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Australian philosopher, literary critic, legal scholar, and professional writer. Based in Newcastle, NSW. My latest books are THE TYRANNY OF OPINION: CONFORMITY AND THE FUTURE OF LIBERALISM (2019); AT THE DAWN OF A GREAT TRANSITION: THE QUESTION OF RADICAL ENHANCEMENT (2021); and HOW WE BECAME POST-LIBERAL: THE RISE AND FALL OF TOLERATION (2024).

Sunday, April 01, 2012

Michael Brull on defamation law in Australia (more)

Michael Brull (whose views on defamation law have come up previously) has a detailed article on the subject in Overland. I can get behind just about all of what he has to say (there are no particular points of disagreement).

I do think - as evidently does Brull - that we need some kind of limited defamation law. I made that point in writing on the ABC Religion and Ethics Portal awhile back, while also making the point that defamation law must be carefully constrained in what it seeks to achieve.
Though I am a free speech advocate, I don't oppose defamation law completely. We do need some protection of individual reputations from lies that could ruin careers or lead to ostracism. Human beings are social animals, and we cannot survive - we certainly cannot flourish - if our good reputations are trashed beyond a certain point. A credible sounding lie to the effect that somebody is a paedophile, for example, could inflict a kind of social death on that person.

But the question still remains: How protective should defamation law be when it comes to such things as speech about the motivations of public figures when they engage in political activism?

Bear in mind that public figures are well placed to put their own sides to a story, especially when they are misrepresented by individuals who actually have less public reach than they do. Bear in mind, too, that individuals can be ruined financially by the costs of defamation proceedings. This can force people with ordinary resources to back down and give humiliating insincere apologies, in order to avoid litigation. Alternatively, some might be deterred from publishing in the first place on what appear to be matters of public interest.

I submit that, as a general rule, defamation law should not be used to chill debate about the public images and motivations of politicians, political activists and other such public figures. If current defamation law in Australia allows that to happen, so much for current defamation law in Australia. It needs to be amended, especially to provide individuals such as unaffiliated bloggers - who don't have the resources of media corporations behind them - with sufficient protection from litigation.
In the thread, Helen Pringle accused me of contradicting myself, but there is no contradiction. You can quite consistently (1) think that some restrictions of defamatory speech are needed, particularly against highly-damaging but credible lies from parties with great access to the public AND ALSO (2) ask just how protective these laws should be, particularly in relation to such matters as the lobbying activities and motivations of public figures AND ALSO (3) conclude that the law is currently too protective and should be scaled back to try to avoid chilling legitimate speech.

Apparently this did not sit well with Pringle, who doesn't seem (judge for yourself from what she says on the thread) to have been able to make head or tail of it all, but it is a perfectly coherent and principled position.

Meanwhile, is current defamation law in Australia too protective of plaintiffs and too restrictive of legitimate speech? Yes, it is. Brull tells us quite a bit about why he'd like to pare the law of defamation right back. He concludes:
It is unpleasant being subjected to such harsh criticism, especially if one feels the criticism unwarranted. However, society suffers more severely when it is not free to discuss issues that it feels are of significance. I think a superior balance would be struck if political discussion, broadly construed, was entirely free of defamation laws. In other areas, the burden on the plaintiff should be increased they should have to prove: the defamatory statement was false, damages and common law malice. If it becomes difficult for a plaintiff to win a defamation lawsuit, it will at least become less effective as a threat.

In terms of freedom of speech, the difference between defamation laws and racial vilification laws is that the latter seem to be used far less often. Which is perhaps why the Bolt case saw no chilling effect. The different socioeconomic groups these laws are designed to protect seems to also be a significant difference. The Racial Discrimination Act is to defend racial minorities. Defamation laws protect the wealthy and powerful. Right-wing politicians and commentators are urging the right to offend and insult racial minorities. If they do not equally speak out in opposition to our defamation laws, we will know this is not because of their concern about freedom of speech in Australia.


Chris Lawson said...

While I agree that defamation laws need to be enacted very carefully, I think Brull's position needs a bit more thought put into it.

For one, it reads as if he is arguing that public figures should not have protection from defamation, which means it would be perfectly OK to make up a "credible sounding lie" about a politician being a paedophile. I'm hoping that's not what he actually means, but that's the way it comes off the page to this reader.

Secondly, I think it is harder than Brull thinks to separate a public figure from a private one. In the case of his chosen example, unaffiliated bloggers, they are choosing to put their words out into the public arena, which is what makes them bloggers rather than diarists. Why should they not be held accountable for spreading malicious lies? (And if they are exempted from defamation, what would stop powerful interest groups "astroturfing" hundreds of small bloggers to get a libel out into the public arena?)

Thirdly, I think he is rather naive if he thinks right-wing commenters want to maintain current defamation laws. Absent current laws, there would be essentially no barrier to the negative campaigns they already run against targets of right-wing hatred. As a business model (and it is worth remembering that the large media companies are no longer in the business of selling newspapers, they are in the business of selling influence), it would be a major coup if they could convince parliament to water down defamation laws. In fact, one the more common refrains I hear from the Murdoch papers is how defamation laws prevent them from reporting on important issues. I'd like to believe they are referring only to matters of public interest that are factually based, but given their track record under current laws, I can only surmise that this would lead to a dirtying of the information pool in this country, not a clean-up.

Which is not to say that I like current laws (especially the horrific laws in England). But I would like to see a defamation law that had two automatic defences: the statement should be (i) demonstrably true, and (ii) in the public interest. If a statement meets both of these conditions, then it should be considered fair speech and excluded from defamation suits. I think there should be partial defence for a statement that is untrue but which was based on a reasonable interpretation of available evidence.

Malice should not be an indicator of defamation. If I hate a politician, that should not make it actionable for me to release information harmful to that politician that is both true and in the public interest. Malice should only be a factor in the decision on damages in a case where the defamation has already been demonstrated to the court.

Finally, I think there should be some serious anti-SLAPP legislation that makes vexatious claims of defamation not only actionable, but a criminal offence, and that lawyers who write SLAPP suits should be disbarred.

Dr Janice Duffy said...

"Human beings are social animals, and we cannot survive - we certainly cannot flourish - if our good reputations are trashed beyond a certain point"

Absolutely, and few in their right mind would sue for defamation on a vexatious basis. Trust me on this!

It is impossible to describe the impact of this sort of undertaking but I can tell you that I have been close to going to sleep forever and I am more resilient than most.

I could go as far as to say that I am alive today because of my lawyers.

Chris Lawson said...

Janice, I'm glad to hear that you have had a good legal defence, but unfortunately there are plenty of examples of vexatious defamation suits. In recent years there have been the Simon Singh case, the David Irving case, and currently the Andrew Wakefield suit against Brian Deer. For every one of these cases, there are probably hundreds where a "defendant" decided to retract their statement rather than face a huge legal contest even if all the evidence was on their side.

The problem is that we need to find a way to protect free speech and protect people from defamation. It's a difficult one.

Dr Janice Duffy said...

For the life of me I cannot see how it is worth filing a vexatious lawsuit. The personal cost is so high. I also believe in 'do the crime do the time' so maybe I have a different perspective to those who litigate without basis.

You know what, I don't think there is any way of ensuring a perfect system. It is difficult and even more so with the internet. I think our laws are closer than most to finding a balance.

I would probably have a slightly more critical opinion if I wasn't so tired from living with the current action.

That said, I am enjoying reading of the debates on this blog.

Russell Blackford said...

There is evidence that many vexatious or bullying defamation actions are at least threatened. Of course, naming mames might, itself, be considered defamatory.

But it's true that only someone with money or some kind of backing is likely to do this. Ordinary people, even those who have some modest wealth, would be ill-advised to go down the path of suing for defamation. I can't imagine doing it unless the situation was quite extraordinary.