Why our defamation laws are no longer fit for purpose

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Peter Dutton has recently argued that funds for defamation actions should be a ‘workplace entitlement’ for Members of Parliament (MPs). I’d like to repeat that another way: the Honorable Peter Dutton, Commonwealth Minister for Defence, would like the taxpayer to fund MPs to sue members of the Australian public for defamation.

Before going into the merits of Mr Dutton’s proposal, it’s worth providing some context to it. He made the argument during a parliamentary debate about whether to investigate Liberal MP Christian Porter over his use of funds from a blind trust to pay the defamation fees in his case against the ABC and journalist Louise Milligan for a report about ‘historical rape allegations’ against a (then unnamed) senior cabinet minister. Subsequently, Mr Porter publicly announced that he was the minister in question and that he strongly denied the allegations.

Mr Porter and the ABC settled this particular case, but since then both Mr Porter and Mr Dutton, as well as Liberal MP Andrew Laming have launched further defamation actions against members of the public over a range of other publications they object to. Many of these publications have been by way of tweets.

Australia’s defamation laws are widely regarded as draconian, outdated and to have a chilling effect on free speech, but it’s worth considering the values that both defamation and freedom of speech are ostensibly seeking to promote. The purpose of defamation law is to protect people’s reputations against serious harm. This is an important value. Damage to someone’s reputation can lead to serious consequences, including loss of employment, the breakdown of relationships and psychological harm. An illustrative case is the situation facing a 36-year-old Aboriginal man who was falsely identified by Seven News as the suspect in relation to the disappearance of Cleo Smith. Clearly there should be strong disincentives in place to prevent such sloppy journalism from damaging someone’s reputation so gravely.

On the other hand, freedom of expression is also an important value. Freedom of expression is considered to be a fundamental human right, in part because it is linked to self-expression and self-realisation, but particularly because of the role that it plays in supporting the open public debate of values and ideas that is necessary to promote other human rights and democracy. Although, we do not have any nationally protected individual right to freedom of expression in Australia, this core value of political communication is protected by the implied freedom of political communication, which the High Court of Australia found could be implied from the text and structure of the Constitution.

The first cases to support this newly implied right were handed down in 1992 and in these judgments the Court emphasised that freedom of political communication was necessary to support the system of representative government prescribed by the Constitution. To quote Chief Justice Mason at the time:

Only by exercising that freedom can the citizen communicate his or her views on the wide range of matters that may call for, or are relevant to, political action or decision. Only by exercising that freedom can the citizen criticize government decisions and actions, seek to bring about change, call for action where none has been taken and in this way influence the elected representatives.

By 1997, the Court had refined its approach to this new doctrine and clarified that it was not an individual right in the traditional sense of the word, but rather a restriction on the powers of the executive and legislature. Some argue this is mere semantics, but it does clarify that the principle is grounded in protecting the wider community’s access to information and debate rather than an individual’s rights per se, and it has led to a strict test that tends to uphold all but the most egregious restrictions on the freedom.

 

'Given the demonstrably negative effect that these actions risk having on public debate and, therefore, on the health of our system of representative democracy, it is alarming that Mr Dutton believes that funds for these actions should be funded by the public and that he would frame such funds as a ‘workplace entitlement’.'

 

In line with this strict approach, the implied right has led to a narrow defence of ‘qualified privilege’ to the tort of defamation — a defence that relies on reasonableness and an absence of malice. Arguably this narrow approach has not struck a particularly satisfactory balance between the public’s interest in freedom of (political) expression and the individual interests of politicians in protecting their reputations. Indeed, this defence does not appear to have reduced the frequency with which Australian politicians turn to defamation to silence critical voices. As legal academic Michael Douglas argues, ‘[t]he frequency of defamation litigation involving politicians shows that many perceive defamation law as providing a powerful political weapon.’

A further problem is the application of the law of defamation to new media — particularly Twitter. A publication can be found to have a defamatory imputation even if this is based on an unintended interpretation. This is one of the reasons why news articles that deal with allegations of wrongdoing are often awkwardly or defensively written. Publishers have learned the hard way to tread carefully in this area and to include sufficient context or caveats to reduce the risk of defamation. (Well, some have.) However, without an army of lawyers at their disposal, such a careful, legally defensive approach is much harder for ordinary members of the public to adopt, and it becomes almost farcically difficult in the context of new media.

To put it simply: it is almost impossible to provide sufficient context and nuance in a 280-character tweet. It seems absurd that we would expect otherwise, but indeed people (and the media generally) are being successfully sued for their tweets. In 2015, for example, then-Treasury, Joe Hockey, successfully sued Fairfax Media for a series of tweets using the headline ‘Treasurer for Sale’, despite finding that the linked article was found not to be defamatory. You see, the tweet lacked the nuance contained in the article. But, of course it did. It was a tweet. And yet this reality does not appear to be reflected in the jurisprudence.

Now you might well say, well people should just be more careful with what they tweet. And, yes, this is true to an extent. Clearly a lot of what is published on Twitter is inane, ill-considered and rash, but it is also true that Twitter is a significant ‘public forum’ for political ideas and contestation to be communicated. Part of that communication will focus on the behaviour and character of our political representatives, and if people feel that it is too risky to be critical in that assessment then we have a problem. 

With this context in mind, we can now turn back to Mr Dutton’s proposal of a fund for politicians to pursue defamation actions. Given the demonstrably negative effect that these actions risk having on public debate and, therefore, on the health of our system of representative democracy, it is alarming that Mr Dutton believes that funds for these actions should be funded by the public and that he would frame such funds as a ‘workplace entitlement’. His job as an MP is to represent the public, not to sue them. That he and apparently many other politicians think otherwise raises serious questions about the health of Australian democracy.

 

 

Cristy ClarkDr Cristy Clark is a senior lecturer with the Faculty of Business, Government and Law at the University of Canberra. Her work focuses on the intersection of human rights, neoliberalism, activism and the environment, and particularly on the human right to water.

Main image: Peter Dutton departs during Question Time in the House of Representatives. (Sam Mooy / Getty Images News)

Topic tags: Cristy Clark, defamation, Peter Dutton, Christian Porter, Twitter, freedom of expression

 

 

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Existing comments

Cristy I always thought a thick skin was a standard prerequisite for political office. After all parliamentary privilege is a perk of the job.
It seems that Mr Dutton wants to have his cake and eat it too. If he puts up a bill that funds for these actions should be funded by the public and frame such funds as a ‘workplace entitlement,’ then respectfully, he may be kidding himself.
Wounded politicians however are dangerous animals when their sensitive skins are pricked by the slings and arrows of outrageous fortune. What they can’t get through the ballot box, may determine them to go through the courts or any other institution they control.


Francis Armstrong | 11 November 2021  

Thanks Cristy, Chief Justice Mason's statement in support of freedom of speech doesn't include any rights to slip in an Ad hominem attack; generally, defamation cases are necessarily defined as related to an individual. Porter declared himself as the POI in articles published which made statements rather than allegations, thus the inability to successfully have the offending material removed. It's easy enough to make a defamatory statement on Twitter or any number of platforms; I guess the offender could reasonably argue an offending tweet was only offensive due to the character limitations but maybe their defense counsel should be similarly limited to explain to the judge what went wrong in 280 characters or less. One shot at defense. Where I'm less inclined to be forgiving to defamatory snipers is when the author makes a living out of writing; they should be accountable for their misuse of tools of trade, just like a plumber using lead solder. A journalist is supposed an "expert" professional writer, if Twitter is inadequate for background then don't use it. Dutton's position on legal costs is not wholly unreasonable; if the defamation includes reference to a person's office (e.g.: a minister or public official) but becomes a private case for litigation it seems warranted to protect the office.


ray | 11 November 2021  

I agree with this article. As a citizen, I may well want to criticise the behaviour of a politician .. it is part of holding them to account. But now, one must always be looking over one's shoulder, in fear of ruin. Not because I actually say anything illegal. But fear of someone mounting against me, a legal action regardless of merit.
Having to look over your shoulder when writing, gets one into the habit of self-censoring. Of being fearful, to express yourself freely and honestly and frankly. And when people act thus .. as society we are worse off.

Thanks for the article...


Michael BRISCO | 11 November 2021  

Another bright, incisive, non-cliched article which made me sit up and think. We are getting to be an extremely litigious society. As a nation we tend to be outspoken. That's fine, but I think we need to follow normal courtesies on all media. It is actually hilarious that politicians are worried about their reputations in the light of recent scandals in NSW and Victoria regarding good, honest governance in the interests of the people. But then again, Alfred Deakin, Sir Robert Menzies, John Cain and Tim Fischer were models of propriety. This new development is a dodgy one and needs to be considered very carefully.


Edward Fido | 12 November 2021  
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Social media, Twitter, Facebook, Instagram aren't going away. To survive, elected officials who are on a pretty good wicket, should roll with the punches, ignore the tweets and treat them as an unpleasant part of the job.


Francis Armstrong | 12 November 2021  

A politician wanting to use taxpayers’ public money to mount private legal challenges against members of the public who are probably taxpayers who pay his wages and allowances? Not a good look. Do the defamation laws in our democracy make it that much harder for a politician to launch a successful defamation case? I seriously doubt it. Seems like this is a case of wanting it both ways. What should be the trade-off if this proposal was successful? Less rigorous defamation laws? Politicians are public figures by choice. They put themselves out there for election and, if elected, they have access to Parliamentary Privilege to protect their implied freedom of speech. Parliamentary Privilege is something to be protected and respected, especially by those with access to it. Others not in their position don’t have that access and we have to be very careful how we use our implied freedom of speech (not necessarily a bad thing), even if our objective is holding a politician to account. Because if this proposal succeeds, you never know when an offended accountable politician will come after you.


Brett | 12 November 2021  

Good article, but one would be concerned at the glib use of 'freedom of speech' by many MPs, influencers, think tanks etc.

In fact these tactics are used in not just the UK etc. with SLAPPs* to shutdown threats to power, but also Turkey etc.; journalist/researcher Peter Geoghegan of Open Democracy UK has done much about this new phenomenon round those in power.

*'SLAPPs are Strategic Lawsuits Against Public Participation. These damaging suits chill free speech and healthy debate by targeting those who communicate with their government or speak out on issues of public interest'.


Andrew J. Smith | 13 November 2021  

When Ministers of the Crown, funded by secret donations, chose to use the courts to prosecute citizens for defamation, then it's high time that the defamation laws were changed.


Ginger Meggs | 20 November 2021  

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