Reform ‘won’t fix defamation’

Chris Merritt                 26 July 2020

Published in the Australian Newspaper

Leading authorities on defamation law have warned that one of the key reforms due to be approved on Monday — a new defence for public interest journalism — is unlikely to herald a new dawn for the media.

Even though it is intended to encourage public interest journalism, concerns have emerged that the new defence will leave the way open for judges to limit its impact.

NSW Attorney-General Mark Speakman has said the new defence will be based on a British provision that requires journalists to prove that a statement was on a matter of public interest and that the journalist reasonably believed that its publication was in the public interest.

However, leading defamation lawyer Peter Bartlett said that if this was the case it would have a similar impact to an existing defence that also turns on the question of reasonableness.

That defence, statutory qualified privilege, has never been used successfully by the media.

If the new public interest defence were interpreted in a similar way to the British defence “then I think it would behave similarly to the existing qualified privilege defence”, said Mr Bartlett, who is a partner at Minter Ellison.

“The reasonableness limb could doom it to fail, much like QP,” he said.

Legal academic David Rolph warned last year about the risk of relying on the British defence.

“I am not convinced that legislative amendment to the standard prescribed under the statutory defence of qualified privilege will address the problems arising from it,” he said.

The problem with qualified privilege did not concern the wording of the statute, but arose from the way the law was being applied by judges, Professor Rolph told last year’s review of defamation law.

The public interest defence is one of the key changes outlined in a model defamation bill that is awaiting approval at Monday’s meeting of the Council of Attorneys-General.

The bill will also introduce a version of the cap on damages payouts that is expected to close a loophole. Judges have interpreted the current statute as allowing them to disregard the cap whenever they believe a plaintiff has suffered aggravated harm to their reputation.

The media have argued that all categories of damage, including aggravated damage, should not exceed the cap.

Despite the concerns about the new public interest defence, it was endorsed last year by the media industry’s Right to Know coalition which had viewed it as a replacement for the failed defence of qualified privilege.

Mr Speakman said the fact that the media had never successfully used qualified privilege “is a clear signal that defamation law is inhibiting publication and discussion of matters of public interest, contrary to the objects of the Defamation Act”.

In its submission to last year’s review of defamation law, the Right to Know coalition said the unrealistic criticism of journalists in defamation judgments was further evidence that something needed to change.

It gave the example of last year’s decision in favour of businessman Chau Chak Wing.

Judge Michael Wigney had rejected The Sydney Morning Herald’s defence of qualified privilege because journalist John Garnaut and the publisher had not conducted themselves reasonably.

The tone and tenor of Garnaut’s article had been “derisive and disparaging, if not, at times, sneering and contemptuous”, the judge said.

However, Mr Bartlett said that even if the public interest defence had been available in that case it might have failed.

Despite these concerns, the public interest defence still represents a significant improvement for the media compared to an earlier version based on a New Zealand provision.