My advice to potential defamation plaintiffs is, routinely, “don’t sue”. But, of course, they do. As Australia’s “Weinstein moment” begins to burst the banks of that lazily flowing river called Male Privilege, the word defamation is going to be as prevalent here as it has been absent from the American conversation.
This is a critical distinction, because the attitude that Australia’s media adopts to the risk of defamation suits will determine how differently the stories play out here and in the US. It’s regrettable that the peculiarities of the law will have such profound influence on a movement that promises to fundamentally change societies.
However, publishers will have to deal with, and are actively contemplating, the law as it is.
Australia has, notoriously, the most repressive defamation laws in the English-speaking world. There are several enormous differences between them and the US position, derived from the fact that the American people have an enshrined constitutional right to free speech and we don’t.
The biggest difference is how we deal with the “you can’t handle the truth” question. In Australia, the media’s primary line of defence is truth. The burden is on the publisher to prove the truth of what they published, once it has been established that it’s defamatory (which isn’t hard).
By contrast, in the US the burden cuts the other way. To have a case, a defamation plaintiff has to prove that what has been published about them is false. If they are a public official, they also have to prove that the publication was made with malicious intent (meaning knowledge or recklessness as to its falseness).
This basic reversal of onus explains the happy abandon with which the US media publishes every accusation of sexual assault as soon as it emerges, while its Australian counterpart proceeds with relatively extreme caution.
Australian defamation law does provide a back-up defence for publishers, if truth fails. It’s called qualified privilege, and it’s difficult to prove. You have to identify an interest that the audience has in receiving the information (something better than that we all love celebrity gossip), and that you behaved reasonably in publishing it. That includes taking reasonable steps to verify the story, giving notice and a right of reply to the target, that kind of thing. In practice, the defence rarely succeeds.
Which brings us back to truth. In the context of allegations of sexual misconduct, such as those being thrown at Don Burke at present, it will often be the case that the action allegedly happened in private between the complainant and the alleged perpetrator, with no other witnesses.
For example: say a woman comes forward 20 years after she says she was indecently assaulted by a man in a position of relative power. She brings her story to a media publisher. Hardly fanciful, it’s happening all over town right now. What does the publisher do?
If the newspaper runs the woman’s story, and the man sues for defamation, the newspaper will plead truth as its defence. But the truth will be determined in the defamation proceedings. If the woman is not believed, then the defence will fail.
Of course, stains on a blue dress will do it every time, but mostly you’ll be making do with a circumstantial case supporting a direct allegation by the victim. As a publisher, you have to do the police work; piece together all the strands and see how it hangs. Take sworn statements from the victim and witnesses. Then put it all to the target before going to press so that you can at least try the back-up qualified privilege defence.
Finally, there is the undeniable power of the tsunami effect. The more the merrier. A man facing one allegation of sexual misconduct from his past by one woman, published by one media outlet, may feel pretty confident about suing. Each time the number of complainants goes up by one, the attractiveness of a defamation suit goes down by a factor of 10. From the media’s standpoint, there is massive strength in numbers despite the fact that each allegation is independent in the eyes of the law.
Defamation is a minefield for everyone in this country. Our media is mostly gun shy because they so often get burnt (ask Bauer Media how it’s feeling after the Rebel Wilson case, or the masseuse who accused Chris Gayle of exposing himself to her). So, they will mostly proceed cautiously through this storm, but I expect increasing confidence and sometimes recklessness as the numbers of complainants and alleged perpetrators exponentially grow.
For lawyers, of course, a picnic. For society, a necessary and overdue catharsis.
It helps to be poor if you’re bringing a defamation action against a big publisher. When the publisher works out the costs of defending the action it often makes sense to pay “go away” money. Case in point – a story that was true in every detail and in the public interest. Plaintiff had no money but a lawyer who knew a few tricks. Cost to the publisher of defending (and certainly winning) the case – over $1 million. Alternative solution – pay the plaintiff (and his lawyer) $250,000. A win all round really – except for the journalist who wrote the story. Good idea to rid yourself of any assets before taking on a defo case you might lose.
Oh for a world without the blight of lawyers.
It’s a cracker piece MB and it gets to the guts of the only real ‘free speech’ debate in this country remotely worth wasting precious airtime or column inches on. Defamation laws drive self-censorship, the only dangerous kind, and the worst kind of self-censorship is authorial self-censorship. You can’t be asked to stand up in court and defend your accusations under oath, if you don’t identify yourself when you make ’em in the first place, can you. Defo Bullying 101.
The key is the ‘safety in numbers’ bit. For ‘numbers’, read ‘those prepared to stand up publicly and name names, using their own’. An ‘anonymous’ confirmation or new accusation from yet another ‘industry figure’ is – in terms of any journalist contemplating that first lonely ‘publish and be damned’ step off the abyss – just another conscience-coddling bet hedge, not worth the authorless paper it’s farted onto. What’s needed to kick down that Defo Scarecrow – protecting not just Burke/Ch 9 right now, but everyone else powerful who jiggles it at our dollar-out-gunned media – is what’s always needed, in the authentic defence-by-using-it of ‘freedom of speech’: your name on the byline. Here I stand. I, me, the author, the byline…all that jazz. Right now, Fairfax/ABC, McClymont/Spicer/Sales…the gutsy accusers themselves…Susie O’Neill…dribs and drabs more…aren’t hiding behind anonymity.
Too many of youse still are. Too many of youse still do, too often, too ruinously, in Oz, when confronted by the Defo Scarecrow.
Well, as MB implies, now’s about as soft a chance as the Australian Media is ever going to get, to take that nasty f**ker down a peg or ten at last. So: put up or shut up, o ye wavering Unfaced Keepers of Burkean Meeja Insidery. Join the debate, by using your professional name to name other grubby, professional names who deserved to be professionally named. Or don’t, by not. Just remember that every additional anonymous piler-on in fact gives the silks counter-productive cause for hope…because it means the Defo Scarecrow is still scary enough to keep your own name out of that courtroom. ‘Safety in numbers’ for journalism, sure. But only if those numbers are in the right place.
So tra-la-la and yippee-kay-aye, Oz Meeja, verily come hither and forth! All you big swinging press and TV nobs, you usually un-shut-uppable jobbing quackers and scrivs, stout-hearted & grandiloquent defenders all of ‘free speech’. Let’s hear your f**king byline pipe the f**k up. Not just on our creepy little chum Don, either. Oodles more when that grim dreck came from, innit. As you all well know.
Yeah, awkward, isn’t it. This ‘free speech’ thing. Use it or lose it, but. Use it or lose it.
*Shovels more popcorn in gob, scratches balls, waits*
C’arn, ‘AR’, join the free speech party, son…that’s what’ll shoo them ‘orrible lawyers away…they can’t sue everyone, matey!
*grins, runs away*
Bravo, JR.
I’m confused. Why is it considered a good thing if we throw out “innocent until proven guilty” and mimic the US? Do we really want a society like America, where your guilt is publicised before the court case?
Having higher standards is not a bad thing. I understand it would be a frustration for journalists who want to publish their scoop, but for society, the trashing of someone’s reputation before it has been investigated by the justice system is not a pleasant concept.
A bit tricky . . . the laws protect innocent people from malicious accusations, but also have the effect of preventing honest people coming forward against powerful interests. Just like the Catholic Church, isn’t it time we also held to account the Channel Nine executives who clearly knew about Burke’s behaviour and did nothing?
Exactly, Brett. Bang on.
I agree. It seems pretty easy to trash someones reputation with an allegation. Every false one that hits the twitterverse lessens the strength of real complaints.
Nobody’s ‘reputation’ is so damned precious that it should mean you’re not allowed to say whatever the hell you like about ‘it’, wherever the hell you like. If you do it under your own name, publicly – and thus put your own ‘precious’ reputation equally on the line – then let the subsequent truth come out. Right now, all our loaded version of defamation law does is drive all (or most) accusations underground – online, say, don’t ya reckon?! – where they fester and swirl and stink up the joint anyway, more or less unchallengeably. Which is actually far more damaging to the ‘presumption of innocence’ re: the ‘reputation’ genuinely with nothing to answer. You make it the onus of the ‘reputation’ to prove an accusation false, rather than its current inverse, and the very worst, the unfounded (and easily provable as such) vexatious accusations will still remain where they are already, anyway: irrelevantly festering in anonymity. While those that desperately need to be made – and tested in the open, for all parties’ sake – will far more likely be made.
One contributor has observed :
“I’m confused. Why is it considered a good thing if we throw out “innocent until proven guilty” and mimic the US? Do we really want a society like America, where your guilt is publicised before the court case?”
a tad of an over-generalisation in respect of the USA. The difference is that a defamation suit may well prevail in the USA or Europe but not in countries that were members of the British Empire. The matter of “public interest” is of a “higher standard” with the latter jurisdictions.
The correspondent who offered this observation :
“Nobody’s ‘reputation’ is so damned precious that it should mean you’re not allowed to say whatever the “hell you like about ‘it’, wherever the hell you like. If you do it under your own name, publicly – ‘and thus put your own ‘precious’ reputation equally on the line – then let the subsequent truth come out’.”
does not seem to possess the least sense of history.
While it is accepted that the laws that any country has serve the interests of the fat cats first they are also there for, as much as practicable, the peaceful resolution of disputes. Some people in the society just won’t be told but that, in the main, is thier problem. The Common Law that exists has “evolved” over some number of centuries; step-by-step as it were.
The “subsequent truth” may well “come out” but not necessarily under the circumstances prescribed by the contributor. Appealing to what legal systems we have now the subsequent truth does come out but it may require decades. As an aside the collision of an aircraft carrier (the Melbourne) and a destroyer at the beginning of 1964 is an illustrative example. As to Judge-made amendments to the law the families of those effected were compensated after 1982.
Ok : let’s proceed as has been recommended. The effect WOULD be to jettison the presumption of innocence, along with anything that looks like ‘due process’ or natural justice and life within the community would become (yes – here it is once again) nasty, brutish and short.
Kyle, you like many others would seem to be confusing criminal law matters and defamation (civil) law matters. The ‘presumption of innocence’ in the sense you’re using it seems (to me) to be more properly that (crucial, yes) legal status which is extended to those charged by the State with a crime and tried in a criminal court. A defamation case is one bought in a civil court by a person (plaintiff) against another/s, (accuser/enabler of an accusation). Yes, the general ‘common law’ principles (including PoI) are part of defamation law proceedings, but the ‘balance’ is different. In a sense the ‘presumption of innocence’ is extended to both sides – or, if you prefer, neither. The truth or otherwise of the ‘accusation’ itself is in some ways kind of moot – in the sense that a defendant can still (theoretically!) successfully defend a defamation case if the accusation turns out to have been false, as MB points out re: qualified privilege. In expanding the defences theoretically available, however rarely deployed, the courts are implicitly recognising both the potential free speech implications and the qualitative difference in the outcome implications of a defo case, compared to a criminal one. The PiI matters so much more – to the defendant – when it’s a latter the court is deciding upon.
The person ‘on trial’ (if anyone can strictly be regarded as such) in a defamation case is actually the defendant, not the plaintiff. So in fact, the common law principle of PoI IS reversed, under our version of defo law: ie the defendant has to prove they didn’t commit ‘the crime’ (of defaming the plaintiff), not the other (common law) usual way around – as in the US. Is I think MB’s key take-away. Though a lawyer I ain’t! Happy to be corrected by m’learneds…:-)
Cheers man.
Soz: ‘Brought’ in a civil case, not ‘bought’. Although on second thoughts…
Some might remember the book “The Age of Uncertainty” by J.K Galbraith; a review of economic and contemporary history
for the interested and moderately well-read layman that was published about 40 years ago but has not dated by
so much as an hour over the intervening period.
Referring to the American legal system (and by long association the effected economic climate – read health insurance in this day and age) Galbraith, by way of an example, refereed to a jurist whom Galbraith declared “was not the most able of his peers but was the best that money could buy”.
I am indebted to your edifying comments Jack and thanks for taking the time to reply. I have undertaken some reading of the law in an (advanced) business studies context many years ago but I claim no expertise.
As I understand it a “defendant” is on fairly firm ground if the statement made against a plaintiff was/is the truth (i.e. is able to be clearly verified) and is in the public interest. I imagine the latter point to be the point of argument at law.
A question that presents itself is : “notwithstanding the “reversal” – so to speak – of the POI in a defamation suit, as conveyed, is the American system any “better” than what has been inherited in 1st world Commonwealth countries.” Frankly, I haven’t a clue but I suspect not.
The sense of “class” within the Commonwealth remains still, if only as recollection of decades gone by. The Constitution of the USA was effected without (indeed in spite of) the antecedents of an aristocracy. Notwithstanding that observation is the American legal system “fairer” in this regard – allowing for the reality that the word “fairer” is a rather silly adjective (or, rather, a silly comparative adjective) when enlisted in a discussion concerning the law.
As to the sense of “class” in the USA (I was last there in Jul/Aug 2016) it seems to me to be no less weaker (or stronger) than in Australia and it is not zero in “Jack is as good as his master” Oz.
Likewise, Kyle, it’s always stimulating to exchange ideas.
Is the defamation climate in the US a net better one, given that reversal? No doubt if you someone who has been unfairly accused on the front pages, perhaps not! But I think MB’s point about the reality of many harassment accusement cases turning on ‘he said/she said’ circumstance gives us a clue. If said accusation (one sufficiently ‘eye-catching’ to warrant wide publication) is manifestly unfair – that is, made up maliciously out of thin air by a vexatious opportunist – then I think it is generally going to be far easier for the ‘he said/she said’ plaintiff to prove it’s false, than for the accuser to prove it’s true. Especially given the ‘safety in numbers’ idea. (A truly vexatious accusation is generally unlikely to create a vexatious ‘pile on’. The other thing is that I suspect that in the US – given that more ‘free and easy’ evolved defamation climate – the concept of public ‘reputation’ is far more ‘robust’. The average American is probably far less inclined to automatically judge someone on the strength of an ‘accusation’ itself than they are here.
Petsonally I think I would prefer my ‘reputation’ to stand (or fall) in a public discussion environment where accusations are aired freely, than kept ‘underground’, to fester. Especially now, where anyone can effectively say whatever they like about you online, largely free of consequence.
Cheers Kyle.
PS: Aye, Gailbraith! Surely a ‘cutting edge’ thinker for our times…