LeeAnneArt: What does Defamation Law Cost

"Newspapers, afraid of Britain’s strict libel laws, decided not to publish their suspicions, although several had conducted their own investigations over the years."

(Extract: Shield of celebrity protected Savile for decades)

This quote from a recent article on the Jimmy Savile case underscores a point contained in my immediate last post What does Defamation Law Cost? which was that bad laws protect bad behaviour and this needs to be pointed out loudly and repeatedly.

Threats of and actual legal action are financially crippling to defend. It is not as if it is any secret that defamation laws are used to silence critics through these means. This activity it seems is routine with defamation actions and when it succeeds it is an effective tool to further dissuade other potential critics from doing the same. Such criticism of legally sanctioned bullying is dismissed by the legal industry as so much sour grapes it seems or simply denied to be the case. Take the Jacob Zuma matter in South Africa as a case in point. Fortunately Zapiro and his supporters stood firm. It would have been difficult. South African defamation laws take their lead and inspiration from UK's libel laws just as do Australia's.

Britain's "strict libel laws" are what the Australian Defamation Act 2005 and earlier iterations are based on. Prior to the 2005 reforms, which came into effect January 2006, the separate Australian States administered different versions of the act, it was administratively worse than it is now. Reform included in part enhancing the defences permitted for defamation defendants though did little to improve matters of balance overall. A defendant is considered guilty of defaming on a plaintiff's say so, regardless of truth and even though the act appears to support that truth is not actionable (see "Dancing in the Streets…" below).

The defences that apply have to establish justification and/or establish why a the monetary liability of a defendant to a defamed plaintiff should be limited. The burden upon a defendant is considerable because establishing truth though perhaps not difficult is less important than establishing justification for making truth known. Even then if the system actually worked these steps could be followed by a justified defendant. But those who have experienced our legal "industry" know there are obstacles thrown at every turn to hamper and unduly lengthen the straight road that could be taken to reach resolution.

If indeed it is the case that truth is not actionable why are so many barriers to establishing truth permitted? It is a very rare event where there is found to be no defamation to answer. The statistics for why this might be the case, I would hazard a guess, are likely to be skewed as most defamation matters do not reach trial at all due to the burdens the law places upon defendants over plaintiffs, with the effect they either wipe out motivation, or finances or both. In the Zuma case the fortunate outcome after years of crippling attacks upon the cartoonist Zapiro and his newspaper employers (see above) was that Zuma recently withdrew the complaint in which he'd claimed millions in damages to his reputation. The tactic had been of course to affect the motivation of the defence by imposing so punitive a claim they would quickly backdown. Censorship has been dealt a blow in South Africa that they did not capitulate.

What these defamation acts/libel laws variously demonstrate is they are relatively unconcerned with truth. Reputation good or bad is the protected element. In Australia's case the act itself helps to set up the ludicrous situation where circular reasoning establishes that it can be used (even in matters where the truth is clear). See if you follow: If a person is aggrieved by what another publishes, and claims defamation, then defamation has occurred, because that person is aggrieved. They need not present proof of falsity to do so. The PRIMA FACIE burden is all on the defendant. A plaintiff declares it defamatory, so it is considered defamation, that a criticism is true has nothing to do with it, it is the reputation which receives the protection of the law. The rest of the legal process is just about ensuring what level of remedy is owed by a defendant.

The Hon Justice Michael McHugh AC in his paper "DANCING IN THE STREETS – THE DEFAMATION TANGO", presented at the 2005 Australian Bar Association conference in Dublin just prior the alignment of the defamation act across all Australian jurisdictions, clearly notes... "In the common law States of Australia, truth alone provides a complete defence to a defamation action." just prior this sentence he notes "The plea of truth confesses that the matter is defamatory of the plaintiff but asserts that it is not actionable."

So what does that actually mean for the justified defendant? If the defendant in a defamation case demonstrates truth in what they've published, written or transmitted then they have confessed guilt that they have defamed the plaintiff. Furthermore as the current Australian defamation act confirms defendants must correspondingly rely upon and only upon the permitted defences for defamation to limit the "costs" that will be awarded the plaintiff. Eh!? A plaintiff it seems has the sympathies of the system more so than a defendant regardless of truth and any plaintiff with an interest in suppressing truth has the processes and the law in effect onside. This isn't balanced this is the privileged class weighting the law in their favour in order to retain status.

The imbalance is because:

a) the law is weighted to defend reputation (good or bad) by automatically presuming falsity of the claims made against an aggrieved plaintiff, And…

b) as McHugh writes "The imputation based approach has been criticised in that it 'fosters complex interlocutory skirmishing and distracts from the real issue.' Removing the imputation system is designed to reduce the complexity and cost of litigation, a result that, if achieved, would certainly be a positive development." [my emphasis]

Well unfortunately we do still suffer the "imputation based approach" so this criticism of the system remains. A litigious plaintiff will use the weapons of war made available to them and will launch countless spurious imputations in the attempt to detract from what was actually transmitted by a defendant to increase and exaggerate the effect and ultimately claim more damages. This achieves the further aim to provoke fear of crippling financial damage so the defendant will back down quickly, and (as I say as a rort) to extort further financial recompense from a defendant by threatening "exemplary or punitive damages" if it goes to trial and they did not comply when they had the chance.

This is an abuse on many levels but as the Australian act clearly states in s37 "A plaintiff cannot be awarded exemplary or punitive damages for defamation.".

So why do lawyers for a plaintiff and even the mediation process attempt to compel the justified defendant to back down by levelling such threats? Attempts to convince a justified defendant they could face financial ruin are frequent and insidious. The "guilty" (defamation defendants justified or not are all considered guilty under the Australian act) it is determined will likely lose so must be warned of the consequences? I guess from experience I believe there exists a less noble reason for this tactic. If the act clearly states otherwise why are the plaintiff's lawyers, the system, and the mediation process constantly advising it could/may/will occur if you don't capitulate, apologise and pay up before it goes to trial? It is a blunt scare tactic. The system looks the other way and at least it appears there is no mechanism to limit such tactics. Other weapons at a plaintiffs disposal are to prolong interrogatory and defences processes so that the case drags on and on in perpetual concentric circles - logic and reason might suggest this is because the unjustified plaintiff does not want the case to get to trial. In any event these tactics are all designed to break the resolve of a justified defendant able to rely upon truth.

McHugh in the same paper goes on to defend the retention of the "presumption of falsity" in the Australian jurisdiction, adding; that a reputation is good, or not, is not the question to be answered. Essentially a reputation is presumed to be good and the defamer must first, if they claim truth, accept they are guilty of defamation, prove truth and then demonstrate justification of transmission, whether the reputation was good or otherwise upon release of the information. Harm is measured in costs to a degree but it is not clear how this is measured. The question defamation law asks is does the transmission defame the person (could be a company or political entity) to a third party and was dissemination justified. I've no argument with the necessity that claims must be backed up by truth but the problem here is the law clearly marks the defence as presumed "guilty" in contrast to the plaintiff (and their reputation) which is without exception presumed "innocent". There is neither balance in this nor logic. The parties are presented with uneven ground from the outset. And though truth may be upheld, defamation according to the law likely will still have occurred. In the face of the assertion by the act that "truth is not actionable" then this is circular reasoning and is at best an unsatisfactory result in terms of justice.

So are the problems in the law or in the processes which under-pin it?

As a brief an answer as I can muster I'll finish with the following experienced observation.

In its current state, as administered and procedurally practiced, the Australian Defamation Act 2005 is easily wielded as a weapon of fear to extract censorship by threatening the very real consequences of ruinous litigation upon a defendant. Ultimately the worst excesses of British Libel laws are retained in the Australian Act and continue to operate within it as a disincentive to transmission of unfettered criticism, and free speech and this is a disservice to our country, state and community overall.

As long as defamation laws are weighted to protect reputation above all else I cannot agree with McHugh that there exists a "workable balance".