The Gazette of Law and Journalism asked five savvy media law types – Michael Cameron, Justine Munsie, Patrick McCafferty, Grant McAvaney and Matt Collins – to choose the highlights and lowlights of the year that was … Some consensus emerged, at least in terms of UK developments.
Michael Cameron, National editorial counsel, News Limited
The year of 2014 started brilliantly with the commencement of the much-heralded new Defamation Act which finally brought this medieval law into the 21st century. Alas, the reforms were not to the Australian version of the Act, but the law in England and Wales.
Among several changes beginning January 1, claimants in England were required to make a showing that the allegedly defamatory publication “has caused or is likely to cause serious harm to the reputation of the claimant.”
The first test of this new provision in Cooke & Anor v MGN Ltd & Anor led to a spectacular victory for the forces of reason and free speech. Mr Justice Bean found for the publishers of The Sunday Mirror on the basis that any harm had been largely negated by the speed and prominence of the newspaper’s apology online and in print.
The reform process in London was the result of a three-year campaign led by parliamentarians and free speech advocates, Lord McNally and Lord Lester.
In contrast, the Australian parliament has no one pushing the free speech barrow. Legislators in this country appear more interested in exploiting libel law rather than reforming it. The threat of legal action is now part of an MP’s public relations strategy in dealing with unfavourable press coverage.
This year also marked the 50th anniversary of the US Supreme Court decision in Sullivan v New York Times which held that public figures should face a tougher test in bringing libel actions.
The absence of constitutional protection for free speech in this country was never so evident as when parliament blithely passed section 35P of the ASIO Act. Both the government and opposition agreed that journalists who report on botched spy operations (even years after the event) should go to jail.
While the year was comparatively quiet in Sydney for News on the litigation front (no trials at all) there was no shortage of letters of complaint.
And there are half a dozen cases in the pipeline for 2015 or 2016 – including Nationwide News’ defence of a defamation claims brought by the sports scientist Stephen Dank.
The issues associated with social media – both defamation and intellectual property – continue to be a challenge.
Younger people rightly struggle with the notion that a random Facebook post will hold the same gravitas as the lead story in The Australian in the eyes of the courts.
The big damages awards this year in NSW in the Twitter ($105,000) and Facebook ($340,000) cases this year has got all our attention.
Again the Brits appear to have got internet defamation law reform right as well. Under the new Defamation Act 2013 an internet publisher has a new defence if they pull down an offensive third party comment in a reasonable period.
There is no such provision in Australian law. Lord Lester we need you.
Justine Munsie, Partner, Addisons Lawyers
Media law continued to get social this year and nowhere more so than in the defamation list where social media cases dominated the headlines.
Judge Elkaim in the District Court was first off the mark when publishing his reasons for awarding a hefty $105,000 damages payout to Christine Mickle, a teacher at Orange Grove High School.
Ms Mickle was the subject of a string of tweets and Facebook posts by Andrew Farley, a 20-year-old former student of the school apparently, although unjustifiably, aggrieved by her appointment to the music department.
That was book-ended by one of the last and largest damages awards of the year when Mr Polias was handed $340,000 for a series of slanders and Facebook posts by four former friends who had accused him of stealing money in a Las Vegas casino.
Whilst those cases illustrate what we already know – the Defamation Act 2005 will catch the tweeter and the Facebook poster as much as it does the traditional publisher – the judgment of McCallum J in Bleyer v Google offers some reprieve for search engines and other automated publishers who do no more than generate defamatory search results, at least until they are put on notice of any claim.
Her Honour also permanently the proceeding on the basis that the resources involved in the claim would be out of all proportion to the interests at stake given that there was proof of publication to only three people in Australia.
2015 is shaping up to bring us more social media defamation news with the long running case between the founders of lobbying firm Crosby Textor and former Federal Labor MP Mike Kelly continuing in the Federal Court.
The case, which concerns a single tweet in which Dr Kelly accuses the firm of “push polling”, has been described by Justice Rares as “bigger than Ben Hur”.
Patrick McCafferty, Barrister, Queensland and England
The most interesting development in Australia of 2014 is the decision of McCallum J in Bleyer v Google Inc.
The decision recognised the power to stay or dismiss an action as an abuse of process “on the grounds that the recourses of the court and the parties that will have to be expended to determine the claim are out of all proportion to the interest at stake”.
Gibson DCJ followed it in Freeburn v The Cake Decorators Association of NSW Inc (No 2). It has not however been followed in Queensland.
In the recent decision of Smith v Lucht (the reasons are not yet available) McGill DCJ did not recognise that the concept of proportionality could exist and support an abuse of process at common law; it did not form part and was not recognised in the Queensland civil procedure rules.
There are very sound reasons why Bleyer is good law and should continue to be applied. Whether or not it survives however is a matter which 2015 may well provide an answer to. Its survival may well require recognition that proportionality is a broader concept and one whose source is not merely to be found in civil procedure rules.
In England disproportionality has long been recognised as a basis upon which a libel case of limited publication can be stayed and has from time to time been invoked.
It is doubtful that it will continue to be utilised following the enactment of the Defamation Act 2013 (UK) on January 1, 2014. The impact this legislation will have on libel claims is yet to be fully explored.
It does however set a bar to claimants: section 1 provides that a “statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.” What that actually requires a claimant to prove or whether it is simply statutory recognition of Jameel – is a question to which there is no certain answer.
Bean J is the only judge to have considered the provision in Cooke v MGN Ltd. Permission to appeal was granted but the appeal not prosecuted. The operation of section 1 will be the significant focus in English defamation law in 2015.
Grant McAvaney, Senior lawyer, Australian Broadcasting Corporation
In putting this list together, I acknowledge that I’m a completely biased defendant lawyer who sees most Australian laws – including capacity arguments about pleaded alleged defamatory meanings – unnecessarily restricting robust debate, sharing of opinions, and open discussion of matters of public interest.
First, some lowlights:
The proposed data retention laws will hamper investigative journalism. They also undermine the positive advancements made recently in some jurisdictions where shield laws for journalists are concerned.
The ability to protect a confidential source/whistleblower might be impossible.
Defendants will and should be worried by Hall v Channel Nine in which the plaintiff was ultimately allowed to plead back two of Nine’s pleaded contextual imputations.
The court stated the issue was not an easy one to determine – “it seems unsporting to pull the contextual truth rug from underneath the defendants’ feet”.
Factually speaking, Pedavoli v Fairfax may not have been the ideal test case, but it will leave some wondering how effective the offer to make amends scheme really is.
A highlight in a sea of lowlights:
Despite the hysterical politicisation of Kenny v ABC/Chasers, it was a relief to see the Supreme Court’s decision that considered the relevant broadcast to be a “clear instance where the literal meaning of what was said and depicted is not capable of being conveyed by the broadcast”.
A small victory for comedians/creative types. (Thank you to the Bar for all the unsolicited and inconsistent views about the matter given to me at various chambers’ drinks.)
Ending on a positive note is the validity of the Hore-Lacy defence being affirmed last month by the Victorian Court of Appeal.
Perhaps my years using discussion of the Hore-Lacy defence as a “party trick” may not be in vain.
Finally, the decision in ABC v Local Court of NSW handed down early this year.
A timely reminder about the strict and limited terms of section 8 of the Court Suppression and Non-Publication Orders Act (NSW) that counter against unnecessary and/or overly wide suppression orders.
Matt Collins QC, Barrister, academic, author , University of Melbourne
If one were to attempt to identify a common thread underlying some of the more notable but disparate developments in media law over the past year, one might settle upon Australia’s disturbing divergence from modern norms for the protection of freedom of speech and of the press.
First, with effect from January 1, new defamation laws commenced operation in England and Wales, radically liberalising the principles that apply there to, among other matters, investigative journalism, the expression of opinions, and online communication.
This year also marked the 50th anniversary of New York Times v Sullivan, the US Supreme Court’s landmark libel decision on the scope of the First Amendment.
As we approach next year’s tenth anniversary of the passage of Australia’s more restrictive uniform defamation laws, they look rather like a project that tinkered with 19th century principles that are otherwise alive and well here.
Secondly, the culture of suppression of matters of public interest in our courts has continued unabated in 2014.
By definition, details of the most eye-raising matters of which media lawyers become aware from time to time cannot be printed.
An emblematic example, though, came to public attention in July, when Wikileaks published the terms of a suppression order made in the Supreme Court of Victoria, resulting in worldwide reporting of the suppressed subject matter other than, of course, by the Australian media.
Thirdly, in August, the federal government abandoned its pre-election pledge to repeal section 18C of the Racial Discrimination Act in the interests of national harmony – a decision about which reasonable minds can differ – and then proceeded to introduce counter-terrorism laws that, despite protestations to the contrary, have the capacity to impede the ability of the press to maintain a check on exercises of executive power.
The post was originally published in the Gazette of Law and Journalism, Australia’s leading online media law publication.