Hockey’s defamation suit shows need for wider free speech debate
With Treasurer Joe Hockey suing Fairfax over an article with a provocative headline David Rolph of the University of Sydney asks if Australia should toughen up its laws around freedom of speech in a piece first published on The Conversation.
Treasurer Joe Hockey’s decision to sue Fairfax Media for defamation over the now-notorious front-page story “Treasurer for sale” raises interesting questions about politicians suing to protect their reputation, allied with the protection of freedom of speech in Australia.
Hockey claims the newspapers in question – The Age, The Sydney Morning Herald and The Canberra Times – alleged that he accepted, or was prepared to accept, bribes; that he corruptly solicited payments in order to influence his decision; and that he corruptly sold privileged access to businesspeople and lobbyists in return for donations to the Liberal Party.
A debate is underway about the balance between freedom of speech and protection against racially offensive conduct. There similarly needs to be a debate in Australia about defamation law.
Legal questions
It has been reported that the headline played an important part in Hockey deciding to sue. A headline alone, however, cannot be defamatory. A basic principle of defamation law is that the matter has been read as a whole – headline and text. It will be interesting to see how the tribunal of fact deals with that issue.
Who the tribunal of fact will be in this case is also an interesting issue. Defamation cases are one of the rare remaining instances of civil litigation routinely involving juries. In most Australian states and territories, either party can elect to have a jury. In a defamation case, the jury is the tribunal of fact – so it would decide whether or not the articles are defamatory.
Most defamation cases are brought in state and territory courts, such as the Supreme Court, because defamation law is a common law cause of action, substantially affected by state or territory legislation. What is interesting about the Hockey case is that it is commenced in the Federal Court of Australia.
Defamation cases have been brought in the Federal Court before, usually as an additional claim attached to a claim clearly within federal jurisdiction, such as misleading or deceptive conduct. The recent defamation proceedings brought by pollsters Lynton Crosby and Mark Textor against former Labor MP Mike Kelly established that there was a jurisdictional basis to litigate some pure defamation claims in the Federal Court.
In the Federal Court, the presumption is in favour of trial by judge alone, but the court has the power to order trial by jury. In its nearly 40-year history, the Federal Court has only once ordered trial by jury – in a case involving a defamation claim in 2009, Ra v Nationwide News Pty Ltd. After a jury was ordered, the matter settled.
By bringing proceedings in the Federal Court, the likelihood of a jury being empanelled in Hockey’s case is reduced. On the other hand, a claim involving a public figure and a mass media outlet is the type of case that is likely to lead to at least one side seeking to empanel a jury.
The free speech debate
Hockey’s claim also highlights the issue of politicians suing for defamation, and the extent to which political or governmental speech in Australia is free and unfettered.
Historically, Australian politicians of all political stripes have been great consumers of defamation law. Landmark defamation judgments, still regularly cited and applied, involve politicians such as Tom Uren, Bob Hawke, Jim Cairns, Tony Abbott and Peter Costello as plaintiffs.
Australia has no equivalent to the “public figure” doctrine in United States defamation law. Fifty years ago, in a landmark judgment (New York Times v Sullivan), the United States Supreme Court constitutionalised defamation law. It subjected defamation law to the broad protection of freedom of speech under the First Amendment.
Now in the United States public figures, like politicians, have very little chance of successfully suing for defamation. They would have to demonstrate that the matter was false and that the publisher was motivated by actual malice, both of which are very heavy forensic burdens to discharge.
To the extent that an Australian equivalent exists, there is an implied freedom of political communication arising from the text and structure of the Constitution. In the early 1990s, the High Court of Australia recognised this implied freedom as a necessary incident of representative democracy.
The implied freedom of political communication has had some impact on defamation law, but not to the extent that the Supreme Court’s decision in New York Times v Sullivan transformed defamation law in the US. Consequently, politicians can and still do sue for defamation in Australia.
Merely because a publication touches on a government or political matter does not provide an absolute protection for that speech under Australian defamation law. The publisher would still need to demonstrate that it acted reasonably, which, in practice, is a test often strictly applied.
It would be a radical development to suggest that politicians in Australia should be prevented entirely from suing for defamation. Most politicians exercise restraint and either never sue or would only contemplate suing in the most serious case. The issue then is really how to strike a proper balance between politicians protecting their reputation and protecting freedom of speech and freedom of the press.
Defamation law applies to all forms of communication, not just to mass media outlets. It has been around for centuries but has always protected reputation more highly than it has protected free speech. It is easier to be a plaintiff than a defendant in a defamation case.
If one is genuinely concerned about free speech, defamation law, not the Racial Discrimination Act, seems like the area most in need of reform.
David Rolph is an associate professor at the University of Sydney’s faculty of Law, and receives funding from the Australian Research Council.
This article was originally published on The Conversation.
Read the original article.
Total overkill. Hockey has every right to sue. And the courts have every right to find that he’s a public figure and so on. Get a grip. The real case to worry about is when Obeid et al can use the courts to prevent good reporters revealing what the public really needs to know. This, the “digirati” need to know, is the reason we worry about losing strong independent news organisations. They can afford it.
User ID not verified.
Did Gillard sue the Tele? Or 2GB? Surely there would have been a case against either. (Not that you can regard either as producers of journalism…)
User ID not verified.
One sometimes suspects that universities were created so folks like Rolf have quiet corners to strop away to their hearts’ content without alarming small children and horses. It is a pity to see his effusions staining Mumbrella’s pages. A headline alone cannot be defamatory? Sheesh, where does academia find these dills?
As any reasonably competent sub could tell you — and accepting, of course, that Fairfax has laid off all its decent subs in order to cover G. Heywood’s $50K-per-week salary — headlines alone can be extraordinarily defamatory.
With a view to the Hockey headline at issue, consider a hypothetical example: “Law Professor For Sale”. If the story below happens to be about Rolf, those four words level the charge of corruption and do so quite explicitly. The fact that the story might not support the headline, as was the case with the Hockey yarn, would mitigate damages not at all; indeed, that discordance would boost the potential payout, as the misleading headline would pretty much establish a reckless negligence in placing four such loaded words atop a story that says no such thing. A chief sub, a competent one, would have spiked that headline the instant he or she saw it. But as we know, competence has long been exiled from Fairfax newsrooms, its subs’ tables and backbenches most of all.
As to Rolf’s assertion that Hockey would not have a chance of succeeding under US law, well that’s another load of tosh! The Sullivan reference is irrelevant in this case, as malice remains both grounds for bringing suit and adverse judgment against the defendant. Honest mistakes you get away with in the US. But deliberately slanted headlines at variance with the facts presented? Sorry, no such luck. Ask the supermarket tabloids — the National Enquirer and Star about that. Each has been sued (and obliged to cough up) for inaccurate stories about celebrities — stories juries have concluded were maliciously concoted to boost sales at the expense of truth and plaintiffs’ reputations.
Was Fairfax exhibiting malice in describing Hockey thus? Well, that’s for the courts to decide, but Hockey’s lawyers will no doubt point to the antipathy toward Abbott & Co. which the SMH and Age demonstrate on a daily basis. You can just imagine Hockey’s lawyer reminding the court:
“M’lud, let it be noted that, within days of the Coalition’s victory on the 7th of September, 2013, Fairfax papers and websites were promoting an entrepreneurial columnist’s new range of T-shirts bearing the words ‘F**k Abbott.’
“Are we to assume that, having bared its partisanship in one instance, Fairfax was quite suddenly overcome by a fit of journalistic rectitude in covering other aspects of this government and its ministers’ present and past activities?”
One last question for Rolf: Were you part of the legal team providing advice to Craig Thomson is his foot-shooting libel action against the SMH?”
User ID not verified.
Roger your comments lost all credibility with me as soon as I noticed you were talking through an anti-Faifax / Fairfax is biased filter. I’ll stick with the academic
User ID not verified.