Thinking | 9 March 2021

Australia’s defamation laws: a sword for vindication or a shield for suppressing debate?

By Hamish McNair

It has been reported that both Christian Porter and Brittany Higgins are considering defamation proceedings as the debate around harassment in Parliament House intensifies. How effective is defamation law as a tool to moderate debate on a heated topic? What can the media and commentators report? We look at when and how defamation law can be used.

The power of presumption

For the purposes of an action in defamation, the following matters are presumed:

  • the defamatory imputations alleged by the plaintiff are false; and
  • the plaintiff enjoys an unblemished reputation.

The fact that both of these matters are presumed in favour of a potential plaintiff ‘lowers the bar’ for someone considering bringing, or at least threatening, a defamation action against a publisher of a matter concerning them. It is easier to bring a defamation claim than it is to respond to one.

Of course it is open to a defendant to raise the defence of truth (justification) or other defences depending on the context. However, the fact that the burden rests on a defendant to prove truth rather than a plaintiff to prove falsity means that defamation actions are an effective mechanism for suppressing public debate on matters that are defamatory on their face.

Why is this the case? The short answer is that reputations are hard to earn and easy to lose, which justifies the setting of legal limits on freedom of expression until the truth of a matter is established by a court. The issue that has arisen in recent weeks is whether it is necessary for the truth of a matter to be established by a court of law, or whether the same conclusion reached in the court of public opinion will suffice.

A public interest exception?

In the present context concerning the conduct of those working on Capital Hill, the spectre of defamation resulted in an absurd situation in which anyone with access to the internet could identify the actors at the centre of the debate, but mainstream media were prevented from publishing names and allegations.

The intended release valve in this situation is the defence of fair comment, which is made out where a publisher establishes that the defamatory meanings were expressed as opinion (not fact), on a matter of public interest and based on ‘proper material’. A key challenge of establishing this defence is that the ‘proper material’ is required to be set out in the publication itself, which would result in a very different form of article to that which we are used to receiving from mainstream media.

Recent amendments to the uniform defamation legislation agreed by all State and Territory attorneys-general in July 2020 (but not yet enacted in all jurisdictions) introduces a new public interest defence into Australian defamation law.

Based on the UK approach, the defence will be made out where a publisher of a defamatory matter establishes that the matter concerns an issue of public interest and the publisher reasonably believed this to be the case. There is a prescribed list of circumstances courts will be required to take into account, including the extent to which the publication distinguishes between suspicions, allegations and proven facts, the sources of information relied on and steps taken to verify the matter published.

After it has been enacted, it will likely take years for courts to interpret the scope and meaning of the new public interest defence; however, the present circumstances appear to be precisely the kind of situation in which it could succeed.

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Hamish McNair

Hamish is a commercial dispute resolution lawyer. His experience extends to applications for urgent relief, appellate matters and defence...

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