Doubling up at the defamation casino

(via Catallaxy) The release of a study by the Communications Law Centre of the University of New South Wales on social attitudes to several behaviours including smoking marijuana, homosexuality and adultery throws the issue of defamation law reform into sharp relief. As CLC’s Roy Baker commented:

“Every time people sue for defamation, the question arises whether the offending publication harms their reputation”, says Roy Baker, Project Director of the National Defamation Research Project. “Courts generally don’t decide these questions on the basis of hard evidence. Instead they make assumptions, particularly about what behaviour is considered unacceptable”.

To explore whether courts were likely to do this accurately, the researchers interviewed 3,000 randomly selected Australians. These people were asked whether they would think less of someone for some particular reason. For instance, would they think less of a man for being gay, or someone whose parent is a criminal?

They then asked whether people thought the ‘ordinary reasonable person’ would think less of the same person.

“What we found is truly staggering”, says Roy Baker. “Only 18% of people said they would think less of a man for being gay. But 71% said they thought the ‘ordinary reasonable person’ would think less of him. 30% said they would think less of someone for having a criminal parent, while 77% thought the ‘ordinary reasonable person’ would judge such a person badly. Assuming our interviewees reflect ordinary reasonable people, then this shows how as a society we overestimate levels of intolerance.”

“This is a real problem for the law. Courts ask judges and jurors to put aside their own opinions and to consider those of others. This allows these kinds of mistakes to creep in. The effect of this is that we believe people are often winning defamation cases against the media even when the damage to their reputations is minimal.”

In other words, courts are awarding large money damages for defamation on the basis of a jury’s uneducated intuitive guess about something they’re in no position to assess and which research shows they systematically drastically over-estimate, namely whether particular words would be likely to cause damage to a person’s reputation in the general community. Defamation law truly is an institutionalised gambling casino for politicians and the privileged classes generally. Moreover, and despite the entrenchment of a defence of qualified privilege ultimately grounded in an implied constitutional freedom of political speech in the High Court’s 1997 Lange decision, the very existence of defamation law in anything like its present form is a serious impediment to basic liberal democratic freedoms.

Courts are clearly awarding litigants big dollars to compensate for non-existent damage to their reputations, and that seriously inhibits free speech. Paul Watson blogs fearlessly about one recent example, where a litigious journalist won $434,000 in damages to compensate for words that were very mildly defamatory at most (certainly by the standards of even the politer parts of the blogosphere).

And yet, Attorney-General Phillip Ruddock lost no time after the election in making clear that he would use the Coalition’s likely Senate majority if necessary to ram through defamation law reforms that will make it easier rather than harder for litigants to cash in at the defamation casino. Ruddock’s poposals involve abolishing juries in defamation matters. That is probably a positive step for reasons discussed above, except that logic suggests that judges would be in an even worse position than juries to assess general community attitudes to allegedly defamatory words, given their predominantly cossetted upper middle class backgrounds.

In most other respects, Ruddock’s proposals are clearly worse than the current state law regimes. Not only does Ruddock propose allowing corporations and the estates of deceased people to sue for defamation (which can’t be done at present) but, as CLC’s Roy Baker observed:

Now the researchers are concerned that current Federal proposals to redefine defamation will compound these problems, rendering far more publications ‘defamatory’ under the law. Under the proposed new rule someone will be able to sue the media if they can persuade the court that just a ‘substantial and reputable’ section of the public will think less of them, even though most people wouldn’t. In most cases the media will then have to prove in court that what they published is true.

“In my view the current proposals have the potential to vastly increase the amount of litigation”, says Mr Baker. “Basically if a report is not totally innocuous, then the chances are it will be classed as defamatory. This will be a worrying development for free speech in Australia. I would estimate that already around 15% of cases are wrongly decided because of the kind of misperceptions we have discovered.”

If Mark Latham wants to break the cycle of negative news for the ALP and kick off his new term as Opposition Leader on a positive policy note by promising worthwhile reforms that won’t alienate any significant interest group and would have the added bonus of appealing to Kerry and Rupert, he could do a lot worse than embracing my recent suggestion to abolish the right to sue for defamation completely (substituting a speedy, informal mechanism of complaint and apology).

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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qm
qm
2021 years ago

Another possibility is to provide a framework by putting a cap on general damages but no cap on special damages. So if you are only claiming a general diminishment in reputation, you can get a maximum of, say, $50K, puts it back in the jurisdiction of or about the Magistrates’ Court which means that the costs are reduced and the whole thing goes quicker.

You can only claim larger amounts as special damages, where you can demonstrate that the statement has caused a specific financial loss – ie a business deal fails because people think you are a shonk, or you get fired.