- Mark Dreyfus QC MPShadow Attorney-General, Shadow Minister for Arts
- The Hon Mark Dreyfus QC, MPAttorney-General, Parliament of Australia
- Mark Dreyfus QC MPShadow Attorney-General, Shadow Minister for Arts
Amend The Australian Defamation Act 2005
Serious short comings exist in the current defamation act that allow for its misuse to achieve the aim of censorship. Our proposed reforms will help make the act consistent with the human rights obligations to which Australia is signatory.
- Shadow Attorney-General, Shadow Minister for Arts
Mark Dreyfus QC MP
- Attorney-General, Parliament of Australia
The Hon Mark Dreyfus QC, MP
- Shadow Attorney-General and Shadow Minister for the Arts
- Shadow Attorney-General, Shadow Minister for Arts
Mark Dreyfus QC MP
Amend The Australian Defamation Act 2005
Petition authors: Demetrios Vakras, Lee-Anne Raymond
Defamation law in Australia, as it currently stands, is wielded as a weapon that can be (and is) used to silence critics or to prevent the imparting of and receipt of information (censorship).
Indeed, Defamation law in this country is so badly framed that even to suggest that it is misused, or abused means that the reputation of those suing for defamation is diminished and therefore defamatory of them, despite this being valid or true.
In experiencing Australian defamation law firsthand, we have been relentlessly pursued in the courts at great financial and emotional cost with the sole objective of the litigation being to:
a) prevent the truth from becoming known (which includes preventing the fact that we are being sued from being known);
b) silence criticism or exposure of an individual's public conduct;
c) prevent criticism of ideas that an individual holds or has expressed (that is, the law permits the protection of an idea).
Our submission intends to identify where the act requires correction and propose a remedy.
Introduction: why amendment is necessary:
In its current form Australian defamation law not only allows individuals to utilise it to scare off and intimidate those who raise legitimate criticism in the public domain of something that occurred in the public domain, but in addition any party behaving badly in the public domain can use the laws to make a financial gain by behaving badly.
Outlandish conduct, when communicated by one party to another (imparted) is, under current law, automatically defamatory because outlandish conduct of itself will lower the estimation of the party conducting themselves poorly in the minds of others, not because the conduct is untrue.
Thus, though the "defamed" party who has conducted themselves outlandishly cannot, in theory, profit from their outlandish behaviour, the law, in reality, encourages them to pursue in court any party who has imparted to others their outlandish conduct.
And, though the law claims that it intends otherwise, any person behaving outlandishly can and does profit from their outlandish behaviour by utilising the law to gain payment from the transmitter of that information. The law currently sanctions the procurement of a fee from any person transmitting information; essentially extortion 'pay this or I'll sue you for more'. This capability is achieved because current law has it that any bad act "defames" the actor, even though the bad act itself is true. Under any other circumstance such an "agreement" procured by such means would be defined as a procurement to settlement by duress and would therefore be legally invalid.
Observing how the law is actually being applied, and how the application of it in this manner incurs no penalty at all, demonstrates that the law intends that to record or impart any information of bad conduct is to be censored otherwise the legislation would have been framed differently to avoid the capacity to achieve censorship. That the law does not impose a penalty on those who undertake legal action, solely for the purpose of achieving censorship, shows unambiguously that the law is concerned only with enabling those who can afford the right to censor to do so. The Defamation Act of 2005 in its current form is therefore deliberately a Censorship Act.
The law currently assumes:
i) that people can only be good and that their reputation reflects this until they are defamed; not because of their own bad actions, but because another party has witnessed and conveyed to others their bad actions. This is shooting the messenger;
ii) that, therefore, the person doing the defaming is hurting the good fame people are born with which makes it morally reprehensible to take that good fame away from them since one always has the option of saying nothing at all. This is coercion to self-censorship, for fear of being sued;
As such, since all reputations are good, a priori, and can be harmed by truth, the law intentionally agitates against truth. Imparting information is turned into a moral "no-no", and therefore, rather than protecting reputations, the law merely suppresses the capacity to receive and impart information on invalid grounds.
Inconsistent with international obligations:
As it now stands the Defamation Act of 2005 is in conflict with Australia's international obligations to which it is signatory. Recently the High Court overturned the Labor government's so-called "Malaysia Solution" due to conflict with International conventions to which Australia is bound.
Under the UN's Universal Declaration of Human Rights charter, Article 19, individuals have the human right to impart information; information is truth (because to lie is to misinform, and to lie is therefore not protected). As a signatory Australia is bound by its international obligations.
That the current Defamation Act 2005 sees:
a) no difference between truth or lie in the context of defamation; and
b) limits the right to impart information because it finds that any person who imparts information will be found to have defamed another if the information imparted aggrieves that person (that is, the person is aggrieved because they did not want the information known);
c) and reduces a right into a privilege conferred arbitrarily by the state on a whim which means that it is no right at all;
means that the Defamation Act of 2005 is a violation of the rights guaranteed us by Article 19. Since the only way to not defame anyone is to never impart anything at all, it makes plain and obvious that the Defamation Act of 2005 is solely designed to find the means by which we might all be coerced to forfeit our right to impart and receive information.
Potentially all court decisions based on the Defamation Act 2005 are open to being appealed to the High Court since aggrievement – the basis for the limitations to impart information – does not constitute a legitimate cause to limit or invalidate one's right to impart information.
Defamation of an idea?
Additionally, current defamation law as used against us can be used to prevent injury to an idea. That is, the Defamation Act 2005 is used to prevent an idea from being criticised or analysed, lest the person holding the idea is hurt by having it criticised!
Recently the UN has reinforced its objection vis-à-vis Human Rights to re-emphasise that the objective of Human Rights is for the protection of the rights of individuals and that this protection does not to extend to the protection of ideas. Equally important, the same principle, as expressed by the UN, was expressed by the Appeal judges ruling in the Catch the Fire case in Victoria, (Catch the Fire Ministries Inc & Ors v Islamic Council of Victoria Inc  VSCA 284 (14 December 2006): point 35 of the finding reads "The third difficulty with the Tribunal’s reasoning, as I perceive it, is ... the Tribunal’s failure to observe the distinction between hatred of beliefs and hatred of adherents to beliefs..."). The judges set aside a finding of vilification (made by justice Higgins VCAT) on the grounds that the criticism was of an idea (verses from the Koran), and not the individual(s) who held those ideas, and that it was not the intention of the law to protect ideas. In the current defamation act there is no such protection to criticise an idea, although the option remains that an appeal to the High Court will remedy this. Unless the law intends that an idea is legally protected from criticism, then criticism of an idea held by any individual cannot be considered defamatory of the individual holding it.
Should the truth defame at all?
A more reasonably arrived conceptualisation of defamation has to be striven for. Any such reasonable conception should begin with truth not being capable of defaming.
Such an understanding would be more in keeping with international definitions. A Google search for "defamation definition" brings up the following result (the American definition):
a false accusation of an offense or a malicious misrepresentation of someone's words or actions."
Repeating the search for a definition of defamation on an online Greek dictionary provides a similar result:
"defamation [the disfimisi] O33… when the offender knows that the which asserts or disseminates untrue." (Greek translation, Google translate.)
(Vakras translation of same "defamation … when the offender understands that facts he asserts or disseminates are untruths.")
(original Greek: δυσφήμηση η [δisfímisi] Ο33 : ... όταν ο υπαίτιος γνωρίζει ότι το γεγονός που ισχυρίζεται ή διαδίδει είναι αναληθές. Definition for δυσφήμηση http://www.greek-language.gr/greekLang/modern_greek/tools/lexica/triantafyllides/search.html?lq=δυσφήμηση&dq=)
Falsity should be central to defamation with the corollary being that truth is absolutely incapable of defamation.
Primarily, acknowledging this should result in less appeals made to higher courts to overturn jury decisions in which jurors consistently find that truth did not cause defamation. To cite two examples:
Example 1: the Coco Roco v SMH appeal and subsequent overturning on appeal of the jury verdict. In this case the jury found that the review was true and therefore not defamatory. This was overturned on appeal, and the overturned verdict was supported by the High court. In summary, the High Court ruled that
"... a party is entitled as a matter of law to a verdict in the proceedings [and] the Court may direct a verdict and give judgment accordingly. The Court of Appeal concluded that no reasonable jury, properly instructed, could find that [the] imputations ... were not defamatory" (High Court pdf posted online at: http://www.hcourt.gov.au/assets/publications/judgment-summaries/2007/hca28-2007-06-14.pdf . Court Case: JOHN FAIRFAX PUBLICATIONS PTY LTD AND MATTHEW EVANS v ALEKSANDRA
GACIC, LJILJANA GACIC AND BRANISLAV CIRIC)
Example 2: reported in the SMH in a case between Dr Mark Hertzberg and Karen McLeod in NSW in 2007. The jury found that defamatory material was true, and therefore not defamatory:
(summarised as "Bunny boiler and the zombie: ex-lovers in court") "[the jury]... rejected all but one of ...[the defamatory] claims - that he "brags he is cooking the system" - but found it was not defamatory... [However] barrister, Clive Evatt, will ask for the jury verdict to be put aside as 'perverse'." (refer url: http://www.smh.com.au/articles/2007/02/22/1171733955327.html )
(Note though this verdict could have been successfully appealed, it was not.)
Defamation law as it now exists is inconsistent with how the public understands defamation, not because of any deficiency in the public's understanding, but because of the deficiency in the logic of the law. Accordingly, to call defamatory that which is true, is understood by the public as a legal protection of a right to lie and deceive, and that the law of defamation exists for the purpose of protecting those who want to keep a reputation that has been acquired by deception and maintained by litigation.
1) Truth cannot defame. This replaces truth being reduced to a "justification" (= excuse for defaming); in that no defamation can have occurred if the matter is true. This is predicated on the following points:
i) fame should be defined as a reputation without any allusion to fame (reputation) being positive or negative;
ii) (on that basis) fame should be based on deeds and acts (which can be good or bad);
iii) by necessity deeds and acts have to be true;
iv) truth (facts) establish a reputation; ERGO, truth cannot be defamatory, otherwise the law supports the right to lie and deceive, and is therefore in conflict with the letter, spirit and intent of other laws such as the Competition and Consumer Act 2010 (cth) as it makes the reporting of any deceptive conduct defamatory of the person doing the misleading and deceiving. (So which act is supporting that which is morally wrong?);
2) On the basis of truth not being defamatory, a definition of defamation has to be based on the claim that an "injurious falsehood" has been made; that is, one cannot be defamed by an "injurious truth";
3) In the current 2005 Act a party needs only to be "aggrieved" to commence litigation. This has to be abolished;
4) The concept of an "imputation" should be abolished. Whether a fact can be demonstrated should be all that is needed to defend against defamation. Any "imputation" claimed to have arisen from the truth (fact) is therefore irrelevant. This is to prevent claims that are designed to be near impossible to defend by one party asserting an unforeseen/unforeseeable spin to the facts. To cite an example; if the facts of a case are that a gallery owner chose to exhibit works that included many nudes (fact), that this same gallery owner's staff expressed that he will "love all the flesh" (fact), and that this same gallery owner approached female viewers of these nudes to ask if they were the model (fact), that it cannot be claimed that an "imputation" such as "this gallery owner selected the kind of art he did to exhibit in his gallery to enable him a means to satiate his depraved carnal desires" can be made. (This imputation was put to us orally). The question should be of the facts themselves. The law should not permit the invention of an imputation, that suggests some added meaning was conveyed, as the intention of such added meaning is designed to chill the imparting of information; for, although one might be able to prove the factuality of the account, one can never anticipate what spin - imputation - might be concocted on top of facts accurately reported.
The concept of "imputation" is exposed as being intended that we communicate nothing at all to spare ourselves from being sued;
5) Any person who brings a defamation case against another, and the material claimed to be defamatory is found to be true, or was known to be true, is ordered to pay not only the costs of the defendant, but damages to the defendant whose reputation they have damaged by having them wrongly accused. This would deter claimants who have a collateral purpose in taking a defamation action through the courts, and would recompense the damage done to the reputation of the party accused of having willfully and maliciously smeared the reputation of another;
6) The court will err to the dictionary meaning of words used, and not rely on what a subjective judge believes a "reasonable reader" might believe a word to mean, or how a word or words might be misunderstood to convey a meaning at odds with their definition;
7) The concept of "reasonable reader" should be scrapped. It is meaningless and too open to subjective conjecture about:
i) what a "reasonable reader" might be;
ii) or what this fictional "reasonable reader" might understand or might be capable of understanding.
Argument must stand or fall on the merits of logic, not on the fallacies one party believes to be held by their idea of the lowest common denominator, or what a "reasonable reader" unreasonably understands something to mean due to any limitation of their knowledge or lack of comprehension that the court believes is a "reasonable" trait, or reasonable level of ignorance;
8) That any idea expressed by any individual is subject to analysis or criticism, and that analysis of ideas held and expressed by any person, cannot be found to defame the person holding or expressing that idea.
This would be consistent with:
i) previous Court decisions (eg Catch the Fire appeal that found that criticism of religious tenets did not necessarily mean vilification of the individual whose religion expressed those tenets); and
ii) international Human Rights law which is about the protection of an individual and not the protection of the ideas that an individual holds;
9) Defamation V Privacy?
Defamation and privacy are two separate issues, and should be dealt with separately. An issue that is private and embarrassing and hurts one's reputation on being exposed should be pursued under privacy laws, not under defamation law. Though a privacy breach might injure the reputation of a party and should entitle the "victim" to restitution, such restitution should not be under the Defamation Act. Conflating the idea of defamation and privacy creates bad law. In the realm of privacy a statement, though true, can be damaging. However, incorporating such a concept into defamation law has produced unacceptable shortcomings in law that act as an impediment to impart and receive information, and this makes the law unnecessarily censorial. It would seem that the flaws of the Defamation Act stem from it evolving out of laws that existed prior to the existence of Privacy Laws.
When juries are confronted with the concept of "defamation" as it now stands in Australia they correctly understand that the law, by such a definition, is prohibiting truth so that it can protect a lie. The weighting of legislation that diminishes truth to merely being an excuse to injure another (defame them) allows the law to be wielded as tool for silencing criticism. Defending oneself against the claim of defamation presents such a financially punitive and plainly unreasonable obstacle to the average citizen so as to appear to be intentionally oppressive so that it is only available to those who have the financial ability to defend themselves or to sue others. A legitimate defendant committed to defending truth, is compelled to defend their own personal honour and integrity but is pressured by threats and the reality of great financial cost. This is intended to compel the defendant to, in contradiction of the facts, apologise for presenting the truth because it is defamatory, falsely claim that the truth was a lie, publish such a retraction, and then pay a substantial financial penalty on top. Alternately legitimate defendants in electing to defend truth are delivered into financial ruin by the mechanisms of the law well ahead of any court determinations, as have we. In any other social, political or cultural arena such onerous limitations to the right to defend and promote truth is called censorship, suppression and oppression. Defendants who have yielded under duress to demands that they pay restitution for reporting the truth so that they can avert financial ruin are victims of a counter intuitive and repugnant law that appears to be deliberately legislated in this way to chill and suppress the availability of information, truth. A law that intends we not say anything for fear of being sued is a censorship law. This is the precise outcome achieved by the Defamation Act 2005.This law has to be amended and its shortcomings rectified.
Demetrios Vakras & Lee-Anne Raymond
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