A model national defamation law

Richard “Justinian” Ackland focuses on defamation law in his column in today’s SMH, pointing out that Commonwealth A-G Phillip Ruddock’s ambit claim for a uniform national defamation law includes a proposal that would allow the estates of dead people to sue for defamation within 3 years of death! It also includes a proposal to allow corporations to sue for defamation. At common law neither the dead nor corporations can be defamed. That’s very fortunate for Morgan Spurlock and those who recently vented their spleens after poor old Jim Bacon died.

The Commonwealth and State attorneys-general have been squabbling for some time over just what a national defamation law should look like. It doesn’t seem probable that they’ll reach agreement any time soon.

Both Ruddock’s proposal and the current positions of the State A-Gs seem to be characterised by a distinct lack of imagination and a determination to continue and even expand the lucrative lawyers’ picnic that defamation law has become. Moreover, Supreme Court defamation action is so expensive that only the relatively wealthy and prominent can afford to sue. Commonly these are people who have plenty of other options to vindicate their reputations apart from holding others in terrorem by threats of litigation. Mostly a defamation award just results in a new spa or third BMW for wealthy litigants who already have more money than they know how to spend.

I thought I’d put in my own ambit claim for a national defamation law regime. It’s much more radical than Ruddock’s proposal:

• The right to sue for defamation should be abolished completely.
• Instead, complaints about material unfairly damaging to a person’s reputation would be made to State and Territory Privacy Commissioners.
• Generally speaking, reputation-damaging statements made in private situations could not be the subject of complaint at all. The “sticks and stones may break my bones …” principle should apply.
• Reputation-damaging statements (whether written or oral) in public situations (e.g. the media or public meetings) could be the subject of complaint, but only if they can be shown to be false or unfair in a significant respect. That is, complainants would bear the burden of proving falsity or unfairness. There would be no presumption of falsity, and so no need for any formal defence of truth, justification, fair comment and the like.
• Complaints would have to be in writing but could otherwise be informal, and would need to be made within 14 days of publication (or of the publication coming to the complainant’s attention).
• Dispute resolution would be quick and informal, with no lawyers allowed, and a final decision required within 4 weeks of the date of the complaint.
• The Privacy Commissioner could order a retraction and apology to be published in an equally prominent place as the original publication, or could order that the complainant be given equal space to reply to the damaging material. The Commissioner could also (in extreme cases) impose fines of up to $500,000 per reputation-damaging statement.
• If the subject matter is a person’s private life, the publication would prima facie attract a heavy fine even if the published facts are true, unless the person’s private behaviour was reasonably arguably relevant to their public position (e.g. the adultery of the MHR for Parramatta given his prominent role as a ‘family values’ morals campaigner).
• The Commissioner would be required to give written reasons for his decisions. Decisions would not be subject to appeal, but could be judicially reviewed on standard legality grounds.

A system like this would abolish the lawyers’ picnic (and the rich litigant’s lottery) and re-emphasise the importance of freedom of speech as a crucial democratic value, while ensuring that there were still substantial sanctions for gratuitously trashing a person’s reputation. Moreover, achieving speedy vindication and a retraction would be far more attractive to litigants who are genuinely concerned to protect their reputation, rather than just to make a windfall profit long after everyone has forgotten what the dispute was all about. Under the present law, the actual trial and its reporting in the media, especially if the litigants are prominent people, often just revives a long-forgotten scandal and compounds the damage to the plaintiff irrespective of the outcome. Except from the perspective of most lawyers, who seemingly look at everything through a litigation-obsessed frame, it’s difficult to avoid the conclusion that the ordinary civil courts are drastically ill-suited for ventilating and resolving disputes about personal reputation-damaging statements.