Gazette of Law and Journalism Interview: Matt Collins QC

8 07 2016

gazetteTeaching academic, author of acclaimed defamation law textbooks, leading media law barrister in Australia and the UK, Dr Matt Collins QC packs a lot into his day … He agreed to spare some of his time to discuss defamation, privacy, celebrity, journalists’ sources, and free speech, just for starters

GLJ: I wanted to start by asking you what you see as the major flaws in Australian defamation law, and how you might go about correcting them.

MC: The flaws, as I would see them, arise as a matter of historical legacy.

David Levine, who was one of the great defamation judges in New South Wales, once described defamation law as like the Galapagos Islands division of the law of torts, which I always thought was a nice turn of phrase.

I liken it to Frankenstein’s monster – somewhere at its core there is a rational cause of action, but it’s had so many piecemeal reforms bolted on to it that it’s almost unrecognisable.

To put it another way, if you were starting from scratch defamation law wouldn’t look anything like it does.

Rather you would take it for what it is – a clash of fundamental rights, the right to reputation on the one hand, perhaps privacy to some extent, and freedom of expression on the other.

And what’s remarkable about Australian defamation law – more so than the other countries we like to compare ourselves with – is how rarely any serious consideration is given to counterveiling freedom of speech against the right to reputation. And after all, that’s what it’s supposed to be all about.

GLJ: So you think we’ve got the balance wrong in some way?

CollinsMC: Yes, I think we have got the balance wrong largely because the cause of action remains a 19th century tort at its core, untroubled by reforms of the kind which have caused the law to evolve in places like the United States, the United Kingdom, and even dear old New Zealand.

So if you take the United States – one can quibble about where one draws the line – but the First Amendment is the guiding principle that has guided the development of the cause of action.

The United Kingdom for a long time has been one of the last bastions of the 19th Century the cause of action.

The European Convention on Human Rights and then the passage of the Human Rights Act provided impetus for the law in much more, to my mind, interesting ways.

In Australia there is a lack of impetus for corresponding reforms, so that every time it looks like we might be making some progress the reform ends up being stillborn.

The Lange defence is a good example of that. It looked like Australia was going to develop a kind of defence for political speech or for responsible journalism and yet the defence has, in practice, never succeeded.

GLJ: In fact the ordinary qualified privilege defence has a terrible track record. It’s almost not worth pleading.

MC: Well in some cases you have to. It’s difficult to identify precisely where the problem stems from, but one of my criticisms is that defamation law is too often treated in the courts as if it were akin to the cause of action for negligence.

As soon as a publisher is found to have made a factual error and no matter how minor, in practical terms, the plaintiff succeeds.

The remedy for that in a cause of action which is not negligence based, in other countries, has been the development of qualified privilege and like defences.

That was supposed to be at the core of the Lange defence and it was supposed to be at the core of the statutory equivalents which were section 22 of the 1974 NSW Act and now section 30 of the uniform legislation.

The predicate of those qualified privilege defences is supposed to be that there will be cases where the media or a publisher has got a fact wrong and yet succeeds.

But you won’t find any cases in the Australian law books where a publisher has succeeded in the face of anything other than the most trivial factual errors.

GLJ: Why do you think that’s the case? Is it because judges are intolerant of the media making any mistake whatsoever?

MC: I think there are a number of factors.

We don’t have education in civics in this country in the way that they do in countries with Bills of Rights. So I think a Bill of Rights would help us enormously.

Secondly, our judges – and it’s less of a problem in NSW – but too often our skilled common law lawyers rather than defamation lawyers are too used to thinking that worthy plaintiffs deserve compensation.

In any serious defamation case the plaintiff will easily establish that he or she has been defamed.

Then in our system all of the heavy lifting has to be done by the defendant who seeks to establish that despite the fact that the plaintiff has been defamed, has suffered some loss for one reason or another, the plaintiff ought not to be compensated.

It’s at that point that publishers always fail unless they have meticulously got their facts right.

GLJ: There is a judge of the NSW Supreme Court whose view of the defences in defamation is that it’s truth or nothing. What do you think?

MC: I absolutely agree, with perhaps one or two minor exceptions.

In any case involving a media defendant I agree, it’s truth or nothing.

At core, the honest opinion defence and the fair comment defence have effectively been redefined by our High Court in Mannock and that line of authorities as de facto defences of truth.

There are exceptions in cases involving non-media defendants. There are many cases on the books of traditional common law qualified privilege succeeding in cases involving limited publications and an absence of malice on the part of the defendant.

Triviality is a defence which I thought was interesting when it was included in the 2005 legislation, but of course is of no use to the media.

It is of use in some cases of limited publication involving non-media publishers.

GLJ: You obviously think there’s a lot wrong with the Defamation Act we have at the moment. Where would you begin to change it?

MC: Assuming you can’t start from scratch, which would be my preference, I would do what the European Court of Human Rights did.

I would recognise at the outset that defamation involves a clash of two fundamental rights and I would subject the interference with each right to a searching analysis in order to come up with a view about which right ought to prevail in the particular circumstances of the case.

That’s essentially what the British common law courts have done with the tort of misuse of private information; they are now calling it the tort of interference with private life.

It’s too late for that. So in Australia, there’s some low-hanging fruit that would make a dramatic difference to the operation of the law of defamation.

One would be to have the legislature read, or record, redefine the section 30 defence so it works much more like the Reynolds defence works in the United Kingdom…

GLJ: The responsible journalism defence.

MC: Responsible journalism or reasonableness – recognising that reasonableness is not perfection, and that’s how it has ended up being defined in the authorities.

It took a long time for them to get that right in Britain. When the Reynolds defence was first decided, in the first few cases after the decision was handed down, the defence failed and had to go all the way back up to the House of Lords for the judges of the House of Lords to say to lower courts you are not getting it.

There are cases where the media should succeed despite the fact that you have a worthy plaintiff who has been the subject of reputational damage. So I’d do that.

I also think low-hanging fruit are things like the single publication rule, or the absence of one in Australia.

To me it’s crazy that online publishers, in particular, remain exposed to the risk of liability in defamation law in perpetuity.

Almost every other country in the world has managed to sort that out, yet we haven’t.

I suppose another one of my bugbears is this – I think defamation law in Australia has moved away from being a tort that is about damage to reputation and has been re-defined fairly substantially as a tort for compensation for hurt feelings because something has been said that has the potential to cause damage to reputation.

GLJ: That’s a fine distinction.

MC: Well, I’m not sure that it is.

If something is written about you in a newspaper or broadcast in the electronic media and it is defamatory of you undoubtedly you will have hurt feelings.

But the tort of defamation is about damage to reputation not about damage to feelings.

GLJ: But damages are awarded for both.

MC: But there are cases where a plaintiff is completely unable to prove any actual impact upon his or her reputation for one reason or another.

It might be because the plaintiff doesn’t have a reputation to be vindicated. It might be because everyone immediately dismissed what had been said by the publisher.

Some of the cases which have involved comedians saying things which were obviously jokes, they were obviously not to be taken seriously, but were nonetheless hurtful to feelings, I think are good examples of that phenomenon.

You’ve had this problem recognised in the United Kingdom, which dealt with it in section 1(a) of the 2013 Defamation Act, which imposes a serious harm threshold.

When you look at the way it is framed it is really interesting.

The serious harm threshold requires the plaintiff to demonstrate serious harm to reputation. Serious harm to feelings is not enough.

I think in Australian law we’ve moved away from treating the cause of action as one which is fundamentally about reputation.

Now often the largest component of damages in significant defamation cases seems to be to assuage the plaintiff’s feelings.

GLJ: That was certainly the case in Pedavoli. I think the judge took the obvious distress of the plaintiff to heart and it was a particularly vile allegation…

MC: I don’t mean to diminish the importance of that, but I do think there is a difference between feeling a sense of personal affront and having hurt feelings because you have been publicly defamed.

And I think it is that distinction that is often lost in the authorities.

GLJ: What about a law of privacy? How does that tie into what you’re now saying about hurt to feelings, because there is an inevitable sense of hurt if there’s been a serious invasion of your privacy.

MC: It’s a bit controversial for someone who mostly acts for defendants…but I’m in favour of a cause of action for privacy.

It seems to me it’s a gaping hole in the Australian legal landscape and I think some of the most interesting developments in Human Rights Law in the United Kingdom have arisen out of the evolution of the cause of action for misuse of private information.

It seems very odd that celebrities for example, can have a cause of action for invasion of privacy in countries like the United States and England, and yet not in Australia, but perversely can succeed in a cause of action for defamation in Australia where they would fail in countries where the balance, in at least in my view, has been more adequately struck.

I don’t think that it’s something the media ought to fear, but the devil is in the detail. It’s about how the cause of action is defined.

GLJ: So what would you regard as a serious invasion of privacy?

MC: I think the obvious case is the one where intensely personal material is publicised.

The recent super injunction case in England involving the celebrity threesome is an interesting one.

That seems to be the sort of case where if I’d been advising I might have said today’s newspaper is tomorrow’s fish and chip wrapper.

The fact of having taken the matter to court gave it a life of its own all around the world.

Anyway, anyone who wants to know the identity of these celebrities can do it in about five minutes on the internet, probably less.

And so I’m not sure that that was a very effective example of protecting a right to privacy.

But there are obvious cases, for example, publicising that someone has a disease or life-threatening condition, or things that can harm children of relationships.

GLJ: What about a case where the media is onto a hot story about some sort of corporate corruption. There’s an invasion of the CEO’s privacy, some information is gleaned and an injunction is then slapped on the media company. Doesn’t that put an unacceptable brake on what should be exposed?

MC: There again the devil is in the detail. In the United Kingdom, at least in theory, that wouldn’t be the result because the cause of action is defined in a way that requires the court to have regard to public interest and disclosure of the information in question.

Take the example we were just talking about – the celebrity threesome.

One of the reasons why the injunction was granted in that case was because the celebrities in question were said not to have exposed to public scrutiny their private sexual lives.

By obvious inference, had they portrayed themselves publicly as having a monogamous relationship for example, then exposing the fact that they had lied publicly might have been in the public interest.

So one of the things you see in the British authorities are judges grappling with this balance.

Naomi Campbell’s case is another example. Campbell was photographed coming out of a narcotics anonymous meeting and she had said publicly that she wasn’t a drug taker…

GLJ: So it’s the hypocrisy that’s the key?

MC: Hypocrisy, yes.

GLJ: The interests of the children were tantamount in the recent celebrity injunction. Are third party rights a different consideration altogether?

MC: Where third party rights are involved, particularly children, it has been said by colleagues of mine in England that in a misuse of information case you need the plaintiff to try and find the angle involving the children because obviously children’s rights have special protection under the law.

But another feature of the celebrity case we’re talking about was that the judges said there wasn’t an element of hypocrisy in the way in which the couple was presenting itself publicly on the one hand and, and acting behind closed doors on the other.

GLJ: A former Defamation List Judge of the NSW Supreme Court, Peter McClellan was very anti-jury. Then there’s Justice Rares on the Federal Court who would have 12-person juries in every defamation action if he could. Where do you stand?

MC: I think there are advantages and disadvantages. I think juries serve a very useful purpose on the question of meaning.

One of the phrases you hear all the time in the defamation courts is the notion that the ordinary person doesn’t live in an ivory tower and can read between the lines and has a greater capacity for implication than the lawyer.

I don’t agree with the last bit. When judges determine questions of meaning it’s always seemed to me that defendants are at risk of them taking a more conservative view of what a jury would find.

And so almost any open implication becomes the meaning which has been conveyed to the judges.

It’s a phenomenon that’s been recognised – it’s called the third person principle.

“Well of course I don’t think less of a person because of whatever the imputation might be, but other people are not as liberal minded as I am.”

I think we see an element of that too often when judges determine the question of meaning. Judges are supposed to determine the legal question – are words capable of conveying a meaning?

Then, if the tribunal of fact is a judge sitting alone, there is a question of fact. Do the words in fact convey the imputation complained of by the plaintiff?

That distinction between capacity and what is in fact conveyed, is, I think, easily capable of elision, and that happens very often when a judge sits alone.

On the other hand, defamation law has become incredibly complicated, with juries in defamation cases presented with exam papers or questions that they have to respond to and I think that can be very confusing.

The addresses which are made to juries can be confusing, the judge’s summing up can be confusing…there’s quite a lot to be said for both parties having the benefit for a reasoned judgment in a complicated case so that there is something that can be scrutinised for error.

GLJ: I’ve often wondered about this whole business of drafting imputations. Why don’t we just have a system where you show them the article, or the television program and ask was “X” defamed, and how bad was it?

MC: You’re speaking my language. That’s what they do in England.

In England juries are asked three questions in almost all cases – there are very minor exceptions where a Reynolds defence is involved.

They are asked: do you find that the plaintiff has been defamed, and if so, have the defences succeeded, and if so how much do you award by way of damages? That’s it.

Now, this is one of my favourite topics, the question of imputations, because my view is Australian law took a very, very wrong turn with the 1974 Defamation Act, NSW.

This obsession with imputations has now spread to all corners of the continent.

One sees it in the death of the Polly Peck line of authorities, one sees it in the judicial somersaults that were done to come up with a permissible variant test in the Hore-Lacy line of authorities and one sees it in NSW in Fairfax v Bateman– an obsession with pleadings as if we are dealing with an equitable cause of action or some commercial cause.

And what we are dealing with is actually quite a special cause of action. It’s about the meaning of words and words are inherently ambiguous.

Once you remove the focus from what has been published to how the lawyers have constructed what has been published, you are no longer focusing on what really ought to be the issue.

And it leads you on to enormous amounts of game playing, interlocutory game playing, on both sides in defamation actions because the outcome of a case can absolutely turn on the ingenuity of the person who drafted the statement of claim or the defence. That can’t be right.

GLJ: I couldn’t agree more.

MC: However, I know I’m wrong because I wrote in one of my text books that Australia had taken a wrong turn with all of this and I know that’s the prevailing view among academics in this area of the law in Australia.

I know it’s the view in the United Kingdom and yet every appellate court who has considered the question has criticised my academic writing and said that tying their parties to that pleading avoids the raising of false issues and does no injustice to either party….but I’m obviously wrong.

Another curious feature is despite having achieved uniformity of Australian law in 2005, we’ve now got this very strange, and I think quite significant difference emerging between NSW on and Victoria.

We don’t yet know where the other states will fall. I suspect Queensland will have some sympathy for the NSW view, and the other states are more likely to stick with the Victorian view.

But it does mean that there may be an advantage to plaintiffs in NSW where they can limit the ability of the defendant to depart from the way in which the ingenious pleader has formulated the imputation.

GLJ: To another 2005 issue – what’s your view of the cap on damages?

MC: I don’t think it’s had much practical effect.

In the early days of the uniform legislation the conventional wisdom was that the cap plus the perceived liberalisation of the substantive principles of law had caused the jurisdiction to dry up.

I don’t know what the empirical figures are nowadays, but my sense is that the jurisdiction is about as healthy as it was before the introduction of the cap.

In other words, there are about as many cases as there used to be. So the cap doesn’t seem to be a deterrent against plaintiffs issuing proceedings.

The cap at the moment is $367 odd thousand. If you go back to the pre-2005 era there weren’t that many cases where damages awards in defamation actions had exceeded the cap we’re already at. It went out to a handful of cases.

In Victoria the largest award ever was $750,000 and that was in an uncontested case and there was a contested case where there had been an award of $600,000.

Apart from that I think I am right in saying no other Victorian case had ever exceeded the cap. There was of course the $1.4 million awarded in NSW.

GLJ: Carson.

MC: Carson, yes.

In Britain, where there is no cap, judges have said there is a de facto ceiling on damages awards in the United Kingdom of about £250,000, which oddly enough, with the prevailing exchange rate, is not all that different from the Australian cap.

GLJ: I was going to ask you specifically about Hockey v Fairfax. Do you think there might have been a different result if a jury had heard that matter and not a judge sitting alone?

MC: That’s an interesting question. In Hockey I appeared for the defendants.

Mr Hockey issued the proceedings in the Federal Court as he was entitled to do, but as you pointed out before they don’t have juries in the Federal Court although there is a facility for them and some judges have, like Stephen Rares, expressed a willingness to allow a jury in appropriate cases.

It was a matter, I’d say, that was given anxious consideration in the Hockey case and ultimately no application was made for a jury.

GLJ: Why?

MC: My own view was that because the principal defence in the case was going to be the Lange defence or the section 30 defence, and because my working assumption was that the case would have to be appealed all the way to the High Court by whoever the unhappy party was at the end of the case, the appeal position would be better for both sides if there was a reasoned judgment – a jury verdict would be much harder to appeal.

That was my thinking. Now would it have been different?

Politicians, on the one hand, don’t tend to make terribly sympathetic plaintiffs before juries.

I’m sure people will remember Jeff Kennett’s case against The Australian back at the turn of the century which he unexpectedly lost.

Conventional wisdom is that the jury just didn’t quite like the idea of awarding damages to a sitting politician, so there is that factor.

On the other hand, the media is not also a popular litigant in the courts.

So for me it was no more complicated than wanting a reasoned judgment to maximise flexibility when it came to appeal.

GLJ: Strategy.

MC: Strategy.

GLJ: To another important case, Liu v Fairfax, which as you know has after four or five years resulted in The Age being in a position where it’s going to have to reveal its sources.

What do you make of the situation and would you have run any aspect of the case differently, given the result?

MC: I certainly wouldn’t be critical of the way the case was run.

It was undoubtedly a very difficult case because it pre-dates the journalists’ sources legislation, so we’re looking at a snapshot in time before the greater protections we now find in the Evidence Act.

And the conventional wisdom was that a publisher could always just abandon reliance upon a qualified privilege defence if ordered to reveal sources that would have implications for the prospects of the publisher’s success at trial but it would overcome the risk of the journalist being found in contempt.

That was the accepted wisdom. The Court of Appeal has found otherwise and no doubt it does put The Age in a difficult position.

Fortunately, however, there is at least some cause for optimism for those who think the journalist’s sources should have better protection as a result of the evidence legislation.

I was involved in a case for The Age in Melbourne last year – the Madafferi litigation, which was the first real test of the journalists’ sources legislation.

GLJ: That was a fantastic result…

MC: It was – the facts were very special.

The Age had run a series of articles in which among other things they had named the plaintiff, a Mr Madafferi as being the alleged head of the Calabrian mafia in Australia.

There was no defence of truth in the case, so Mr Madafferi was entitled to the benefit of the presumption of falsity, i.e. he was entitled to the presumption that he is not the head of the Calabrian mafia in Australia.

The Age’s only defence was a qualified privilege defence. The sources of The Age’sinformation were very largely persons to whom promises of confidentiality had been given on the grounds that the sources had expressed to the journalist a fear that if their names became known they could face serious injury or death.

Even more than that, The Age journalist, Nick McKenzie, had been visited by the police in the months leading up to publication of one of the articles and told by police that Mr Madafferi was suspected of having taken out a “hit” on one of the sources and that Mr McKenzie should do things to protect himself and his family.

The police, as it turned out, had also visited Mr Madafferi and said, look we believe you’ve taken out a “hit” on one of The Age’s sources.

I should stress that Mr Madafferi denied taking out a hit on anyone, and there is no suggestion that he in fact did so.

Nonetheless, it’s a textbook example of the kind of evidence you would want in a journalist’s sources case.

It was the ideal test case for the new legislation and the judge, Justice Dixon, found that in those, admittedly very peculiar circumstances, the public interest in protecting the sources exceeded Mr Madafferi’s right to know who was saying these things about him to The Age.

The judge accepted, no doubt quite rightly, that the fact that Mr Madafferi wasn’t allowed to know the identity of the sources did disadvantage him in the conduct of his prosecution of the defamation case.

It made it harder for him to succeed and made it more likely that The Age’s defence of qualified privilege would succeed.

So very special circumstances, but for the journalist’s sources it was a very good result. The case settled not long ago.

GLJ: I was going to ask you specifically about the internet and defamation and privacy, where a whole new set of issues arise for which the law is hopelessly ill-equipped. Where do you start?

MC: You start by reforming the law with internet-friendly reforms that stop treating the internet as being the modern analogy of postcards being sent from the seaside.

There are different ways of resolving these problems.

In the United States, driven by the First Amendment, Congress moved in 1996 – that’s 20 years ago – to say that anyone who re-posts material on line is not to be treated as a publisher of that material.

That means you can’t sue Google, you can’t sue E-Bay for nasty feedback. You can’t sue Uber for a nasty rating.

You can’t sue the public library that makes computers available from which people send defamatory material.

It means you have to sue the author of the feedback on Amazon, not Amazon.

Now that’s a policy response that’s at the very extreme end of the spectrum.

There is a middle ground, which is the position adopted in the United Kingdom primarily as a result of the 2013 reforms but also some evolution of the common law.

In Britain now the courts no longer have jurisdiction to hear actions against persons who are other than the author, editor, or commercial publisher of material unless it’s not practicable for the plaintiff to sue the author, editor or commercial publisher.

In other words, plaintiffs should, where they can identify the person who wrote the material, or is responsible for its editing or publication, go after that person rather than a secondary distributor of the material.

That seems to me to be a highly desirable policy response because in a defamation case, as I said before, the plaintiff generally has no difficulty in establishing that he or she has been defamed – one can tell that from the face of the material.

Where secondary distributors of material, like search engines, internet service providers, public libraries, the newsagent are threatened with actions for defamation unless they pull down or stop distributing material, the path of least resistance is to accede to the demand, even though the author or the editor or commercial publisher of the material might have had a perfectly good defence.

That’s why the Australian position, where secondary distributors can too easily be sued, has a chilling effect on freedom of speech.

You really only want material removed from the marketplace of ideas, in my contention, where it’s been adjudicated as being actionable, that is not susceptible to a defence like one of truth or fair comment or honest opinion or qualified privilege.

GLJ: What’s your view of newspapers being asked to remove historical material from their online archive as part of a settlement or judgment?

MC: I have a bit of a purist’s view about it I suppose.

It seems to me that it affects the integrity of the historical record in a way which is undesirable.

I think there is a better solution and we did it in another one of my favourite losses, when as junior counsel I acted for Andrew Bolt and The Herald Sun in the 18C racial discrimination case.

Mr Bolt was found to have breached the Racial Discrimination Act in a series of articles he’d written about members of the indigenous community and an injunction was sought to pull that material down off the internet.

The only victory we had in that was successfully submitting to the judge that it was important for the integrity of the historical record that that material continue to be available.

What The Herald Sun and Mr Bolt did was they consented to an order that the material, wherever it appeared in the archives be accompanied by a link to the judgment and a statement to the effect that these articles had been found to breach section 18C of the Racial Discrimination Act.

In that way the sting of the articles was very substantially diluted without affecting the integrity of the historical record.

British courts have done the same thing in the defamation context.

The best example of that is in Loutchansky v Times Newspapers Ltd (Nos 2-5) whereThe Times newspaper agreed to put up a link to the judgment of the court and a statement that this article had been found to be defamatory by the court and in return didn’t suffer an injunction affecting the integrity of the archives.

GLJ: I think it’s an interesting solution because I think getting rid of the historical record is like…

MC: Burning books.

GLJ: Burning books, yes.

GLJ: I was going to ask you about 18C and whether you believe people have a right to be protected from being offended.

MC: I don’t think people have a right to be protected from mere offence.

I think that if that’s the test it strikes the balance too far in favour of the individual’s sensibilities and too far away from freedom of expression.

However, one has to recognise the very, very grave harm that words can do to disadvantage groups in our community and I can perfectly understand how our laws came to be struck in that way.

It’s a hard call at the end of the day about where you draw the line.

If I had a blank sheet of paper I would say intimidation and incitement absolutely crosses the line.

GLJ: What about hate speech?

MC: Yes, hate speech, I think is a special case and again it depends on your definition.

Hate speech typically means speech which is an incitement to violence or an incitement to cause psychological harm to groups.

I think that is fundamentally different to offence or insult, which are the other two words in the 18C context.

GLJ: Finally, you’re an academic, the author of two widely acclaimed international texts on defamation law and you have a busy practice in London and Australia, what’s next?

MC: Well steady as she goes. I’ve got a heavy diary of trials stretching out into the end of 2017.

I’m teaching my defamation subject with Andrew Kenyon at Melbourne Law School later this year – it’s a masters subject which I always enjoy tremendously.

My last book, my very modestly titled text Collins on Defamation came out a little over two years ago, which means the pressure is starting to build for work to commence on the next edition of that book which I shall valiantly resist for as long as I can, because the process of writing those text books is a huge commitment and it does distract me from other things I like doing, like appearing in court and teaching.

GLJ: Could I just ask you what attracted you to media law in the first place?

MC: I think it’s the clash of rights.

Actually two things I would say. The first is I have always been fascinated by the idea that there is no such thing as a true hierarchy of human rights.

Human rights are very often in conflict and where you strike the balance it seems to be a really worthy subject for study and debate.

Secondly, with the advent of the internet, I became really interested in the fact that there was no international consensus around the value to be accorded to free speech and because the internet was the first global medium of communication the conflict of different legal systems came into sharp focus for the first time.

If you go back pre the world wide web – which is only 1992 after all – if you were going to be defamed in more than one jurisdiction, you essentially had to be defamed on the BBC World Service or CNN.

We didn’t even have CNN in Australia apart from hotels until 1995. But today anyone with a computer and internet connection or an iPhone is potentially a publisher to a global audience of indeterminate size and potentially exposed to conflicts in the legal systems of the world.

That’s a bit hyperbolic, but it’s again a matter that seems to me to be worthy of study and it really did pique my academic interest at the time I started looking at these questions about 20 years ago.

GLJ: So what attracted you to the practice as well as the theory?

MC: I think the simple answer is I got a case where I was acting for Jim Carey, the Hollywood actor against one of the women’s glossy magazines.

That’s going back almost 20 years and it was actually the glamour of representing a Hollywood celebrity that I think was the first thing that interested me.

In fact I took my first case at a time before I had formally studied defamation law, let alone written a PhD and books.

And one thing led to another.

GLJ: As it does…thank you so much for talking to the Gazette.

This interview was originally published in the Gazette of Law and Journalism, Australia’s leading online media law publication.

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