justice, truth, money and law

This page considers the operation of defamation law in Australia.

It covers -

• editing, injunctions and prosecutions - the mechanics of litigation
• pulping defamatory print - pulling defamatory items out of the distribution chain
• truth and the law
• limitation periods - when does the time for defamation action expire?
• costs and damages - the basis of payments in defamation action
• risk - some rules of thumb in managing risk
• responses - if you are defamed

    editing, injunctions and prosecutions

In practice the management of defamation involving Australian broadcasters and publishers is dynamic, with some calculation of risk and action prior to and after publication by those who consider that they have been defamed.

Book publishers, newspaper and magazine publishers, and commercial/public broadcasters typically seek to minimise risk through advice to staff, vetting of statements by editors and scrutiny by legal counsel prior to publication. That scrutiny may be at length and in great detail - typically line by line and word by word - when reporting on someone who is characterised as a 'colourful' entrepreneur and is perceived as likely to sue.

The impact of such scrutiny is unclear. Some editors and publishers claim that they have not been deterred (and have taken pride in not being cowed), claims substantiated by their colleagues. Memoirs however suggest that other journalists, authors, editors and publishers have indeed regarded discretion as the better part of valour, suppressing some items or softening a text.

Vetting and legal advice may not be available to individuals, particularly those working outside the media and unsupported by a major publisher. They may be approached by an aggrieved party in the course of preparing a book, article or documentary - biographers have sometimes been 'warned off' by a lawyer's letter when questioning came too close to home or a draft was circulated - or first encounter a lawyer once publication has taken place.

Some plaintiffs are satisfied with a retraction - deserved or otherwise - which may or may not be provided. Others simply head for the legal bearpit, demanding recompense for their damaged reputation.

Entities that believe they have been defamed - or are merely concerned to crimp negative coverage - will sometimes resort to legal injunctions before a statement gets into print or onto the air. That action has a legitimate place but can be abused. Australian courts have been reluctant to prevent an exchange of views on matters of clear public interest, although there is disagreement about what constitutes that interest and some plaintiffs are more equal than others.

Reluctance to intervene prior to publication reflects both wariness about preemption and respect for established practice: if you have been defamed find a lawyer and fight it out in court (thereby potentially gaining some redress for your hurt while more broadly encouraging good behaviour among the media and your fellow citizens.

As a result, injunctions will often not be granted to stop publication of allegedly defamatory material. The number of injunctions sought each year, the number granted by courts and the eventual outcomes are unclear.

Courts are willing to grant injunctions in some circumstances. A publisher will generally not be prevented from publishing allegedly defamatory material if it can be shown that there is at least some hope of successfully defending any subsequent defamation action.

The efficacy of issuing a defamation 'stop writ' regarding publication of an allegedly defamatory statement is contentious. Some have argued that preemptive writs automatically chill further media discussion, with the law of contempt preventing further publication once that subject is before the courts. Australian courts have generally refused injunctions to protect defamation proceedings. There is some acceptance of the notion that if a defendant can persuade the court that a writ was issued to intimidate a publisher rather than to vindicate reputation that writ may be dismissed as an abuse of process.

    pulping defamatory print

Once a transmission has been made it is not possible to get the electrons back to the transmitter. However, book publishers, record companies and film producers are generally expected to make some effort to withdraw offending items that are in the distribution chain. That typically involves retrieving books or other items from wholesalers and retailers, with books for example being pulped or - more rarely - issued with an inserted correction notice.

That withdrawal does not cover items that were sold before an injunction or a defamation case was concluded. It is thus possible to find books, newspapers, magazines and other items that contain defamatory statements in private libraries and in some public collections.

Republication of the statements in those works would, in many circumstances (eg because the defamed individual is still alive), be treated as a new defamation. It is not a defence to argue that a statement was previously in print and is merely being quoted

    truth and the law

Australian law is an adversarial system, in which a defamatory statement is assumed to be false and must therefore be defended. Truth was allowed as a defence in defamation for first time in the UK under the 1835 Libel Act but - in practice - using that defence can be difficult.

Some defendants - or potential defendants - have made public apologies simply because they lacked the financial resources to defend themselves in litigation that is generally acknowledged to be expensive, stressful and uncertain. Others have published statements that are indeed true but have lost subsequent defamation cases because of the difficulty of proving that truth to the court's satisfaction.

It is important to recognise that a plaintiff bears no onus for establishing the falsity of a defamatory statement or proving that the defendant was guilty of malice or negligence.

As a result there will inevitably be instances where

• it is widely accepted that a defendant's statement was true but that person is ordered to pay damages after being unable to provide legally admissable evidence
• popular opinion conversely believes that a defendant was properly convicted, a belief based on a misunderstanding on the shape of defamation action

    limitation periods

In Australia, although the hurt may last for a lifetime a plaintiff has a more finite time for taking action. That is because claimants are expected to act quickly to vindicate their reputations. Delay would also prejudice defendants in gathering evidence to support the allegations, particularly as witnesses' memories fade.

In general action for defamation must be initiated within six years of publication. Prior to 2006 there were significant variations: the NSW regime broadly featured a single year from the date of publication, Victoria six years and the NT expected action within three years. The uniform regime requires that proceedings be started within one year after publication of the defamatory material, except by order of the court in particular situations.

Note that the period dates from the time of each publication: republishing by another party starts the clock ticking from the date of that republication rather than the first publication.

    Costs and Damages

Damages are designed to compensate the plaintiff for -

• pecuniary loss (ie actual monetary through reduced/lost livelihood)
• injury to reputation and (except where the plaintiff is a corporation)
• injury to feelings.

'Aggravated damages' are intended to compensate the plaintiff for aggravating the injury through related conduct, whether at the time of publication or afterwards.

An apology or correction does not necessarily eliminate the distress and hurt experienced by a plaintiff but is relevant in common law to a court's assessment of damages, as it may reduce or even eliminate the damage to reputation caused by the sttement. Observers have noted that an apology published during the course of a trial may lead to a reduction in the costs awarded by a court.

A 2004 report by the National Defamation Research Project explored perceptions of hurt. The Project's Roy Baker, in exploring differences between personal values and what individuals considered would be the position of the 'ordinary reasonable person', commented that

Every time people sue for defamation, the question arises whether the offending publication harms their reputation. Courts generally don't decide these questions on the basis of hard evidence. Instead they make assumptions, particularly about what behaviour is considered unacceptable". ...

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.

Cases highlighted later in this profile indicate the vagaries of determining hurt - or merely the scope for punishing popular villains and rewarding heroes. Footballer Andrew Ettinghausen for example was awarded some $350,000 in 1991 for an article imputing he'd allowed his genitals to be photographed while in the shower. That award was reduced on appeal, with Justice Michael Kirby commenting that

It is simply impossible to suggest that compensation for harm done to the reputation of Mr Ettinghausen required or permitted general damages greater in magnitude than those awarded to persons suffering profound quadriplegia.

A decade later prominent MPs Abbott and Costello and their wives received wives some $277,000 over gossip in Bob Ellis's Goodbye Jerusalem.

Questions of damages are explored later in this profile.

    managing risk

One response to uncertainties is to listen to your mother (or your lawyer: "if you can't say something nice, don't say anything".

That advice would, of course, crimp much artistic criticism, political discourse and social advocacy.

In practice it is probably not possible to evade risk. Guides for journalists, other authors, advocates and editors have instead sought to manage risk.

Rules of thumb have included suggestions that people -

• state the facts (enabling the audience to draw its own conclusion) and be wary of commenting on someone's motivation, as that is difficult to prove in court as a fact
• ensure that fact is differentiated from opinion by taking care to feature signals such as "in my opinion"
• maintain records that substantiate a potentially defamatory statement
• recognise in discussing politics that the individual's motivation may be less important than the effects of that person's action
• ask whether they can prove each statement and every part of that statement
• avoid "inherently subjective and value-laden" language in making statements
• seek advice from specialists, including lawyers
• explore opportunities for having a member of parliament or journalist make the statement (one issue in considering questions of anonymity and protection in whistleblowing)
• recognise that there can be strength in numbers, encouraging their peers to publish and hoping that they will not be singled out
• publish when they have nothing to lose, on the problematical assumption that plaintiffs are only interested in money and will thus not proceed with action against someone who is too poor to pay damages or costs.

The latter point does not offer much comfort for many people, particularly those who are dealing with an organisation or individual with resources for litigation and a commitment to silencing criticism.

Some libertarians have instead urged use of anonymity

Another way to avoid being sued for defamation is to produce and distribute material anonymously. Some individuals produce leaflets. They are careful to use printers and photocopiers that cannot be traced. At times when few people will notice them, they distribute the leaflets in letterboxes, ready to dump the remainder if challenged. Gloves of course - no fingerprints. For those using electronic mail, it's possible to send messages through anonymous remailers, so the receivers can't trace the sender.

Technicalities aside - true anonymity on the net is harder than it sounds - that advice may be ethically and legally problematical.

Some site operators have sought to shield themselves by articulating and implementing defamation policies. One consumer review site accordingly warns that

We can't allow potentially defamatory statements to be made on eGullet, for our own protection and yours. So unless you are in possession of certified medical proof that your symptoms are without a doubt the direct result of eating at a particular restaurant, don't say it. Don't even suggest it. ... Before you spread a rumor, you have to ascertain its truth or likelihood - otherwise you become responsible. You are free to express opinions - even very harsh ones - about a restaurant (though we discourage gratuitous harshness), but when it comes to the factual stuff we've all got to be careful. Saying a restaurant is closing when it isn't can cause real economic loss.

Caution is desirable in responding to approaches from plaintiffs or their lawyers, given that a rejection or concession may be used in subsequent litigation. The defence of an honestly-held - although extreme or insulting opinion - will for example be eroded by an unconsidered response that "I did not mean it".

    responding to defamation

There is similar disagreement about responses to defamatory statements, online and off.

Some observers argue against "feeding the beast", noting the financial and other costs of seeking justice (particularly if defamed by a major media organisation, by someone using parliamentary privilege or by someone who is vexatious and has little to lose).

Others have urged action as a matter of principle but noted indifferent community support, the expense of taking legal action and the delays often encountered in litigation.

Some have highlighted opposition - through ignorance or on principle - by Australian newsgroup moderators to altering "the historical record" (an opposition that usual evaporates when addressed through a lawyer's letter). The operators of local and overseas search engines have adopted a range of stances: some will delete archived defamatory statements without much ado, others have reportedly claimed that deletion is either not feasible or is not legally required.

More seriously, others have found that application of Australian law overseas is difficult. Some of the cases highlighted later in this profile feature problems where an Australian was defamed in sites hosted in jurisdictions where hosts and moderators are slow to respond or claim that the offending statement is protected as free speech.

Particular cyberlibertarians - somewhat romantically in our view - have argued that defamation law is necessarily repressive and to be avoided. If you are defamed you should not resort to a lawyer but instead vigorously 'outpublish' the defamer. That recommendation assumes that truth will disseminate more quickly than lies and that audiences have both the desire and capacity to differentiate between falsehood and a counter-statement.

If you consider that you have been defamed some practical actions are -

• make a copy of the defamatory statement (with details of its location online and date of access), something that is particularly useful if dealing with online 'hit & run libel'
• consider how people are likely to construe the statement
• consider the potential costs of securing justice
• consult legal counsel

It is advisable to make a copy of the statement before contacting a webmaster or moderator.

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