Free Speech 2014 Symposium Papers

2.2Dr Roy Baker⁵

The title that my paper has been given, not by me, is ‘Does defamation law deserve ridicule?’ It depends what we are talking about. If we are talking about the traditional common law cause of action, then if it doesn’t deserve ridicule, it deserves heavy reform.

In just about every common law jurisdiction across the world, each jurisdiction has seen the need to heavily reform the common law already. Normally that is done with a view to meeting the requirements of the Constitution or international obligations. In the case of the UK, it has been necessary to reform it with the European Convention on Human Rights in mind, while the United States had to take into account the First Amendment.³³

So many of the concerns we have taken into account so far have related to the right of free speech. This may be odd to say at a conference on free speech, but I think it behoves the free speech lobby to pay due regard to two things. One is the right to free speech, the other the right to reputation.

We should be guided by the interesting and I think productive new jurisdiction coming out of the European Court of Human Rights. But we have to be careful about distinguishing reputation as dignity and reputation as property.

When I talk about reputation as dignity, what I am alluding to is the type of defamation which goes to the heart of personal integrity and the dignity of the individual, as opposed to the reputation which is regarded as a property right, where the law should be far less protective.

What I am suggesting then is that first of all we should have due but measured regard to the right to reputation. The second one is that we have to have clear regard for the right of access to justice.

I can no longer see any merit in restricting legal aid when it comes to defamation litigation.

The fear, of course, is that by extending legal aid in order to create a level playing field between plaintiff and defendant, we are going to open the doors to a floodgate of litigation.

So what we need to do is vastly simplify defamation law so it is no longer the playground of the defamation lawyer. In fact, the rule of thumb I would take is that any aspect of defamation law that I have to explain to my student three times requires very careful consideration and reform.

One of the most useful reforms I think could be made of defamation law is scrapping the ‘single meaning’ rule. This is the legal fiction that any publication can only have one meaning.

There was a time when New South Wales had a ridiculous approach to defamation law, which thought that imputations could somehow be scientifically extracted from the publication and could be considered in abstract. We have to move away from that kind of pseudoscientific linguistic exercise and accept that reasonable minds can vary as to what publications mean.

By getting rid of the ’single meaning’ rule, we open the door to what would be the single best way of dealing with the increase of defamation that we might expect if we extend legal aid to the plaintiff and the defendant.

Defamation law should be modelled around the right to clarification. So when the complainant claims that a publication bears a particular meaning, there should be the right for the defendant to say, ‘That is not what I meant. This is the meaning that should be given to the publication.’ And that should be the end of the matter as long as the clarification is a meaning which the original publication is reasonably capable of bearing.

What I have in mind is a right to clarification, as opposed to a right to correction. But informally, we could imagine that a right to clarification could easily be taken as an opportunity for the defendant to backtrack without losing face.

So to some extent the clarification might actually consist of the defendant who realises he or she has overstepped the mark, backtracking a little bit to save face, thus preserving the dignity of both sides.

I should also stress the right to clarification would require that the clarification is given promptly and with due prominence. The law would have to start to get serious about imposing that requirement of due prominence.

What I am hoping is that in most situations, having clarified the original offending publication, that would be the end of the matter. But there will still be situations in which the plaintiff, the complainant, will still feel that their reputation has been damaged. And in that situation, the matter may need to progress to litigation.

If it does, litigation will be based on the original publication read in the context of the subsequent publication so that the law of defamation would focus far more on discursive remedies, rather than the current system whereby reputations are compensated in monetary fashion. We move to a speech remedy, which is an argument that the free speech lobbies have been making since the beginning of time: that the remedy to bad speech is more speech.

There are going to be situations where the defendant realises they made an innocent mistake, in which case we need a right to correction. A correction should cover the defendant as long as it is published with due prominence and promptly.

That only leaves us with those situations where the plaintiff feels that the publication arises out of negligence, malice or recklessness. We still need a defence of truth. I think in that area, I wouldn’t substantially change the law.

We probably need to distinguish between statements that can be properly regarded as statements of fact that have to be proved, and publication of statements that can be appropriately regarded as statements of subjective opinion.

All I would suggest there is tidying up Australian law more in line with the way in which honest opinion is now dealt with by the English Defamation Act 2013 (UK) (Defamation Act).

Finally, we need a public interest defence. It is difficult for an Australian citizen with an English accent to so heavily sell the Defamation Act from the UK. But I would sell section 4. I think this section of the English Defamation Act has more or less got it right. It is a defence where the defendant had reasonably believed that the publication was in the public interest – you can strip it down to something as simple as that: did the publisher reasonably believe that they were publishing in the public interest?

Finally, we need to retain defences of privilege, probably extending them to cover scientific and academic discourse. Without doubt, we need to introduce a single publication rule so that we get away from this nonsense idea that every time a website is downloaded then that constitutes a fresh publication.

That has certainly been introduced in the United Kingdom. The act of publication should be publication as it is understood in the mainstream. When you upload to the website, that is the moment of publication.

We need to move to trial by judge alone. I don’t see any need for a jury. It needs to be a streamlined defamation system.

The final thing that I might mention is the question of corporations – whether corporations should have the right to sue. I really sympathise with what Australia did when it removed the right for large corporations to sue. It was an egalitarian measure, though it was heavy-handed.

I think the answer lies in distinguishing between reputation as property and reputation as intrinsic to human dignity and therefore requiring special protection. Corporations cannot enjoy the latter type of right.

Thus, I would hugely curb the damages that a corporation could recover. That in a very sketched outline is what I would suggest. Thanks.