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.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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2022 years ago

I like it, except in that I’d probably ramp up truth as a defence, along with the punishment for lack thereof.

2022 years ago

One thing that I like about all of the proposals (the AG’s, the state AGs’ and yours) is the inclusion of a power to order a retraction/apology, something that is lacking at the moment.

I actually think that there is some room to argue that motivation should become relevant. That is, if a statement is made in a calculated manner to cause damage to the person then it should be more actionable or receive more compensation. That is not really a fixed element of the law at the moment, which focusses on the impact on reputation more than the intention of the defamer.

I acted recently in a matter related to the breakdown of relationships in a professional firm which led to one party leaving. The remaining partners contacted all of the clients to state that the person had been forced to leave because of (unspecified) bad behaviour. It was done in the context of a commercial dispute for the deliberate purpose of hampering his attempts to build up his own business.

Contrast that with reporters who make comments about people (the Popovich case comes to mind) in the public eye, presumably for the purpose of reporting the news or selling papers. It seems like there is a qualitative difference.

I would add that there should be a different route for statements made in journalism (which is mostly exempt from a lot of the privacy regulation). The consequences in those circumstances could also look at whether the journalist might be sanctioned, eg by removing or suspending credentials.

Martin Pike
Martin Pike
2022 years ago

I’ve always thought defamation was one of those areas of law whose principles are difficult to explain if you don’t account for the influence of judges as privileged and sometimes cloistered individuals.

I’ve never read a good explanation for why in this particular area of civil litigation onuses should be reversed, just as I’ve never been able to fathom why insurers got so many leg-ups (prior to the Ins Contracts Act) or landlords seemed to have all the power at common law.

If the sea change offered by your reforms is a long way from being accepted (which sadly I think it is) a small start would be to regularise the burden of proof- plaintiff proves they were defamed, plaintiff proves lack of truth and plaintiff proves reasonable defences aren’t available to the defendant; assuming the defendant can raise a prima facie argument for each of these.

It is a bit sick that, especially with PI reform around the country (and negligence law was never as pro litigant as defo law) a lost hand or damaged back is effectively worth less at law than a slighted reputation…

Martin Pike
Martin Pike
2022 years ago

Sorry- wrote that kinda quickly and waffled between several thoughts! Main one- a good start would be shifting all of the effective onuses onto the litigant.