Alleged Defamation Law Shortcomings
November 8, 2018 8:35 AM   Subscribe

Do Australia's strict defamation laws help protect high-profile abusers? "While the strict nature of Australia's defamation laws helps stop the media publishing material that is false and potentially damaging to an individual's reputation, it also creates a major barrier for victims of harassment or abuse at the hands of a high-profile individual, for instance, to coming forward." As #MeToo has continued across Australia, the question of defamation law is one that has risen again and again. While the law in theory serves to protect against media excess, it has also been leveraged frequently to quash criticisms and accusations, and many more never see the light of day because of it.

Where are Australia's defamation laws heading?
On almost every occasion that members of the Australian community came forward in response to the #MeToo movement, it seemed that the complainant was immediately hit with the threat of a defamation suit (and in many cases was actually sued). This conduct unfairly places the onus on the complainant to establish what might be their only defence to a defamation claim — that their allegations are true. However, in absence of any criminal investigation or charges, running a defence of truth would encounter some insurmountable legal hurdles, particularly in relation to historical allegations.

Defamation law and free speech
In Australia, a common sort of defamation case brought to silence critics is political figures suing, or threatening to sue, media organisations. The main purpose of these threats and suits is to prevent further discussion of material damaging to the politicians. Other keen suers are police and company directors. People with little money find it most difficult to sue.

NSW pushes for historic overhaul of defamation laws
Associate Professor Jason Bosland, deputy director of the Centre for Media and Communications Law at Melbourne Law School, said Australia had "some of the most draconian defamation provisions anywhere in the world" and they were "in desperate need of reform".

Australia's defamation laws are failing women who want to say #MeToo
There’s good reason for strict evidentiary burdens: they are the law’s way of trying to ensure fairness. But in a legal system where women are worried they will not be heard, it is oppressive. The available defences to defamation and application of the burden of proof set women up for failure. An evidentiary onus that prioritises men’s reputations above women’s safety encourages and facilitates silence

How Australia's strict defamation laws could thwart our 'Weinstein moment'
Australia has, notoriously, the most repressive defamation laws in the English-speaking world. There are several enormous differences between them and the US position, derived from the fact that the American people have an enshrined constitutional right to free speech and we don’t.
The biggest difference is how we deal with the “you can’t handle the truth” question. In Australia, the media’s primary line of defence is truth. The burden is on the publisher to prove the truth of what they published, once it has been established that it’s defamatory (which isn’t hard).


Opinion: What Geoffrey Rush’s Case Means for #MeToo in Australia
Spicer says, “The level of abuse is similar everywhere, however the defamation laws in Australia make it very difficult to tell these stories.” She adds, “The media and entertainment industry in Australia is extremely small, and women fear that if they speak out, they will never work again.”

Luke Foley resigns as NSW Labor Leader following ABC journalist's statement
"The first thing I'd like to say is that the allegations against me today, made public by the ABC, are false," Mr Foley said.
"I've retained solicitors and senior counsel to advise on the immediate commencement of defamation proceedings in the Federal Court of Australia."
posted by AnhydrousLove (12 comments total) 11 users marked this as a favorite


 
Also if someone could post something about the NSW Greens and Jeremy Buckingham I would appreciate it, because I don't think I can.
posted by AnhydrousLove at 8:37 AM on November 8


Great post.

However, a point on the ratfuckery of Luke Foley - he’s got nothing.

Raper did not publish or communicate a single word herself - her statement was published by the ABC. This means that Foley has no case against her - he has to sue a beloved and experienced media organisation that absolutely know how to manage spurious cases from arsehole politicians.

Also, Foley has no allies now. None. The Labor Party must disavow him. Hell, if they want to win the NSW election in 5 months, they need to burn him from orbit. The NSW Libs will now go for blood. News Ltd will dog him to the end of days because he’s Labor. Fairfax will line up against him because Raper’s corrorbating witness is the former political editor of the Sydney Morning Herald, and Foley claims he is lying. The ABC is backing Raper to the hilt.

He’s alone. He has no case. Raper has named, respected witnesses and forensic evidence (phone logs of his calls to her). Any any defo attempt he makes will require him, personally, to lie under oath and get caught doing it.

I predict a speedy and successful motion to dismiss if he attempts to follow through.
posted by His thoughts were red thoughts at 11:45 AM on November 8 [6 favorites]


I will be shocked if he actually sues.

I'm torn on this. On the one hand, imagine what news limited would say if they were even more off the leash. On the other, it's essentially an expensice game of chicken with barristers instead of cars and poor people can't play.
posted by smoke at 12:16 PM on November 8 [2 favorites]


It seemed pretty clear from the get-go of #MeToo that Australia very dearly wanted to start exposing some high-profile scumbags - Don Burke was a very early scalp, but then the Geoffrey Rush thing happened, he sued the paper, and it all stopped. Our defamation laws are broken.

A quick 'ding dong the witch is dead' for Luke Foley, though, a Labor leader whose career has been marked by radio silence punctuated by bouts of him saying something appalling. That's not good for an opposition leader in general but he was particularly bad.
posted by Merus at 3:53 PM on November 8 [2 favorites]


Don Burke was a very early scalp, but then the Geoffrey Rush thing happened, he sued the paper, and it all stopped.
I think you've skipped one there.

Defending your reputation is important, but it can entrench the powerful. I think rather than changes to defamation laws, we need something more like the anti-SLAPP legislation they have in the US.
posted by krisjohn at 5:01 PM on November 8


if it's in the Daily Telegraph it's automatically defamatory.
posted by mattoxic at 7:30 PM on November 8 [1 favorite]


Raper did not publish or communicate a single word herself - her statement was published by the ABC. This means that Foley has no case against her - he has to sue a beloved and experienced media organisation that absolutely know how to manage spurious cases from arsehole politicians.
I'm pretty sure defamation actions can be brought against anyone involved in publishing the defamatory material, and "publishing" has an absurdly broad meaning here - it covers the accuser, the journalist, the newspaper company, even printing presses and newsagents (although since some reforms sometime in the 2000s there is at least a defence of "innocent dissemination" for things like shops that unknowingly sell defamatory publications and Internet search engines that have not been notified).

Australian defamation laws are a pretty good answer to people who think that freedom of speech has no value as a principle.
posted by A Thousand Baited Hooks at 7:43 PM on November 8 [1 favorite]


I'm pretty sure defamation actions can be brought against anyone involved in publishing the defamatory material

You are, of course, correct. That was badly phrased. I'm just pointing out that this arrangement allows the ABC to fund Raper's defence, in the event a suit is actually brought.

Whereas Foley will have to foot the bill himself - the party won't touch this with a stick.

He's on his own, and he's painted himself into a corner.
posted by His thoughts were red thoughts at 8:42 PM on November 8 [1 favorite]




Buckingham has previously claimed that defamation law 'is need of serious reform': "Having been tangled up in defamation law, I am convinced that it needs serious reform. It is skewed towards wealthy people who can risk large legal costs, and it infringes on free speech, particularly political communication, which ought to be provided the highest protections in Australia."

So, yes, he is a massive fucking hypocrite.
posted by His thoughts were red thoughts at 9:05 PM on November 8 [4 favorites]


Yeah it's great that no-one seems to be standing by Foley outside of a couple of really dyed-in-the-wool Labor partisans, but it's also been irritating seeing Greens members acting all high and mighty when they haven't even cleaned their own house properly.

As for the defamation laws more generally, I don't know all that much about them, but I see them doing a lot of harm. What are the protections that they really offer? If the Murdoch media wants to spread lies about you, won't they manage just fine one way or another?
posted by AnhydrousLove at 11:02 PM on November 8


Defamation law in the UK seems to have put a stop to Katie Hopkins, which I think is a net good.
posted by Aravis76 at 1:19 AM on November 9


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