Unfortunately,court cases over the past few weeks have highlighted the complexity of carrying out this task given the legal threats from people who feel aggrieved by what the media says about them.
TheHerald,theAge and the ABC when actor Craig McLachlan dropped his claim that he was defamed by news reports accusing him of indecently assaulting and sexually harassing female performers during the 2014 stage production ofThe Rocky Horror Show.
The media organisations and one of McLachlan’s co-stars,whom he also sued,had said during the four and a half years of litigation that they would rely on the defences of truth and contextual truth and by the time the trial began,had 11 women willing to give evidence that they were harassed by McLachlan.
Just before the witnesses took the stand,McLachlan withdrew and was ordered to pay the defendants’ costs – estimated at $2 million – plus his own legal costs.
The victory was significant because the threat of being sued for defamation has a chilling effect which discourages women from complaining about sexual harassment in the workplace,especially by powerful and prominent figures.
The rapid escalation of #MeToo cases in the US has been facilitated by the defamation laws there which make it harder for public figures to sue. The outcome of the McLachlan case will encourage others to come forward and the media to publish their stories
On the other side of the ledger sits to hand over copies of an upcoming newspaper investigation to an interested party before the content has been published or even completed.
This is a worrying precedent with wide-ranging implications for journalism.
The High Court said in a decision in 2006 in which it refused to grant an injunction against publication of a story alleging the murder of children that “the public interest in free communication of information and opinion … is basic to the caution with which courts have approached the topic of prior restraint of allegedly defamatory matter”.
One wrinkle in this case,however,is that the plaintiff,Double Bay cosmetic surgeon Joseph Ajaka and his Cosmos Clinic,are seeking injunctions because of both potential defamation and on the grounds of “injurious falsehood,” a separate part of the law with slightly different rules.
Whatever the technicalities,the public interest in free communication seems comparable to the defamation case in 2006 and Nine – the owner of60 Minutes and theHerald – is appealing.
In the next few years,changes to defamation law should hopefully tilt the balance slightly toward freer speech.
NSW last year became the first state to pass national reforms which will introduce a “serious harm” test aimed at weeding out minor claims before a costly trial and a new public interest defence,both modelled on British law.
Yet,the ALP victory in the federal election casts into doubt another important reform concerning defamatory comments written by third parties under articles posted by media organisations on their public social media sites.
The Coalition had proposed a bill cracking down on internet trolling which included clearer protection for media companies from defamation actions for such comments.
The “trolling” bill as a whole was misguided and not even really about trolling since it offered protection under defamation law,which would only be useful to people with the financial resources and time to go to court. But the High Court’s recent decision to impose liability for posts by third parties on social media is an element of the bill which the ALP should revisit.
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