Uniform defamation laws are long overdue but will face stiff opposition

Many conferences and proposals later, uniformity was seen as an impossible goal.

The main battleline ran between the convict states and non-convict states. Non-convict states like Victoria and South Australia thought truth alone should be a defence which was the old English common-law position. But states with a convict history had also had an additional requirement that the matter must be published in the public interest. This was to stop people digging up someone’s convict past or ancestry.

You would think that such history could be put aside. For media practitioners whether you have an additional public-interest requirement is of no moment. Hardly a case has ever turned on it.

Ruddock’s proposal seems a fairly good starting point in the absence of any hope of a US-style guarantee of freedom of speech. The proposal runs in the general mould of English-Australian defamation law that is harsh to the media, restrictive on free speech and makes it easy for the rich and powerful to sue. But it must be better to have a uniformly restrictive law than eight slightly different restrictive laws. The latter just adds unnecessary costs and inconvenience to the overall restrictive regime.

The proposal has several significant changes. First, it would abolish juries for defamation trials. NSW should leap at this. NSW made a complete hash of the use of juries in changes it made four years ago. Juries hear the first part of the trial on the legal-technical issue of whether something is capable of being defamatory and is in fact defamatory and the second part of the trial on defences (like fair comment and fair report) and the level of damages is heard by a judge alone.

In Victoria juries are optional so Victoria might object, especially as the Labor government would remember the then Liberal Premier Jeff Kennett losing a major defamation action in front of a jury that he had opted for. In the ACT and South Australia juries are not permitted.

Second, the proposals would require people to take action within one year, which is the position in the ACT. Most states have six years, which is ridiculous given the action is supposed to be about reputation which requires immediate action. Reducing the limit is not necessarily good for the media. With the six-year limit cases often just faded away after the initial anger. With a one-year limit plaintiffs are often pushed into action.

Third, the proposals require a public-interest test. This might upset Victoria.

The proposal also includes a right-of-reply and correction provisions and some defences for honest opinion and reasonable publication. These are new and the detail will cause argument, especially if the honest-opinion and reasonable-publication provisions are more restrictive than existing provisions. The present draft of the proposal admits that its suggested honest-opinion defence is more restrictive than the common law. Its reasonable-publication test also appears to be unavailable to the media because it suggests that unduly wide publication would defeat the defence. It seems to suggest the audience must be people with a special interest in the matter.

In the information age new provisions should free up communication, not restrict it. Without changes to these provisions it would be a moot point whether the new restrictive environment would outweigh the value of uniformity.

Alas, under the Ruddock proposals there is no cap on damages. This is a serious weakness. Doctors squeal and get changes to tort law. Media organisations (and their readers and advertisers to whom the costs are ultimately passed) still have to cop open-ended damages.

Unfortunately, the proposals retain injury to a person in their occupation, trade, office or financial credit under defamation law. They more properly belong in trade practices law where some proof of damage is required. Defamation should be about general esteem and reputation.