Media essays

Defamation: the high price of freee speech

To what extent do Australia's complex defamation laws pervade journalism and news production in the mainstream Australian Press? Julia Cameron looks at two examples of Australian journalism from the big dailies and the impact and effect of the law of defamation

(2004)

Case 1: ALBRECHTSEN VS. O'SHANE: THE $220,000 OPINION
In 1999, the Sydney Morning Herald published an opinion piece by freelance columnist Janet Albrechtsen, headlined, “Extreme Views from the Bench,” in which she claimed that NSW Aboriginal magistrate Pat O'Shane was 'often angry at what she perceives as injustices in our society'. Among other inferences, Albrechtsen asserted that 'it is not at all clear that her [O'Shane's] decisions do anything other than undermine the judicial system as a whole'. In essence, the article implied that O'Shane used her position of considerable influence to impose her extreme views and her anger concerning, primarily, women and the Aboriginal population, on the community. O'Shane sued SMH's publisher Fairfax in the NSW Supreme Court for damages in a defamation lawsuit and in March 2004, she was awarded $220,000. A jury of three women and one man found that the article implied the magistrate was biased, incompetent, and brought anger and bitterness to her role.

Case 2: RULE VS. CLARK: AWARD-WINNING INVESTIGATION
In 2001, The Age journalist Andrew Rule embarked on a three month long investigation into claims the then Aboriginal and Torres Strait Islander Commission Chairman Geoff Clark had raped four different women and attempted to rape another during the 1970s and '80s. Of the four women, one allegation had lacked evidence to stand up in court, two did not get further than a failed police investigation, and one had never been reported. Rule dedicated three months to the investigation, and The Age flew Kate Healy, the woman whose claim had never been reported, to Melbourne where she underwent two hours of mock questioning from a criminal barrister, to ensure that her version of events could not be swayed. Post publication, The Age was both applauded and condemned for its decision to publish the story. It was hailed as a 'trial by media,' by some and praised for the high calibre of investigative journalism by others. In 2003, Rule won a Gold Walkley Award, an esteemed journalistic industry award, for the article. At the time, Geoff Clark stated that he would not sue for defamation, and to date has not instituted proceedings against The Age and Fairfax.

The impression one gets from Andrew Rule, Gold Walkley Award winning journalist and author of the damning Geoff Clark: Power and Rape investigation, is that it could have been worse. “Graver allegations were dropped from the story,” he says of the front-page scandal published by The Age in 2001. The preceding three-month long investigation that Rule undertook had culminated in four separate rape allegations against the then Aboriginal and Torres Strait Islander Commission Chairman, Geoff Clark. “Even photographs on file that unavoidably made Clark look like a thug were not used, in favour of 'neutral' pictures,” says Rule. What stopped it from being any worse for Clark was arguably the role of the law of defamation, the guardian of the reputations of the rich and famous and the enemy of the publishing game.
In 1999, freelance columnist Janet Albrechtsen contributed an opinion piece to the Sydney Morning Herald¸ as she often did. On the Opinion page in which the piece appeared, was the headline: Pat O'Shane is a magistrate who makes headlines: here are two opposing views on the latest controversy. On this occasion, Albrechtsen offered a critical opinion of O'Shane to SMH, alongside the opinion of David Dixon, a law academic at the University of NSW, who was more supportive of O'Shane. Albrechtsen, by reputation, is an unapologetic right-wing columnist, and often controversial in her views. Her article accused Pat O'Shane of 'often' bringing anger and bitterness to her role as a magistrate, and of using her position of considerable influence to further her diatribe.
Prior to the publication of Albrechtsen's article, the piece was carefully checked by SMH's in-house lawyers and much discussion took place as to how certain issues should be phrased. Albrechtsen and the opinion editor John Marsh were aware of the risk they were taking in publishing a piece that questioned to such an extent the professional ability of O'Shane, but they expected that the 'balanced' context in which the piece appeared, in publishing each side of the debate, would protect them from a litigious response. Pat O'Shane didn't appreciate that this amounted to balance and, earlier this year, the NSW Supreme Court found that Albrechtsen's article did in fact defame O'Shane on three separate points, and ordered Fairfax, SMH's publisher, to pay O'Shane $220,000 in damages.
The Age, and Andrew Rule, was spared the cost, time, and considerable resources it would have taken to defend their story in court against a defamation lawsuit. It was ready, however, if Clark had decided to proceed with a defamation case. Michael Gawenda, editor of The Age¸ says that although the possibility of Clark suing was discussed in depth, “we had no real instinct about whether he would or not”. They were confident, however, that they could rely on the truth of the story. In fact, in the days following the publication of the article, The Age even challenged Clark to sue for defamation, an offer Clark declined to take up. Instead, Clark issued a statement saying that he had decided against initiating defamation proceedings as it would involve a costly 'legal war of attrition', and that he would complain to the Press Council. He claimed he did not want his family and community to be torn apart by what he anticipated would be an ongoing newspaper trial. For Clark, pursuing a defamation action was simply not going to be worth the trouble.
STATE OF PLAY
Australia's publishing industry is vulnerable to some of the strictest defamation laws in the world. Any editor or publisher in Australia will tell you of the disaster state of our defamation laws. Editors and journalists alike bemoan the fact that there is no national defamation law, instead, there are eight different state and territorial variations. What this means is that material that may be defamatory in Victoria may not be defamatory in Western Australia, and vice versa. In light of the fact that Australia's major daily newspapers are not restricted to distribution and circulation in the state in which they are published, this causes massive confusion and headache for editors, lawyers, corporations and plaintiffs alike. For a publication such as The Australian, which is widely read by members of all Australian states and territories, this is even more the case. The lack of certainty about which set of laws apply and to whom can sometimes gives plaintiffs the opportunity to go 'forum shopping' for the most appropriate jurisdiction in which to bring their action, so as to ensure the best chance of a favorable outcome. In fact, many see the system as considerably skewed in favour of plaintiffs, and the success rate of publishers' at trial, 32 per cent, is testament to this theory.

So, how much is a reputation worth in Australia? Less than $50,000, says Patrick George, a partner in law firm Minter Ellison. In 2003, George conducted a survey of almost 300 verdicts delivered in Australian courts between 1977 and 2002 and found that the typical winner of an Australian defamation case is a businessman who a newspaper claims has misused his position. He will most likely sue in NSW and his efforts, if he is successful, will net him less than $50,000 in damages.
It has been said that Australia, in particular Sydney, is the defamation capital of the world. “For every verdict in any other state and territory, there were approximately four verdicts in NSW,” says George. NSW accounted for 46 per cent of all defamation verdicts in Australia. While Victoria provided only 9 percent of verdicts, this is because a plaintiff suing The Age would bring their case in the NSW courts, as Fairfax's legal home is Sydney.
The survey revealed that, of all media, newspapers had a 62 per cent chance of being sued. Criminality, dishonesty and misuse of position accounted for 80 per cent of defamatory imputations, and businessmen and companies, lawyers, pubic servants and politicians were the most likely to sue.

DEFAMATION IN THEORY AND PRACTICE
One of the original theorists on defamation laws, American jurist Robert Post, sought to assert that the law of defamation could only be understood if one's reputation was seen as a form of intangible property. Reputation, he believed, was an inherent and integral part of individual identity. Post saw defamation laws, therefore, as governing the 'rules of civility', which he believed developed and maintained one's personal identity. These rules operate to distinguish members of society from non-members and thus defamation law enforces society's interest in setting boundaries for what is appropriate and what is not for that society.

In Australia's vigorous defamation climate, an action in defamation seeks to protect a person's reputation from a defamatory communication. To be defamatory, the communication must bring the plaintiff into hatred, contempt, or ridicule, or must be likely to cause the ordinary reasonable person to think less of, to shun, or to avoid the plaintiff. A defamatory communication can be made in relation to someone's private character, or to his or her reputation in trade or profession, and it must be communicated to a third party. The context of the defamatory statement is important, as is the audience to which it is communicated. A joke will not always be defamatory, and if it is suitably outrageous enough, and generally understood to be so, it probably will not be defamatory. A finding that you have been defamed will not depend on the meaning intended by defamer, but rather the meaning the reasonable reader would attach to it.
In Victoria, South Australia and Western Australia, 'libel' is used to describe an oral defamatory communication, while 'slander' represents written defamatory material. The defences available to publishers are Truth, which is a complete defence to a defamation action in most states, Absolute Privilege, which makes certain forums exempt, Qualified Privilege, which centers around the notion of the Public Interest, and Fair Comment.
Janet Albrechtsen, who is also a lawyer, had hoped to come out of her time in the NSW court a small-time expert on NSW's defamation laws, but found she was unrealistic in her expectations.
“Unfortunately the laws are so complicated that did not happen. And that's the problem with our defamation laws,” she says, “They are incredibly complex.”
In March, Federal Attorney-General Phillip Ruddock released an outline for a possible national defamation law that would simplify what he calls a "patchwork of common law and state and territory statutes". While many acknowledge the need for reform and simplification of Australia's defamation laws, Ruddock's proposal has left many in the media industry wary. Some of the characteristics of the proposal include the watering down of some of the defences that can be relied upon by publishers in a defamation action. While some have simply said it would be better option to enshrine free speech into our Constitution, as the US does, the Council for Civil Liberties has downplayed concerns that it would inhibit media freedom.
Council President, Terry Gorman, is supportive of the proposal, and says, “The media is likely to cry wolf as it always does when there are defamation reforms on the table, but the reality is only the most wealthy can afford to litigate in the courts to get a remedy when they're defamed.”
RULE'S DELIBERATION
Andrew Rule knew that publishing the results of his three month investigation would open him and his employer up to the possibility of a defamation lawsuit. It came down to weighing up his conviction in the truth of the story and his belief that a publicly elected official such as Clark should bear such scrutiny, with the risk that Clark would sue them for defamation in a case that could cost hundreds of thousands of dollars and potentially take many years. To minimize this risk, The Age went to great lengths to test the veracity of the story, to ensure the women's allegations could stand up in a court of law if necessary.
“The obvious problem being that if the story wasn't watertight, Clark could sue for a record amount. Everyone from the Editor-in-Chief to the editor's secretary knew this. There was two weeks of deliberation and fine-tuning before finally publishing,” says Rule.
In the end, the final call as to whether or not to publish rested with Michael Gawenda, Rule's editor at the Age. In what he has called the biggest professional decision he has ever made, Gawenda put the allegations on the front page of the Age on June 12, 2001. Gawenda has since revealed that the question that was argued around the conference table at the Age's head office before publication was not one of whether to publish the results of Rule's investigation, but how best to publish the findings.
At the Age, there is no team of in-house lawyers scanning the day's news and features for possible defamation fodder like there is at SMH, but law firm Minter Ellison has been the paper's lawyers for almost 20 years. The role of the lawyers, says Gawenda, is to estimate the risk level and suggest changes that will minimize the risk. Then it becomes simply a matter of deciding if publishing the story is worth the risk.
“Lawyers don't make this decision,” says Gawenda, “editors do."
The Age's Sydney sister publication, the Sydney Morning Herald, was not aware of the investigation during its course and had only six hours to look at the story before deciding to publish. It also ran with the story, but altered it slightly.
Both the Age and SMH were accused of putting Clark on a trial by media and were subsequently confronted with many scathing attacks on their credibility by media analysts and social commentators. Those who opposed the publication of the womens' claims accused the Age of stripping Clark of the presumption of innocence until proven guilty and of ultimately convicting Clark of rape charges when a court of law was not willing to do so. At the time, Gawenda attempted to distinguish the role of the media and the role of the law, and asserted, “There is a difference between something being true and something being proven in a court of law.”
The compelling feature of Rule's investigation, says Gawenda, was that the five women had agreed to sign sworn statements, which would have been monumental for Clark to overcome or prove otherwise.
Rule was also aware that the strength of his story rest with these five sworn statements. “We would have been wary going into battle with only one or two statements," he says.
Having five different variations of the same accusation, however, was a different story. Had Clark sued the paper for defamation, Gawenda says the Age's defence would have been based on the assertion that that the women's stories were true, that Clark was a significant public figure and that there was significant public interest in publishing the story. For Clark, had he decided to proceed with a defamation action, this meant the possibility of unearthing information that could tarnish his reputation even further.
Therein lies the problem with Australia's defamation laws, and maybe even defamation laws in general -- often, the litigation yields no winners, except of course, the lawyers, whose fees are almost always exorbitant. It is arguable that Clark had little recourse to address the affect the article had on his reputation, despite assertions by the Age that an action in defamation was open for him to pursue. It was Pat O'Shane, a vocal critic of the Age's decision to publish, who neatly encapsulated the inadequacy of a defamation lawsuit, in saying: “If he does not sue, then hey, presto! Case proved. If he does sue, and not win…then again, case proved. In fact, no proof needed, case proved.”
ALBRECHTSEN'S OPINION
The reason that Albrechtsen's article proved a better candidate for a defamation lawsuit was based on the judge's finding that Albrechtsen's assertions of opinion were in fact opinion, dressed as fact. Opinion is valid, under the law of defamation in the NSW, but not when it masquerades as a set of facts. Pre-publication, Albrechtsen and her editors assumed that her critique of O'Shane's performance on the bench would be deemed fair comment.
“My piece was a legitimate comment on the decisions of a magistrate,” says Albrechtsen.
“The newspaper obviously decided that the publication of the piece was important, as a matter of principle. If a newspaper cannot publish an opinion piece which is critical of our judiciary, then that is a major incursion on our ability to write freely on matters of importance,” she says.
Pat O'Shane obviously disagreed. In the case before the NSW Supreme Court, she argued that Albrechtsen's opinions defamed her in eight different ways. Only three of these eight defamatory meanings were found by the judge to be 'comment', and the remaining five meanings were thought to be statements of fact. Of the three 'comments', the defence of 'Fair Comment' could not be made out, the judge found, because of factual inaccuracies and 'defects' contained in the article, namely, an overstatement on Albrechtsen's behalf of the number of occasions on which O'Shane had been angry. The frequency with which O'Shane 'got angry', as asserted by Albrechtsen, was the defining reason for the success of O'Shane's defamation action.
The role of the editor and the journalist and their ability to espouse dialogue, control discourse and set the agenda in relation to matters of the 'public interest' is unquestionable in relation to Australia's major daily newspapers. Australia's media ownership is one of the most concentrated worldwide, and as such, editors of papers such as the Age and SMH are in the powerful position of determining what is newsworthy and who in the community is deserving of scrutiny.
Pat O'Shane is deeply critical of this power. People must not forget, she says, that a newspaper is not a public institution, but a private one, motivated entirely by the need to make profits.
Following her win in the NSW Supreme Court, O'Shane appeared on ABC's Radio National's Media Report, where she attempted to demonstrate the power of the media in Australia and the need for strict defamation laws to keep it in check.
“The media is not subject to accountability, to transparency…and it defines and determines public discourse in this country. They (newspapers) in fact determine not only what the public will know and understand about issues, but who will tell, and who will analyse those issues,” says O'Shane.
While this may be the case, the current state of Australia's defamation laws are certainly not the most simple way of curbing or monitoring the power of the media. A defamation action can, and often does, take years and can cost thousands of dollars. While the need for a system of checks and balances is desirable, the general feeling from those in the media is that it certainly is not if it is at the expense of free speech, fair comment and individual expression and critique.
Janet Albrechtsen is a controversialist. In some ways, that is her role as a journalist. While she acknowledges that the law of defamation obviously constrains how she writes, and has always done so, she refuses to let it impede on her right to make a fair comment.
“People are entitled not to be defamed unfairly, so I am always very careful that any criticism I make is fair comment,” says Albrechtsen.
Those in the media industry tend to agree wholeheartedly that Australia's defamation laws are too restrictive of free speech. Andrew Rule is particularly critical of the protection they afford to public figures.
“Australia's defamation laws favour public figures in a way that others countries' do not,” says Rule.
Janet Albrechtsen can acknowledge that defamation laws are an important protection against malicious and cavalier reporting that may damage a person's reputation. However, she believes the problem with Australia's defamation laws are that they are so complex that their operation results in the constraint of legitimate comment.
Michael Stutchbury, the editor of the Australian, is also critical of what he believes to be a serious hindrance on the right of free expression.
“Australia's defamation laws punish vigorous debate on issues of public importance and are bias in protecting people's private reputations at the expense of a healthy democracy,” says Stutchbury
“It is bad public policy to try and protect the reputations of public figures from scrutiny by censoring criticism with legalistic menace and financial threat.”

The effects of both Albrechtsen and Rule's articles provide an interesting appraisal of the state of defamation law in Australia. While Albrechtsen's serves to remind us that the expression of an adverse opinion about an appointed official can come at a high price, Rule's article reflects the power of the press and possibly, the need for a comprehensive system of checks and balances on the media. In the same breath, Rule's article also represents the sheer inadequacy of a defamation lawsuit for a plaintiff such as Clark.
Despite widespread concern among journalists, editors and publishers alike, it should be comforting to free speech advocates to know, at least in this case, that the threat of a defamation action will not wear everyone down. Janet Albrechtsen, for one, is adamant that the O'Shane defamation case has not altered how she writes.
'In fact, I made a very conscious decision after the case, not to alter how I write,” says Albrechtsen. “That was especially the case just because the newspaper received an adverse result in the O'Shane case. I will continue to be critical of the decisions of our judiciary - at all levels.”
For Fairfax's sake, and maybe even for the sake of free speech, let's just hope the next one is worth substantially less than $220,000.

DEFAMATION IN THE AGE OF ONLINE PUBLISHING
The recent Australian High Court case of Gutnick v Dow Jones decided that material on the Internet could be subject to the defamation laws of any country in which the defamatory material is read. The court held that the place of publication, or the place of upload onto the Internet, would not automatically be the jurisdiction in which to hear a defamation case, but rather the place where the defamatory material is read.

This decision meant that Melbourne businessman Joe Gutnick was able to sue US publishing giant Dow Jones in the Victorian Supreme Court for an article that appeared in a subscription-only online magazine, Barron's Online, that inferred he had business dealings with crooked businessmen, even though the article was written and uploaded onto Dow Jones' website in New Jersey, United States. Initiating proceedings in the Victorian Supreme Court was more favourable to Gutnick, as he would have a much better chance of proving defamation in a Victorian court, where defamation laws are strict, than he would in a New Jersey court, where free speech is protected by the first amendment to the US Constitution.

What sort of effect has the High Court's decision had on Australia's online newspapers? Michael Gawenda, editor of the Age, says it is too early to tell. “We have not had actions against us based on what has been published on the Age Online launched in jurisdictions outside Australia, though there have been a couple of threats. It's an area we are now looking at with our lawyers.”

BIBLIOGRAPHY
Albrechtsen, Janet. “Extreme Views from the Bench,” Sydney Morning Herald, (Sydney), Fairfax, December 16, 1999, News and Features, Opinion, p 19.
Butler, Des, Rodrick, Sharon. Australian Media Law, 2nd Edition, Sydney: Lawbook Company, 2003.
Cant, Sue. “Publish at your peril”, The Age¸ (Melbourne), Fairfax, February 25, 2003, News and Features, p 23.
Chesterman, Michael. Freedom of Speech in Australian Law, Hants: Dartmouth Publishing Company Limited, 2000.
Clausen, Lisa. “Power and the Press: Rape Allegations in Black and White”, Time International, (157), June 25, 2001, 16.
Editorial. “One step forward, many steps back”¸ The Age, (Melbourne), Fairfax, 22 March, 2004, Editorial and Opinion, p 12.
Editorial. “Time for Reform of Defamation Law,” The Age, (Melbourne), Fairfax, November 17, 2003, Editorial and Opinion, p 10.
Knox, Malcolm. “Reputation Rescue: smart money is on NSW,” Sydney Morning Herald, (Sydney), Fairfax, June 21, 2003, News and Features p 17.
Lamont, Leonie. “Magistrate Wins Libel Damages”, The Age, (Melbourne), Fairfax, March 17, 2004, News, p 3.
Masters, Chris. Not for Publication, Sydney: ABC Books, 2001.
Rintoul, Stuart, Dodd, Andrew. “Violation, but of whom?,” The Australian, (Sydney), News Limited, 21 June, 2001, Features, p M3.
Rule, Andrew. “Geoff Clark: Power and Rape,” The Age, (Melbourne), Fairfax, July 14, 2001, News, p 1.
Stutchbury, Michael. “Michael Stutchbury: Legalities hinder free expression,” The Australian, (Sydney), News Limited, 2 April, 2004, Opinion, p12.
Williams, George. “Sorry Pat, But You Should Blame John Howard,” Sydney Morning Herald, (Sydney), Fairfax, June 28, 2001, News and Features, Opinion, p 14.O'Shane v John Fairfax Publications Ltd [2004] NSWSC 140
1991, Investigative Journalism: How probing? Australian Press Council Conference Papers, 1
1994, Public Figures and the Press Australian Press Council Conference Papers, 1
Baker, Roy. Communications Law Centre, “Defining the Moral Community: The 'Ordinary Reasonable Person' in Defamation Law”, Submission for the Communications Research Forum 2003, National Defamation Research ProjectO'Regan, Mick. “Pat O'Shane, Donald Woods,” The Media Report, ABC Radio National, 23 August 2001.

Ackland, Richard, Australia's pathetic judicial defence of free speech” Crikey Media, www.crikey.com.au/media/2001/11/18-acklandvoltaire.html, (accessed 25 March, 2004)
Communications Law Center, “Free Speech and Defamation” 13 October, 2003, http://www.comslaw.org.au/main_ver4.asp?inputCategoryID=33, accessed 14 October 2003
O'Shane, Pat. “Remembering Salem! Online Opinion, July 27 2001, www.onlineopinion.com.au/2001/Jul01/Oshane.htm accessed 10 October, 2003
Phillips, R., “Australian Walkley Awards: Rewards for services rendered” 7 December, 2001, www.wsws.org/articles/2001/dec2001/walk-d07_prn.shtml accessed 14 October, 2003
Mayne, Stephen, “The long list of defamation litigants in Australia” Crikey Media, www.crikey.com.au/media/2002/04/03-famationlist.print.html , (accessed 25 March, 2004)Albrechtsen, Janet, Email Interview by author, Melbourne, Victoria, 8 June, 2004.
Gawenda, Michael, Email Interview by author, Melbourne, Victoria, 4 June, 2004.
Rule, Andrew, Email Interview by author, Melbourne, Victoria, 4 June, 2004.

Click here to go back to our LaTrobe writers page