PHOTO: Defamation has a “chilling” effect on the freedom of speech. http://www.thenorthlines.com/changing-face-defamation-suit/
This semester, among other subjects, one of the most interesting has been journalism law.
12 years ago, Australia’s defamation law was introduced, but the advancements of digital technology are calling for an urgent reform.
The law of defamation is integral, it protects one’s reputation, assuming good character until proven different.
There are a few key factors, which determine whether legal action can be taken.
Firstly, the defamatory ‘statement’ must have been published or communicated to a third party.
Secondly, the statement must have caused injury or harm.
Thirdly, the law of defamation will only consider false statements, however statements of opinion are not considered to be false, due to their subjectivity.
Lastly, the statement must fall into the unprivileged category.
However, as important as it is, the uniform national defamation legislation poses a number of threats to media companies and journalists.
Legal aid, as well as the enormous pay out in damages is a huge financial burden for companies already struggling with profitability in the age of digitisation.
What’s more, defamation is threatening the essence of the free press itself.
Journalists are hesitant to report news stories, which may offend or disgruntle those with power and money, even if it’s true and in the public interest.
And with multiplying online platforms from which to share popular or unpopular opinions or information, defaming someone has never been easier.
Whilst there are defences under state legislation that protect journalists if defamatory material has been published, it is easier to sue for defamation than be sued.
It could be argued that in Australia, one can be sued for hurt feelings, or a bruised ego.
Plaintiffs suing for defamation do not have to prove that they suffered even a mild level of harm at the outset of their claims.
Publication to a third party is considered to be sufficient as a defamation claim, and damage to ones reputation is presumed.
To avoid this low level defamation, England has adopted two doctrines that determine whether a case is worthy of litigation.
The first, the principle of proportionality and the second, proof of harm.
While there has been widespread support in implementing this legal structure in Australia, there has also been judicial resistance.
Personally, from the perspective of a journalist, I believe this would eliminate the fear factor associated with defamation and freedom of speech.
Additionally, the defamation act must be updated to successfully balance the protection of reputation and online journalism.
Unfortunately, the future of defamation law does not reside with me, or any other journalists.
What is in my hands though, is creating and publishing work that satisfies the interest of the public without causing reputational harm to any party.