On Thursday the Victorian Court of Appeal overturned a Supreme Court decision to award actress Rebel Wilson a record defamation payout of $4.5 million over articles published by Woman’s Day in May 2015. It was reduced to $600,000 (a decision Wilson has said she would appeal).
The original award prompted serious questions about the impact of the extraordinary payout on the media, not least the precedent it set. It had already been referenced in a current defamation trial running against Sydney broadcaster Alan Jones.
We asked some informed media watchers what they thought yesterday’s decision means for the Australian media.
Sam White, MinterEllison associate
While the Court of Appeal’s decision may, on its face, appear to be a win for media defendants, it will also have negative consequences for the media.
A critical part of the national uniform defamation reforms (introduced in 2005) was the introduction of a statutory cap on damages for non-economic loss in defamation cases (currently it is around $389,000). This includes, for example, damages for a plaintiff’s hurt feelings or embarrassment. The cap was introduced to deal with a community perception that damages in defamation cases were high when compared to damages awards in personal injuries cases.
The Court of Appeal has found that the statutory cap on damages in defamation cases does not apply when a court finds that aggravated damages should be awarded. A court can award aggravated damages if a defendant publisher’s conduct is found to be unjustifiable or lacking in bona fides. This means that in some cases, the cap on damages has no effect and the reason for that reform is unfulfilled.
Alex Wake, RMIT journalism senior lecturer
It’s a win for journalists, but not for the publishers of faux journalism. This is a wake up call for all those who try to make money in the media by peddling gossip and half truths and try to pass it off as journalism. For journalists working on stories where there is a public interest (and there was little real public interest in Rebel Wilson beyond curiosity), I’m glad that the amount has been reduced.
A multi-million dollar payout is a truly frightening thought for any media company wanting to tell an important story in the public interest. However, I think we need to make a distinction here between the Rebel Wilson case — which was about a series of made-up stories in a salacious gossip magazine — and serious journalism which is in the public interest. The Rebel Wilson stories were a disgrace to hard working journalists everywhere, and only brought us further into disrepute with the general public.
Although most journalists won’t see it this way — the ruling is a kind of win for journalists, because it has clearly told the world that we can’t just make things up (and if we do we’ll get a fine), but the payout isn’t too large to stop really great journalism from continuing. I am very sorry that the charities she’d promised the large payout to won’t get it, but ultimately we actually need a strong and vibrant journalism scene in Australia (and clearly one that doesn’t make stories up).
Bernard Keane, Crikey political editor
Whatever the merits of the individual case, anything that diminishes the resources of media companies diminishes their capacity to engage in public interest journalism — which includes not merely funding journalists and editors, but in fighting the litigation of powerful individuals, corporations and governments in the courts to prevent transparency.
There are some things that only large media companies can do — challenge injunctions, risk defamation suits by litigious figures, push back against efforts by governments and courts to shroud things in secrecy. Given the collapse of the media business model and the government’s relentless war on the ABC, the capacity of the mainstream media to do this is already undermined, and an expansion of the range of defamation payments will accelerate this. At a time when governments are ever more aggressively pursuing whistleblowers, journalists and those who would hold them to account and corporations have extraordinary power over individuals, it’s the last thing we need.
There will always be a tension between the need for the media to hold the powerful and privileged to account, and the need to hold the media itself to account for the way it conducts itself; a tension that parallels that between the need to protect privacy and the need for transparency and free speech. We seem to be going in the wrong direction on those at the exact historical moment when the media’s capacity to play a public interest role is under threat like never before.
Sorry, Bernard, but News Agencies that publish flat out LIES, as FACTS, deserves to be ground into the dirt-financially-IMHO.
I agree with Marcus.
The Ugly Aussie and his raft of egregious self-serving journals only respond to one thing – economic pain. Justice is not only about money it is about punishing those who transgress decent moral norms.
It might constrain them from repeating the crime.
I don’t read any of the mainstream media of Australia apart from Crikey, because it is shallow, biased and corrupt. If Crikey keeps this crapp up about protecting corporate media I will vomit, then cancel my subscription.
Of all the media, I used to think that apart from Crikey, the ABC has some credibility until they promoted Netanyahu and Furball on that silly Besheba rubbish, Netanyahu is a war criminal and practices worse apartheid than South Africa could EVER be accused of. Yet the ABC promoted him and Furball as if they were a combination of Ghandi and Jesus Christ.
The ABC’s latest thing is to go after Trump on Four Corners. All with the assumption that anyone who does business with Putin must be bad. Putin doesn’t have any missiles on the border of Australia, but our favorite bully the USA does. Does the ABC or any of our other media point this out to the grerat unwashed.
Of course not, And neither does Crikey.
The whole lot of you are bloody pathetic!@
Have a cold shower Bob
Last night I streamed season 7 of Million Dollar Listing episode 1 and up popped ”celebrity” Rebel buying a $4 million home in New York, probably not wise when you are suing for lost income.
The payment always felt excessive, just on the pub test. Not surprised it was reduced. The personal injury comparison brought up by the Minter Ellison chap is very apposite.
It’s hard to say Rebel Wilson’s career is going badly, so unless there was someone from Hollywood willing to come in and say they were absolutely going to hire Rebel Wilson except for hearing about this rumor that she lied about her age (a woman in Hollywood who lies about her age? Even if true, so what?) ….
Deserved some damages just for the fact that she was being maliciously slandered by fake news peddlers, but millions? Yeah, nah.
Sorry Bernard, I think a line has to be drawn between “resources of media companies to engage in public interest journalism” and “gossip magazines making shit up”.
There is a lot more public interest in holding media accountable for lies and fake news than there is in ensuring the publishers of this crap are well-funded to peddle more of it.
Bernard – the sentiments are well intentioned but the problem is that modern journalism wants the fruits of journalistic freedom and influence gained over time without the rigours of the art/profession/trade whatever you want to call it of discipline of journalism. In the past journalists in their cadetships were trained to check their stories , interview critically their sources then recheck – a very disciplined process. A journalist could then be a social pages journalist, health or sports journalists the discipline instilled carried over to all the written word. To-day ignorant high school children go to uni. do some assignments, obtain a journalism degree and then think they are fit to give opinions to publish on a few snippets of facts they pick up. They then are insulted if no one gives a sh…t about their views or their independence and other rights they think they have. Crickey has been guilty of this even this week – one of the worst articles you have published – “How Australian courts are stacked against victims of sexual assault” – but a good example of the above syndrome. Another example is the dumbing of the ABC – no journalists left – Take for instance the morning shows on the way to work- with such riveting topics , breast feeding problems, dropping kiddies off to school, what happens after plastic bags are gone how would one cope etc. Where are the incisive journalists like Steve Austin to shine light on relevant topics which would uncover things we could think about whilst driving. They are gone from rffrctive prime time – Guthrie has successfully rearranged the ABC to be excellent at drivel – which complements the written media. So multi million dollar payouts are really excellent quality control mechanisms – without going into individual cases.
you can see I am not a journalist – comment not edited 🙂