Most Australians would be familiar with the First Amendment of the United States Constitution, in which it states:
“Congress shall make no law… abridging the freedom of speech, or of the press…”.
Most Australians would also assume that having freedom of speech is a key foundation and an inherent benefit of modern democracy. With that in mind, it is interesting to note that the Australian Constitution does not explicitly protect freedom of expression. That being said, the High Court has determined that an implied freedom of political communication does exist within Australia. This crucial decision was understood through acknowledging this freedom as an indispensable part of the system of representative government established by the Australian Constitution.
Our political and legal systems do offer politicians certain protections in order to defend themselves against defamatory publications and although it’s rather risky, they are free to sue media outlets if they believe published material to be defamatory. Perhaps, in today’s social media age, Australia’s defamation laws are due for reform in order to give publications and journalists more freedom of expression on political discussions. Considering that the politicians would be seen to be disadvantaged by such reform, it is unlikely that politicians will attempt to bring about reform in this regard.
In a perfect democracy, politicians should ideally be subject to scrutiny over how they perform their jobs.
On May 5th, 2014, FairFax Media published articles alleging that the then Treasurer was corrupt, driving the point home with a controversial headline stating that The Honourable Joseph Benedict Hockey was a ‘Treasurer for Sale’. The article, written by Sean Nicholls, claimed that Hockey and the Liberal Party accepted donations which were not disclosed to the NSW Election Funding Authority, from a campaign fundraising body called the North Sydney Forum (Nicholls, 5 May 2014). Members of the fund, including international banks and lobbyists, were essentially donating – via member fees – to the North Sydney Forum in order to receive invitations to boardroom events at which Joe Hockey would be present, for what we assume (as suggested by the article), was the opportunity to influence political discourse.
Joe Hockey profusely denied accepting any money or donations from the North Sydney Forum (Meade, 10 March 2015), and decided to take FairFax Media to court over publishing what he believed to be a defamatory article. FairFax Media defended the story, claiming that the article did not imply that Hockey was corrupt, rather that it displayed ‘responsible journalism’ (Shanahan, 10 March 2015). Justice Richard White ruled in the Federal Court proceedings that The Sydney Morning Herald, The Age and The Canberra Times had not defamed Hockey by publishing the articles, stating that the articles were of ‘considerable public interest’ (Hall & Whitbourn, 1 July 2015). That being said, Justice White awarded damages of $200,000 to Hockey after determining that the controversial headline alone – ‘Treasurer for Sale: Joe Hockey offers privileged access’ – was defamatory when published without the article for context, mainly tweets and headline posters.
Joe Hockey’s pay out from FairFax Media was accessible because of his substantial power and wealth, which was of considerable value before the defamation case began.
It is certainly difficult for someone with Joe Hockey’s political stature to rebut prominent defamatory statements from the mass media, let alone for citizens who do not have those resources available to them. The costs involved in these trials is the most significant reason why ordinary citizens don’t pursue defamation cases and is seen to be an ongoing dilemma in Australia’s defamation laws (Gibson, 30 March 2015; Pullan, 1994).
Media law expert and associate professor at the University of Sydney, David Rolph stated that ‘one of the long-standing criticisms of defamation law is that costs are prohibitive, which means ordinary people are dissuaded from suing in the first place’ (Dougherty, 9 August 2015). Although the large majority of Hockey’s claims in the defamation suit were unsuccessful (12 out of 15 claims were dismissed) and he still had to pay 85% of his legal bills, his apparent big win was widely discussed. This opened up significant debate within Australian media about whether the uniform defamation laws give Australian citizens the right to freedom of speech, and whether the laws should be updated in the social media age (Whitbourn, 3 July 2015).
Defamation cases involving social media are reportedly increasing across the globe with more and more cases being based around statements published via Twitter and Facebook. Twitter responds to claims about tightening regulations for social media outlets by showing a stance towards free speech and suggesting that they at Twitter attempt not to remove tweets from the public forum purely on the basis of their content (Williams, 26 August 2011).
There are many different aspects which need to come into consideration with defamation trials involving social media, particularly, the scope of the audience which the post reached.
In Australia, it is becoming increasingly apparent that the uniform defamation legislations are not equip to deal with trials based on electronic publication.
In March 2015, Judge Judith Gibson delivered a paper to the NSW State Legal Conference, which noted that the uniform defamation legislation…
“drafted at a time when even the internet’s possibilities were only beginning to be understood, is struggling to maintain the necessary tension between freedom of speech and protection of reputation”.
(Gibson, 30 March 2015).
In the landmark Lange v Australian Broadcasting Corporation (1997) case, the High Court determined that there is an implied freedom of political communication in our Constitution, and then saw to extend the notion of qualified privilege (Walker, March 1998). A former New Zealand Prime Minister, David Lange sued the Australian Broadcasting Corporation for defamation after the defendant televised a report concerning the conduct of his administration. This case was heard in the Australian High Court in Canberra, where it uncovered constitutional protections for free speech on matters of politics and government, and created precedence for these matters within defamation law (Meagher, 2005).
Lange v Australian Broadcasting Corporation saw the High Court extend an essential element in the Australian common law defence of qualified privilege. In a unanimous decision, the High Court decided that due to the constitutional nature of the political system it could be determined that freedom of political communication is a necessity (Arcioni, 2005). Without which, citizens could not get information on their prospective representatives, nor could the representatives understand their constituents.
Looking at the results from this case, it could be reasonable to assume that in fact, the journalists and publishers are the ones gaining protections from the legal system. It could be suggested that politicians should have greater protections from the legal and political systems, that being said, this idea seems to have support from mostly politicians and is not in line with the majority of arguments in favor of reform of the defamation legislations. It wouldn’t be too bold to claim that defamation trials with ordinary citizens as the claimant show a reasonable trend of them winning. Cases which are brought to trial with a politician as the claimant have shown significantly different circumstances.
While politicians are free to sue for defamation, it is risky for a number of reasons.
We will determine the risks involved and compare them with Joe Hockey’s defamation trial experience. If you have a solid case (even with proof of malice), defamation trials are excessively expensive, especially if you lose. Joe Hockey won some damages for a small amount of his claims, and FairFax Media only paid for 15% of his legal bills, meaning that it was likely Hockey was out of pocket after the trial (Pullen, 23 July 2015). By bringing the case to trial a politician’s reputation can be damaged more so than it was by the published defamatory statements – which could be said for Hockey. A politician already receives parliamentary privilege for things said within session (considered an absolute privilege), therefore taking a defamation case to court can make the politician seem greedy and obsessive.
Australia’s uniform defamation laws are in need of reform.
Whilst having substantial uniformity across Australia is undoubtedly a small success, these legislations need reform in order to make them less complex, more accessible, and more effective today (Rolph, 2008). The scope of changing technological advances and uses of social media should be examined when discussing reform in Australia. Understanding crucial differences on an international scale would certainly benefit Australia when attempting to determine the best solutions to defamation legislations (Kenyon, 2013). A system similar to the United States’ public figure test could allow Australian’s more freedom of expression, with the possible side effect of condoning poor reporting techniques and unprofessional journalism (Tobin, 1994).
Politicians should be free to sue, given that most politicians would exercise restraint and would only contemplate suing in the most extreme cases of attacks against their reputations. That being said, the key concern within defamation cases brought by politicians is striking a balance between politicians protecting their reputations and how to protect the freedom of the press, and essentially, freedom of expression for all Australians.
Arcioni, E. (2005). Developments in Free Speech Law in Australia: Coleman and Mulholland. Federal Law Review, 33, 1-22.
Dougherty, R. (9 August 2015). Hockey’s defamation costs’ far greather than win. Retrieved from Burke & Mead Lawyers website: http://www.burkemeadlawyers.com.au/compensation-law/hockeys-defamation-costs-far-greater-than-win/
Gibson, J. C. (30 March 2015). From McLibel to e-Libel: Recent issues and recurrent problems in defamation law. Paper presented at the NSW State Legal Convention. http://www.districtcourt.justice.nsw.gov.au/Documents/Speeches/From McLibel to e-Libel (correction) – Recurring problems in Defamation Law.pdf
Hall, L., & Whitbourn, M. (1 July 2015). Treasurer Joe Hockey awarded $200,000 in defamation case against Fairfax Media. The Sydney Morning Herald. Retrieved from http://www.smh.com.au/federal-politics/political-news/hockey-awarded-200000-in-defamation-case-against-fairfax-media-20150630-gi1axg.html
Kenyon, A. (2013). Defamation: Comparative law and practice. United Kingdom: Taylor & Francis.
Meade, A. (10 March 2015). Joe Hockey tells court North Sydney Forum’s website ‘grossly misleading’. The Guardian. Retrieved from https://www.theguardian.com/australia-news/2015/mar/10/joe-hockey-tells-court-north-sydney-forums-website-grossly-misleading
Meagher, D. (2005). The Protection of Political Communication under the Australian Constitution. University of New South Wales Law Journal, 28(1).
Nicholls, S. (5 May 2014). Treasurer for sale: Joe Hockey offers privileged access. The Sydney Morning Herald. Retrieved from http://www.smh.com.au/federal-politics/political-news/treasurer-for-sale-joe-hockey-offers-privileged-access-20140504-zr06v.html
Pullan, R. (1994). Guilty secrets: Free speech and defamation in Australia. Glebe: Pascal Press.
Pullen, N. (23 July 2015). Bad judgment: Hockey defamation case a costly mistake. Crikey. Retrieved from https://www.crikey.com.au/2015/07/23/bad-judgment-hockey-defamation-case-a-costly-mistake/
Rolph, D. (2008). A critique of the national, uniform defamation laws. Torts Law Journal, 16(3), 207-248.
Shanahan, L. (10 March 2015). Hockey denies accepting money from corporates or individuals. The Australian. Retrieved from http://www.theaustralian.com.au/business/media/hockey-denies-accepting-money-from-corporates-or-individuals/news-story/e86a9c881e33dce489c39aa481c39cc7
Tobin, J. (1994). The United States public figure test: Should it be introduced into Australia? University of New South Wales Law Journal, 17(2), 383-408.
Walker, S. (March 1998). Lange v ABC: the High Court rethinks the “constitutionalisation” of defamation law. Murdoch University Electronic Journal of Law, 5(1).
Whitbourn, M. (3 July 2015). Joe Hockey defamation ruling underscores need to update law in social media era. The Sydney Morning Herald. Retrieved from http://www.smh.com.au/federal-politics/political-news/joe-hockey-defamation-ruling-underscores-need-to-update-law-in-social-media-era-20150701-gi24ty.html
Williams, C. (26 August 2011). Facebook and Twitter drive rise in online libel claims. The Telegraph UK. Retrieved from http://www.telegraph.co.uk/technology/twitter/8725859/Facebook-and-Twitter-drive-rise-in-online-libel-claims.html