Costly defamation action looms large over Australian newsrooms. It’s diminishing press freedom

This piece is the final of a three part series on Australia’s defamation laws. You can read the other pieces here and here.

Defamation laws exist to strike a balance between press freedom and the protection of people’s reputations from wrongful harm. In Australia, this balance has always been loaded against press freedom.

This is due partly to the way the defamation laws have been framed and partly by the way the courts have interpreted them.

Courts examine matters of journalism in the same way they examine matters of law: forensically, with strict rules and high standards of evidence and proof.

While we rightly expect ethical and honest reporting from our media, even the best can prove insufficient under the piercing gaze of defamation law. And in a time when media companies are more cash-strapped than ever, this has a chilling effect on the stories that get told and press freedom more broadly.

Ethics vs the law

Until 2006, each Australian jurisdiction had its own defamation laws. This created a nightmare of complexity for publishers, especially of newspapers and broadcasts that crossed state boundaries, which meant all the main media organisations.

They had to take into account the risks posed by litigation in the jurisdiction least favourable to press freedom.

For many decades, that was New South Wales. It was one of the states where truth alone was not a sufficient defence; there also had to be a public interest in the material. In some other jurisdictions this was called public benefit.

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This was a major burden on press freedom and it was removed by the introduction of uniform defamation laws in 2006.

Since then, it has been enough for publishers to prove the substantial truth of the meanings conveyed in an article in order for the defence of truth to succeed.

It may sound straightforward, but proving substantial truth requires producing admissible evidence strong enough to satisfy the civil standard of proof: on the balance of probabilities. That usually means having documents and witnesses who are willing to be identified.

If, as is often the case, the article has drawn on evidence from a confidential source, the publisher is unable to put that source in the witness box because to do so would breach the media’s fundamental ethical obligation to protect the identity of confidential sources.

So unless the source is prepared in advance to be identified should the matter come to court, a story relying significantly on that person’s testimony may not see the light of day unless some other defence is available.

In 2021, those defences were expanded, although quite how significant that expansion turns out to be remains to be seen.

What appears on paper to be the most significant change was the introduction of a general public interest defence. This says that if publication of a story is in the public interest, and the publisher has a reasonable belief that it is, then publication can be defended on that ground.

There has been only one major test of that new defence, and it went against the media.

That case showed “reasonable belief” depended on the journalism being sound. In this case, the court found that the defendant, which was the ABC, had relied on shaky testimony that had not been sufficiently verified and had not given the subject of the story a fair opportunity to respond.

At odds with practicalities

This brings us to the question of how the courts interpret the law.

One of the big disappointments in this respect has been the way the courts have interpreted what, at the time, was hoped to be a significant addition to Australia’s threadbare free-speech jurisprudence.

In a case brought against the ABC by a late prime minister of New Zealand, David Lange, the High Court established the principle that freedom of speech on matters of government and politics trumped a person’s case for protection for their reputation.

If a person wanted to sue for defamation, they had to do so in a way that did not burden freedom of speech on matters of government and politics.

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However, the High Court attached a test of reasonableness to this freedom. In several ways, it’s similar to the “reasonable belief” test in the new public interest defence.

Unfortunately, successive courts have applied the Lange reasonableness test in ways that are so strict they require journalists to meet standards demanding more powers of investigation than they possess or to exceed the usual journalistic standards of verification. Journalists can’t subpoena documents or compel people to speak to them.

The result is that this defence has become more or less a dead letter for journalistic purposes.

Is a story worth the cost?

Those accused of defamation can also defend it by saying it was comment or honest opinion. The first requirement of this defence is that the material be a comment and not a statement of fact.

But courts have interpreted this in different ways.

This uncertainty was illustrated by a famous case that became known as “Leo the Lobster”. A restaurant and restaurateur in Sydney successfully sued the Sydney Morning Herald over a review of a lobster dinner written by one Leo Schofield.

Schofield, who was a colourful writer, said the lobster had been overcooked:

the carbonized claws contained only a kind of white powder which might have been albino walrus.

Despite the amusing language, the court interpreted that as a literal factual description, not a statement of opinion.

Courts have a limited sense of humour, which makes satirical writing a chancy business, since the sharper the satire, the closer it is to literal truth.

Cartoons, which are satirical by definition, have more leeway but are not immune to defamation suits.

Then there’s the costs of defamation, particularly for media outlets. They’ve become exorbitant.

It has been estimated that the costs involved in the case brought by Ben Roberts-Smith against The Sydney Morning Herald, The Age and The Canberra Times amounted to about $25 million. The newspapers won, although the matter has gone to appeal.

But even if the verdict is upheld, experience shows it is unlikely they will recoup anything like their full costs.

At a time when all major news media organisations are under acute financial pressure because of the inroads the internet has made on their revenue, there is a strong temptation not to risk publishing material the public has a right to know because of the financial impact an action for defamation would have.