Better tidings for media freedom?


By Jonathan Holmes 11 December 2019

On the face of it, 2019 was a grim year for freedom of the press in Australia. And yet, in its closing weeks, there are signs that, after two decades of ever-more draconian counter-terrorism laws; of an increasingly trigger-happy Federal police; of ever more punitive judgments in the defamation courts; and of ever more frequent resort to suppression orders by Victorian judges; some kind of corner may have been turned.

One catalyst, of course, was the AFP’s decision to raid the home of News Corp’s Annika Smethurst, and the ABC’s Ultimo HQ, on successive days in early June. We were told the police were in pursuit of Commonwealth officers who had leaked secret information to the media.

ABC Alumnus Jonathan Holmes

But it emerged that they were also looking for evidence that journalists and media organisations – Smethurst, the Sunday Telegraph, and the ABC’s Daniel Oakes and Sam Clark – had committed crimes themselves.

The raids produced, at long last, a prolonged outcry from a united mainstream media. Apparently taken by surprise, the Morrison government has been back-tracking ever since.

In July, Morrison requested that the Joint Parliamentary Committee on Intelligence and Security (PJCIS) hold an inquiry into whether the 80 or so counter-terrorism, counter-espionage and secrecy laws it had shepherded through the Parliament since 2001 have impacted on press freedom.

In August, in a significant backdown, Home Affairs Minister Peter Dutton reminded the AFP that press freedom matters in Australia.

In September, Attorney-General Christian Porter, having, it seems, belatedly read the AFP’s search warrants, instructed the Commonwealth Director of Public Prosecutions that it should not prosecute journalists for a number of offences – including all those cited in the ABC search warrant - without his written permission.

And then, in November, the Defamation Working Party of the Council of Attorneys-General signed off on long-awaited proposals for nationwide defamation reform. If and when they are enacted by every jurisdiction in the Commonwealth, the proposed reforms might put some brake on Australia’s notoriously ferocious defamation regime.

The proposals to amend the law, supported by a background paper, were made public by the NSW Attorney-General, Mark Speakman, two weeks ago. They include some reforms that might prove significant:

  • they will try again to rein in the courts from awarding excessive damages
  • they will make it mandatory for anyone wishing to sue for defamation to issue first a formal complaint or “concerns notice” to the publisher, which makes clear what imputations are complained of, and when and where the offending publication can be found

The AFP raid on ABC HQ - a low point in a bad year for media freedom

  • they will make clear that if a publisher makes a timely and reasonable offer to make amends, by way of apology, correction and/or monetary compensation, and that offer is refused, the publisher has a defence against a defamation suit
  • they will lay down that plaintiffs must prove that the publication complained of caused “serious harm” to their reputation
  • they attempt to do away with the anomaly that by suing in the Federal Court – which they can do if the publication is downloadable in the ACT or the Northern Territory - plaintiffs can escape the need for a jury. (The Federal Court currently does not use juries for civil cases, and federal judges have proved much more severe on media defendants than juries have historically been)
  • they will do away with the nonsense that a plaintiff can sue within a year of downloading the offending publication. Effectively, this means there is no time limit to a defamation suit, since most publications are on the web for ever. The new provision will set a time limit of one year from the date that the item is first uploaded by the publisher
  • they will provide a new defence for “responsible” journalism that is in the public interest.

Qualified privilege

To my mind, the last is by far the most important. There is currently a defence of qualified privilege. It covers defamatory matter that the publisher has a duty or interest to publish, and the reader has a corresponding duty or interest in receiving, providing the publication is “reasonable in the circumstances”.

The defence covers, for example, an uncomplimentary reference about an employee given by a former employer to a prospective employer.

Media have argued that it should also cover journalism that is clearly in the public interest. For example, a story alleging corruption by a public official should attract qualified privilege, media lawyers have argued time and again, even if the journalist cannot prove (yet) that the allegation is true, provided that there is sufficient evidence to make publication “reasonable”. If the reporter has good grounds for believing that the allegation is likely to be true, he or she has a duty to publish it, and the public at large has an interest in knowing about the allegation.

But the courts have set the bar for what is “reasonable” behaviour by the media so high that there has not been a single occasion, since the uniform defamation rules were introduced more than a decade ago, on which a qualified privilege defence has succeeded in a media defamation case.

The only effective defence against a defamation suit, even when a public figure’s performance of their public duties is the subject matter, is “justification” – the ability to prove on the balance of probability that all the imputations contained in the story are true. That’s a tall order – especially if a reporter is relying on confidential sources who are unwilling to give evidence in court.

And, of course, it is the plaintiff, not the defendant, who generally speaking gets to define what the “imputations” are. You can report that Councillor Bloggs is suspected of corrupt behaviour on this or that grounds, and call for a police inquiry. Councillor Bloggs can claim that your story carried the imputation that he IS corrupt as a matter of fact; if a judge or a jury accepts that imputation, then that is what you will have to prove in court.

It's hard to defend defamation claims in Australian courts

And while juries will sometimes agree that Bloggs sounds corrupt, and smells corrupt, and therefore probably is corrupt, judges tend to presume the Councilor’s innocence unless the admissible evidence proves otherwise.

It is harder for the Australian media to hold public figures to account – to allege corruption, or misconduct, or negligence, or incompetence – than for the media of any other English-speaking country, and indeed for most democracies around the world.

It is this situation that the Attorney-Generals’ Defamation Working Party is hoping to correct by recommending a new defence for public interest journalism. A report in the public interest will be defensible, even if it can’t be proved, provided it is “responsible”.

Well, what is to stop the courts from setting the bar for “responsible” media behaviour just as high as it currently does for “reasonable” behaviour? Good question.

The draft legislation lays out a number of yardsticks, some or all of which the court should apply when judging what is responsible, and what is not, among them: the extent to which the report distinguishes between allegation and fact; the extent to which it relates to a person’s public functions, not their private lives; the measures the reporter has taken to verify the allegations; whether the plaintiff has been given a right of reply - all, to my mind, reasonable criteria.

More to the point, all jurisdictions, including the federal court, will be required to allow trial by jury if either side so chooses; and it will be juries, not judges, who decide whether the requirements of a public interest defence have been met.

On the face of it, it’s an important reform (though it has received surprisingly little coverage so far from an ungrateful media.)

But one should never underestimate the ability of Australian courts to make life tough for the media, and easy for the plaintiff. The treatment of the qualified privilege defence is just one example.

Another is that a series of judgments, especially by the New South Wales Supreme Court and Court of Appeal, has produced an absurd situation: any media organisation that intends to plead qualified privilege takes the risk that the court will order its journalists to reveal their confidential sources. This is so that the plaintiff, denied the opportunity of forcing the publisher to prove the truth of the story, can sue its sources, who don’t have the opportunity of pleading qualified privilege.

Back in 2012 The Age was forced to promise it would not resort to the qualified privilege defence in order to avoid having to reveal the identity of confidential sources who lived (one assumes) in the People’s Republic of China.

There is, it seems to me, no guarantee that the courts will not take precisely the same attitude to the public interest defence.

Nevertheless, on the whole we should welcome these reforms.

And before Christmas – probably, later this week – we expect the PJCIS to table its report on freedom of the press. There are rumours that the committee’s recommendations will meet at least some of the demands of the Right to Know Coalition.

That does not, of course, mean that the Morrison government will accept the committee’s recommendations. Still, there’s a chance that we’re in for a slightly happier Christmas than we might have expected, when the Federal plods arrived at the doors of ABC Ultimo on the morning of Wednesday the 5th of June.