By MARK PEARSON Follow @Journlaw
The Sydney Morning Herald recently published my commentary welcoming the NSW Government’s rethink of defamation law in the light of recent research showing a large number of cases involve ordinary citizens (rather than celebrities) and social media posts (as distinct from media publications).
Here is the extended unedited version for those with a special interest:
The decision to review NSW defamation laws announced yesterday is overdue, and changes need to address several aspects of the legislation as well as the very human flaws of vindictive remarks, fragile egos and ignorance of the law.
NSW District Court defamation expert Judge Judith Gibson called for reform this week, pointing to the rise of Internet-related defamation cases, a phenomenon unanticipated when uniform defamation laws were introduced throughout Australia in a landmark 2005 reform.
Her argument was underscored by research released last week by the UTS Centre for Media Transition which found that more than half of defamation cases over the past five years involved reputational damage in a digital medium, up from 17 per cent in 2007 when social media was in its infancy.
The common perception that defamation cases typically involve celebrities suing the media for millions of dollars – like recent litigants Rebel Wilson and Geoffrey Rush – is a myth. The study showed that among the 189 decided cases from 2013-2017, only one third of defendants were media companies, and only about one fifth of those bringing the action were celebrities or public figures.
When you read the detail on the cases, it becomes clear that most defamation cases are contests between ordinary citizens over negative remarks they have made about each other on social media, websites, emails and other means of digital communication.
With the advent of social media, everyone is a publisher in the eyes of defamation law – and many more people in far-flung places can see or hear the nasty things we say about each other.
Broken friendships, business disagreements and political or moral debates escalate and get vindictive and personal.
There was the first Twitter case where a misguided former student posted a social media character assassination against a school teacher because he mistakenly thought she had cost his father his job.
And the disgruntled businessman who used the social media platform WeChat and targeted emails to tell the world a meat trader was a conman, corrupt and a criminal, with no factual basis.
And the Victorian junior football umpire with Asperger’s Syndrome who was taunted on a US autism website with falsities that he was a pedophile and was faking his condition.
For centuries there have been some people inclined to write poison pen letters, spread nasty rumours and to post sick messages on public noticeboards and toilet walls. The Internet and social media has given them a wide audience for their bile and some of these now result in defamation trials.
Prior to the 2005 reforms, defamation law in Australia was a complicated mess. Major variations existed across the states and territories on a host of issues, including the limitation periods in which people could bring an action and the defences available. ‘Forum shopping’ was rife, with plaintiffs selecting the jurisdiction where the law best suited their case.
The reforms were remarkable in that attorneys-general in eight states and territories reached agreement and forged the changes through their parliaments.
But those laws are desperately in need of reform if they are to catch up with the social and technological changes of the past decade.
The ‘offer of amends’ system introduced with the last reforms was a novel initiative to keep actions out of court with encouragement for an early offer of damages and an apology. But it is complex, often appealed, and other mediation incentives should be put in place to educate parties about settling their differences earlier to avoid the public and personal expense and distress of litigation. Alternative remedies to damages and injunctions would be a bonus.
The triviality defence is flawed and needs to include something of the flavor of the UK’s “serious harm” test – requiring serious reputational harm as a prerequisite to an action.
Changes also need to encourage public interest journalism rather than punish it.
Journalists deserve a stronger public interest (qualified privilege) defence which does not fail when they refuse to reveal their confidential sources and allows for minor errors in important exposés.
And the truth defence should be narrowed to focus on the single most obvious defamatory meaning to give certainty to the reportage so that lawyers do not generate more obscure meanings a journalist might never have anticipated when researching a story.
The implied freedom to communicate on matters of government – a welcome but technical initiative of the High Court – should be enshrined as a formal statutory defence and satirists should get their own defence to better protect robust political critique via parody and satire.
But in tandem with defamation reforms we need government investment in digital legal literacy. School and adult learning curricula must include the basic legalities of social media and Internet use – stressing the key risks posed by defamatory and contemptuous posts.
Teachers might use some of those moral aphorisms our mothers used to tell us.
They would scold us over our nasty comments with “Do not say to others what you would not want said to you”.
And they would soothe our fragile egos: and “Sticks and stones may break my bones, but names will never hurt me.”
Education and mediation encouraging mindful communication might resolve some defamation actions before they even start.
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.
© Mark Pearson 2018