24 October 2013

Defamation Reform

'Six Years of Australian Uniform Defamation Law: Damages, Opinion and Defence Meanings' by Andrew Kenyon in (2012) 35(1) University of New South Wales Law Journal considers the operation of uniform defamation legislation in Australia 2006, arguing that
The very achievement of uniformity in defamation has been seen as a ‘watershed’, with efforts towards national reform dating back more than 30 years. The uniform legislation was agreed between state and territory Attorneys-General in the shadow of a Commonwealth threat to enact national legislation that would have operated only within the scope of Commonwealth constitutional power. A media commentator observed at the time: ‘from the perspective of the media, [the Commonwealth’s] original proposal was so appallingly bad that it changed the politics of defamation reform. 
Kenyon's excellent article concludes
What do judgments to date suggest about Australia’s uniform defamation law? As suggested soon after the laws commenced operation, the uniform law is an evolutionary change. That is an understandable product of its formation and the long history in Australia of seeking uniformity. But larger questions remain about the law’s substance and, equally, litigation practices. These suggest a key test for the uniform scheme will be upcoming reforms, if any, arising out of the uniform law’s review by the New South Wales Attorney-General’s Department. As Michael Gillooly has commented, the ‘major advance’ in the reforms was ‘the achievement of uniformity’ itself ‘and it is this which, one hopes, has laid the foundation for substantial and principled reform to take place in the future’. Some areas for reform emerge from the cases.
This article has considered three areas in particular. The first was damages. The statutory cap on damages for non-economic loss, which reached $324 000 in mid-2011, appears to have prompted a significant reduction in the level of awards. The highest awards have been below the limit, the quantum of damages has been ‘scaled’ in proportion to the limit, and a host of case examples suggest comparatively modest sums are now common. The ability to exceed the cap through aggravated damages does not appear to have weakened the cap’s effectiveness. But the ability of plaintiffs to seek damages up to the cap for each of multiple publications, and the courts’ approach to consolidation of defamation actions, suggest the caps’ apparent success may not be sustained. If the cap aims to increase certainty for parties and ensure limited awards for noneconomic loss, the ability to multiply actions needs to be constrained.
The second area considered was honest opinion and its common law version, fair comment. While a challenge of application remains in distinguishing fact and comment, it appears the change in the defence’s terminology – from ‘comment’ to ‘opinion’ – should not narrow its scope. A narrower scope could substantially limit the statutory defence and increase reliance on the still available common law protections of fair comment. In addition, the uniform laws sought to clarify the treatment of opinions of different speakers, whether the defendant, an employee or agent, or another commentator. However, this reform appears to have prompted journalists to be joined to defamation actions against their employers. Case law suggests this change may have arisen from a view that journalists had to be joined for it to be possible to defeat an honest opinion defence. However, no clear reason has been offered as to why that would be so. Instead, it may be that journalists are sued alongside employers, so the journalist can be argued to be directly liable for a defamatory opinion (where the journalist did not hold the opinion when published) even if the employer could have a defence itself against direct liability (because it believed the journalist held the opinion). The simplest solution may be to revert to the position under the former New South Wales law, so the same test for defeasance applies for employers, employees and agents. However, that would leave to one side the apparent aim of the reforms to strengthen this aspect of the defence. Some statements about the common law defence in Manock suggested fair comment had to be ‘reasonable’. This is an unusual analysis given the defence’s traditions and it seems unlikely to be followed for honest opinion. Manock also addressed requirement for facts underlying a comment to be stated or indicated in the publication, or to be notorious. Initial case law under the uniform law suggests this requirement will be imported into the statutory defence, even though the statutory wording omits any reference to it. As recent developments in England suggest, importing this requirement may not be warranted. After an exhaustive consideration of traditional fair comment authorities as recognised in English law, the United Kingdom Supreme Court has set out a more relaxed test.
The third main area considered above was the way in which honest opinion is a defence against the plaintiff’s pleaded imputations, or the defamatory matter about which the plaintiff complains. While the Australian common law of defamation has moved towards a greater focus on pleaded imputations – adopting without explicit discussion some of the most criticised aspects of the former New South Wales law – it is not clear the same approach need follow for the uniform law. In relation to honest opinion, the statutory defence’s wording differs from the former New South Wales law. It is set out as a defence to the publication of defamatory matter. In addition, the legislative history suggests moving away from the concept of imputations was deliberate. It was observed in New South Wales parliamentary debates that honest opinion did not use the word ‘imputation’ at all because it aimed to avoid ‘the arcane system of pleading’ then applying in New South Wales. There is also some case law support for the statutory defence having a ‘non-New South Wales’ form. This issue, however, raises larger questions about the impact of pleaded meanings on defences. These were considered above through the example of the Victorian Supreme Court decision in Soultanov. That careful judgment explains the current Australian approach, while also displaying its limitations. With awareness of the potential for unfairness to each party and the need to tether the analysis of meaning to the publication in context, it also suggests how asking the following three questions would be a better approach for opinion or justification defences. Is the meaning the publisher seeks to defend capable of arising from the publication? Does the defence meaning not arise from a separate and distinct allegation to that of the plaintiff’s complaint? Are there defence particulars that could establish the defence? Whether, and how, to move to that sort of approach remains for future cases.
Reform might also help address the issue. The Law Council of Australia has suggested what might be an elegant statutory reform, which could achieve the substance of this approach for truth defences. The proposal is slightly wider than the above three questions, although it would focus only on truth not opinion defences. Its aim is to overcome limitations in the current drafting of the contextual truth defence.  The suggestion is that defendants should be able defend as true any imputation conveyed by a publication, whether it is an imputation complained of by the plaintiff, an additional imputation, or one having a common sting with an imputation complained of by the plaintiff. A defence would exist where any imputations of which the plaintiff complains (that are not proven substantially true) do not further harm the plaintiff’s reputation because of the substantial truth of the ‘contextual imputations’. It is argued this would ‘reduce the potential for tactical pleading of imputations by all parties … be likely to lead to a concomitant reduction in interlocutory disputation, and ensure that neither party could prevent the “real” meaning of a publication from being put before the trier of fact’. These are highly laudable aims. If the concept of ‘common sting’ in the proposed statutory wording encompassed the case law deriving from Lucas-Box as well as Polly Peck, it could be a very sensible reform. This offers a parallel avenue to further consideration of the issue in case law. However, unless equivalent steps were taken through statutory reform of honest opinion, the opinion defence would be left more constrained than for truth, contrary to the logic and practice under English law of dealing with defence meanings in an equivalent manner for justification and honest comment. The history of reform in Australia and the tortuous path towards uniformity does give pause to the idea of purely statutory reform for defamation law.