16]

In Australia, the utility of determining meaning as a separate preliminary question is starting to be recognised[17] and the procedure has been adopted in some cases heard by judges not juries.[18]

It has sometimes been said that jurors are better placed than judicial officers to assess how ordinary reasonable people understand mass media publications.[19]  This was Justice Rares’ view in Ra and Wing, for example, including because, he thought, ‘juries are well suited, and often better suited than a judge, to use and evaluate community standards and the sense in which ordinary reasonable people understand a publication’.[20] 

There is some attraction to the idea that the question of how the hypothetical ordinary reasonable person would understand a publication should be answered by the lay people who themselves make up the pool of ‘ordinary reasonable’ people.  

But the jurors are not, themselves, the hypothetical referees.  An individual juror is not simply invited to give his or her own subjective view of the meaning of the publication.  The test is still objective.  Each juror is still required to step into the shoes of the ‘hypothetical’ ordinary reasonable person.  The process is therefore still artificial and this involves a risk (such as that to which the High Court has referred in relation to the old s.7A trials[21]) that the jury may misunderstand its task. 

By contrast, judges are regularly required to apply objective tests, using the standard of the ordinary reasonable person – not only in defamation matters but also in negligence proceedings[22] and, as was observed in Wing, in the field of misleading or deceptive conduct and passing off’.[23]

Serious harm threshold

The position is complicated further by the introduction of the new s.10A (the serious harm threshold).[24] 

The judicial officer, not a jury, is to determine whether the serious harm element is established.[25]  

If a party applies for this to be determined prior to trial, the judicial officer is to determine it ‘as soon as practicable’ (unless satisfied there are special circumstances justifying the postponement of the issue to a later stage of the proceedings).[26]

But this will almost inevitably require a determination of meaning (a question for the jury under s.22(2)), since the seriousness of the imputations conveyed will be highly relevant to the likelihood of serious harm to the plaintiff’s reputation.  There is therefore an inconsistency between s.10A(3) and s.22(2), which we think leaves little if any work to be done by juries if meaning is to be resolved by a judge as part of the overall serious harm question.

The speed of the judgment or verdict

One potential advantage of having a jury is that they give an immediate verdict.  By contrast, judges are required to give reasons.  And the more complex the issues, presumably the longer the judgment will take to be written and published.  A principal purpose of defamation proceedings is public vindication.  The longer that vindication is delayed, the greater the risk that the purpose of the proceedings may be undermined.[27] Delay in giving judgment therefore has the potential to frustrate the plaintiff’s vindication (it is often said, especially within the context of defamation, that ‘justice delayed is justice denied[28]).

On the other hand, because juries do not give reasons, jury verdicts are inscrutable and unexaminable.  As a result, it may be that errors are more likely to remain undetected.  Furthermore, although parties have a right to appeal to the Court of Appeal following a jury trial[29], it is notoriously difficult to overturn a finding of a jury which will only be overturned if no reasonable jury could have reached it.[30]   

Towards uniformity

There are fundamental differences in America’s and Australia’s defamation laws, in theory and in practice.  These stem in large part from the US Constitution, which guarantees freedom of speech and the right to jury trials.

Some would say that America’s defamation laws strike a more suitable balance - between protection of the right to freedom of expression on the one hand, and protection of the right to reputation on the other - than Australia’s laws which are often said to be unfairly ‘pro-plaintiff’.  For example, it is a common complaint that our law requires the publisher to prove truth, whereas in America it is for the plaintiff to prove falsity.  Another common complaint is that, as we have seen, the inconsistency between ss.21 and 22 of the NSW Act and ss.39 and 40 of the FC Act allows plaintiffs to sue in the FCA and thereby avoid a jury trial. 

We have raised the question whether defamation proceedings are more suited to be tried by judge or jury.  But really the question is unanswerable. There are both critics and defenders of jury trials who each have good reasons in support of their respective views.  At least for the sake of uniformity, however, and to resolve the tension between the position under the ‘uniform’ defamation laws and under the FC Act, we think Australia should continue its move towards the UK position by mirroring s.11 of the UK Act, such that the default position would be that defamation proceedings are tried by judge rather than jury. 

This article was originally published in the Communications and Media Law Association’s Communications Law Bulletin - United States Special Edition (October 2022).

Read other items in the Australian Insurance Brief – November 2022

References

[1] The total award included $5M in punitive damages, which was reduced to $350,000 (the legal limit in Virginia). 

[2] References are to the Defamation Act 2005 (NSW).

[3] And in fact is referred to five times – once in Article III, Section 2 of the original text and four times in the Bill of Rights (the Fifth, Sixth and Seventh Amendments).

[4] The Seventh Amendment to the US Constitution.

[5] The Australian Capital Territory, the Northern Territory, and South Australia.

[6] The same right also exists in Victoria, Queensland, Western Australia, and Tasmania.

[7] Wing at [21]-[27].

[8] Wing at [34].

[9] Wing at [43].

[10] Roozendaal v Fairfax Digital Australia and New Zealand Pty Ltd & Anor (2015) 232 FCR 487; Wing v Fairfax Media Publications Pty Limited [2017] FCAFC 191.

[11] As to the FCA’s jurisdiction to hear defamation matters, see for example: Crosby v Kelly [2012] FCAFC 96, Oliver v Nine Network Australia Pty Ltd [2019] FCA 583 at [6]-[18] and, more recently, Massarani v Kriz [2022] FCA 80 at [48]-[64] and Malecki v Macko [2022] FCA 766 at [8]-[11].

[12] Lord Devlin, in ‘Trial by Jury’, London, Stevens & Son, 1978, p.164.

[13] Ange v Fairfax Media Publications Pty Ltd [2010] NSWSC 1383 at [36]; Wagner & Ors v Harbour Radio Pty Ltd [2017] QSC 222 at [75].

[14] Bokova v Associated Newspapers Ltd [2019] QB 861 at [8]-[9].  

[15] Recent examples include Taylor v Nationwide News Pty Ltd (No 2) [2022] FCA 149 and Bazzi v Dutton [2022] FCAFC 84 (in which Rares, Rangiah and Wigney JJ found, on appeal, that the imputations were not conveyed).

[16] In Bokova, the Court suggested a reason for this was the reluctance of defendants to put forward an alternative meaning which might be held against them by a jury but could be disregarded by judges.

[17] For example, Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448 at 473 per Clarke JA; Triguboff v Fairfax Media Publications Pty Ltd [2018] FCA 845 at [22]-[32] per Bromwich J; Gould v Jordan [2020] FCA 1191 at [17]-[33] per White J.

[18] For example, Russell v Nationwide News Pty Ltd [2013] ACTSC 241; Triguboff v Fairfax Media Publications Pty Ltd [2018] FCA 845; Dent v Burke [2019] ACTSC 166; Gould v Jordan [2020] FCA 1191; Stead v Fairfax Media Publications Pty Ltd [2021] FCA 15 (where Lee J determined meaning as a separate question during the trial); Schiff v Nine Network Australia Pty Ltd [2022] FCA 658.

[19] Ra v Nationwide News Pty Ltd [2009] FCA 1308 at [19]; Wagner & Ors v Harbour Radio Pty Ltd [2017] QSC 222 at [76].

[20] Wing at [55].

[21] John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; (2003) 201 ALR 77 at [120]; John Fairfax Publications Pty Ltd v Gagic [2007] HCA 28; (2007) 230 CLR 291 at [13].

[22] For example, s.5B(1)(c) of the Civil Liability Act 2002 (NSW), which provides that a person is not negligent in failing to take precautions against a risk of harm unless ‘a reasonable person in the person’s position would have taken those precautions’.

[23] Wing at [44].

[24] Section 10A, or an equivalent, is in force in NSW, Victoria, Queensland, South Australia, Tasmania and the Australian Capital Territory, but not in Western Australia or the Northern Territory.

[25] Defamation Act 2005 (NSW), s.10A(3).

[26] Defamation Act 2005 (NSW), s.10A(5).

[27] Rush v Nationwide News Pty Ltd (No 6) [2018] FCA 1851 at [115].

[28] See, for example, Stead v Fairfax Media Publications Pty Ltd [2021] FCA 15 at [317].

[29] Supreme Court of Act 1970 (NSW), s.102.

[30] John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50 at [185]; Beran v John Fairfax Publications Pty Ltd [2004] NSWCA 107.