Australia: The media law year in review, defamation – Peter Bartlett

17 07 2015

gazetteOver the past twelve months, the judiciary has made life very difficult for the media and, in particular, in the following areas:

– The potential liability of internet search engines is not settled.

– The procedures followed by courts in the states and territories differ.

– The qualified privilege provisions.

– The political discussion defence.

– The offer of amends provisions.

– The cap on damages (presently $366,000) operates as a cap or a scale.

– The courts have made the contextual truth defence far too complex.

Justice McCallum of the NSW Supreme Court went so far as to say that the defence’s application had departed from the intended purpose of the law.

There appears to have been an increase in the number of defamation actions being issued, perhaps encouraged by some rather generous awards from the courts.

Many actions are settled on a commercial basis, the pro thinkers being fully aware of the costs being incurred by the plaintiff’s lawyers.

To be fair, many of the settlements recognise the risks that the publisher faces.

Judith GibsonJudge Gibson (pic) from the NSW District Court has been critical of the “sheer awfulness” of the Uniform Defamation Act, which she says has “no understanding of the internet”.

There have been a surprising number of high profile plaintiffs, led by Joe Hockey.

Online

There has been a very significant increase in the number of actions arising from social media and online publications generally.

Judge Judith Gibson from the NSW District Court delivered an impressive paper “From McLibel to e-Libel” at the March 2015 NSW State Legal Conference.

The judge noted:

– Reports of a steep rise in social media and internet cases.

– A significant increase in the number of litigants appearing in person.

– Challenges for the judiciary in dealing with litigants in person, in dealing with novel defamation law issues arising from online publications, including the quantum of damages.

She commented:

“The uniform legislation, drafted at a time when even the internet’s possibilities were only beginning to be understood is struggling to maintain the necessary tension between freedom of speech and protection of reputation.”

Stay of proceedings: proportionality

In Bleyer v Google, McCallum J held that proceedings could be stayed when the extent of the publication and the potential damages were not justified by the costs of litigation.

That decision has been applied in two subsequent cases.

Judge Gibson describes the decision as the most important defamation judgment in 2014. A big statement. It is clearly a very important decision.

Costs

So many times these days the media defendant arrives at a mediation to be told the plaintiff’s costs are $100,000 plus and that is the starting point if there is to be a settlement.

There are so many cases where the media defendant has good legal arguments to take a claim to trial, but the risks of a loss and a costs order against them makes it not commercially sensible.

They recognise the risks. They know the result of a defamation trial is a lottery.

In these circumstances, is a settlement simply commercially sensible or is it an attack on freedom of speech?

Settlement

There are some settlements where both parties believe that the terms are reasonable and justifiable.

One such case was the recent settlement with Abu Bakar Alam, a young Muslim student incorrectly labelled a “teenage terrorist”.

The AgeIt was a terrible error, one of the worst I have seen. Fairfax acted promptly, pulled the material offline, and apologised to Alam.

There were direct communications between Fairfax and the Alam family and through lawyers.

The matter was reasonably promptly settled with Fairfax making a donation to Alam’s mosque, publishing an article by Alam describing what it is like in this environment to grow up in Australia as a Muslim, writing to the Afghan community, publishing a further apology, and paying damages.

Security for costs

Schwartz Publishing has been granted $500,000 security for costs in a defamation action.

The claim followed the publication of the book Have you seen Simone? The story of an unsolved murder.

The publishers relied on the plaintiff’s unemployment, no property assets, the fact that he was not an Australian citizen and the fact that he was being represented by well-known lawyers.

While the decision is welcome and will be closely examined by media defendants, it is a touch surprising.

An application by the defendants in Mallegowda v Amit Sood & Anor for $500,000-$600,000 security for costs, was rejected by Judge Gibson in the NSW District Court.

The judge thought that the defendants were, in fact, seeking an order for recovery of their past solicitor client costs.

Damages

When the Uniform Defamation Act was introduced in 2005, the cap on damages was $250,000.

The cap is adjusted each year in line with average weekly earnings rather than inflation.

It has been pointed out that the cap has increased 46 per cent to $366,000, whereas the Consumer Price Index has only increased 25 per cent.

There is no court consensus as to how damages in a defamation case should be assessed.

One would have thought that you would look at the cap, assess the seriousness of the libel and assess the damages as a proportion.

That was not the view taken by the Victoria Supreme Court in Cripps v Vakras.

The judge looked at the seriousness of the libel in his view and awarded $450,000, which included aggravated damages.

Cripps v Vakras – $450,000 ($100,000 aggravated damages)

Pedavoli v Fairfax Media – $350,000 – hard copy and online

Polias v Ryall – $340,000 (Facebook and gossip)

North Coast Children’s Home Inc v Martin – $250,000

Tassone v Kirkham – $176,408.81

Fisher v Channel Seven Sydney – $125,000 (Today Tonight)

Visscher v Maritime Union of Australia – $90,000

Graham v Powell – $80,000

It is interesting that the vast majority of damages awards are in NSW.

Appeals

Appeal courts were kept very busy in the last 12 months. Media defendants have done surprisingly well.

The NSW Court of Appeal refused leave to appeal to both Greens Councillor Katie Milne and property developer Bob Ell after Ell was awarded $15,000 damages in his defamation claim.

No cost orders were made at first instance or an appeal.

The Victorian Court of Appeal refused leave to appeal to CFMEU official John Setka after Tony Abbott’s Hore-Lacy defence was upheld.

While Born Brands Pty Ltd had some success in the NSW Court of Appeal against Nine Network, it lost the appeal and was ordered to pay costs.

DankStephen Dank (pic) – well known to ASADA – lost his appeal in the NSW Court of Appeal against Cronulla Sutherland District Rugby League Football Club and a News Limited reporter.

The Victorian Court of Appeal dismissed three appeals by the Lower Murray Urban and Rural Water Corporation after it lost three defamation actions and was ordered to pay $70,000 damages and costs.

The Queensland Court of Appeal also dismissed an appeal brought by a doctor against NBN Limited.

Andrew Holt had his appeal against a modest award of damages ($4500) against TCN Channel Nine, dismissed.

The NSW Court of Appeal declined to allow Dr Frederick Toben to amend his statement of claim against Senator Christine Milne, to add misleading and deceptive conduct.

Muslim community spokesperson Keysar Trad had his defamation claim against Harbour Radio Pty Ltd dismissed by the NSW Court of Appeal.

Nationwide News failed in its bid to have three imputations struck out in the NSW Court of Appeal. The plaintiff is Darren Hibbert.

The South Australian Full Court struck out an appeal by Derrick Sands against the State of South Australia and media organisations.

Publication

There have been several recent actions where plaintiffs have pleaded that the posters outside newsagents are a separate publication for defamation purposes.

Joe Hockey is one of those plaintiffs.

In the Jneid case in Western Australia the court held that a front page of The West Australian, displayed in a glass box, was a separate publication.

The result is that a front page can carry a defamatory imputation without any reference to the actual article.

Offer of Amends

The Uniform Defamation Act includes provisions to encourage defendants to negotiate and settle defamation claims.

Where the defendant makes an offer of amends under the Act they can plead a defence being the plaintiff’s failure to accept a reasonable offer.

The provision has rarely been relied on in the past. You are unlikely to see it relied on too much in the future.

In Pedavoli v Fairfax Media, Fairfax relied on an offer of $50,000. Justice McCallum increased that figure to $350,000.

Fairfax had wrongly identified the plaintiff as allegedly having sex with students.

The judge was critical of the reach and prominence of the apology Fairfax had offered.

In particular, she was critical of the offered apology not reaching Twitter followers and being on the SMH tablet app.

Tasmania sought to break away

Tasmania looked at amending the Uniform Defamation Act in that state to allow corporations to sue.

The state and territory borders are irrelevant to the media.

Amendments to the Uniform Act need to be introduced throughout the country. That makes any amendment difficult.

The need for reform

Australia’s defamation laws are far too complex. They are also in need of reform. Note should be taken of the welcome amendments to British laws.

A plaintiff in Britain now needs to show that the defamatory publication “has caused or is likely to cause serious harm to the reputation of the claimant”.

Britain also introduced a single publication rule. In Australia we have a one-year limitation period for hard copy publications.

There is a new publication for defamation purposes every time an online publication is downloaded.

Thus there is basically no limitation period for online. We need a single publication rule.

Peter Bartlett is a partner at Minter Ellison.

This post originally appeared in the Gazette of Law and Journalism, Australia’s leading online media law publication.

A longer version of this article was first published on the Press Freedom website.

 


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