00:54, June 08 148 0 theguardian.com

2018-06-08 00:54:10
Defamation laws must balance protecting reputations with freedom of expression

It’s no surprise New South Wales is the state to kick-start a national review of defamation laws.

This state has long been recognised as the hub of reputation litigation in Australia, and this was confirmed in a study we published earlier this year. In looking at cases in the five years since 2013, we found more matters reached a substantive decision in NSW than in all other states combined.

More importantly, these cases are now quite different from the matters considered at the time Australia’s uniform defamation scheme commenced in the mid-2000s. Although each state and territory has its own laws, and matters are heard in the courts of each jurisdiction as well as in the federal court of Australia, the legislation across the country is by and large the same. And although NSW has the bulk of litigation action, all jurisdictions face a similar dilemma: the majority of matters now involve digital publication, and some of these publications – social media posts, for example – were unimagined at the time the scheme was implemented.

So it’s good to see the start of what will hopefully be a national reform process, with the attorney general of NSW taking his recommendations to a meeting of his counterparts in the other states and territories this week.

The review in NSW started in 2010 but has only just reached the stage of a published report and recommendations. Consultation across the country is now likely to ensure that the law strikes the right balance in protecting people’s reputations while also allowing for freedom of expression. There’s a particular need to ensure that journalism is not hampered by laws which prevent legitimate exposure of wrongdoing and critique of decisions and actions, especially by those in public life.

While this “chilling effect” on reporting has long been a criticism of the way some of our laws are drafted, the latest review grapples with a more recent phenomenon: the emergence of defamation actions by individuals against other individuals about comments made on social media and other digital platforms. When we looked at this in our study, we found that public figures only comprised about one fifth of the plaintiffs in defamation cases. Media organisations were the defendants in only about one quarter of cases.

Even so, some decisions awarded substantial damages for Facebook posts, text messages and blog comments. Some of these were serious matters involving accusations of fraud and sexual misconduct, but NSW district court judge Judith Gibson has noted a trend towards smaller, more trivial matters finding their way into court. These might involve comments made in forums that most people would never consider to be “publications” under the law of defamation. Indeed, a number of these matters involve defendants who don’t have lawyers representing them in court. Some of the cases even result in judgment entered against the defendant without a full testing of the merits of the claim – individuals who simply made a post on social media sometimes don’t even respond to the law suit.

As judge Gibson has also noted, one of the problems with digital publication is that there is effectively no time limit on bringing a defamation action because the law sees it as being republished whenever someone downloads it – even if that’s the social media post this ordinary individual made years ago.

So the review conducted by NSW makes some important moves in addressing the kinds of matters that might get to court and the ways in which claims might be put and defences argued. This in turn might help to knock out some of the many matters that do not make it to court but are the subject of time-consuming correspondence by media organisations and, in some cases, settlements made simply to avoid the costs of full litigation.

The trials of journalists coping with writs and threats over many years have shown that defamation law is a fraught and expensive process. It’s also risky for plaintiffs: our study found that while there are some enormous awards of damages for public figures, overall plaintiffs were successful in only around one third of matters – and even then, the damages may be small compared to the costs.

While the current recommendations are the work of only one state, this is a national issue. Let’s hope the attorneys general work together to review and modernise defamation legislation. These laws have an important role in protecting reputation but they need amendment to help them address the contemporary environment and to stop them impeding legitimate freedom of expression.

Derek Wilding is co-director of the Centre for Media Transition at University of Technology Sydney.

Comments on this article have been pre-moderated to ensure the discussion is on the topics that have been written about in the article.


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