Last Friday, Australias attorneys-general agreed on proposed amendments to the provisions which underpin Australian defamation laws.
This means Australian governments have a plan for how to change defamation law.
Read more: Politicians suing for defamation is usually a bad idea: here's why
Politicians are spinning this as a modernisation of laws that havent been changed in 15 years.
Whether or not this would modernise the law, these are media-friendly reforms that will make it harder for people to succeed in suing a news organisation in defamation. The campaign for media freedom by Australias news organisations has paid off.
Perhaps the most significant aspect of this proposal is a new defence of responsible communication in the public interest a version of a defence developed in New Zealand.
The defence protects certain communications made by the person being sued, like a newspaper or a journalist. It requires the defendant to prove, firstly, that the matter is of public interest, and secondly, that its publication is responsible.
The defence will probably become the focus of a lot of litigation.
For example, if an issue is interesting to the public, does that mean that reporting on it is in the public interest? The public may be interested in what happened to the Prime Minister at Engadine Maccas in 1997, but that doesnt mean reporting on it is in the public interest.
Likewise, would reporting on the private life of a politician who espouses conservative values be in the public interest? Thats debatable. And litigation lawyers pay for their BMWs with debatable.
When is a publication responsible? The proposed changes set out a list of relevant factors, which include
the extent to which the matter published relates to the performance of the public functions or activities of the person.
In other words, reporting on politicians is more likely to be responsible than reporting on what your neighbour is up to.
Another factor relevant to whether reporting is responsible is the sources of the information in the matter published, including the sources integrity.
This is a good addition. It means journalists wont have a defence if they engage in dodgy journalism.
Its unlikely, for example, gossip mag-publisher Bauer Media would have been covered by this defence when sued by Rebel Wilson because their source was unreliable.
We do already have a version of this public interest defence called qualified privilege. This defence remains, with some tweaks, under the proposed reforms. But the new public interest defence is stronger.
A key difference between qualified privilege and the new defence is qualified privilege is defeated if the publication was made with malice.
So for example, when Fairfax media reported Joe Hockey was a Treasurer for Sale, the judge determined journalists wanted to get back at Hockey, so they couldnt use a qualified privilege defence. Hockey walked away from his defamation case with A$200K.
Read more: Hockey's defamation win is dark news for democracy and free speech
Another key feature of the proposed reforms is the introduction of a threshold of serious harm.
Inspired by UK legislation, it means a person cannot even sue unless they have actually suffered, or are likely to suffer, serious harm.
Although this will stop petty stuff clogging up the courts, it may create a whole new source of work for defamation lawyers, such as mini fights, called interlocutory disputes, over whether the harm caused by a publication is serious enough.
On the other hand, this change may deter some people from suing at all.
Other proposed reforms include tweaks to the cap on damages for non-economic loss. There is already an upper limit on the amount of damages that may be awarded for defamation which does not cause measurable economic loss but still harms the plaintiffs reputation.
The cap can be exceeded if the defendant was particularly dodgy, where aggravated damages are justified. In cases like that brought by Geoffrey Rush, courts have interpreted the legislation to mean massive awards are available if the defendant has done something to aggravate the plaintiffs suffering.
The proposed change clarifies that the cap applies even if aggravated damages are justified. But aggravated damages may then be awarded on top of the capped amount in serious cases.
Basically, this means well probably see smaller sums of money being awarded to winners of defamation cases.
Under legislation called Limitation Acts, a person wronged by another only has a certain amount of time they can sue.
For defamation, time starts running out when publication occurs.
But under existing laws, there is a new publication each time something is downloaded from the internet. This is called the multiple publication rule. It means online publishers, like news organisations, are under perpetual threat of being sued.
Under the proposed changes, there will be a single publication rule. Time starts running when the matter is first posted or uploaded, and then runs out after one year, or after three years in certain cases. Its another significant improvement for the media.
These proposed reforms adjust the balance between freedom of speech and protection of reputation struck by defamation law, expanding freedom of speech and enhancing media freedom.
Is that a good thing? It cuts both ways.
Freedom of speech is great until a smear campaign ruins your life. We should not buy into the far-right dogma that freedom good no matter what.
Media freedom is good, but absolute media freedom will lead to a nastier, more brutish public discourse. I worry these changes will embolden some sections of the media to engage in more aggressive political take-downs more gotcha journalism.
This is not much of a victory for mainstream Australia. More than anyone else, this is a win for the lucky few who hold they keys to Australias media, whose support is essential to the political survival of those proposing these changes.
These proposed reforms are just that: proposed. Those in charge of the reform process are inviting submissions.
If the reforms are carried out in mid-2020, they will be stage one. A second stage of reforms will look at the liability of digital platforms like Facebook and Twitter.
Read more: A push to make social media companies liable in defamation is great for newspapers and lawyers, but not you
If traditional media companies have their way, these companies eating into their advertising revenue could also be sued in defamation law. That would be great for media barons, journalists with insecure employment, and defamation lawyers like me.
For everyone else, it would be less great. These are not the cyber age reforms we are being promised.
- Melissa Martin: What happens when freedom of the press is silenced? - Cleburne Times-Review - January 1st, 2020
- Bagram's Afghan music night is the American base's other 'sound of freedom' - Stars and Stripes - January 1st, 2020
- Theros: Beyond Death Previews - Glimpse of Freedom and Sweet Oblivion MTG Arena Zone - MTG Arena Zone - January 1st, 2020
- Invest in Freedom: Support the Washington Monthly - Washington Monthly - January 1st, 2020
- Alabama's 200 years in 200 images: Freedom fighting from Iwo Jima to Selma - AL.com - January 1st, 2020
- Letter: Choice is simple freedom or slavery? - Northwest Herald - January 1st, 2020
- STORIES OF THE DECADE: Freedom boys hoops rallies to win 2013-14 state title at buzzer - Morganton News Herald - January 1st, 2020
- Freedom of the Seas Live Blog - Day 1 - Embarkation - Royal Caribbean Blog - January 1st, 2020
- Ring in the New Year with Freedom Soup: Recipe - FOX 29 News Philadelphia - January 1st, 2020
- OSCE Representative on Freedom of Media welcomes release of Aseev and Halaziuk - Ukrinform. Ukraine and world news - January 1st, 2020
- STORIES OF THE DECADE: Freedom girls go perfect in 2015-16 for programs 5th title - Morganton News Herald - January 1st, 2020
- Press freedom situation yet to be satisfactory: FNJ - Khabarhub - January 1st, 2020
- Freedom of the Seas 2019 Live Blog - Preview - Royal Caribbean Blog - January 1st, 2020
- Freedom from 3Cs - The Indian Express - January 1st, 2020
- Freedom, Real Dividend of Democracy - THISDAY Newspapers - January 1st, 2020
- Economic freedom, not government programs, the key to poverty reduction - Orange County Register - Daily Gaming Worlld - January 1st, 2020
- Freedom Synonyms, Freedom Antonyms | Thesaurus.com - December 27th, 2019
- Byrne: Freedom from Religion Foundation needs to "stop forcing their ungodly, un-American views down our throats" - alreporter.com - December 27th, 2019
- Western Balkans Have Yet to Embrace Freedom of Information - Balkan Insight - December 27th, 2019
- Video: King Willem-Alexander addresses the Dutch public on Christmas Day, stressing the importance of freedom - Royal Central - December 27th, 2019
- Freedom to offend is a right and essential to democracy, says outgoing press watchdog chairman - The Sun - December 27th, 2019
- Of Concerns and Waivers: Religious Freedom and US Interests in Central Asia - The Diplomat - December 27th, 2019
- Climate tariffs on fracked molecules of freedom: German think tank wants to punish US for sanctions against Nord Stream 2 - RT - December 27th, 2019
- Weekly Wrap: Winter Solstice celebrations and responses | Freedom From Religion Foundation - Patheos - December 27th, 2019
- 'Freedom for All': Enes Kanter finally allowed to travel outside the U.S. for game - The Globe and Mail - December 27th, 2019
- The Colorado Springs Gazette: Happy Hanukkah, a celebration of freedom - coloradopolitics.com - December 27th, 2019
- True freedom is learning to love yourself | Opinion | Pittsburgh - PGH City Paper - December 27th, 2019
- Freedom Of Assembly - The Nation - December 27th, 2019
- A Trump sweatshirt and some thoughts on freedom - LancasterOnline - December 27th, 2019
- To Pay For The Freedom Dividend, Andrew Yang Says Our Mental State Matters To The Math - Forbes - December 27th, 2019
- Freedom Township man arrested after excessive speeds on motorcyle - Record-Courier - December 26th, 2019
- It's Official: 'Freedom Gas' Is the Worst Phrase of the Year - Gizmodo - December 26th, 2019
- In Punjab, the Legacy of the Ghadar Movement Continues to Inspire the Fight for Justice - The Wire - December 26th, 2019
- The Times view on freedom of speech: Taking Offence - The Times - December 26th, 2019
- Students at elite Shanghai university protest the removal of "freedom of thought" from the school charter - Boing Boing - December 21st, 2019
- Why Freedom Gas Was Voted The Worst Phrase Of The Year - OilPrice.com - December 21st, 2019
- Review: Wing Freedom e-bike wins style points and it works great, too! - Electrek - December 21st, 2019
- Explained: Reading Bangladesh provisions for citizenship and freedom of religion - The Indian Express - December 21st, 2019
- Tennessee football: Vols now have freedom to target top 2020 prospects - All for Tennessee - December 21st, 2019
- Andrew Yang: 'If we had a freedom dividend, I would not be the only candidate of color on the stage' - USA TODAY - December 21st, 2019
- My shortwave radio still speaks of freedom | Comment - The Times - December 21st, 2019
- Chinese University Drops 'Freedom of Thought' From Charter - Inside Higher Ed - December 19th, 2019
- Freedom, Peace, and Justice: The Surprising Success of Sudan's Glorious Revolution - Just Security - December 19th, 2019
- The Gift of Fire: The Purpose of Capital as Freedom - Nonprofit Quarterly - December 19th, 2019
- Fuel the Fight for Reason, Individualism and Freedom - New Ideal - December 19th, 2019
- Top Chinese Universities Amend Charters to Remove Reference to Freedom - Radio Free Asia - December 19th, 2019
- Leading Chinese university drops 'freedom of thought' from charter - Bangkok Post - December 19th, 2019
- Jeff Bezos Freedom's Wings Award Highlights the Annual Living Legends of Aviation Awards - PRNewswire - December 19th, 2019
- POV: Trump's Executive Order Aimed at Protecting Jews Will Have a Chilling Effect on Freedom of Speech at Colleges - BU Today - December 19th, 2019
- Maple Leafs Prospect Report: Growlers giving Hollowell more freedom, Agostino dominant in AHL and more - The Athletic - December 19th, 2019
- Giving back to those who gave us freedom. - Verizon Communications - December 19th, 2019
- Opinion: The danger facing journalists in Hong Kong is a threat to press freedom everywhere - Los Angeles Times - December 19th, 2019
- Jodie Turner-Smith Reflects On Finally Loving Herself: 'I Hated Myself And Hated The Dark Skin' - Essence - December 19th, 2019
- Harvey Weinstein Is Trying To Buy His Freedom & Innocence. I See Right Through It. - Refinery29 - December 19th, 2019
- Amnesty International Canada Questions Freedom of Speech and Assembly - Reason - December 12th, 2019
- CoE urges Azerbaijan to respect freedom of expression, support IDPs - Emerging Europe - December 12th, 2019
- Lebron and student athletes alike deserve freedom to speak - The Tide - December 12th, 2019
- Fox host lambasts Trump over 'most sustained assault on press freedom in US history' - The Guardian - December 12th, 2019
- Bethlehem Catholic girls basketball shakes off early nerves in win over Freedom - lehighvalleylive.com - December 12th, 2019
- How This 17-Year-Old Rapper Found Freedom In Self-Expression - Yahoo Lifestyle - December 12th, 2019
- European rights body urges Azerbaijan to respect freedom of expression - Reuters - December 12th, 2019
- Minnesota Brothers Have Taught Firearms Safety Together for More Than 50 Years - America's 1st Freedom - December 12th, 2019
- Freedom wrestling rolls to championship at Battle of Bethlehem - lehighvalleylive.com - December 12th, 2019
- Hong Kong's Struggle Against Tyranny, and Why It Matters - City Journal - December 12th, 2019
- OSCE warns Albania not to block freedom of expression online - The San Diego Union-Tribune - December 12th, 2019
- Democracy in Iraq Depends on Press Freedom - Foreign Policy - December 12th, 2019
- National Security Podcast: Freedom of the press - Policy Forum - December 12th, 2019
- Interview: the Scottish Information Commissioner on freedom of information - Holyrood - December 12th, 2019
- How the U.S. was able to win Princeton University students freedom from Iran - NJ.com - December 12th, 2019
- Charlottes bad names, Matthew McConaughey, and Metro standing - Black And Red United - December 12th, 2019
- View: Women riding vehicles are busy wresting their freedom to be a person, forgetting their worst fears - Economic Times - December 12th, 2019
- Sea Ray and Freedom Boat Club win National Safety Awards - Yahoo Finance - December 2nd, 2019
- Freedom From Religion Group Speaking Out Against Kanye West Program in Jail - All On Georgia - December 2nd, 2019
- Facts are under siege. Now, more than ever, we need to invest in journalism - The Guardian - December 2nd, 2019
- Opinion/Editorial: Law preserving freedom of action should stay - The Daily Progress - December 2nd, 2019
- YouTube CEO on censoring content: Balance responsibility with freedom of speech - Yahoo Celebrity - December 2nd, 2019
- Sakharov Walk of Freedom: inauguration ceremony | News - EU News - December 2nd, 2019
- Book on US religious freedom starts with the Founders but forgets seeds of secularism - National Catholic Reporter - December 2nd, 2019
- Understanding the SCAs freedom of expression judgment - Daily Maverick - December 2nd, 2019
- Angela Merkel Says 'Freedom Of Expression Has Its Limits,' Must Be Regulated To Keep Society Free - The Daily Wire - December 2nd, 2019