Hockey v Fairfax should start the debate on defamation law reform

Few defamation cases attract as much publicity as Treasurer Joe Hockey’s successful suing of Fairfax Media, but such suits are everyday occurrences in Australian courts. Hockey’s win has prompted calls from Press Council chair David Weisbrot and Human Rights Commissioner Tim Wilson to reform Australia’s defamation laws.

There is a high level of defamation litigation in Australia. The Supreme Court and District Court of New South Wales each have dedicated specialist lists to deal with defamation claims. Sydney can claim to be the defamation capital of the southern hemisphere and would be competitive for the world title.

A case like Hockey v Fairfax raises the public consciousness about concepts and doctrines familiar to defamation lawyers – for example, the “ordinary, reasonable reader” and “malice”. Both of these are terms of art in defamation law, with their own histories and requirements.

Non-lawyers broadly understand that defamation law is concerned with protecting reputation. But when confronted by these concepts and doctrines, they find defamation law strange, archaic and seemingly divorced from reality. Many lawyers share this view. Former New South Wales Court of Appeal judge and former Independent Commission Against Corruption head David Ipp described defamation as:

… the Galapagos Islands Division of the law of torts.

History of defamation law reform

Defamation has not evolved into a modern tort.

The complexity of defamation law is a real problem. Defamation law applies to all forms of communication – from the most banal conversations between a group of people, to tweets shared to a handful of followers, to blanket coverage in radio, television and newspapers.

Defamation seeks to balance the protection of reputation and freedom of speech. Everyone has an interest in their own reputation. Everyone has an interest in freedom of speech. Yet the law intended to balance these interests is so complex and obscure that it is not readily understood by the people to whom it applies.

The history of defamation law reform in Australia is not a happy one. The last major reform of defamation law occurred a decade ago, when national, uniform defamation laws were finally introduced. Securing substantially uniform defamation laws across Australia occurred after several decades of sporadic attempts at this reform.

The process that finally brought about this reform was a hasty one. It was directed to the goal of uniformity, rather than a detailed consideration of the substance of Australian defamation law.

The last time the Australian Law Reform Commission released a report on defamation law was in 1979. The report has a lot of valuable material in it but, in the decades since its release, there have been significant developments in law and technology.

Four decades ago, internet technologies and social media platforms did not exist. Four decades ago, the High Court of Australia had not yet discerned the implied freedom of political communication in the Constitution. The impact of these two developments alone on Australian defamation law alone would justify revisiting reform.

Why Hockey v Fairfax shows the need for reform

Hockey v Fairfax illustrates that these legal and technological developments still pose challenges for defamation law. It raises questions about the extent to which a tweeter can rely on hyperlinked material in determining whether the tweet is defamatory. It points to the risks posed by social media more generally – both to mainstream media using social media platforms to promote their stories particularly, and to everyone else using them.

The case raises questions about the extent to which politicians should be able to sue for defamation in relation to publications about their public conduct. It also invites consideration of whether an award of damages is an effective remedy to vindicate a person’s reputation, particularly a politician’s reputation.

Both Weisbrot and Wilson have cited this in calling for reform. Weisbrot said rectifying hurt feelings can be achieved through debate in the media, and:

Using the court system to assign a dollar value to bruised feelings is a crude way of achieving the same outcome.

Defamation law is the area of law which is most centrally concerned with freedom of speech. It is one of the two interests balanced by this tort. Because of defamation law’s pervasive application to all forms of communication, any person genuinely concerned with freedom of speech must necessarily give defamation law reform a central place in their attention.

Defamation law reform should not be rushed, though. It should not be a reaction to one particular case. Defamation law is too complex to permit that and any hasty reform may cause more problems than it solves.

Any reform process should also be directed towards simplifying defamation, so that all of those to whom it applies – that is, everyone – may have a chance of understanding it.

David Rolph receives funding from the Australian Research Council.