CAMLA COMMUNICATIONS LAW
BULLETINCommunications & Media Law Association Incorporated Volume 38, No 1. April 2019
Special Digital Platforms Edition
The NSW Government Contents
Discussion Paper on The NSW Government Discussion Paper on Defamation Law Reform Defamation and Media Law Defamation Law Reform Conference, University of New South Wales, 20 March 2019 Judge Judith Gibson1 CAMLA Integrity in Sports Seminar: A cyber-age reboot of • the policy behind the legislation Ensuring Fair Play for Our Sports, defamation law (Question 1); Our Players and Our Brands On 26 February 2019, the Attorney- • the entitlement of corporations General for New South Wales, the Hon currently not permitted to bring Defamation Seminar 28 March 2019 Mark Speakman SC, called on interested defamation actions to have their participants to “have your say on right to sue restored (Question 2); Send in the Take-downs defamation law”2 in relation to a series of • the single publication rule defamation law proposals set out in the (Question 3); The ACCC’s Proposed Algorithm NSW Department of Justice Discussion • offers to make amends Regulator: The Right Level of Intervention? Paper entitled Review of Model (Questions 4–6); Defamation Provisions (‘Discussion • the role of the jury and the use Les Wigan 3 Profile: Paper’) issued that same day. of juries in the Federal Court Chief Operating Officer of This Discussion Paper is the latest ȋͺȌǢ Kayo Sports step in a series of steps taken by the • defences: contextual truth, fair report, honest opinion Stranger Than Fiction: The Truth New South Wales Government to give Behind “Fake News” defamation legislation a “cyber-age (Questions 9–13); reboot”4 to bring it up to date with the • serious harm and triviality modern technology. (Question 14); CLB Interview: Rachel Launders • innocent dissemination The Discussion Paper - The ACCC Takes a Bite of the (Question 15); and Privacy Pie an overview Ȉ ȋͳȂͳȌǤ ϐͳ major areas for inquiry: Continued on page 3 >
1 Judge, District Court of New South Wales, 2001–present. Some of the issues discussed in this paper are referred to in ‘Defamation in Australia: Rearranging the Deckchairs’, published in the Gazette of Law and Journalism (4 March 2019) and in Inforrm (7 March 2019)
Welcome to 2019! If the first few months are anything to comments on fake news. Eva Lu from Thomson go by, it’s going to be a big year ahead! Geer summarises the privacy and data related recommendations from Preliminary Report. And newly This edition is a special digital platforms edition, appointed CLB co-editor Ashleigh Fehrenbach interviews following the release by the ACCC of the Preliminary Rachel Launders, General Counsel and Company Report of the Digital Platforms Inquiry at the end of Secretary at Nine, about working at a major Australian last year. While recognising the significant benefits to news organisation and the effect of Preliminary Report consumers and businesses that digital platforms have on that organisation. introduced, the ACCC also identified concerns with the ability and incentive of key digital platforms – for the Congratulations go out from the CAMLA community to most part, Google and Facebook – to favour their own Joel Parsons and Eva Lu for their respective nominations business interests, through their market power and in the TMT field for Lawyers Weekly’s 30 Under 30. presence across multiple markets. There were concerns (See what happens, kids, when you regularly contribute regarding the digital platforms’ impact on the ability articles to CLB.) of content creators to monetise their content, and the lack of transparency in digital platforms’ operations for Of course, the ACCC’s Digital Platforms Inquiry is not the advertisers, media businesses and consumers. The only major inquiry being undertaken in this area relevant ACCC also expressed its concerns about consumers’ to digital platforms. The NSW Department of Justice awareness and understanding of the extensive amount Discussion Paper, titled Review of Model Defamation of information about them collected by digital platforms, Provisions was issued at the end of February this year. and their concerns regarding the privacy of their data. CAMLA held an event at JWS (report within) on the topic, Further the ACCC looked into the role of digital platforms and Judge Judith Gibson gives you her thoughts in this in determining what news and information is accessed edition about the issues that should be considered in the by Australians, how this information is provided, and its next round of reforms. range and reliability. CAMLA held another event, at HWL Ebsworth, on Following the release of the Preliminary Report, there the subject of integrity in sports, focusing on sports will be further consultation and discussion, prior to the organisations, players, and advertisers (report within). release of the final report due 30 June 2019. Obviously And, on the subject of sports, CAMLA Young Lawyer, Calli none of it will be more intelligent, enlightening and Tsipidis, profiles Les Wigan, COO at Kayo Sports following authoritative than what follows in these pages. We have the launch of that multi-sports streaming service at the the team at Bird & Bird – Sophie Dawson, Joel Parsons end of 2018. and Eleanor Grounds – comment on the Preliminary Report’s recommendation in respect of copyright. Adam It’s an action-packed edition, and we hope you enjoy it Zwi, former CAMLA Young Lawyer superstar, gives us as much as we have! his thoughts on the proposed algorithm regulator. Jess Milner from Minters tackles the Preliminary Report’s Ashleigh and Eli
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2 Communications Law Bulletin Vol 38.1 (April 2019) The tension between defamation traditional publication methods ͳ law reform and the impact of online means that the defence of ϐ ǡ technology is clearly the principal innocent dissemination and safe ϐǡͳͺǡ issue of concern in relation to all harbour provisions require careful invites consideration of topics not of these issues, and in particular review.ͺ dealt with in earlier questions. to questions 1, 3, 14 and 15. The Defamation Act 2013 (UK) • Early resolution of claims should The background to the is referred to by the Discussion be encouraged by review of the Discussion Paper procedure for offers to make ϐ Paper’s authors as a useful guide to 9 reform, particularly in relation to amends. the problems facing the Discussion proposed reforms such as the single • Amendments should be made Paper’s authors in identifying the ǡϐ to certain of the main defences, areas for reform were considerable. issues and the serious harm test. and in particular to the When the uniform defamation In broad terms, the proposed defence of contextual truth (to legislation14 was enacted in 2005, a ͳ overcome unwelcome judicial ϐǦ determinations such as Besser v process provided for in s 4915 of the summarised as follows: 10 Kermode ), the “reasonableness New South Wales statute. Although • The objectives of the policy test” in s 30 and honest opinion. due by 26 October 2011, the date the aims of the legislation remain There should be consideration ϐǡͶͻ appropriate, with some minor of limited extensions to absolute report remained uncompleted for ǡϐ privilege for statements made over six years. from some amendment to clarify at press conferences and the application of terms, reduce publications in peer-reviewed It is easy to be critical of a delay of ambiguity and better articulate journals. In addition, the future of this extent, but the long-standing how the legal principles apply.5 the defence of triviality requires problems of effecting defamation law consideration.11 reform are as well-known as they are • The narrowing of the rights widely discussed.16 of corporation to sue is an • As to procedural issues, important reform which should be consideration should be The NSW Attorney-General Mark preserved.6 given to appropriate jury case Speakman SC announced on 31 management issues and to ʹͲͳͺ Ȉ ϐ consistency of jury provisions for the defamation law reform process online technology to the trials conducted in the Federal would be a consultative process: legislation generally should be Court.12 answered; these answers include “The timetable is designed to consideration of the introduction • The provisions concerning the allow the reform process to of a single publication rule and a role of the cap on damages and be as expeditious as possible, serious harm test. In particular, its interaction with aggravated while providing opportunity the impact of online technology on damages should be reviewed.13 for extensive engagement by
5 Discussion Paper (n 3) 1.14. 6 Ibid 2.9. 7 Ibid 2.10–2.16, 5.46–5.48. 8 Ibid 5.51–5.64. 9 Ibid 3.2–3.21. 10 (2011) 282 ALR 314. 11 Discussion Paper (n 3) 5.1–5.46. 12 Ibid 4.1–4.9, 4.10–4.14. 13 Ibid. 14 Defamation Act 2005 (NSW); Defamation Act 2005 (Qld); Defamation Act 2005 (SA); Defamation Act 2005 (Tas); Defamation Act 2005 (Vic); Defamation Act 2005 (WA); Civil Law (Wrongs) Amendment Act 2006 (ACT) (amending the Civil Law (Wrongs) Act 2002 (ACT)); Defamation Act 2006 (NT) (collectively referred to as ‘the uniform legislation’). 15 Section 49 provides: 49 Review of Act (1) The Minister is to review this Act to determine whether the policy objectives of the Act remain valid and whether the terms of the Act remain appropriate for securing those objectives. (2) The review is to be undertaken as soon as possible after the period of 5 years from the date of assent to this Act. (3) A report on the outcome of the review is to be tabled in each House of Parliament within 12 months after the end of the period of 5 years. [Emphasis added] 16 Academic commentary identifying these problems has been extensive. As to problems arising from State/Federal demarcation issues, see David Rolph, Defamation Law (Thomson Reuters, 1st ed, 2015) [1.40] and David Rolph, ‘A Critique of the National, Uniform Defamation Laws’ (2008) 16 Torts Law Journal 207. As to protection of freedom of speech, see ‘Australian Press Council calls for urgent reform of defamation laws’, RN Breakfast (ABC Radio National, 2 July 2015)
Communications Law Bulletin Vol 38.1 (April 2019) 3 community and stakeholder ͳ ϐ groups to help determine how reform selected by the authors of the unsatisfactory history of defamation our new defamation law should Discussion Paper all raise interesting legislative reform in Australia22 function,” Mr Speakman said in a and important issues. However, the and the six and a half year delay in statement. ͳͺ publication of the s 49 Review, both ͳͺǡǣ of which have exacerbated already He said the two rounds of complex issues of defamation law public consultation, including Are there any other areas of reform. To give one example, the stakeholder roundtables, would defamation law that should be authors of the Discussion Paper “allow considered contributions considered? are to be commended for their on nationally consistent This is the question which this frank acknowledgement23 that the defamation law”. seminar paper attempts to answer. ϐ Reforming the laws would be s 26 had been “intended to mirror Ten new topics in answer to “complex and demanding” former section 16” and that “the but the timetable provided a Question 18 current wording of clause 26 framework “to deliver reforms to In answer to the Discussion Paper’s appears to have clear unintended ensure the right balance between call for other issues in defamation consequences”. However, this had protecting reputations and law that should be considered, I been a known problem since it was freedom of speech”, Mr Speakman have set out ten potential problem drawn to the Attorney-General’s said.”ͳ areas for legislators which are not attention by Simpson J in 2010.24 the subject of consideration in the This brings me to the second reason, In accordance with that timetable, Discussion Paper. the New South Wales Government’s namely that this kind of delay in Statutory Review: Defamation Act Some of these proposals, such as rectifying a legislative drafting 2005 provided for by s 49 (‘the another s 49 review clause and the problem should be guarded against Review’)ͳͺ inclusion of injurious falsehood in future, particularly given the ʹͲͳͺǤ provisions in the legislation, may unwieldiness of the legislative reform submissions had been sought since seem obvious, but nevertheless process, which requires the meetings 2011 and that the impact of online these have not been put forward of the Attorneys-General for the states publication social media19 as well to date and are worth noting. and territories of Australia (and, if the as legislative reform in the United Other proposals, such as limiting Federal Court of Australia is to claim Kingdom had resulted in a very the jurisdiction of certain courts an entitlement to jurisdiction, any different law reform landscape. and proposing remedies other involvement of the Commonwealth than damages, may be more Government, which will hopefully ʹͲͳͺǡ controversial. ϐȌǤ discussion in the media and some The third reason is that the pace of journal reports20 considered issues 1. Another section 49 review technology grows ever faster. raised in the Review pending the provision next stage in the process, namely the ϐ All of these factors point to the release of the Discussion Paper on consideration is the inclusion of desirability of a review clause in 26 February 2019.21 Submissions are a fresh provision for statutory the revised uniform legislation for invited, with a deadline of 30 April review in future legislation. This is ϐȂ ʹͲͳͺǤ necessary for three reasons. ϐǦǤ
17 Michaela Whitbourn, ‘Ambitious 18-month timetable for defamation law reform’, Sydney Morning Herald (online, 31 January 2019)
4 Communications Law Bulletin Vol 38.1 (April 2019) 2. Jurisdiction issues Defamation proceedings are now well as sending “a criminally The Discussion Paper acknowledges brought in nearly every magistrates defaming letter”. His Honour that many defamation cases are court and tribunal in Australia: Judge J D Wilson QC robustly now being conducted in the Federal dismissed the defamation claim, • Magistrates courts: While s Court and that applications for juries in terms which deserve wider 33 Local Courts Act 2007 (NSW) have been refused on procedural circulation than may otherwise has prevented the defamation 31 grounds.25 The Federal Court is not be the case However, the fact proceedings being commenced a party to the Intergovernmental that such claims may be brought in the magistrates courts in New Agreement. This has led to complaints requires consideration of the basis South Wales, there is no cognate of forum-shopping, as the Discussion upon which Federal Courts should 26 provision in other states and exercise jurisdiction as well as the Paper acknowledges. In practical ʹ territories. While it is unclear 32 terms, the Federal Court will continue desirability of busy court such whether the apparent increase to hear defamation actions and the as the Federal Magistrates Court in defamation actions brought issue seems to be whether that Court being burdened with claims of this at the magistrate court level will do so in a manner consistent with nature. is the result of an increase in other jurisdictions. publication of decisions or for • Administrative tribunals: In 33 However, the question of the other reasons, the complexity of GP v Mackenzie & Ors (Appeal), interaction between the uniform issues raised and the potential Presidential Member E Symons legislation and Federal Court for error are readily apparent.ʹͺ describes the “long history” of ϐ Appeals leading to fresh trials a defamation case arising from of a series of jurisdictional problems demonstrate these errors, and the placing of a table on public in relation to jurisdiction for courts the fresh trials add to the cost land which “has taken up an hearing defamation proceedings. to the litigants as well as to the extraordinary amount of time burdens on the court hearing the in the tribunal due to the sheer The increase in the number of appeals.29 volume of applications for interim defamation actions commenced ϐ in magistrates courts and • Federal Magistrates Courts: One of the application commencing administrative tribunals is evident of the unlooked-for consequences this action” (at [3]). This is an from the judgments emanating from of the Federal Court’s claim unacceptable burden on tribunals these courts. In many of these cases, of jurisdiction for defamation designed to provide quick and litigants are self-represented, and the actions has been that claims effective relief in straightforward judgments often report many days of could arguably now be brought claims where members of the hearing. Where one or both parties in the Federal Magistrates Courts. public are encouraged to act for are unrepresented, this places a In Merrett v Marinakos,30 the themselves. These burdens do heavy burden on the presiding applicant brought a claim for not stop at claims for defamation; ϐ ϐ damages on the basis that since these administrative tribunals well as on appeal, and the potential 2014 the respondent “did breach have also had to deal with for injustice is increased. my privacy and defame me”, as allegations of perjury,34 requests
25 Discussion Paper (n 3) 4.10–4.14. 26 Ibid. 27 That has not, however, stopped litigants in person from attempting to commence proceedings in New South Wales at the Local Court level; Dr Ghosh commenced her proceedings in the Local Court at Newcastle: Ghosh v Miller [2013] NSWDC 194. 28 Sangare v Northern Territory of Australia [2018] NTCA 10 was commenced in the Supreme Court by a litigant in person. After the plaintiff’s claim was dismissed, it was appealed to the Court of Appeal and the High Court of Australia then dismissed an application for special leave to appeal. Recent judgments in the magistrates courts in Victoria include Yuanjun Holdings Pty Ltd v Min Luo [2018] VMC 7 (damages of $3,500 were awarded). Recent decisions in the Queensland Magistrates Court include Walden v Danieletto [2018] QMC 10 and Kelly v Levick [2016] QMC 11. Recent decisions in the ACT Magistrates Court include the proceedings the subject of an application for transfer in Small v Small [2018] ACTSC 231. 29 As well as Sangare v Northern Territory of Australia [2018] NTCA 10, see Berge v Thanarattanabodee [2018] QDC 121, Ferguson v South Australia [2018] SASC 90, Machado v Underwood (No 2) [2016] SASCFC 123 (concerning the costs of an appeal from a magistrate) and Crinis v Commissioner of Queensland Police Service [2018] QCA 150, [13]. 30 [2019] FCCA 541, [5]. 31 His Honour stated at [17]–[18]: This court has accrued jurisdiction to deal with claims that are associated with claims validly within its jurisdiction. The High Court pronounced on the accrued jurisdiction of the Federal Court in largely similar terms in Fencott v Muller and in Stack v Coastal Securities (No 9) Pty Ltd. In this case, the Federal Circuit Court of Australia does not have power to determine defamation litigation. Whether or not a defamation claim is part of this court’s accrued jurisdiction need not be considered as there is presently no valid claim falling for this court’s consideration in this litigation. It follows that there is no valid claim on foot in this case to which anything can be appended or accrued, in particular a defamation proceeding as the applicant wished to agitate. This litigation is fundamentally flawed. It is wholly misconceived. It smacks of an abuse of the court process. It should be stopped in its tracks immediately. I hereby make such an order. I order the applicant to pay the respondents’ costs.” [citations omitted] 32 Michael Koziol, ‘Overhaul of Family Court system seeks to reduce delays and clear backlogs’, Sydney Morning Herald (online, 29 May 2018)
Communications Law Bulletin Vol 38.1 (April 2019) 5 for referral to the Director of including under provisions in the • the question of who is a Public Prosecutions35 and/or Competition and Consumer Act “prescribed information provider” complaints of bias by Tribunal 2010 (Cth) (CCA) and for the tort for claims for misleading and members36. The degree to which of injurious falsehood. deceptive conduct in the course of such courts have jurisdiction at trade or commerce. all is uncertain; administrative Prior to this reform, there was a tribunals in Queensland, Victoria longstanding debate as to whether Injurious falsehood and New South Wales have corporations could claim aggravated Should the proposed reforms to refused to hear defamation damages as a corporation could defamation law include statutory claims.͵ not recover damages for increased regulation of injurious falsehood and hurt to feelings caused by the falsity other actions for slander of title to Amendments to the uniform 40 of the claim. The impetus for goods? If amendments to defamation legislation should exclude the reform arose following assertions legislation such as the single hearing of defamation actions in 41 of corporate SLAPP suits and publication rule make defamation these courts. attempts to silence whistleblowers actions less attractive, it is likely that 3. Regulation of injurious falsehood and environmentalists.42 However, claims for injurious falsehood may and other non-defamation it should be noted that some of become more common. reputation torts the more successful actions of this kind were brought by company The six-year limitation period, the The NSW Attorney-General has directors.43 absence of a single publication rule publicly announced͵ͺ that the and the potential for exemplary principal anti-abuse of process There are four areas for damages make claims of this kind reform in the uniform legislation, consideration: very attractive, and not only to namely the limitations on the rights corporations. At the very least, the of corporations to bring actions for • injurious falsehood; limitation period for slander of defamation, will be retained. This • use of other legislation, such title and injurious falsehood claims was certainly the position taken by as the so-called “anti-SLAPP” should be limited in the same way as the Review,39 which noted that: legislation such as the Protection is the case in the United Kingdom.44 of Public Participation Act 2008 [C]orporations have other There are also provisions relating (ACT); options to defend their corporate to malicious falsehood claims in the reputations, such as making • the New Zealand defamation Defamation Act 1992 (NZ) (described complaints to the Press Council legislation’s requirements for as “An Act to amend the law relating of Australia, and pursuing all corporations to demonstrate to defamation and other malicious other types of legal actions, pecuniary loss; and falsehoods”45ȌǣͷͶͺǤ
35 Payne v APN News & Media [2016] QCATA 140. 36 Chen v Premier Motor Services Pty Ltd t/as Premier Illawarra [2018] NSWCATAP 142. 37 An attempt to bring a claim for defamation was dismissed in Singh v AusHomes Pty Ltd [2018] QCAT 312, [4]. This was put by way of counter-claim to a claim for damages for defective building which failed on its merits. The same position was taken in Liang v University of Technology at Sydney [2018] NSWSC 1740. However, the Administrative Tribunal in the Australian Capital Territory considers that it has jurisdiction and recently awarded $400 damages for defamation: Bottrill v Bailey [2018] ACAT 45. 38 Mark Speakman, ‘Corporations should not be allowed to sue for defamation, says Attorney-General’, Australian Financial Review (online, 9 August 2018)
6 Communications Law Bulletin Vol 38.1 (April 2019) SLAPP legislation of the media to report corporate A requirement to prove special It is sometimes claimed that shenanigans has got to be just damage? politicians, themselves prone to about uninhibited.50 Another potential area for reform in 46 relation to corporations generally, bring defamation claims, tend to The only time this legislation has whether they sue for defamation favour corporate lobbyists over been invoked as a potential defence truthsaying whistleblowers and or injurious falsehood, could be a to a defamation action occurred in provision along the lines of s 6 of the investigative journalists. There are Batemen v Idomeneo (No 123) Pty defamation proceedings the length Defamation Act 1992 (NZ), which Ltd v Fairfax Media Publications Pty provides: and complexity of which, as Bruce Ltd.51 Refshauge J noted that the Ͷ 6. Proceedings for defamation Donald pointed out a decade ago, legislation existed in the Australian brought by body corporate suggest the use of legal action to chill Capital Territory but that there was public interest debate (or ‘SLAPP no cognate legislation in New South Proceedings for defamation suits”, namely ‘strategic litigation Wales. Nevertheless, his Honour brought by a body corporate shall Ͷͺ against public participation’). transferred the proceedings to New fail unless the body corporate The question is whether online South Wales, some three years after alleges and proves that the technology has made this kind of the proceedings had been commenced publication of the matter that is litigation more likely to occur. If in the Australian Capital Territory. the subject of the proceedings - ϐ (a) has caused pecuniary loss; or It is an interesting question of law Australia, particularly if the rights for (b) is likely to cause pecuniary as to whether this statute may be companies to sue are restored across loss to that body corporate.53 the board, should there be special of assistance to defendants in the legislation to control litigation Federal Court, given the special Whether a provision of this kind is appropriate would largely depend on asserted to be of a SLAPP nature? basis upon which the Federal Court claims original jurisdiction derived whether the existing restrictions are Only the Australian Capital Territory from the Australian Capital Territory preserved. responded to calls for this kind to hear defamation proceedings. Prescribed information providers of legislation, by introducing the Perhaps this legislation deserves – preventing misuse of misleading Protection of Public Participation Act wider recognition by practitioners, and deceptive conduct and other 2008 (ACT). The Attorney-General regardless of whether it is the alternatives to defamation for New South Wales at the time, Mr subject of consideration by the Another alternative to defamation Bob Debus, rejected the legislation authors of the discussion paper. is the commencement of a claim for as unnecessary because of the However, Bruce Donald52 points misleading and deceptive conduct reform of defamation law to exclude ͳͺ 49 ϐ corporations from suit. The then- Australian Consumer Law (‘ACL’), provisions. First, the remedy is a civil Premier, Mr Bob Carr, considered contained in Sch 2 to the Competition penalty which requires government that the restriction on corporations and Consumer Act 2010 (Cth) enforcement. Since no private right ϐ (formerly s 52 of the Trade Practices is expressed and the offence is not the following reasons: Act 1974 (Cth)). Section 19 of the a crime, there may be an argument ACL (formerly s 65A of the Trade Well, big corporations have got that a private person could not seek Practices ActȌϐ enough power as it is in our an injunction or lay an information application to media organisations but society. The head of BHP, or an against the SLAPP. Second, the main its applicability to social media tweets, insurance company, can convene a purpose must be against public blogs or posts is less clear. In addition, press conference, buy a one page participation; courts may readily the single publication rule would be advertisement in The Financial accept a private litigant’s argument restricted to claims for defamation. Review. They’ve got enough clout that they are protecting legitimate in our society and the capacity rights. Continued on page 9 >
46 For a list of politicians who brought defamation proceedings in 2018, see Emily Watkins, ‘The politicians who sued for defamation in 2018’, Crikey (online, 12 December 2018)
Communications Law Bulletin Vol 38.1 (April 2019) 7 CAMLA Integrity in Sports Seminar: Ensuring Fair Play for Our Sports, Our Players and Our Brands Report by Calli Tsipidis, Junior Legal Counsel at FOX SPORTS Australia
On Thursday 21 March, CAMLA held its Integrity in Sports and continue to shape, decision-making within sporting Seminar at the offices of HWL Ebsworth Lawyers. The bodies and partner entities. event was proudly organised by the CAMLA Board and moderated by Rebecca Lindhout (HWL Ebsworth Lawyers Joe, Simon and Melissa each brought a unique flavour to the Seminar, drawing on their personal and professional and CAMLA Board Member 2019). The speakers for the experiences, inciting a flurry of questions from Seminar included Joe Collins (General Manager Integrity attendees – making for a captivating panel/audience & Senior Legal Counsel, NRL), Simon Hill (Football discussion. The seminar ultimately highlighted how the Commentator and Journalist, Fox Sports Australia) and power of the public, media and leadership (both political Melissa Hopkins (Head of Consumer Marketing, Optus). and within sporting bodies) has a significant impact on how, and whether, standards of integrity in the In the wake of numerous off-field incidents across professional sporting area are upheld and protected…or sporting codes and the release of the Government’s not. response to the Wood Review, the timely seminar provided attendees with unique insights into the interplay The CAMLA Board would like to extend its thanks to the between commerciality, legality, brand and geopolitical speakers for sharing their time, insights and expertise, influences – particularly, how these factors have shaped, and to HWL Ebsworth who hosted the event.
Defamation Seminar 28 March 2019 Report by Antonia Rosen, Banki Haddock Fiora On 28 March 2019, CAMLA presented its defamation 18 questions posed in the Discussion Paper, including reform seminar, hosted by Johnson Winter & Slattery. The the catchall in question 18. The usual suspects were focus of the seminar was the February 2019 Review of addressed including, the ability of corporations to sue, the Model Defamation Provisions Discussion Paper by the impotence of the current contextual truth and statutory Attorneys-General Defamation Working Party. The paper qualified privilege provisions, as well as the prospect of a sets out a series of questions which seek to address the serious harm threshold and a single publication rule. It was continued validity of the policy objectives of the Model suggested that the statutory cap on damages is sufficient Defamation Provisions. The seminar was conducted under and the recent headline cases such as Wagner & Ors v Chatham House Rules. Harbour Radio, Wilson v Bauer Media and Rayney v State of WA were, on their facts, exceptions rather than the rule. The seminar was lead by a panel of esteemed persons within the field, consisting of Gail Hambly, General Counsel The catchall question gave rise to some interesting of Fairfax for 20 years, her Honour Judge Judith Gibson of comments. It was noted that notwithstanding the uniform the District Court of New South Wales, Professor David law, inconsistencies between the State jurisdictions Rolph of the Sydney University Law School, Larina Alick, remained, for example with respect to the Hore-Lacey editorial counsel at Nine, and Matthew Lewis, specialist defence (there may also have been a joke about dead defamation counsel at Five Wentworth Chambers. The people in Tasmania). Of course, the current trend of moderator was Kevin Lynch, a partner at Johnson Winter & commencing cases in the Federal Court was addressed, Slattery, who guided the panel with interesting questions including the inconsistencies between the Federal and interspersed with comic relief. State jurisdictions with respect to juries, the docket The seminar was well attended with many notable figures system and the case law. It was suggested that perhaps within the field present. The NSW Department of Justice these issues may be dealt with by Federal legislation. was also represented and made some brief comments It was also noted that the current legislation in respect at the outset in respect of the timetable for public of defamation is insufficient (and perhaps not the right consultation and drafting. The current objective is that an vehicle) to address the manner in which the internet agreement be achieved on the new national law by mid- is increasingly being used by often unaccountable 2020. Further information is available on the Department of individuals to harass others. Justice website. The seminar provided some excellent insights into the The panelists were given the opportunity to express kind of reforms that should be considered. The insights their views in respect of the various areas of reform. In will no doubt be the subject of many submissions to the this respect, the discussion was largely guided by the Working Party.
8 Communications Law Bulletin Vol 38.1 (April 2019) In conclusion, reforms in relation 5. Protection of the complaints practitioner raised the conduct of to defamation should consider the process and tribunals by an overhaul another medical practitioner with the inclusion of actions for injurious of absolute privilege defences relevant complaints body and was falsehood and care should be The sole areas of consideration for sued for defamation for the contents taken to ensure that similar the extension of protectionͷͺ are of his complaint. Largely because of reputation-based claims based on peer-reviewed publications (an apparent omissions in the legislation, online publications have similar increasing rarity in today’s blog- the complaint was found to be protections such as the single driven academic world) and press ϐ publication rule. conferences (although even in the privilege only. This meant that the United Kingdom statements at a question of defamation (as well as 4. Freedom of speech: Durie v the associated claims of injurious Gardiner, Lange v ABC, the implied press conference are protected only ϐȌǤ falsehood and misleading and right of freedom of speech and deceptive conduct) would have to go other constitutional issues The entitlement to make a complaint all the way to trial. That operates as a The Discussion Paper contains no or to draw wrongdoing to the chilling effect not only on defamation, reference to Lange v Australian attention of the relevant authorities but on the complaints process. Broadcasting Corporation,54 Durie v is capable of misuse, but that does There has long been a hodge-podge Gardiner55 or to any consideration of not mean that the complaints process of statutory attempts at absolute or statutory amendment to render the should be unprotected. Examples of ϐ effectively useless56 defence of the problem areas are as follows: number of government and quasi- implied right of freedom of speech • There has been an extensive government complaints bodies60. more effective. consideration in the United This can be remedied by a “tidying It has long been recognized that “the Kingdom about whether up” process of identifying current comparative lack of legal protections complaints to the police should legislation (or lack of legislation) for ‘responsible’ media stories ϐǤ ϐ published in the public interest”ͷ In an age of concern about public judgments where claims of absolute must be remedied. safety, this is an issue which privilege have been raised. should be considered in Australia. ϐ ǡ 6. Common law defences: Hore- • The inconsistent and unsatisfactory particularly given the clear-sighted Lacy; common law justification and state of the law concerning judgment of the New Zealand Court comment; consent complaints about professionals of Appeal in Gardiner v Durie leading Some common law defences are the such as medical practitioners (see to the description of a neutral subject of controversy; none of them Lucire v Parmegiani59) warrants reportage defence. is included in the legislation. closer consideration. One of the impacts that online • The limiting of absolute privilege The Hore-Lacy defence publication will have on defamation to court proceedings is based on The inconsistency between New is that publication is not merely traditional concepts of courts with South Wales and Victorian appellate 61 State-based, or even national, but the result that publications made decisions concerning the Hore- 62 international. Where a country to employment tribunals and the Lacy defence has been exacerbated does not have an adequate defence like are unprotected. by the Federal Court’s apparent of reportage, that is a matter for unawareness of these views.63 There concern not only on a national but an The facts in Lucire v Parmegiani are is a need for uniformity in relation to international basis. an example of this problem. A medical the availability of this defence.
54 (1997) 189 CLR 520. 55 [2017] 3 NZLR 72. 56 The Hon Justice Peter Applegarth, ‘Distorting the Law of Defamation’ (2011) University of Queensland Law Journal 99. 57 Law Commission of Ontario (n 40) 4. 58 Discussion Paper (n 3) 5.9–5.16. 59 Lucire v Parmegiani [2012] NSWCA 86. 60 For a list of such provisions in legislation prior to 1990, see J C Gibson (ed), Aspects of the Law of Defamation in New South Wales (Law Society of NSW, 1990) 125–30. However, many potentially protected occasions are not the subject of express provisions. For example, publications made in the course of employment- related inquiries have long created difficulty; see the discussion of Bahonko v Sterjov [2007] FCA 1244 and 1556 at n 62 below and of Cush v Dillon; Boland v Dillon (2011) 243 CLR 298 under the heading “Consent” in section 6 of this discussion paper. A claim based on statements made by a witness to the Fair Work Commission was struck out on the basis of absolute privilege in Tull v Wolfe [2016] WASC 65; however, only a defence of qualified privilege was raised in Gmitrovic v Commonwealth of Australia [2016] NSWSC 418 for an investigation report in relation to the plaintiff’s asserted misconduct at work. 61 Bateman v Fairfax Media Publications Pty Ltd (No 2) [2014] NSWSC 1380; Fairfax Media Publications v Bateman (2015) 90 NSWLR 79; Setka v Abbott [2014] VSCA 287. 62 David Syme & Co v Hore-Lacy [2000] 1 VR 667. 63 Wing v Fairfax Media Publications Pty Ltd [2018] FCA 1340.
Communications Law Bulletin Vol 38.1 (April 2019) 9 Consent Common law comment and been extensive academic writing Although rarely used, the defence of ϐ about the potential for use of a consent may be of assistance as an The rationale for these rarely declaration of falsity or similar alternative to extensions of absolute pleaded defences remaining alternative to damages, culminating privilege in relation to complaints to available seems tenuous. Should in recommendations in 1995 by the complaint review bodies such as the consideration be given to a “cover NSW Law Reform Commissionͺ Press Council, employment tribunals64 ϐdzǫ that such a remedy should be and mediators of disputes such as considered. That recommendation the Finance Industry Ombudsman,65 7. Declarations and other was perhaps fortuitous, in that there as a kind of “eBay-style” method of alternatives to damages is no mention at all of the internet,69 requiring parties who have a dispute ϐ which had begun to encroach on to use the dispute resolution body to to the relationship of plaintiff and world publishing in the years shortly resolve it, and not as a gold mine for defendant by online publication is beforehand.Ͳ More recently, Dr documents to sue upon if the result is that everyone can be a publisher to Matt Collins QC, the President of not to their liking. a broad audience, as opposed to the the Victorian Bar and the author of pre-internet media where the cost of “Defamation Law and the Internet” The defence of consent would ϐ ȋϐʹͲͲͳȌǡ relate to the provision and use of Ǥ ǡϐ publicly raised these issues.ͳ the publications for the purposes of instance, rarely published in the era that dispute. Wider publication (for The need for effective remedies for of authorized law reports, are now example, on social media) could still defamation needs to be seen in the available online and around the world. be actionable. larger context of online publication ϐ generally. There are strong public policy capped remedy for defamation where reasons for protection of the A postscript on damages: why the real remedy is (as is often the case complaints process: should judges determine this in claims for misleading and deceptive issue? First, even those tasked with conduct claims) either the taking It seems ironic that the task of investigating the complaint may down of the publication in question awarding damages was taken be the subject of suit, as occurred and/or corrective advertising? away from juries given the concern in Cush v Dillon; Boland v Dillon,66 The potential for awards other than expressed by the Discussion Paper at where the only publication sued ϐ the judicial attitude taken to the cap on was a statement by one of the referred to in the Discussion Paper, and its interaction with aggravated investigators to the other. although this would demonstrate a damages.ʹ Second, actions based on information constructive use of the power of the Where there is a judge-alone trial provided to investigators may internet to correct errors in a way the same judge determines liability amount to a canvassing of the that was not really possible in the and damages. The rationale for ϐǤ age of print media. withholding damages awards from Third, parties to an investigation The concept of alternative remedies juries arises from the concern that should be as entitled to speak just as to damages has a distinguished juries award excessive damages and frankly as parties to litigation. pedigree. For decades there has would not be held back from doing
64 The defence of consent is widely used in the United States in relation to employment grievance bodies: see Raymond E Brown (ed), Brown on Defamation (Canada, United Kingdom, Australia, New Zealand, United States) (Thomson Reuters, 2nd ed, 1994) Ch 11. A good example of the utility of this defence may be seen in Bahonko v Sterjov [2007] FCA 1244 and [2007] FCA 1556, where the applicant was awarded $50 for a report prepared for a report produced at her insistence in the course of conciliation proceedings. The case went all the way to the High Court; special leave was refused in Bahonko v Sterjov [2007] HCA Trans 666. Another example is Zaghloul v Woodside Energy Ltd [2018] WASC 191, where the plaintiff sued his employer and other employees for the contents of statements they made to an investigator for the purpose of a workplace report. The extensive nature of the subsequent litigation is referred to in Zaghloul v Woodside Energy Ltd [2018] WASCA 191; special leave was refused in Zaghloul v Woodside Energy Ltd [2019] HCASL 30. 65 There is already a specific procedure in place for the Financial Industry Ombudsman (see Imielska v Morgan [2017] NSWDC 329) but many other complaints procedures remain unprotected. 66 (2011) 243 CLR 298. 67 See the list of articles set out in Gibson (ed) (n 60) 141–42. More recent examples over the past three decades include Michael Chesterman, ‘The Money or the Truth: Defamation Law Reform in Australia and the USA’ (1995) 18 UNSW Law Journal 300. For a discussion of the unavailability of such a remedy at common law, see ‘Libel, Damages and the “Remedial Gap”: a declaration of falsity?’, Inforrm, 20 July 2013. 68 ‘NSW Law Reform Commission, Defamation (Report No 75, 1995)
10 Communications Law Bulletin Vol 38.1 (April 2019) so even by the imposition of a cap. “Previously, in Lesses v Maras, the striking out of unmeritorious cases Given the judicial response to the Full Court of the Supreme Court of which has in fact been applied limits of the cap and its interaction South Australia assessed Thornton in appropriate casesͺͲ, including with aggravated damages, perhaps as “merely an elucidation of defamation claimsͺͳ. damages are better left to the jury. the requirement that, to be This will save time and money, avoid defamatory, an imputation must There is clearly a need for such a two trials and reduce the tinkering tend to lower the estimation of provision in the legislation given the with damages that so commonly the plaintiff by the community very high number of actions which occurs on appeal. and an emphasis that an adverse are summarily dismissed. These opinion may be expressed about include: 8. An effective summary dismissal a person without its having such • where a person is not entitled to procedure a tendency”. With respect, her bring defamation proceedings More than any other cause of action, Honour ought to have followed the (for example, a deceased person defamation claims are capable of Full Court, as required by Farah (Defamation Act s 10), or certain being misused in circumstances Constructions Pty Ltd v Say-Dee corporations (s 9)); amounting to abuse of process. Pty Ltd.” • where a defence of absolute An effective summary dismissal privilege is raised, such as for procedure to prevent these claims There needs to be a recognized procedure for the early dismissal of statements made concerning going to a full hearing is an essential court proceedings; part of defamation law in the United ǡϐ States, Canada͵ and the United risk of actions being brought as • where other proceedings have Kingdom, and is not restricted to a form of abuse of process and been brought for the same issues such as proportionality or second of the judicial preference publication;ͺʹ for increasingly outdated case serious harm. • issues of proportionality;ͺ͵ management systems such as the Concern about the disproportionality docket (or early trial date) and • where proceedings have been of legal costs to the damages simple callover case managment commenced out of time; awarded has long been publicly systems, both of which require • claims which are hopeless on their expressed, but Australian courts, issues to be dealt with at trial: see face (perhaps the most common of particularly at appellate level, have for example Herron v HarperCollins these applications);ͺͶ been reluctant to accept or apply Publishers Australia Pty Ltd. the principles of proportionality.Ͷ Examples of issues going all the way • claims brought by “reluctant As to the concept of serious harm, to trial when they could arguably gladiators” whose Fabian tactics although support for these principles have been resolved summarily provoke the suspicion that the may be found in Kostov v Nationwide include Nyoni v Pharmaceutical action could be an abuse of ͺͷ News Pty Ltd,ͷ this decision is Board of Australia (No 6)ͺ and process; and controversial, in that it runs contrary Hockey v Fairfax Media Publications • where, on the face of the to appellate authority, as Michael Pty Ltd.ͻ This is despite a perfectly publication, there is arguably no Douglas notes: adequate provision permitting the defamatory meaning.ͺ
73 Law Commission of Ontario (n 40) F. 74 See the cases collected in Khalil v Nationwide News Pty Ltd (No 2) [2018] NSWDC 126, [40]. 75 [2018] NSWSC 858. 76 Douglas (n 7) (citations omitted). 77 [2018] FCA 1495. 78 [2018] FCA 526. This was a 5-day trial which took three years from start to finish. As Mr Nyoni, a litigant in person, is bankrupt, he has been ordered to pay security for costs: Nyoni v Pharmacy Board of Australia [2018] FCA 1313. 79 (2015) 237 FCR 33; (2015) 332 ALR 257. There was no separate ruling on capacity and at the trial the applicant failed in 8 of the 11 claims, resulting in significant costs set-offs. 80 Although not a defamation case, Australian Wool Innovation Ltd v Newkirk [2005] FCA 290 and [2005] FCA 1307 possessed many of the features of a ‘SLAPP’ suit, such as the proposed joinder of another 103 applicants and multiple respondents. The proceedings were struck out but a second pleading was allowed where a claim for misleading and deceptive conduct was added. According to Donald (n 41), a director of AWI was reported to have said to The Age: …suggests his group will seek to wear PETA down financially. ‘“If we have a massive bill, so have they got a massive bill, this industry is extremely well financed and these sorts of crises are catered for.’ Other cases where misleading and deceptive conduct were successfully relied upon to silence criticism include Schwabe Pharma (Aust) Pty Ltd v AusPharm.Net.Au Pty Ltd [2006] FCA 868 and complaints about regulators (Merman Pty Ltd v Cockburn Cement Pty Ltd (1989) ATPR 40-920). For an examination of SLAPP suits in Canada, see Law Commission of Ontario (n 40) G. 81 Thomson v Luxford [2014] FCA 342. 82 Bracks v Smyth-Kirk (2009) 263 ALR 522. 83 Bleyer v Google Inc (2014) 88 NSWLR 670). 84 McGrane v Channel Seven Brisbane Pty Ltd [2012] QSC 133; Dank v Cronulla Sutherland District Rugby League Football Club Ltd (No 3) [2013] NSWSC 1850, [28]; Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288, [101]–[103]; Trkilja v Dobrijevic (No 2) [2014] VSC 594. 85 Kang v Australian Broadcasting Corporation [2015] NSWSC 893 is one of many of these cases. 86 Korolak v Bauer Media Pty Ltd [2016] NSWDC 98; Charleston v News Group Newspapers Ltd [1995] 2 AC 65; cf Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652, where the issue was reserved to the trial which caused significant costs problems for all parties.
Communications Law Bulletin Vol 38.1 (April 2019) 11 The successful use of summary The United Kingdom has conducted limited publications (one to one procedures in the United Kingdom a series of inquiries into the costs person and the other in the Serbian and the United States warrants of defamation litigation, the most language)93ǡ ϐ ϐ recent of which, “Controlling the ̈́ͻͶͳǡͶͶͶǤǤ94 Part provisions for such a process. This costs of defamation actions”, ͺ was of the problem was that a wealthy has the added advantage of warning ʹͻʹͲͳͺǡ litigant could force on litigation by parties bringing unmeritorious same day that the UK Government simply refusing to settle even when proceedings (or conducting them in published its response to the 2013 offered a very reasonable amount, a dilatory or oppressive way) that consultation, “Costs protection in as occurred in Antoniadis v TCN the consequences of such action may defamation and privacy claims: the Channel Nine Pty Ltd,95 where Levine be swift, as opposed to a lengthy Government’s proposals”.ͺͺ J awarded indemnity costs at the process of going all the way to trial third trial of these proceedings to in the hope of bankrupting the These inquiries are only the latest the plaintiff following rejection of in a series of governmentalͺͻ and opponent. 90 her offer of compromise of $5,000, private studies in the United noting the two earlier trials had been 9. Costs Kingdom demonstrating that the discharged because of “the fault of cost of defamation actions has grown the defendant”96. This brings me to perhaps out of proportion to the value of the the single greatest problem in action to the extent that actions may It was to overcome problems such defamation proceedings, namely amount to an abuse of process. as these that Mr David Barr, the the extremely high legal costs Member for Manly, introduced the generated by such actions, In Australia, concern about legal Defamation Amendment (Costs) Bill especially where there is a docket costs in defamation proceedings has 2002ͻ, which sought to restrict Ǥϐ led to attempts at law reform going costs orders to the quantum of impact online technology has had back even before Federation. On 30 damages awarded. The amendment on defamation law is to render ͳͺͺǡ was unsuccessful, but following the ordinary members of the public moved a second reading of a bill to defeat of this bill s 40A(1)(b) (which putting material online (or being limit costs in defamation actions to 91 was the precursor to s 40 in the the target of material online) verdicts of more than 40 shillings. uniform legislation) was introduced vulnerable to suit, these costs no His Bill was passed, and remained into the Defamation Act 1974 longer fall upon publishers with a costs provision applicable to (NSW).ͻͺ deep pockets but upon ordinary defamation proceedings until the ϐ Defamation Act 1957 (NSW), when A further Bill was brought by Mr themselves having to sell their this portion was omitted.92 From David Barr MLA to prevent the homes and/or go bankrupt, that time onwards, defamation costs amendment to Pt 52A r 33 of the whether plaintiff or defendant, (and the number of actions) began to Supreme Court Rules 1970 (NSW) even if they are successful in the increase dramatically. For example, (‘Supreme Court Rules’) and was litigation. in one trial where there were two defeated.99 The rule (now Uniform
87 David Gauke, ‘Controlling the costs of defamation cases’ (Ministerial Statement, 29 November 2018)
12 Communications Law Bulletin Vol 38.1 (April 2019) Civil Procedure Rules Pt 42 r 34100) as opposed to receiving a lower in breach of any number of civil was amended in 2003 to remove amount. Instead of operating as an and criminal laws and regulations, defamation from the list of actions incentive to settle, s 40 has become maintains attacks on the reputation which required an application for (perhaps as a result of judicial or property rights of others. These recovery of costs for proceedings interpretation rather than bad recalcitrant defamers may also be where the damages were less drafting) a positive handicap in that anonymous, a problem of increasing than $225,000 (this sum has now it is neutering offers that may well ϐ Ǥ106 increased to $500,000). This have succeeded under the offer of provision was introduced after a compromise or Calderbank system. While defamation has to date been costs application was made in West dealt with as a State-based tort, it v Nationwide News Pty Ltd101 where All of the above costs issues arise seems evident, from the eagerness a plaintiff was awarded $50,000 from judicial approaches to the with which the Federal Court has and the defendant argued that the ϐ determined it has jurisdiction and litigation could have been conducted how this can be overcome. However, its preference for its own case more appropriately in the District one way around the problem would management systems, that there Court. Simpson J made a reduction be for the setting up of an inquiry ϐ in the costs but warned that this into defamation costs, as has into the new legislation. If so, the might lead to more defamation cases occurred in the United Kingdom, so Commonwealth should step up to being commenced in the District that costs experts can contribute the plate and accept responsibility Court. Part 52A r 33 of the Supreme appropriate submissions. Costs for research into effective remedies Court Rules was then amended to assessors and specialists in costs for plaintiffs the victim of internet exempt defamation actions from this ϐ abuse, privacy breaches and requirement. The result has been elude academics and legislators. ϐ ǡ to defamation, in the same way as that the higher scale of costs has 10. Effective remedies for online has occurred in Canada.ͳͲ This could been applied to defamation actions publication in the Supreme Court no matter what be achieved by an ongoing inquiry Although the internet celebrates its set up by the Australian Law Reform the size of the judgment, which has th ϐ 30 birthday this year, courts and Commission. defamation cases more expensive. legislators alike remain uncertain about the principles upon which If the Intergovernmental Agreement ϐ ͶͲ online intermediaries may be includes the Commonwealth, the uncertain, as its role has effectively held liable for publication across States could consider requiring, been reduced to being merely a a range of areas and not merely to as part of the defamation reform factor in costs cases. For example, ǡϐ ǡ package, that the Commonwealth the lengthy series of offers of copyright103, content regulation and Government not merely leave compromise and Calderbank offers misleading and deceptive conduct.104 its role to being the continued in Hyndes v Nationwide News Pty In particular, and of relevance to participation of Federal Court judges Ltd102 showed a seriousness of the Discussion Paper, there is the in defamation trials – a role any State purpose in terms of settlement problem, common to all these judge could perform – but that the offers in circumstances where the areas of law, of the litigant called real issues concerning internet use plaintiff failed entirely in the claim, the “recalcitrant defamer”105 who, ϐ
100 This Rule provides: 42.34 Costs order not to be made in proceedings in Supreme Court unless Court satisfied proceedings in appropriate court (1) This rule applies if: (a) in proceedings in the Supreme Court, other than defamation proceedings, a plaintiff has obtained a judgment against the defendant or, if more than one defendant, against all the defendants, in an amount of less than $500,000, and (b) the plaintiff would, apart from this rule, be entitled to an order for costs against the defendant or defendants. (2) An order for costs may be made, but will not ordinarily be made, unless the Supreme Court is satisfied that: (a) for proceedings that could have been commenced in the District Court--the commencement and continuation of the proceedings in the Supreme Court, rather than the District Court, was warranted, or (b) for proceedings under Part 2 of Chapter 7 of the Industrial Relations Act 1996 --the commencement and continuation of the proceedings in the Supreme Court, rather than the Local Court, was warranted. 101 [2003] NSWSC 767. 102 [2011] NSWSC 1443; [2012] NSWCA 349. 103 The unwelcome results of Roadshow Films Pty Ltd v iiNet Ltd (2012) 248 CLR 42 has led to a series of attempts at legislative change: see the discussion in Kylie Pappadarlo and Nicolas Suzor, ‘The Liability of Australian Online Intermediaries’ (2018) 40 Sydney L Rev 470. 104 See the explanation of the result in Google Inc v Australian Competition and Consumer Commission (2013) 249 CLR 435 in Trkulja v Google Inc (2018) 92 ALJR 619 at [57]–[60]. 105 Law Commission of Ontario (n 40) identifies the problem of ‘recalcitrant defamers maintaining a stubborn online campaign against a plaintiff regardless of court proceedings, injunctions, bankruptcy or even contempt proceedings’: [2]. 106 Law Commission of Ontario (n 40) at ‘Identifying Anonymous Defendants’. 107 Law Commission of Ontario (n 40) [2].
Communications Law Bulletin Vol 38.1 (April 2019) 13 in a coherent, Australia-wide fashion (or perhaps infamous). However, only available on an international as opposed to differing positions (or these issues require consideration scale, but are being used to discuss inaction) by successive governments because one of the most devastating issues that have not been discussed either unable or unwilling to results of online publication is on a wide public scale before, such confront the complexities of online that liability for defamation is as the sometimes intensely personal legislation. increasingly hitting what could publications arising in the course of be called ‘the small end of town’, discussion in the #MeToo movement This will be the most intractable namely ordinary members of the and sex abuse in institutions or by area for reform and there are no community who have used social ϐ Ǥ easy answers. To give one example, media or a blog site to make a replacing the law of criminal libel comment, or who are themselves Then there is the method of by some form of digital equivalent the subject of such comments, internet communication, in that does not appear to be the answer. In sometimes with devastating “internet rage”, hate speech, New Zealand, criminal libel (Crimes personal or professional results. trolling and other forms of misuse Act 1961 (NZ) s 216) was repealed of online publication coexist and in 1993, before the internet had Another relevant factor, in may intersect with defamatory begun to make its presence known. sociological terms, is that there is publications. Demarcations of the An attempt to restore the balance what could be called a ‘widespread tort of defamation in the future will Harmful Digital Communications Act public concern’ that defamation not be easy. In particular, as to the 2015 (NZ) has had little effect.ͳͲͺ proceedings may be brought to #MeToo movement, allegations of Legislation in France and Germany stop political criticism. This is not sexual harassment and/or sexual in relation to fake news and attempts a new concern. In Theophanous v ϐ in the United States to criminalise Herald & Weekly Times Ltd,110 Deane in relation to other areas of the law lies told during election campaigns109 J foresaw what he called ‘widespread such as workplace disputes111 and are complex issues too large for the public concern’ at ‘the extraordinary health and safety work guidelines112 scope of this paper. development and increased and there seems every likelihood utilisation of the means of mass ϐ Conclusion communication’, warning: relation to defamation proceedings The biggest impact that online as well. publication has had on the law may … the use of defamation The rapidity of technological and be in terms of the sociological issues proceedings in relation to political societal change is a challenge to underpinning law reform. This communication and discussion legislative drafters in many areas, is relevant not only to legislative has expanded to the stage where but perhaps none so evidently as drafting issues, such as the single there is a widespread public defamation law reform. The authors publication rule and the revision of perception that such proceedings of the Discussion Paper have a ϐǡ represent a valued source of tax- ϐ ǡ but to the changes in the way people ϐ one which has been embarked upon communicate which have resulted ϐ much later in the day than should from internet use. an effective way to ‘stop’ political criticism, particularly at election have been the case. It is to be hoped Defamation law reform in Australia, times. that members of the profession in the context of an international as well as academics, courts and communications system containing In addition to these concerns, the governmental organisations around hate sites, internet rage-based rapid way in which societal values Australia come forward to provide publications and calls to commit are changing on issues such as gay the submissions sought and that violent crime, may seem to some to marriage and sexual harassment the law reform debate can proceed be inconsequential as an effective (where such topics are often ϐ cause of action and, in the case of discussed in online publications) level of appropriate and uniform abuse of process, as a chill on the has also become an issue. When legislation. voice of the responsible media, drafting reform legislation, it must especially where the claim is be borne in mind that publications brought by the rich and famous and especially social media are not
108 Its website is currently down for maintenance: see
14 Communications Law Bulletin Vol 38.1 (April 2019)