Politicians suing for defamation: Freedom of speech?

As it becomes a more common practice for politicians to sue for defamation, perhaps it's time for some reforms to the law, writes Brooke Murphy.

THE RECENT ELECTION CAMPAIGN saw open attacks on Australian politicians in both traditional and digital media. The slings and arrows came from the usual suspects – news outlets and political opponents – but also from the public through social media. Critique and robust debate are essential in a healthy democracy, but where does the law draw the line?

What is defamation?

Defamation law protects an individual’s reputation. If someone feels that a publication that has been seen by more than one person has lowered their reputation in the eyes of the public, they may have an action in defamation. To have an action in defamation, the plaintiff needs to prove that:

The material was “published”;
The material identifies them; and
The material was defamatory.

Can politicians be defamed?

The law does not prevent politicians from making defamation claims. In Australia, we do not have a right to freedom of speech which is explicitly enshrined in our law. Instead, the High Court has found that the right of freedom of political communication can be implied from the Australian Constitution. As the Constitution establishes representative government, we need to be able to freely express our political opinions, thoughts and ideas.

Matt Collins QC says failure of politicians to protect free speech and other fundamental rights could make Australia the world’s “defamation magnet” https://t.co/zKxh7LZLVf –LIV #auslaw #defamation
— LIVPresident (@LIVPresident) December 11, 2017

However, this freedom does not come without reasonable limits. One “reasonable limit” is a person’s right to not be defamed. There is a range of defences to defamation which support democratic speech, including truth, qualified privilege, honest opinion and fair comment on public proceedings.

An action for defamation isn’t precluded merely because the person making the claim is a politician. While criticism of political viewpoints is essential to democracy, politicians still have a reputation to protect. In the past few years, there has been a range of defamation actions brought by politicians. Most notable are Sarah Hanson-Young’s actions against Bauer Media and David Leyonjelm, as well as Joe Hockey’s action against Fairfax Media.

In 2015, Ms Hanson-Young settled a defamation case against Bauer Media for Photoshopping Ms Hanson-Young’s face onto a lingerie model’s body which accompanied a Zoo Magazine article headlined ‘Zoo’s Asylum Seeker Bikini Plan’. The court acknowledged that the image could convey that Hanson-Young “is not a serious politician”. As part of the settlement, Zoo Weekly published an apology to Ms Hanson-Young. At the time of writing, Ms Hanson-Young’s action against Mr Leyonjelm is still being litigated.

Joe Hockey made a successful defamation claim against Fairfax Media for a headline that said ‘Treasurer for sale’. The headline was not only displayed with an article about Mr Hockey’s attendance at a North Sydney Forum dinner, but also on newsstand posters and tweets linking to the article. Fairfax argued that the article was in the public interest as there was “significant public debate about donations being tied to access to politicians”.

Joe Hockey, Rebel Wilson and Geoffrey Rush, are part of a new cohort of defamation cases.

Big defamation is back, conclude experts, "which we haven't seen since the late 1980s and early '90s". https://t.co/jfXb9cZLnL
— The Piddington Society (@PiddingtonSoc) November 3, 2018

Hockey’s legal team argued that the headline implied that Mr Hockey took bribes and was corrupt. The court found this meaning in relation to the tweets and poster, which were treated as separate publications from the more balanced article.

Most recently, Flinders independent candidate Julia Banks threatened to sue conservative activist group Advance Australia for brochures which labelled her a ‘bully’. One side of the brochure showed an image of Ms Banks with the words ‘Would you vote for a bully?’, citing untested claims that she bullied a young colleague in her office before entering Parliament.

A tool for silencing political debate

One of the most troubling features of Australian defamation law is how the mere threat of action can be used to stifle political debate. “Defamation law can have a chilling effect on political speech,” says Kym Butler, principal of Butlers Business Lawyers. “Large companies and media organisations have the resources to manage the risks of publishing, but now ordinary people can publish to a wide audience through social media.” It is beyond concerning that a party does not even need to commence legal action to “cry defamation” and silence opponents.

In March this year, while reporting on the Christchurch shootings on The Project, Waleed Aly stated that there had been:

“...media reports going back eight years at a shadow cabinet meeting in which another senior politician suggested his party should use community concerns about Muslims in Australia failing to integrate as a political strategy. That person is now the most senior politician we have.”

Australia's PM Scott Morrison is now accusing Waleed Aly of defamation.https://t.co/W2ZOo16FuC
— Emak Coffee (@EmakCoffee) March 19, 2019

Shortly after the broadcast, Scott Morrison’s press secretary called Network Ten insisting that the report included “defamatory” content and “discredited information”. Mr Morrison’s team did not push the matter further.

Businessman and former politician Clive Palmer is no stranger to defamation. It has been reported that he has threatened and commenced defamation actions against a variety of parties, including Michaelia Cash and Malcolm Turnbull, Nationwide News Pty Ltd, Hedley Thomas, Jeff Seeney, Anna Bligh, Campbell Newman, Jenny Hill and the Football Federation of Australia arbitrator. In all of these cases, the dispute was either settled or withdrawn by Mr Palmer. Last year, the liquidators of his Queensland nickel refinery company also commenced defamation proceedings against him for saying that they “milked taxpayer funds to line their own pockets”.

The way forward

Reforms to defamation law should focus on striking a better balance between the rights of the individual and the needs of a 21^st century democratic society. The difference between a political statement and a statement that damages a person’s reputation can be incredibly murky, especially in the digital media-saturated era.

Firstly, reformers should consider the treatment of defamation and politicians in foreign jurisdictions. New Zealand courts have recognised a defence of ‘responsible communication of a matter of public interest’. Similarly, in the United States, it is hard for a politician to sue for defamation due to the “public figure” doctrine.

Another way forward would be to implement reforms which make it difficult for plaintiffs to use their financial means or political power to silence opponents. Uniform state defamation legislation states that, in relation to costs orders, the court will consider whether a party misused their financial position to hinder the early resolution of proceedings. However, this does not stop a party from threatening or commencing legal action in the first place.

Reforms also need to take into account the impact of the internet and social media, which allow ordinary people to quickly make publications that are viewed by a substantial audience. As seen in the High Court’s recent decision regarding defamation in Google search results, defamation law can impact not only on freedom of political expression but also access to information.

Beyond interference law, also time to rethink defamation law in Australia. “My concern is that defamation claims can have a chilling effect on our free press. Any attempt to silence our media from telling the truth through a defamation claim cannot stand." https://t.co/wBDMp11qCG
— Kevin Carrico (@kevincarrico) May 22, 2018

You can follow Brooke Murphy on Twitter @brooke___murphy.

Australia the world's "defamation capital": why & how? https://t.co/ZaItkr6uLR @limlouisa in @nytopinion on "broken" libel law, its chilling effect on news reporting, possible libel law reforms, etc. Chau v Fairfax Media Publications, first-person experience noted. RECOMMENDED.
— Kyu Ho Youm (@MarshallYoum) March 6, 2019