Defamation law has its reputation on the line

By Richard Ackland
April 15, 2005

Defamation law reform was back under the candlelight on Wednesday night at a Law Council do in Sydney. The Attorney-General, Philip Ruddock, made it clear that he will introduce a national defamation code unless the states and territories can achieve what they have conspicuously failed to do over the past 25 years and come up with a sensible, uniform law on this troubled area.

One suspects that a similar group will be assembling again in about 10 years - fatter, older, greyer and more wretched. The discussion, naturally, will be about how awful is the law of defamation.

There'll probably be 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 uncertainties, delays, ludicrous expense and a failure to provide decent, quick remedies. Not that the majority of lawyers will end up complaining. The profession, by and large, is the beneficiary of delays, trials, appeals, retrials and further appeals.

If you sat down now to design a system that provides relatively painless and speedy redress for those who have had inaccurate and upsetting things published about them, only if you were perpetrating a cruel joke could you come up with the present law.

The latest reform proposals need to go much further to remove from the system the abundant technicalities and the ludicrous costs.

It is difficult to escape the conclusion that in some instances the way the process works at the moment, particularly in NSW, is something akin to a well-oiled standover routine. People of generally sound reputation and good standing rarely want damages. They want the mistake corrected quickly, maybe with an apology.

It is those aggrieved citizens with least to lose who pose the most interesting dilemma. The problem arises because increasing numbers of claimants are sponsored by the lawyers who advise and fight their cases for them. The lawyers and the clients are joined at the hip financially and it is the lawyers who breathe fire into the doubtful heart of the disturbed citizen, who stroke and comfort them, and then launch them into the cruel machinery of civil justice.

For a defendant to fight a case all the way and have any prospect of ultimate victory they are looking at costs of at least a quarter of a million dollars. But at the end they can't recover that money from an indigent and unsuccessful plaintiff. This is why the lawyers can exert such leverage in trying to shake the media companies down for generous settlements.

And how much of those payouts do you think the client sees after the lawyers take their whack? My inspired guess is that it's somewhere between zero and very little and no apology, or correction to boot. What a terrific arrangement, and is it little wonder that lawyers who have grown up under the present system are desperate to keep the show on the road?

Then look at it from the point of view of a significant media company. It is not simply an exercise of asking whether the publication was hugely right or wrong. It's a judgement about the nature and quality of the person asking for the money that informs the decision about how hard the matter should be defended. That is unfair to plaintiffs because their position is not determined on the merits but on their degree of financial vulnerability.

Of course, it shouldn't be about money and the Ruddock proposal recognises that. The aim of the exercise has to be to restore someone about whom a dreadful and inaccurate thing has been published. If it's wrong, the mechanism should be aimed at correcting the error and apologising. Correcting the lie should be more important than compensating for it.

Some of the ideas proposed by the English barrister and academic Marcel Berlins appear quite attractive. He says get rid of juries from the whole process. Juries allow the barristers to apply for endless discharges, appeals and retrials. Instead, have a specialised tribunal determining factual issues as speedily and with as with as little formality as possible. Corrections could be ordered and if plaintiffs want money they would have to prove and quantify their damage.

It would not stop the highly contested and bitterly fought matters but at least many less complex cases could be disposed of more quickly and it might cut back on some of the obscurantist pantomime that characterises the caper at the moment.


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