By MARK PEARSON Follow @Journlaw
It is always sad to see journalists and free expression advocates threatening to sue over the reportage and commentary of others.
Of course, journalists and freedom fighters are citizens too – so they certainly have the right to resort to defamation action to achieve their ends and to help restore reputational damage they may have suffered.
But we have heard today that two Australians – Wikileaks’ Julian Assange and Sunday Telegraph reporter Jonathan Marshall – are threatening defamation action over commentary about their respective roles as public figures. That is a great shame.
Two years ago – soon after the editor of a national daily newspaper threatened to sue a journalism academic – I penned a piece for Crikey! outlining my reasons editors should refrain from resorting to litigation when they take umbrage at comments made in the cut and thrust of public debate. I’ve those comments here to adapt them to the circumstances of these latest threats.
The reality is that any media outlet worth its salt – and Wikileaks more than most! – is in the defamation business. The columns of newspapers, news websites and the broadcast news outlets should be laden thick with defamation every day if their journalists are doing their jobs properly.
Lord Northcliffe is supposed to have said: “News is what somebody somewhere wants to suppress; all the rest is advertising.” But the bulk of that defamatory material is — or should be — defensible. The defences vary somewhat between countries, and between jurisdictions within countries, but most allow truthful defamation, defamation in the public interest published reasonably, defamatory opinions on public matters based on provable facts, and fair and accurate defamatory reportage of important public gatherings.
Law in the United States developed further under its constitutional First Amendment protection of a free press to allow even untruths about public figures to be published, so long as they were not published maliciously.
Journalists and free expression warriors like Julian Assange do not normally sue over public commentary — for a host of reasons.
- Given they are in the defamation business themselves, most see it as part of the cut and thrust of public debate.
- Many understand the defences and realise that the reputational slur will often be protected.
- Journalists are used to telephoning people and having it out with them at an intellectual level. Many disputes are resolved that way, both for and against the media.
- Most realise there are other avenues of recourse, perhaps through their own medium and perhaps via some mechanism for complaint.
- Most are too poor, and defamation litigation can be unpredictable and costly, particularly if it reaches the appeal stage.
To balance this, of course, occasionally someone will make the most heinous false allegation about a journalist of a sexual nature, and everyone would understand them pursuing the matter through the courts, particularly if there were no other means of recourse.
But most have an editor or a news director who will counsel them against using libel laws to resolve a dispute, which brings us to the additional reasons editors rarely sue. (Remember, Assange has carried the title ‘editor-in-chief’ of Wikileaks).
- Most have editorialised countless times about press freedom and it runs, like ink, through their veins. Most have quoted Voltaire, Milton, Mill, Jefferson and Burke in their editorials espousing how truth will win out and defending all citizens’ right to free expression. This extends to even allowing untruths to be aired and demolished in the marketplace of ideas. As Milton wrote: “Let her and falsehood grapple; who ever knew truth put to the worse, in a free and open encounter.’ Assange himself stands on a free expression platform, and recently drew upon that principle in his call for the US to cease its pursuit of him.
- Editors fear their own example in suing for defamation will encourage more lawsuits against their own media outlet by others. It sends a message to the rich and powerful everywhere that even editors believe libel action is a superior method of dispute resolution to a Press Council, ACMA or journalists’ union complaint.
- Most editors and news directors have been involved in litigation themselves or have witnessed how time-consuming and distracting it can be for their journalists. Four Corners investigative reporter Chris Masters laments the decade he spent in the courts justifying his Moonlight State expose of corruption in Queensland. Most see lawyers and litigation as enormous time wasters, distracting them from their greater purpose.
- That said, some have been at the forefront of pursuing free expression through the courts. The Australian, through its parent company Nationwide News, was crucial in 1994 convincing the High Court to overturn a law that banned criticism of the Industrial Relations Commission or its members. This was one plank in the court’s development of an implied constitutional freedom to communicate on matters of politics and government and an historic victory for media freedom.
- Most editors and news directors would be loath to expose their own behaviour and their companies’ past performance to the scrutiny that is inevitable in the discovery process and trial. They might be purer than the Pope or the Dalai Lama, but lawyers will inevitably find, or create, examples in their past that erode their case. Most have seen this happen in countless pyrrhic victories in the courts where the “winner” has had all sorts of character slurs made against them.
- Related to this is the media coverage attached to the case itself, which normally increases a hundredfold the repetition of the original slur. Many a successful plaintiff has later said they regretted the whole process.
- Most have belonged to industry groups fighting for free expression in society.
- Most abhor the use of libel as a weapon in despotic regimes throughout the world and many are members of organisations fighting against this.
- Most in Western democratic countries secretly covet the US First Amendment, which makes public figures fair game, particularly when the defamation — even falsities — relates to their performance.
Finally, and most importantly, unlike doctors, lawyers, sportspeople or politicians, the very act of suing for libel sends a reputational message about the journalist, editor or freedom fighter himself or herself: that they are the kind of person who would use a defamation action to pursue someone else who has exercised free expression.
Unlike any other, that very act puts their reputation as a journalist on the line among their peers and the broader thinking community. Most would prefer to be remembered for their accomplishments as a journalist or editor than to become a textbook case as one of the few who sued to shut someone else up.
See journlaw.com’s DEFAMATION update page for a range of recent defamation cases, many of which have involved social media.
© Mark Pearson 2012
Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.