‘The great privilege, then, of absolving from guilt our Judges do not possess, but they do have the right to take the burden of the charge off your shoulders. That is to say, when you are acquitted in this fashion the charge is lifted from your shoulders for the time being, but it continues to hover above you and can, as soon as an order comes from on high, be laid upon you again. As my connection with the Court is such a close one, I can also tell you how in the regulations of the Law-Court offices the distinction between definite and ostensible acquittal is made manifest.
‘In definite acquittal the documents relating to the case are said to be completely annulled, they simply vanish from sight, not only the charge but also the records of the case and even the acquittal are destroyed, everything is destroyed.
‘That’s not the case with ostensible acquittal. The documents remain as they were, except that the affidavit is added to them and a record of the acquittal and the grounds for granting it. The whole dossier continues to circulate, as the regular official routine demands, passing on to the higher Courts, being referred to the lower ones again, and thus swinging backwards and forwards with greater or smaller oscillations, longer or shorter delays.
‘These peregrinations are incalculable. A detached observer might sometimes fancy that the whole case had been forgotten, the documents lost and the acquittal made absolute. No one really acquainted with the Court could think such a thing. No document is ever lost, the Court never forgets anything.
‘One day — quite unexpectedly — some Judge will take up the documents and look at them attentively, recognize that in this case the charge is still valid, and order an immediate arrest.’
– Franz Kafka, The Trial
It is a great honour to be delivering this lecture in one of the world’s great libraries.
The State Library of Victoria was founded in 1854 by a group of prominent Melbourne citizens, including Sir Redmond Barry, after whom this lecture was named. He saw it as holding ‘the best of everything’ and becoming ‘a great emporium of learning and philosophy, of literature, science and art’.
He would have been proud and surprised by the size, success and vibrancy of the library today, with its almost two million books and magazines, and its huge collection of Victoria’s recorded history - a treasure trove of maps, manuscripts, newspapers, photographs, videos, sound recordings, objects and more.
There have been astounding changes in this library even since my matriculation year. As conscientious Melbourne High School boys, we would come to the grand and silent reading room, under the magnificent dome to meet girls.
Today, no more index cards, it’s all high tech. The place is thoroughly 21st century – an astounding $190 million has been invested here since 1990. Whilst there are people at screens everywhere, the inspiring atmosphere created by two million books is palpable.
Anne-Marie Schwirtlich, CEO & state librarian, and her dedicated staff, deserve our highest praise and appreciation for the way they maintain and progress this cultural treasure of ours.
I have now been a book publisher for over thirty years. In all that time my love of books has not diminished, nor my respect for the role that books play in a free and open society.
Having said that, I question the value of books that do not reflect the truth because of some form of censorship. By ‘censorship’ I mean something wider than that term ordinarily implies. I mean any externally imposed sanction on speech, backed by the force of the state, including the law. Whether that sanction comes before or after publication.
I am not saying that there should be no limitation to what can be published without fear of legal sanction. Rather I propose the importance of asking the question, 'Is the censorship justified,' in each and every case where the law, or its enforcers, attempt to curtail free speech.
One recent case in which I was personally involved was last year’s attempt by the federal government to censor a book I was intending to publish. The book was Axis of deceit by whistleblower Andrew Wilkie. A book of this nature was bound to be controversial, so we at Black Inc sought the advice of a Canberra lawyer with military and intelligence experience. A week later, we received a fax from the attorney-general’s department informing us that the manuscript was in their possession – our lawyer had given it to them without telling us! In our view, this was extraordinary and unprofessional behaviour. More on that soon.
The manuscript was circulated to the various intelligence agencies for vetting. A small delegation of senior personnel from the attorney-general’s office and the Office of National Assessments came to Melbourne to negotiate cuts and edits.
A small team of computer experts was then sent to the Black Inc office to cleanse the offending material from our computers. They transferred the data to a hard disk then gave us the option of having it taken away or destroyed in front of us. We chose the second option, then watched them do it with a special little disk-breaking hammer. They graciously followed up this service with a customer satisfaction form.
There is no doubt that Wilkie’s manuscript was political dynamite in an election year. Our concern was that the intense interest in it by the Government was likely to be politically motivated.
This did not turn out to be the case. I can absolutely state that we weren’t asked to make any changes of a political nature. The minor deletions were all bona fide and logical. They clearly related to legitimate security issues and we agreed to them willingly.
If that was the result, why even bother asking this question, 'Is the censorship justified?' Should we not simply trust those our society has empowered to sort out these matters – trust them to make these decisions for us? Namely, the politicians we have elected to represent us, and the law enforcement officers and bureaucrats they instruct?
The answer to that question is an emphatic no. That’s not because we are necessarily suspicious of those who wield the power of the state, although that can come into it. Even where we do have basic faith in the judgment and probity of those in power, there must be checks and limits imposed on that power.
As citizens, we need to be involved in questions of freedom and democracy. Citizenship, like democracy, is as much about process as it is about status. Citizenship and democracy bring rights, but also responsibilities. Citizenship and democracy are like muscles. Without activity, without use, they turn flabby and eventually atrophy.
The political philosopher Karl Popper explored similar notions in his classic work Open society and its enemies. Popper criticised what he termed ‘unmitigated authoritarianism’. He proposed an open society which confronts its members with personal and political decisions, and the opportunity to reflect rationally on them. He denounced ‘the moulding of minds and of souls’ which ‘become, by long habit, utterly incapable of doing anything at all independently.’
Popper was writing during World War II. Then, as he crisply put it, ‘it was not the time to mince words’. He was writing in the face of the two great and unmitigated authoritarianisms of the twentieth century – Nazism and Stalinism. Today, I am not speaking so directly in their face, but am painfully cognisant of their legacy.
Lessons from that time must include the realisation that open society is a question of degree. We must remember that the degree of openness of any society is not necessarily fixed across time and that we need to work at maintaining the liberties vital to open society. These liberties include freedom of speech.
Applying these lessons to contemporary Australia, we must acknowledge that we are mercifully free of the kind of state-sponsored crackdowns on political dissent that form one hallmark of totalitarianism.1 Those lessons remind us, however, that the Wilkie case could have played out very differently – for me, my staff, my business, the author, and of course the book itself. In fact, it did not.
We must acknowledge this gap between possibility and reality, even as we exercise our democratic muscle as citizens, by asking whether this, or any other, instance of censorship is justified.
Returning to the lawyer who sent the Wilkie manuscript to the government without asking or telling us. This unexpected sideshow turned out to be the insidious face of the whole affair. We formally complained to the ACT Law Society, alleging this lawyer had breached his obligations to us. After a lengthy process, the Law Society found in the lawyer’s favour. It concluded that:
His obligations of confidentiality were subject to the 'public welfare' exception, which permits disclosure of a confidence if non-disclosure might jeopardise national interest …
On the available material, it was open for him to so conclude and it appears that he bona fide held such a belief. In those circumstances, any breach of confidence involved in disclosing the manuscript to the attorney-general’s department was justified in law.
Black Inc is considering an appeal.
From the outset, the publication of the Wilkie book posed a serious challenge. How could we know if the manuscript contained information that might threaten national security? We could not find one Melbourne lawyer who could advise us on this question. So we consulted Dr David Wright-Neville, a Monash academic and former analyst at the Office of National Assessments (the same intelligence agency that had employed Wilkie).
Wright-Neville read the manuscript and proposed cutting a dozen or so passages. These changes were acceptable to both Wilkie and Black Inc. We were now reasonably confident that nothing in the manuscript would threaten national security, but given the nature of the project and the fact that Australia was in a kind of state of war, we sought a second opinion. After many inquiries, we decided to seek advice from that Canberra lawyer I mentioned earlier.
Now, this is the crux of the problem. What is a publisher to do if there is a possible breach of national security in a manuscript? Does he go straight to the attorney-general? This doesn’t feel right. It opens the gates of unfettered power to government, diminishing open society. So to whom do we go?
Clearly, now, not to some members of the legal profession, who will pass it straight on to government. There is a tension here between the interests of national security and robust democracy.2 There must be a way to adjudicate this balance, without allowing the government to be both judge and jury.
There should be a clear course of action for publishers who want to check if a manuscript raises legitimate security matters. I urge the government – in conjunction with the Law Council of Australia – to nominate a list of independent expert lawyers, from a range of political and institutional backgrounds. These lawyers would be available to concerned publishers to negotiate with the intelligence organisations and make their recommendations to the publisher.
Books raising questions of national security, of course, are few and far between. It is defamation that raises the biggest censorship issues for publishers, posing the most serious external constraint on free speech. The law is complex, counter-intuitive and different in each state and territory. In my many years of publishing, I have never fully grasped how this law works.
The Commonwealth attorney-general, Philip Ruddock, is currently negotiating with the states and territories to introduce a national, uniform deformation law. I thought that this was the ideal time try to understand the law and the proposed reforms. The invitation to deliver this lecture was an opportunity to try and share my newfound understanding with fellow publishers and other interested people.
Soon after I started my research I had second thoughts. How did I get myself into this one? The law is a bottomless pit, and lawyers are a case unto themselves. As Franz Kafka once said, ‘A lawyer is a person who writes a ten thousand word document and calls it a brief.' I was in deep, but then Dr Natasha Cica came to the rescue. Natasha is a lawyer and writer visiting the Gilbert + Tobin Centre of Public Law at the University of New South Wales and she helped me research and understand the issues.
Free speech, reputation and defamation law
As I have indicated, state-sponsored crackdowns on political dissent are not a feature of daily life in Australia. Accompanying this fact – its bookend, if you like – is a lack of robust legal recognition of a right to free speech.3 This may be surprising, even paradoxical, given the centrality of free speech to theories and practice of open society, and to the questioning that makes for muscular citizenship.
It may also be puzzling, given that all other Western democracies with whom we tend to compare ourselves including those sharing a common law tradition like Britain, Canada, New Zealand, the US and South Africa; and those who don’t, like the Western nations of continental Europe, all have some kind of legislative or constitutional bill of rights protecting individual liberties including freedom of speech or expression.
Australia’s constitution, by contrast, is largely silent on questions of individual liberties and makes no mention of free speech. We have no nationally applicable bill of rights.4
In the early 1990s our High Court under Chief Justice Anthony Mason did find and develop an ‘implication of freedom of political communication’. This was embedded in our written constitution and derived from the concept of representative government which it enshrines.5
You may remember the Mason court was widely criticised for engaging in so-called ‘judicial activism’ in divining this implication. The High Court subsequently changed leader and membership, and has made clear it considers the implied freedom to be more limited than many commentators had initially hoped or feared.6
It has not paved the way to the kind of far ranging legal protection of free speech seen, for example, in the US where the Supreme Court has made it clear that free speech is not limited to political discussion. But in the landmark 1997 case Lange v. Australian Broadcasting Corporation our High Court nonetheless confirmed that the implied freedom of political communication is here to stay, and that it embraces a wide range of communications on matters of government and politics. In that case, former New Zealand Prime Minister David Lange sued the ABC over a Four Corners episode criticising private sector funding of the New Zealand Labour Party.
Lange was also an important case because it rewrote some basic rules about the application of the implied constitutional freedom to defamation law. That’s why, today, if you want to appear to be an expert in defamation law, all you need to do is drop the word Lange into your conversation. That’s enough, just Lange: for example, ‘Lange was a backward step’, or ‘Lange might be seminal, but it’s a mess.’
The legal twists and turns of Lange and related cases are complex. The bottom line is that in application to defamation law, the constitutional freedom of political communication has produced no dramatic assertion of free speech (more of that later).
The Australian defamation regime remains overwhelmingly pro-complainant – the odds are stacked in favour of the person seeking restriction of speech. In this respect, as I just indicated, we are very far from the legal position in the US, where their political and legal system offers famously robust protection of free speech. The First Amendment to the US Constitution recognises freedom of speech and of the press. The US Supreme Court, starting with the landmark 1964 case New York Times v. Sullivan has interpreted this freedom expansively, holding that public criticism of any ‘public figure’ is allowed7, provided only that it is not motivated by actual malice or reckless disregard for the truth.
Are you disappointed and still a little confused about where this leaves Australians and the lawful boundaries of our speech? If so I’m not surprised. Please bear with me. I am neither lawyer nor academic. I come to these questions as a publisher and as a citizen.
My experience in the publishing industry, including the Wilkie saga, tells me that the real external constraint on freedom of political speech in this country is our defamation laws. It is these laws that substantially dull down the vibrancy of political debate in our democracy.
That’s not just because they offer insufficient protection to freedom of speech. Another, and in some respects more substantial problem in application, is the complex, confusing and counterintuitive nature of Australian defamation laws. This means few if any writers and publishers can really predict when defamation law might sting – at least not without the help of specialist defamation lawyers, and the hefty fees that usually accompany them. Even then, no lawyer will or can give a definite yes or no to any proposed publication. The most they provide is an assessment of risk. And no two lawyers agree in their assessment, varying as lawyers do in boldness, creativity and ability.
This has a dampening, some say chilling, effect on the speech of all except the least risk-averse commentators – like, say, the original crikey.com’s Stephen Mayne. Few are so fearless or foolhardy. Only those with the very deepest or emptiest pockets are likely to persist with legally risky speech.
In this time of tight profit margins in my own industry, the cost of defamation is very much in the mind of those assessing book proposals and manuscripts. The costs range from legal fees, to pulping a print run, to large damages awards or settlements. One result is that the large publishing houses are increasingly unwilling to deal with any manuscript that has any ‘whiff’ of a possible problem with defamation. This makes it harder than ever for provocative and challenging books that could enliven our democratic conversations to see the published light of day.
Although Australia’s defamation laws are difficult to grasp, they directly affect what we can and can’t hear and read, and as a consequence discuss. Therefore it is incumbent upon us – as muscular citizens, rather than people to whom things just happen – to make some effort to try to understand these laws.
Defamation is a tort, or a civil wrong. It can also be a crime, but criminal defamation is rarely used – one example is the infamous Frank Hardy case of the 1950s. Defamation occurs whenever we communicate something about another person that would cause any right-thinking members of society to think less of that person. This can cover almost any kind of statement including many that most people would dismiss as innocent or harmless gossip, fun or speculation. The communication can be spoken or written. A defamatory communication – or publication, as the law terms it – is unlawful unless it is excused by one of the recognised defences. The onus always falls on the speaker, the publisher, to establish a defence.
In Lange, the High Court restated the purpose of the law of defamation, ‘To strike a balance between the right to reputation on the one hand, and freedom of speech on the other.’8 The starting point and overwhelming weight of the law falls with reputation – as noted, defamation law offers less than robust protection of freedom of speech.
Perhaps this reflects the historical origins of the action in England before the Reformation. Reputation was seen then as part of a man’s spiritual being, and accordingly defamation proceedings were brought in ecclesiastical courts. Although defamation actions subsequently moved to the common law courts, the air of sanctity surrounding reputation has clung through the centuries.
The Australian colonies, of course, inherited their laws from England. Ss far as defamation went, some colonies followed the common law, and some enacted domestic legislation regulating the area. This produced a complex9 mishmash of different laws across the colonies. The mishmash continued beyond Federation to the present day, where we have eight relevant legal regimes that differ significantly. The Commonwealth was not granted legislative power over defamation at Federation, which has impeded movement towards uniform national defamation laws.10
Law reform: restoring the balance?
Uniform laws have notionally been on the policy table for over a quarter of a century, since an important report by the Australian Law Reform Commission, then chaired by Justice Michael Kirby, who now sits on the High Court.11
The Howard government has taken the view that the Commonwealth has legislative power to ‘cover the field’12 and in 2004 announced a proposal for uniform defamation laws across Australia: ‘a national code in the national interest’ in the words of Commonwealth attorney-general Philip Ruddock.
Negotiations have produced two broad reform models – one federal, one state and territory – which have many common features but also important differences.13 The Commonwealth attorney-general has set a deadline of 1 January 2006 for the states and territories to introduce their own uniform legislation that appropriately reflects the Commonwealth model, although he has promised that the Commonwealth ‘will not push the states and territories to adopt every element of the Commonwealth’s draft blueprint’.14 If the states and territories do not legislate to the Commonwealth’s satisfaction, federal legislation remains an option.
With respect, whatever the outcome of these political negotiations, I tend to agree with the following recent comments by Richard Ackland at a Sydney legal forum convened to discuss the proposed reforms:15
I have this picture of the same group sitting here again in ten years’ time, fatter, older, greyer and more wretched. The discussion, naturally, will be about how awful is the law of defamation.
There’ll probably be both the Ruddock Act and a semi-uniform states and territories law in operation. Duplication, chaos and unhappiness will prevail. There’ll have been a few improvements, but basically the regime still will be beset by technicalities, uncertainties, delays, ludicrous expense and a failure to provide a decent remedy.
Not that the lawyers will be complaining. The profession, by and large, is the beneficiary of delays, trials, appeals, retrials and further appeals.
Only if you were perpetrating a cruel joke could you come up with the present law or the versions proposed at the moment.
The proposed reforms, like the current law they stand on, are disappointing. Partly because they promise too little in the way of clarifying the current law, which makes it nigh on impossible for even experienced publishers to second guess their legal position. And also because the reforms promise too little in the way of appropriate, balanced, protection of freedom of speech.
I will explain what I mean by looking at some key aspects of these reforms, subjecting them to an important test:
In thinking about any law that restricts what may be published, one should always ask the question, 'Is the censorship justified?'
In answering this question, consider the interests of the third man.
The third man is a concept advanced by West Australian academic Michael Gillooly, in his comprehensive work The third man: reform of the Australian defamation defences.16 The third man refers to the public, the actual and potential recipients of the information. Gillooly invites us to move beyond pitting protection of reputation against freedom of speech. For there is a silent third man in these battles about what kind of speech should enter the public domain. The citizens, who are the potential listeners to and readers of publications.17
Without rehashing and no doubt distorting Gillooly’s sophisticated analysis18, I will borrow and modify his third man idea in my following discussion to consider the audience, the reading, listening and thinking citizens of wider society, as the third party in our balancing act. As key players – readers, listeners, thinkers and questioners – in open society.
Currently, a number of points of difference19 remain between the Commonwealth and state and territory reform models.
The one I’ll mention tonight20 is that the Commonwealth wants corporations to retain the right to sue for defamation; the states and territories want this limited to non-profit organizations and to small businesses (as it currently is in New South Wales).21
Examining this restriction on free speech supported by the Commonwealth, ask the question, 'Is the censorship justified,' taking the third man into account.
My answer is yes, with an important caveat. A large corporation, like an individual, has a reputation and should have legal redress to protect it. The problem with this is the ability of larger corporations to silence even valid criticism, by their huge buying power (and potential bullying power). Put baldly, big bucks can buy big legal guns, and tactics that do not always seem fair or just.22
Something must be in place to make the legal playing field more level. That mechanism must, on the one hand, avoid incentives for irresponsible speech on the part of activists, journalists or other members of open society. On the other, it must rein in the temptation for corporations to bully the little people.
Moving beyond free speech and reputation, and given the key role of corporate players in today’s society, the third man has a strong interest in having access to a balanced public record.
So I don’t wholly endorse the Commonwealth’s position. I say, let the big corporations sue for defamation, but let’s build a balancing mechanism into the law to enable the Davids to battle the Goliaths. I suggest some version of the following:
The corporation, as a commercial entity, can only win a defamation action if it can prove actual or potential financial loss. Damage to reputation, alone, should not be enough.
The onus of proof with regard to defences should be switched from the defamer to the complaining corporation. That is, instead of the defamer having to make out a defence, the complainer must show the defences do not apply.
If the defamer has a defensible case, and the defamer can also establish they cannot afford appropriate legal representation, Commonwealth-funded legal aid should be available for the defence.
Onto the major defences to defamation. Once the plaintiff has establishing a prima facie case of defamation – a remarkably easy task – the onus of proof is on the defendant (the publisher), who must prove that they can rely on an available defence.
There are a range of defences to a defamation action. They range from the central to the apocryphal. The defences of most relevance tonight are truth, fair comment and qualified privilege.
The defence of truth
To establish this defence, the person accused of defamation must prove that the allegedly defamatory matter was substantially true23, not just the statements in question, but also the imputations i.e. meanings, that may be drawn from them.24 It is not enough that the defendant honestly believed in the truth of the statements or imputations.
Currently, truth alone is a defence in four Australian jurisdictions: Victoria, South Australia, Western Australia and the Northern Territory.
In the remaining jurisdictions, as well as truth, the defamer must also establish some version of ‘public benefit’.25
This additional requirement protects the privacy of the defamed individual, confining publishable matters to questions of legitimate public concern rather than purely private matters.
The Commonwealth proposes extending a version of the public interest requirement across Australia. The states and territories propose removing it entirely, so that truth alone is a defence. The Commonwealth attorney-general has indicated he can give ground on this question.26
Requiring proof of public benefit clearly restricts freedom of speech. So again, the question to ask is, 'Is the censorship justified,' bearing in mind the third man.27
Given my support for freedom of speech and my distrust at books that do not reflect the truth, you may be surprised that I am concerned about truthful publications that violate the privacy of individuals.
Why am I concerned? The third man has no legitimate interest in allowing the media to destroy lives on the basis of some purely private human folly, which has neither hurt society nor is in other ways a matter of genuinely public interest, for the gratuitous entertainment of the baiting crowd.
I am not saying the respect for privacy in this context should be absolute. Rather, I am saying that it is not in any citizen’s interests to be part of the prurient mob, nor even to observe its excesses with distaste.
So, whilst I do support the removal of a public interest requirement, I do propose a variation to it. My proposal is to replace the public interest requirement with a privacy requirement. Now, you could argue that this is a distinction without difference: they are two faces of the same coin. But by coming at it from the privacy face, in the manner I suggest, we change the emphasis.
My proposal is to change the onus of proof here from the defamer to the defamed. So, if you sued for defamation, and the publisher has proved that what they published was in fact true; you would have the opportunity to establish that the matter was properly private.28
The defence of fair comment
This defence allows people to express opinions. The opinion must be based on true facts. The opinion must also be fair – this does not require the opinion to be balanced or moderate, but it must be rationally connected with the underlying facts. It must also relate to a matter of public interest.
This defence protects the published commentary of opinion writers, political cartoonists, book and movie reviewers, writers of letters to the editor and so on.
Both the Commonwealth and state models would replace this defence with one of honest opinion. The definition in both models is complex. ThesState model appears to restate the current common law position. The Commonwealth model, thankfully, replaces the Commonwealth’s initial suggestion of ‘honest and reasonable opinion’ that would have imposed an extra reasonableness requirement on commentators. Having said that, the potential scope of the Commonwealth model in application is untested and unclear. At least in New South Wales, it seems likely to impose new fetters on free speech.
We must ask, 'Is the censorship justified,' bearing in mind the third man.29 As a question of important principle the answer is no: wherever the result produces greater restraints on what may be communicated as comment.
The reading, listening and thinking citizen has a very strong interest in hearing the fullest range of provocative opinion on political and other matters, even where the style or content of some of those opinions is distasteful to many citizens. The third man has some responsibility to desist from reading or listening to material he personally finds impossibly offensive.
This does not mean that the law has no place at all in regulating free speech in application to strongly expressed opinion. Somewhere along the spectrum of speech a line will be crossed into vilification, incitement to hatred and so on. Here legal restrictions will be appropriate in some circumstances, such as Holocaust denial.
My argument is that fewer, not more, of those restrictions should be located within the law of defamation.
The defence of qualified privilege
This defence has considerable but largely unfulfilled potential to warm up debate in this country about questions of politics and government.
As a basic starting point, qualified privilege arises where the speaker has a legal, social or moral duty to communicate defamatory material, and the audience has a corresponding and reciprocal interest in receiving it, even if the speaker cannot prove the truth of the material, provided the speaker is not acting out of malice or bad faith.
The defence protects many communications in a business or professional context, such as a manager giving an honest reference or promotion-related assessment of an employee’s capacity; a teacher’s assessments of a student’s performance or behaviour; and similar situations involving communications to and within special-interest groups.
Traditionally, the qualified privilege defence gave little joy to the mass media, including book publishers, because publishers and mass audiences – the third man – were seen to lack the required reciprocal duty and interest.
One very important exception to that rule has been the statutory qualified privilege defences in Queensland and Tasmania only.30 These allow publications made ‘in good faith in the course of, or for the purpose of, the discussion of some subject of public interest, the discussion of which is for the public benefit’. These important defences opened the doors for publications by investigative journalists that otherwise would not have been legal. An important example is Chris Masters’ seminal report on corruption in Queensland, broadcast as ‘The moonlight state’ on ABC’s Four Corners in 1987. The Queensland statutory defence was successfully used to repel a defamation action brought by one of the Queensland identities named in the program.31
The legal situation with respect to qualified privilege at common law seemed to change substantially with the series of free speech cases the High Court decided in the 1990s, involving the implied freedom of political communication, that I referred to earlier.
In 1994 the High Court explicitly drew the constitutional implication of freedom of political communication into the area of defamation law. A majority of the High Court controversially stated that the constitutional implied freedom created a freestanding constitutional defence to defamation.
In the 1997 Lange case, however, the High Court drew back from the precipice of that potentially revolutionary conclusion. More prudently, it located the constitutional implication within the pre-existing defence of qualified privilege. It extended the defence, however, to recognize the duty and interest of all Australians in communicating on political and government matters, which recognises the interest of the third man in having access to this kind of information. The result was grounded in the constitutional implication of freedom of political communication.
The outer limits of what amounts to political or government discussion for the purpose of qualified privilege are not yet clear, but it does clearly embrace a wide range of political speech.
The practical use of this Lange defence, however, is dramatically reduced by a reasonableness requirement.32
The Lange defence requires the publisher to have reasonable grounds for believing the published material is true, to take proper steps to verify the accuracy of the material and to seek and publish a response, if possible, from the defamed party. In practice, this renders the defence unhelpful.
Both the Commonwealth and the state reform models include a qualified privilege defence, but subject it to a ‘reasonableness’ requirement along the lines of the restriction that emasculated Lange.33
This is likely to leave the position in most Australian jurisdictions unchanged, but would remove the existing statutory defences in Queensland and Tasmania. In a nutshell, an expose like 'The moonlight state' could not lawfully be broadcast. It is astonishing that this change has received little mainstream media attention.
So to our question, 'Is this censorship justified,' always taking the third man into account.34
The answer is no, in relation to the proposed change as it affects Queensland and Tasmania. Citizens should be legally entitled to hear more, not less, about politics and governance.
The answer is also no when we look at qualified privilege according to Lange.35 The simple truth is that qualified privilege doesn’t help publishers communicate to the public in the way it could or should. The Lange restatement of qualified privilege suggests much but delivers very little to the third man. This continues to tease, even titillate, imaginative lawyers with a vision of how things might be.36
Where to from here?
Let me recap my wish list.
First, I urge the government to nominate an accredited panel of independent experts, available to advise publishers who wish to check if a manuscript transgresses national security issues.
Second, the Commonwealth wants all corporations to be able to sue for defamation, the states do not. It seems clear to me that every person and entity in society should have the right to defend their rights against damaging allegations, and this includes the huge as well the tiny. I have suggested one solution to the key problem of the uneven playing field. There may be others.
Third, in some parts of Australia, but not others, truth alone can defend a publication. The states wanted this to become the law throughout Australia; the Commonwealth, which disagrees on this point, seems to be prepared not to press it. A good concession, and if it holds it will be a great improvement for publishers. To avoid throwing the baby out with the bathwater, however, I recommend replacing the lost public interest requirement with a reverse-onus privacy limitation.
Fourth, the fair comment and qualified privilege defences should be reformed to expand – not contract – the parameters of legal discussion of politics and governance. Frankly, I don’t much care how this is done – by state, territory or Commonwealth legislative reform; by judges stretching Lange to the limit of lawyers’ wildest dreams; or by introducing a national bill of rights with robust and effective free speech provisions – just as long as it happens.
It’s an important time to start getting these things right, or at least a bit more right.
Why? As all these new screens in our State Library indicate, our culture and economy of communication is undergoing a profound revolution. In a range of ways online is challenging print and print-think.
I mentioned that I’ve been a publisher for many years now. My business is fairly and squarely in print. I understand books, I live and breathe them. I do not, in all honesty, have the same relationship with internet publishing – at least not yet!
Some things are already clear about the nature of that beast, however. One is that the role of the publisher, the editor, the gatekeeper, is fundamentally different, at least where the internet is operating at the freest-for-all end of its spectrum of potential, for example in an unmediated blog or chat-forum, especially one where ‘flaming’ is routine.
I am less than comfortable with this. Not because the power of the publisher is thereby diminished, and the power of the citizen-speakers out there in netspace is heightened. Or perhaps that is exactly why I’m uncomfortable, but only because I fear there is real potential here for the third man to morph into the third monster. The internet apparently allows the hothead and the bigot to rush into print, and hide behind anonymity of location, age, gender and other identity, in a way that the newspapers and books simply do not.
On a Melbourne-based blog, which was discussing an article in The Monthly, the following posting from ‘Templar Wayne from Echuca’ was recently published:
Could we have an expose on blackincbooks.com?? owned by Morry Schwarz and run by Polish and Jewish lackeys seeking to undermine the cultural cringe whilst lining their own pockets and publishing their mate’s mediocre books.
I should mention that this is tame compared to a lot that appears on the net. But reading this where, for you, would the balance lie between free speech, reputation and the interests of the third man?
And standing in my shoes, what would you do on reading this? Because when I say the internet ‘apparently’ allows this kind of publication, in fact more correctly in law, it does not. The internet is not a defamation-free zone, as the Gutnick case37 reminded us and as Stephen Mayne might testify.
Today’s reformers of defamation laws38 are making regulations that apply to a medium, and conversational culture, that is already faster, looser and more open than they may appreciate.39 Will their reforms make sense, and actually work, in the conversational culture of tomorrow?
And is the third man driving this change in the culture of public conversation, or just being dragged along for the seductive and irresponsible ride?
It may be unspeakably naive and arrogant for a layman to make recommendations in a field of specialisation that has become so complex and arcane that only a handful of barristers and judges are fully across it in the whole country. My precis is, I am certain, an inexcusable distortion as it leaves out so much more than it includes.
But this is my very point.
Let us have defamation laws that are less complex and more in tune with commonsense and intuition.
In considering what we can and can’t publish – in whatever medium the publishing occurs – let us make our decisions in a legal framework that is more balanced, transparent and workable.
One that affirms the agency of the third man, as much as it protects reputation and free speech.
It is not only for the sake of publishers that I call for this. Open society depends upon and demands it. It is not only the nature of repressive states to have complex and opaque laws, it is their central strategy for controlling their citizens.
1 Whilst broadly accepting this, we must loudly object to serious instances of state censorship of the media, and therefore citizens’ access to information, in recent years in Australia. I am referring to the government’s ‘management’ of information about asylum seekers detained under Australian law, including via restriction of media access to these people and their plight – not in the interests of national security as properly understood, but rather for the sake of short-term political profit. This use of the force of law and the state to prevent the public telling of important truths reached an infamous low point during the Tampa and so-called ‘Children Overboard’ affairs in 2001, and with the arrest of ABC journalist Natalie Larkins outside the Woomera detention centre in 2002 for disobeying an instruction to move out of sight of the compound. This last development rightly attracted the direct criticism of Reporters Without Borders, a global media monitoring organization that campaigns for press freedom.
2 Mark Aarons gives an historical example of this tension in his correspondence to John Birmingham’s Quarterly Essay ‘Appeasing Jakarta’ (published in Quarterly Essay 3, 2001, p 66: ‘In 1980, Richard Walsh and the late George Munster published their extraordinary book of leaked Foreign Affairs and Defence documents (Documents on Australian Defence and Foreign Policy, 1968–1975). The book included a highly revealing selection of documents dealing with Australian policy towards Indonesia and East Timor during the government of Gough Whitlam. Indeed, the revelations contained in this book were so embarrassing that Whitlam’s successor, Malcolm Fraser, had it suppressed by taking legal action in the courts. I would argue that there was more involved in this censorship than the usual official obsession with hiding unpleasant secrets for as long as possible (although this was a major element in the court case).’ This measure kept ugly aspects of Australia’s East Timor policy hidden for another two decades (the Howard government made the material publicly available after the 1999 referendum), a delay that obscured the genesis and nature of Australia’s policy and complicity in the East Timor tragedy.
3 Although Australia has signed on to a range of international instruments protecting free speech as a human right, including the Universal Declaration of Human Rights of 1948 and the International Covenant on Civil and Political Rights of 1966, those legal documents are not enforceable under Australian law.
4 But see now in the Australian Capital Territory the Human Rights Act 2004 (ACT), described as Australia’s first bill of rights, following the UK and New Zealand models. The ACT legislation includes the right to freedom of expression; see Human Rights Act. Also note the Victorian government recently established a Human Rights Consultation Committee to consult the community about whether Victoria should have a charter of rights; it is receiving submissions until 1 August 2005 and is due to report at the end of the year. See the Department of Justice website.
5 The seminal cases were Nationwide News Pty Ltd v. Wills (1992) 177 CLR 1 and Australian Capital Television Pty Ltd v. Commonwealth (No. 2) (1992) 177 CLR 106, and subsequently Theophanous v. Herald & Weekly Times Ltd (1994) 182 CLR 104, Stephens v. West Australian Newspapers Ltd (1994) 182 CLR 211 and Cunliffe v. Commonwealth (1994) 183 CLR 272; see further George Williams, Human rights under the Australian constitution, Oxford, OUP, 1999, pp 165-183.
6 See George Williams, Human rights under the Australian constitution, Oxford, OUP, 1999, pp 183-193.
7 Protection of free speech under American law is also expanded by the concept of ‘the vortex, where a person who is not a public figure throws him or herself into the vortex of some massive public debate’: see ‘A life unscathed: interview with David Levine,’ 163 Gazette of Law & Journalism, 5 May 2005.
8 (1997) 189 CLR 520 at 568.
9 And ‘unprincipled’, according to Gillooly: Michael Gillooly, The third man: reform of the Australian defamation defences, Sydney, Federation Press, 2004, p 3.
10 See generally Mark Pearson, The journalist’s guide to media law (2nd ed), Sydney, Allen & Unwin, 2004, pp 161-2.
11 The Law Reform Commission, Report No 1, Unfair publication: defamation and privacy, Canberra, AGPS, 1979.
12 Apparently in reliance on some combination of the territories, corporations and trade and commerce powers.
13 In March this year, South Australia introduced a bill based on the State and Territory position, which in turn draws heavily on existing New South Wales law: Defamation Bill 2005 (SA).
14 Commonwealth attorney-general’s department, Media Release 031/2005, States and territories must enact workable defamation laws, 7 March 2005.
15 The forum 'Uniform defamation law: so close but not there yet' was convened by the Business Law Section of the Law Council of Australia and held in Sydney on 13 April 2005
16 Sydney, Federation Press, 2004.
17 Gillooly puts it like this, ibid, at p 6: ‘The balance to be struck is not merely between reputation and freedom of speech. The third vital public interest involved – that of the recipient in receiving information and opinions on certain matters – must also be weighed up. It may be objected that the interest of the recipient is implicit in the concept of freedom of speech… The short answer to that objection is that a concept labelled freedom of speech naturally and necessarily directs attention at the speaker rather than the recipient, this freedom being seen as a right of that individual rather than of his or her audience.’
18 Gillooly’s third man analysis, whilst grounded in straightforward notions of relevance and quality of information, is pitched more at the defamation specialist than the lay reader.
19 Correspondence from Commonwealth attorney-general Philip Ruddock to New South Wales attorney-general Bob Debus, 12 May 2005, published in 164 Gazette of Law & Journalism, 6 June 2005.
20 A second point of difference the Commonwealth wants juries to be available in defamation actions in the same way across Australia; see Commonwealth attorney-general’s department, Revised outline of a possible national defamation law, July 2004, p 28. Currently juries have no role in South Australia (where civil juries have been abolished) and the ACT, and their role varies in the other jurisdictions. The states and territories’ model allows plaintiffs or defendants to choose to have jury involvement – unless the court orders otherwise – but does not restore jury involvement in South Australia. In the interests of uniformity, and therefore simplicity, the Commonwealth approach has merit.
A third point of difference engages a central tenet of the Commonwealth reform model: the focus on correcting the record as the best way of vindicating reputation, rather than awarding damages (see correspondence from New South Wales attorney-general Bob Debus letter to Commonwealth attorney-general Philip Ruddock, 2 May 2005, published in 164 Gazette of Law & Journalism, 6 June 2005). I agree that more emphasis should be placed in our defamation law on correcting the record because the third man has an interest in having access to an accurate record. The Commonwealth model would introduce financial incentives for a defendant to publish an apology or a right of reply to vindicate the injury to the plaintiff’s reputation. It also proposes court-ordered corrections where the plaintiff is successful. The states and territories oppose this last idea of court ordered corrections. So do most media organizations, on the basis it would unduly interfere with free speech. The states and territories do seem willing to entertain a middle option of giving the courts discretion to make such orders, with the defendant forfeiting all damages if the publisher complies (see correspondence from Commonwealth attorney-general Philip Ruddock to New South Wales attorney-general Bob Debus, 12 May 2005, published in 164 Gazette of Law & Journalism, 6 June 2005). On this front, I am agnostic. Both positions have merit. Both recognise that the balancing act here is not simply between free speech and protection of reputation – the third man has an interest in hearing the truth, and having a corrected record available. Both provide incentives for correcting the record. I would support the model that in practice delivers the most accurate record, in a timely way.
21 Correspondence between Commonwealth attorney-general Philip Ruddock and New South Wales attorney-general Bob Debus, 2, 12 and 19 May 2005; published in 164 Gazette of Law and Journalism, 6 June 2005.
22 See discussion in Brian Walters, Slapping on the writs: defamation, developers and community activism, Sydney, UNSW Press, 2003.
23 In New South Wales, the ACT and Tasmania a separate defence of contextual truth is also available. It gets the defendant off the hook where he cannot establish the truth of a particular defamatory imputation, but can prove the truth of a related imputation that is at least as damaging as the first.
24 ‘Imputation’ is a term of legal art, and a horribly confusing one that considerably thickens the fog of war surrounding defamation.
25 In the ACT, Queensland and Tasmania, the defamer must additionally prove that publication was for the public benefit. Similarly, in New South Wales the defamer must additionally prove that the imputations related to a matter of public interest.
26 Correspondence from Commonwealth attorney-general Philip Ruddock to New South Wales attorney-general Bob Debus, 12 May 2005, published in 164 Gazette of Law & Journalism, 6 June 2005.
27 c.f. Michael Gillooly, The third man: reform of the Australian defamation defences, Sydney, Federation Press, 2004, pp 50–58.
28 Another way of arriving at this result is for Australian law to recognize privacy concerns by enacting separate privacy legislation, as recommended by the Australian Law Reform Commission in 1979. Alternatively, the courts could develop a fully-fledged action for invasion of privacy at common law. See Commonwealth attorney-general’s department, Revised outline of a possible national defamation law, July 2004, p 15; citing Australian Broadcasting Corporation v. Lenah Game Meats Pty Ltd (2002) CLR 199; Grosse v. Purvis  WDC 151 (unreported, Skoien J, 16 June 2003); Campbell v. MGN Ltd [2004) UKHL 22 (6 May 2004).
29 c.f. Michael Gillooly, The third man: reform of the Australian defamation defences, Sydney, Federation Press, 2004, pp 80–86.
30 A statutory qualified privilege defence in New South Wales did not open similar legal doors for publishers, as it was hobbled by a requirement that publication be ‘reasonable in the circumstances’, which the courts have interpreted so restrictively as to emasculate the defence.
31 See Vincenzo Bellino v. Australian Broadcasting Corporation  HCA 34.
32 Similar to the NSW statutory ‘reasonableness’ limitation.
33 And the NSW statutory defence.
34 c.f. Michael Gillooly, The third man: reform of the Australian defamation defences, Sydney, Federation Press, 2004, pp 149–167.
35 And, for that matter, under the emasculated New South Wales statutory defence.
36 Commenting on recent statements by recently retired Justice David Levine of the New South Wales Supreme Court, Richard Ackland observed at the Law Council of Australia’s April 2005 defamation forum: '[Levine] believes that there is something in the American public figure concept and that Lange is capable of expansion to this end. Of course, it’s too bold, too brave, for a government to go there, and anyway we don’t have a First Amendment. But what Levine suggests, sadly, is that without some sort of wider qualified privilege or public figure defence we lose a lot of the robustness in expression that characterizes American public debate. Again, obviously, this is hardly something that any government necessarily wants to encourage.’
37 Dow Jones & Company Inc v. Gutnick (2002) 210 CLR 575. See Brian Fitzgerald, ‘Dow Jones & Co Inc v. Gutnick: Negotiating "American legal hegemony" in the transnational world of cyberspace’  Melbourne University Law Review 21.
38 Special provisions applying to internet publication in the Commonwealth’s reform proposal draw on the common law defence of innocent dissemination and the current policy position in the Broadcasting Services Act 1992 (Cth): see Commonwealth attorney-general’s department, Revised outline of a possible national defamation law, July 2004 pp 25–6. The reform would reinforce legal protection to distributors of defamatory material where they did not know the publication contained the material, and it was reasonable for them not to monitor or check the contents of the publication for defamatory material. This would not give any special protection to authors, editors, or commercial publishers in respect of defamatory content published on the net; the defence would only apply to internet service providers and internet content hosts.
39 Despite the urgings of Geoffrey Robertson QC acting for Dow Jones, in Dow Jones & Company Inc v. Gutnick (2002) 210 CLR 575, the High Court rejected the argument that the internet ‘is such a new and different medium of human communication that it demands a radical reconceptualisation’ of defamation law. Note, however, recent comments by Justice David Levine, upon his retirement from the New South Wales Supreme Court: ‘Another thing that interests me is what effect, if any, the greater interactivity that now exists between the consumers of media and the media itself will have. You just go to your computer and you can talk away and comment and answer things. Hopefully, that might produce a generation or so of what I describe about American people as a lot more robust form of expression’: ‘A life unscathed: interview with David Levine,’ 163 Gazette of Law & Journalism, 5 May 2005.