Australia’s defamation laws favour the reputations of the rich and powerful. Why?

What were John Barilaro, Peter Dutton, Christian Porter, Joe Hockey, Clive Palmer and Mark McGowan able to do in Australia that they could not have done in America?

Sue for defamation, of course. They didn’t all win, but that’s not the point. Each of them, along with countless other politicians and prominent people, have made their contribution to the deep freezing of free speech, and especially freedom of the press, in this country. We live in the defamation capital of the world — but why?

My question has a specific context, which I’ll admit upfront along with my interest as Crikey’s lawyer: Lachlan Murdoch is suing Crikey, its editor and one of its writers for defamation. Crikey is a sister publication of SmartCompany.

What I’m posing, however, is of broader significance. What do we value more: the reputations of the rich and/or powerful, or the social good that comes from a free and willing media? Our current defamation laws vote for the former.

The defenders of the status quo make a simple argument: if you don’t want to be sued, don’t tell lies. Everyone is entitled to the same protection from being slandered, regardless of their fame, wealth, leverage or access.

That is the same type of logic that produces criminal laws ostensibly applicable equally to everyone, but enforced in practice on those with the least privilege. The rule of law promises, but rarely delivers, equal justice. It also requires us to recognise when that’s the case, not blithely pretend otherwise.

From the perspective of legal principle, therefore, nothing stands in the way of defamation law being rebalanced to limit its protection to those who actually need it.

Philosophically, the same point makes itself. Personal reputation, in the hierarchy of competing human rights and interests, sits well below free speech and press freedom because of the society-wide benefits that those freedoms confer.

But consider the problem in purely practical terms as well. An unemployed refugee advocate posts a tweet lobbing a gratuitous and (I thought) obviously baseless allegation at a federal cabinet minister. The minister sues for defamation and wins. He loses on appeal, but the damage has been done. I’m not talking about the cost and stress inflicted on the parties or the waste of court resources. I mean the irreparable harm to the willingness of everyone to speak in the public square.

Consider also this: the most defamed Australian politicians in recent memory, Scott Morrison and Barnaby Joyce, have never sued anyone for defamation. Are they worse off than Dutton or Barilaro as a result? Is our society worse off because they didn’t sue?

Surely it is obvious that nothing of social utility is being achieved by the constant flood of defamation allegations, threats, suits, trials and judgments? Has social discourse been improved as a result? Is our media more robust, independent, fearless, forthright and effective? No — the opposite is true.

The law is only a tool for social good. Defamation law in Australia, for all the tinkering in which we indulge, is failing to deliver on that imperative.

What’s the answer? Well, if we accept that we’ve stuffed it up, then we should be prepared to accept some help from jurisdictions that aren’t the defamation capital of the world.

I remain a fan of the American commitment to free speech, in philosophical terms. I’ve said it before, but it bears repeating. As the US Supreme Court said in the seminal 1964 case of New York Times v Sullivan: “debate on public issues should be uninhibited, robust, and wide-open … erroneous statement is inevitable in free debate, and … it must be protected if the freedoms of expression are to have the ‘breathing space’ that they need to survive”.

That idea underpins the “public figure” defence, which prevents politicians and other people with a high public profile from suing for defamation at all, unless they can prove that the defamatory publication was actuated by malice towards them.

That’s considered insanely radical by everyone other than me, so let’s look to the UK. That is in fact what our legislators did, with the reforms introduced in July 2021 and now in place in all jurisdictions except Western Australia and the Northern Territory. The major changes were the introduction of a “serious harm” threshold, intended to weed out trivial (see Palmer v McGowan) cases, and a new “public interest” defence designed to enable the media to do investigative journalism and publish without having to prove an allegation’s truth.

The expectation was that Australia would soon see a reduction in the volume of defamation litigation, as happened in the UK after it brought in similar changes.

One problem is that Australia was starting from a much higher base. More concerningly, while the serious harm test is starting to produce a few decisions, there hasn’t been a single attempt yet by any media publisher to seriously rely on the public interest defence. Nobody wants to be the test case; what does that tell us about the state of media bravery in this country?

Yes, the continuing fear can in part be explained by the failure of WA and NT to plug the jurisdictional gaps, but only a small part. The real story is that Australia’s media are cowed by experience — the experience of trying to operate in such a perilous defamation environment. They are rightly fearful that our courts will neuter the public interest defence as they did qualified privilege.

We can’t afford to wait. We need to go harder than we have if we want the free public space that democracy needs to survive.

Here’s an idea, neither American nor Brit. It lives in our own constitution, dangled by our High Court but never given much real play: the so-called “implied freedom” of communication on government and political matters. Forget about constitutional reform (impossible), but there’s nothing stopping us from legislating a new complete defence to defamation: if the subject matter is government or politics, the free discussion of which underpins democracy, then defamation law has no role to play. And, sure, chuck in a malice exception.

That would have stopped all of the plaintiffs I mentioned at the gate. It would enable a publication to report on and express honest opinions about things like, say, who shares responsibility for the events that led to the violent attempted overthrow of a government, without unreasonable fear of being sued.

Just a thought.

Michael Bradley and his firm Marque Lawyers are representing Private Media Pty Ltd, managing editor Peter Fray and Crikey politics editor Bernard Keane in defamation proceedings filed this week. Private Media is the owner of SmartCompany. 

This article was first published by Crikey. It is part of a series about a legal threat sent to Crikey by Lachlan Murdoch, over an article Crikey published about the January 6 riots in the US. For the series introduction go here, and for the full series go here.