The current defamation laws in Australia aims to protect and balance reputation and freedom of speech of individuals in the society. These current laws have been thoroughly investigated on how fair the outcomes they provide are to the key stake holders; the law, plaintiff and defendant. The impacts found were positive and a well justified decision has been made on the main issue as to whether these laws should be reformed or not.
On 1 January 2006, uniform defamation legislation was passed in all Australian States, based upon model provisions agreed to by the Standing Committee of Attorneys-General (Legalpedia, 2017). In Queensland, the Defamation Act 2005 (Queensland Consolidated Acts, 2016) annulled the Defamation Act 1899 (Qld) (1899 Act) (Legalpedia, 2017). The 2005 Act now governs the law of defamation in Queensland (Legalpedia, 2017). The 2005 Act will apply to defamatory matter published after 1 January 2006. If the defamation occurred previous to 1 January 2006, the 1889 Act will apply (Defamation factsheet, 2017). The 2005 Act does not define the meaning of the elements of a defamation action (Defamation factsheet, 2017). Instead, they are defined by the common law, or the body of “judge-made” law that has been established through cases decided by the courts (Defamation factsheet, 2017). The plaintiff must prove the following in order to sue for defamation. Publication, this means that the material is made known to a third person other than the person being defamed. Publication can be oral, in writing or in pictures (Legalpedia, 2017). The plaintiff must also be able to show that the defamatory matter could reasonably be taken to be about him or her (Legalpedia, 2017). Lastly, the plaintiff must show that there was Defamatory matter. This will be determined on whether the material was capable of conveying the defamatory meaning alleged by the plaintiff to an ordinary person (Legalpedia, 2017). If this is answered positively, the next question for determination is: whether, in fact, an ordinary person would have taken the publication as conveying the meaning alleged (Legalpedia, 2017).
According to the defamation laws, for a defendant to be successful, either of the following have to be present. The first defence is truth. Under the uniform defamation laws, truth alone is a complete defence (Law hand book, 2017). Therefore, it is not essential for a defendant to prove that the publication related to a matter of public interest or public benefit (Law hand book, 2017). Another defence is Absolute privilege. In some circumstances, freedom of communication is considered to be so important that the participants are completely protected from being legally responsible for defamation (Law hand book, 2017). Absolute privilege is recognised by the common law and by section 27 of the Defamation Act (Queensland Consolidated Acts, 2016). This applies to members of parliament in the course of parliamentary proceedings. This means that the person who makes the defamatory statement cannot be charged with defamation even if he/she knew the statement was false and intentionally made the statement in order to damage the affected person’s reputation (Law hand book, 2017). The Protected Disclosure Act 2012 (Parliament of Victoria, 2017) confers absolute privilege on disclosures, made on reasonable grounds, that a public body or public officer has been involved in, or proposes to engage in, improper conduct. The disclosure must be made to the suitable person, as set out in section 6 of that Act. Another defence is Qualified privilege. The defence of “qualified privilege” protects honest statement in such situations (Law hand book, 2017). Qualified privilege is recognised by the common law and by the Defamation Act. The Defamation Act does not affect the common law defence of qualified privilege. In circumstances protected by qualified privilege, a plaintiff can only successfully sue for defamation by proving that the defendant was motivated by malice when making the defamatory statement (Law hand book, 2017). The last defence is Fair comment. The common law defence of fair comment applies to comments/opinions conveyed about matters of public interest (Law hand book, 2017). The Defamation Act (s 31) provides a defence of honest opinion that is similar to the common law fair comment defence (Law hand book, 2017).
Defamation laws have both positive and negative impacts on citizens in the society. The laws helps to protect the reputation of individuals. This can be seen in the case Mikie v Farley (Whitburn, 2014). Mr Farley, who was 20 at the time of the judgment, is the son of the school’s former head of music and arts, who was described as a “gentle man who had a number of health issues” (Whitburn, 2014). Young Mr Farley graduated from high school in 2011 and had never been taught by Ms Mickle. In November 2012, he posted a series of defamatory comments on Twitter and Facebook about Ms Mickle. This affected Ms Mickle causing her to leave work. There was evidence that, in the absence of the comments, the senior teacher would have continued teaching as she had before “until she reached the age of 65 which is in about seven years’ time” (Whitburn, 2014), which is a clear indication that her reputation was damaged. The defendant did apologise but later claimed ‘truth’ as a defence. The judge ruled that since the defendants claim of truth contradicted the apology, it was invalid. Judge Elkaim ordered Mr Farley to pay $85,000 in compensatory damages (Whitburn, 2014). He also ruled that the young man’s conduct in response to the case warranted an additional $20,000 in aggravated damages (Whitburn, 2014). This shows that defamation laws impact society positively; as justice was served for Ms Mickle. This is despite the fact that the defamation act does not include online defamation.
Furthermore, in the case Hockey v Fairfax media (Whitbourn, 2015), politician Joe hockey sued Fairfax media on the account of defamation for tweeting the words ‘Treasurer for sale’. The defence claimed qualified privilege relating to reasonableness and public interest as defence. Federal Court Judge, Richard White however rejected the defence as he found it unreasonable for Fairfax media to publish material with a defamatory meaning to promote interest in its stories. Judge white upheld the plaintiffs claim that the words conveyed that he was engaged in corrupt conduct and awarded him a total $200000 in damages (Whitbourn, 2015). Defamation laws provided justice for the plaintiff who was a politician unlike Politicians in the US face an uphill battle bringing defamation actions, due to the public figure doctrine which subjects defamation law to freedom of speech protections under the First Amendment (Whitbourn, 2015). There is however, a dark side to this case under defamation. Judge White dismissed Mr Hockey’s case over the substantive articles promoted by the tweets and poster. He found that the articles in the Herald and the age were of ‘considerable public interest’ and did not defame the plaintiff by suggesting he was corrupt or took bribes. This was so even though the herald and the age used the same headline ‘Treasurer for sale’ which was found defamatory on the tweets and posters of Fairfax Media.
In both the above cases, the current defamation laws served proper justice. A woman whose reputation as a teacher was damaged received proper compensation. A politician who was defamed and falsely been accused being corrupt was able to clear his name, save his reputation and also claim damages due to the current defamation laws. Recent arguments have said that the current defamation would need to be reformed as they pose a risk to free speech (Rolph, 2016). This could not be further from the truth. Defamation law seeks to strike a balance between the protection of reputation and freedom of speech (Arts Law Centre of Australia, 2015). Unlike laws in countries like the USA, where the media and people are allowed to say whatever they want about the politicians and damage their reputations due to the public figure doctrine which subjects defamation law to freedom of speech protections under the First Amendment (Whitbourn, 2015), Australian defamation laws actual try to serve their true purpose which is to protect reputations of individuals and at same time keep freedom of speech. Freedom of speech is not suppressed under the Defamation Act 2005 (Queensland Government, 2016), in fact it is only defamation if it is false. The reason the media is focused on reforming defamation, is because they want to get away with saying whatever they want. Similar to the case Hockey v Fairfax media, the media put false statements in order to make it interesting. This does not seem to be fair to society. Overall the current defamation laws are perfect the way they are and are even performing better than other countries like the USA.
The tort of Defamation aims to protect and balance reputation and freedom of speech. The current defamation legislation the Defamation Act 2005 repealed the Defamation Act 1899 (Qld) have up until today been able to keep this aim. In both the cases, the laws were able to provide justice for the society. They have served the society positively and do not require any reforms.
- Arts Law Centre of Australia. (2015). Defamation Law – online publication. Retrieved from Arts Law Centre of Australia: https://www.artslaw.com.au/info-sheets/info-sheet/defamation-law-online-publication/
- Defamation factsheet. (2017, September 22). Retrieved from Legalpedia: http://www.legalpediaqld.org.au/index.php?title=Defamation_factsheet
- Law hand book. (2017, June 30). Defences for Defamation. Retrieved from Lawhandbook.org.au: https://www.lawhandbook.org.au/2018_11_02_04_defences_to_defamation
- Legalpedia. (2017, September 22). Defamation Fact sheet. Retrieved from Legalpedia: http://www.legalpediaqld.org.au/index.php?title=Defamation_factsheet
- Parliament of Victoria. (2017, December 4). Protected Disclosure Act 2012. Retrieved from Parliament.vic.gov.au: https://www.parliament.vic.gov.au/publications/protected-disclosure-act-2012
- Queensland Consolidated Acts. (2016, January 1). DEFAMATION ACT 2005 . Retrieved from Queensland Consolidated Acts: http://www5.austlii.edu.au/au/legis/qld/consol_act/da200599/
- Queensland Consolidated Acts. (2016, January 1). Defamation act 2005- Sect 27. Retrieved from Queensland Consolidated Acts: http://classic.austlii.edu.au/au/legis/qld/consol_act/da200599/s27.html
- Queensland Government. (2016, January 1). Defamation Act 2005. Retrieved from Legislation.gov.au: https://www.legislation.qld.gov.au/view/html/inforce/current/act-2005-055
- Rolph, D. (2016, September 15). Social media and defamation law pose threats to free speech, and it’s time for reform . Retrieved from The conversation: http://theconversation.com/social-media-and-defamation-law-pose-threats-to-free-speech-and-its-time-for-reform-64864
- Whitbourn, M. (2015, July 3). Joe Hockey defamation ruling underscores need to update law in social media era. Retrieved from smh.com.au: https://www.smh.com.au/politics/federal/joe-hockey-defamation-ruling-underscores-need-to-update-law-in-social-media-era-20150701-gi24ty.html
- Whitburn, M. (2014, March 4). The tweet that cost $105,000. Retrieved from smh.com.au: https://www.smh.com.au/technology/the-tweet-that-cost-105000-20140304-341kl.html
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