tag:theconversation.com,2011:/id/topics/defamation-law-31167/articlesDefamation law – The Conversation2024-01-25T13:18:34Ztag:theconversation.com,2011:article/2218412024-01-25T13:18:34Z2024-01-25T13:18:34Z‘Strife in the courtroom’ − a former federal judge discusses Trump’s second trial for defaming E. Jean Carroll<figure><img src="https://images.theconversation.com/files/571243/original/file-20240124-25669-pmcgvu.jpeg?ixlib=rb-1.1.0&rect=3%2C3%2C1234%2C822&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Judge Lewis Kaplan, right, admonishes Donald Trump and his attorney Alina Habba in court.</span> <span class="attribution"><span class="source">Elizabeth Williams/AP</span></span></figcaption></figure><p><em>Former President Donald Trump is in court again, this time in his second trial for defamation of writer E. Jean Carroll. In the first trial, which ended in May 2023, a federal jury found Trump had “<a href="https://www.npr.org/2023/05/09/1174975870/trump-carroll-verdict">sexually abused</a>” her and defamed her when he denied her allegations and ordered him to pay US$5 million in damages. A jury in this trial will determine whether he needs to pay more for additional defamation, and how much.</em></p>
<p><em>U.S. District Judge Lewis Kaplan has spoken to both Trump and Alina Habba, Trump’s chief lawyer in this case, about their conduct in the courtroom – Trump for <a href="https://www.washingtonpost.com/national-security/2024/01/21/trump-carroll-judge-kaplan-witness/">speaking out loudly from the defense table</a> and Habba for <a href="https://www.businessinsider.com/e-jean-carroll-judge-bench-slaps-trump-attorney-alina-habba-2024-1?op=1">apparently disregarding general principles</a> of practicing law.</em></p>
<p><em>To understand more about what’s going on in this courtroom, The Conversation U.S. spoke with John E. Jones III, the president of Dickinson College, who is a <a href="https://www.dickinson.edu/homepage/1494/dickinson_college_president">retired federal judge</a> appointed by President George W. Bush and confirmed unanimously by the U.S. Senate in 2002.</em></p>
<h2>How does a judge handle either lawyers or defendants who don’t know or don’t follow the rules?</h2>
<p>Typically in civil cases you wouldn’t see the client acting out. That’s anomalous. Generally, the client adheres to the instructions that the court and their attorney give. One of the worst things any litigant can do when there’s a jury in the box is speaking out loudly – not even a stage whisper but actually speaking out and talking directly to the judge. </p>
<p>Most judges find that pretty intolerable, because when somebody’s represented by counsel, they’re not supposed to be addressing the judge directly – and certainly not making statements that are not under oath that the jury can hear, as is happening in New York.</p>
<p>What you want as the presiding judge is for the trial to unfold in a way that’s fair. You’re on edge all the time as the judge trying to guard the record. When you’ve got a defendant who’s talking back to you, and an attorney who’s not listening, intentionally or otherwise, and blowing through all the guidance that you’re trying to give her, it’s headache-inducing for the judge.</p>
<h2>How does the fact that one of the parties in this case is an extremely prominent political candidate play into the judge’s mindset?</h2>
<p>I had the occasion to have a couple of elected officials in Pennsylvania in criminal cases in front of me. It’s a curiosity when you first see it, but for a practiced trial judge like Judge Kaplan – I hate to say it this way – Trump just becomes another difficult litigant. </p>
<p>Kaplan is aware of the fact that it’s the former president of the United States. He can see the Secret Service members in the courtroom, but the fact of the matter is, it’s his domain. </p>
<p>Trump is there as a litigant, not as the former president. All persons stand equally before the law. That’s not an empty phrase. Kaplan has to do his best to make sure that both E. Jean Carroll and Trump get an even shake in court, despite the fact that, frankly, Trump may be annoying the hell out of Kaplan. You just have to go with it.</p>
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<a href="https://images.theconversation.com/files/571259/original/file-20240124-27-wjl7n3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man in an overcoat waves while standing in front of a row of American flags." src="https://images.theconversation.com/files/571259/original/file-20240124-27-wjl7n3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/571259/original/file-20240124-27-wjl7n3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/571259/original/file-20240124-27-wjl7n3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/571259/original/file-20240124-27-wjl7n3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/571259/original/file-20240124-27-wjl7n3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/571259/original/file-20240124-27-wjl7n3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/571259/original/file-20240124-27-wjl7n3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Donald Trump waves to supporters after a news conference in New York City on Jan. 17, 2024.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/TrumpColumnistLawsuit/feb6bef6c1bc4f5993258a379d3dd5c9/photo">AP Photo/Frank Franklin II</a></span>
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<h2>What do you think about the exchange where Kaplan said he might have to throw Trump out of the courtroom, and acknowledged Trump would probably like that, and Trump said, “<a href="https://themessenger.com/politics/trump-e-jean-carroll-judge-kaplan-defamation-trial">I would love it</a>”?</h2>
<p>That was a telling comment by Trump. I never had a civil litigant that was that difficult. It’s unusual. I did have criminal litigants who would talk back, talk over me, create havoc and chaos. Of course Kaplan has admonished Trump. </p>
<p>You can forfeit your right to be present, whether it’s a criminal or civil case. What I’m impressed by is that Kaplan hasn’t pulled the trigger. Some judges would have a shorter fuse, and they’d take the bait. </p>
<p>The MAGA world, I think, would love to see him get tossed by a federal judge and would think that means he’s standing up to this judge and asserting himself. He martyrs himself by getting thrown out of court. I think that’s the last thing that Kaplan wants to do. </p>
<h2>Overall, what are your general thoughts about this case?</h2>
<p>It’s going to be very interesting to see where this jury comes down. If my experience holds fast and is instructive, they are not looking favorably on Habba. It’s not just Trump, it’s also Habba. </p>
<p>Juries generally feel connected to the trial judge. The trial judge is their friend, is their keeper, is the person who sends them out to the jury room, who gives them instructions, who greets them every day, who communicates. Most trial judges are able to really manage juries well. They respect that juries don’t want to sit too long without a break.</p>
<p>Habba may be winning with Trump and making him happy because she’s such a disrupter – but I suspect that she’s alienating the jury.</p>
<p>When you have <a href="https://www.businessinsider.com/e-jean-carroll-judge-bench-slaps-trump-attorney-alina-habba-2024-1?op=1">14 interruptions</a>, every one of them holds up the trial. They have a sense that Habba is doing something wrong. </p>
<p>The jury members typically get very uncomfortable when there’s strife in the courtroom, and that can be reflected in the verdict. </p>
<p>What fascinates me about the case is that on the one hand, you have Trump, who is using this as a campaign appearance and riling up his base by doing it. On the other hand, I can’t imagine he has enough insurance to cover any of this. I don’t know how liquid the guy is, but he could end up with a massive verdict against him that he’s going to have to pay. </p>
<p>There’s a real contradiction there: He riles up the MAGA base, but he maybe has to write a check for $50 million or $100 million. Who wants to do that? Like most things with Trump, who’s ever seen anything like this? I haven’t.</p><img src="https://counter.theconversation.com/content/221841/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>John E. Jones III does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A retired federal judge sheds light on what’s going on in Judge Lewis Kaplan’s courtroom during the latest trial involving former President Donald Trump.John E. Jones III, President, Dickinson CollegeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2206512024-01-08T19:17:20Z2024-01-08T19:17:20ZIndonesia is one of the world’s largest democracies, but it’s weaponising defamation laws to smother dissent<figure><img src="https://images.theconversation.com/files/568147/original/file-20240108-29-ygdop8.jpg?ixlib=rb-1.1.0&rect=17%2C1052%2C2969%2C2942&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/jakarta-indonesia-november-21-2022-east-2309158677">Shutterstock</a></span></figcaption></figure><p>Two former coordinators of one of Indonesia’s most prominent human rights organisations have escaped conviction in a defamation case brought by a powerful government minister. While their astonishing acquittal is welcome, the case marked a bleak new low for freedom of expression in one of the world’s largest democracies.</p>
<p>Haris Azhar and Fatia Maulidiyanti, who had coordinated the Commission for the Disappeared and Victims of Violence (KontraS), were accused of defamation by Coordinating Minister for Maritime Affairs and Investment, Luhut Binsar Pandjaitan. </p>
<p>Luhut’s statements made it clear the case was expressly intended to create a chilling effect and smother civil society criticism of the government.</p>
<p>So what is the case about, and why is it so important?</p>
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Read more:
<a href="https://theconversation.com/is-joko-widodo-paving-the-way-for-a-political-dynasty-in-indonesia-219499">Is Joko Widodo paving the way for a political dynasty in Indonesia?</a>
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<h2>A messy web of mining interests</h2>
<p>The case related to a 2021 <a href="https://www.youtube.com/watch?v=1xMlnuOtBAs">YouTube video</a> in which Haris and Fatia discussed a <a href="https://ylbhi.or.id/bibliografi/laporan/ekonomi-politik-penempatan-militer-di-papua/">report</a> published jointly by a group of Indonesian civil society organisations. In the video, the pair mentioned that Luhut was “implicated” or “involved” (<em>bermain</em>) in mining in Wabu Block, in the Intan Jaya district of what is now Central Papua Province.</p>
<p>The <a href="https://www.youtube.com/watch?v=Zf3YBmJ8324">details</a> are a bit complicated, but a key part of the dispute centred on this point about mining. </p>
<p>In 2016, Australian mining firm West Wits Mining <a href="https://announcements.asx.com.au/asxpdf/20161012/pdf/43bxf6v2rm9v2m.pdf">reported to</a> the Australian Stock Exchange (ASX) that its Indonesian subsidiary Madinah Quarataa’in had entered into an agreement with another company, Tobacom Del Mandiri. They wanted to develop the Derewo River Gold Project in Intan Jaya. </p>
<p>Tobacom Del Mandiri is owned by another major Indonesian firm, Toba Sejahtra. Luhut has acknowledged he <a href="https://www.cnnindonesia.com/nasional/20230608151000-12-959378/luhut-klaim-lepas-toba-group-sejak-jadi-menteri-saham-masih-pegang">holds</a> 99% of shares in Toba Sejahtra.</p>
<p>Representatives from both Indonesian companies <a href="https://www.republika.id/posts/42691/petualangan-perusahaan-luhut-di-papua">have since said</a> the partnership did not go ahead. But given his stock portfolio, the activists had a relatively firm basis for implying Luhut was “involved” in mining in Papua.</p>
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<p>Luhut objected to this.</p>
<p>He also objected to Haris and Fatia referring to him as a “villain” (<em>penjahat</em>) and “Lord Luhut”, a favourite moniker of Indonesians online. He got the nickname because President Joko “Jokowi” Widodo has entrusted him to oversee a <a href="https://bisnis.tempo.co/read/1739767/17-daftar-jabatan-luhut-dari-jokowi-terbaru-pengarah-mrpn">seemingly endless list</a> of strategic projects. </p>
<p>Haris and Fatia were charged with defamation under the Law on Electronic Information and Transactions (commonly known as the ITE law). Unlike in Australia, defamation is a criminal offence in Indonesia. They also faced secondary fake news charges and defamation charges under the Criminal Code. </p>
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<em>
<strong>
Read more:
<a href="https://theconversation.com/a-twist-in-indonesias-presidential-election-does-not-bode-well-for-the-countrys-fragile-democracy-216007">A twist in Indonesia's presidential election does not bode well for the country’s fragile democracy</a>
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<h2>Making an example of activism</h2>
<p>Under Jokowi, there has been a dramatic escalation in abuse of the Electronic Information and Transactions Law to target activists, human rights defenders, journalists, and ordinary citizens.</p>
<p>According to Indonesian digital rights organisation SAFEnet, <a href="https://safenet.or.id/id/2023/11/koalisi-serius-mendesak-penundaan-pengesahan-revisi-kedua-uu-ite/">89 people</a> were
reported under the law between January and October 2023.</p>
<p>Public anger over the arbitrary way the law has been applied led the government to publish <a href="https://nasional.kompas.com/read/2021/06/23/19085041/skb-pedoman-uu-ite-resmi-ditandatangani-ini-isinya">guidelines</a> for law enforcers on its implementation. </p>
<p>According to the guidelines, defamation charges should not be brought when assertions are based on analysis, opinion or facts. </p>
<p>Luhut reported Haris and Fatia to police just three months after these guidelines were published.</p>
<p>The trial ran from April 2023 through to January 8 2024. During the trial, Luhut complained that being called names was <a href="https://www.cnnindonesia.com/nasional/20230608121926-12-959228/luhut-ngaku-kenal-lama-dengan-haris-saya-ingin-selesaikan-baik-baik">“deeply hurtful”</a>.</p>
<p>Delivering the court’s decision, <a href="https://www.cnnindonesia.com/nasional/20240108105148-12-1046633/haris-azhar-divonis-bebas-dalam-kasus-lord-luhut">Judge Muhammad Djohan Arifin said</a> the YouTube conversation between Haris and Fatia constituted opinion and analysis of a civil society study and their use of the word “lord” was not defamatory. </p>
<p>Prosecutors have said they will <a href="https://www.thejakartapost.com/indonesia/2024/01/08/two-activists-cleared-of-defaming-luhut.html">consider appealing</a> the decision. </p>
<p>Luhut claimed he reported the activists to defend his reputation. Other statements he made during the trial left no doubt as to his real motivations. </p>
<p>Luhut said he wants the case to serve as a “<a href="https://www.kompas.id/baca/polhuk/2023/06/08/luhut-bantah-tuduhan-punya-bisnis-tambang-di-papua">lesson</a>”. </p>
<p>The prosecution concluded its sentencing demand with <a href="https://www.cnnindonesia.com/nasional/20231113191500-12-1023701/jpu-kasus-lord-luhut-kutip-politikus-pengacara-haris-azhar-nilai-lucu">a quote</a> from a minor politician, Teddy Gusnaidi, stating: </p>
<blockquote>
<p>If using the label ‘activist’ means you are immune from prosecution, criminals will form NGOs (non-government organisations) to avoid consequences for their crimes.</p>
</blockquote>
<p>Luhut also claimed that he <a href="https://www.cnnindonesia.com/nasional/20230608163900-12-959440/luhut-saya-mau-audit-semua-lsm-dapat-dana-dari-mana">wanted to conduct</a> an “audit” of all non-government organisations in Indonesia to determine where they get their funding. </p>
<p>This is disingenuous. </p>
<p>Indonesian civil society organisations already need government approval to
receive donor funds, and most openly publish their list of donors in their public annual reports. </p>
<p>The government also regularly subjects foreign donors to interrogation from everyone from police to intelligence agencies, about their planned activities.</p>
<h2>Increasingly authoritarian tactics</h2>
<p>Appealing to nationalistic sensibilities and raising questions about civil society organisations like this is a <a href="https://www.fidh.org/en/issues/business-human-rights-environment/laws-against-foreign-agents-the-multi-functional-tool-of">classic technique</a> of authoritarian governments. It undermines organisations critical of government and <a href="https://www.tandfonline.com/doi/full/10.1080/13642987.2018.1492916">redirects focus</a> from the issues at hand.</p>
<p>Legal attacks like the one against Haris and Fatia are designed to <a href="https://experts.arizona.edu/en/publications/you-can-beat-the-rap-but-you-cant-beat-the-ride-bringing-arrests-">wear civil society down</a>. Fronting up in court every week is time consuming, emotionally draining, and takes activists away from their work. </p>
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<p>Further, the use of judicial harassment to target activists, in contrast to cruder tactics such as cyberattacks or physical violence, is designed to lend an <a href="https://onlinelibrary.wiley.com/doi/abs/10.1111/j.1540-5893.2012.00515.x">air of legitimacy</a> to government repression.</p>
<p>Luhut has made it clear that the goal of the case against Haris and Fatia is to silence dissent. He appears to be succeeding.</p>
<p>There is already evidence that abuse of the Electronic Information and Transactions Law is having a chilling effect in Indonesian society, with a 2022 survey finding <a href="https://nasional.tempo.co/read/1580168/survei-indikator-politik-indonesia-629-persen-rakyat-semakin-takut-berpendapat">62.9% of Indonesians</a> were afraid of openly expressing their opinions.</p>
<p>Indonesian pro-democracy groups have long been willing to speak out against the state, even under the most challenging conditions. Yet repeated charges and arrests will eventually result in self-censorship and behavioural change.</p>
<p>In the face of mounting pressure, the government finally passed a <a href="https://icjr.or.id/wp-content/uploads/2023/12/Compile-RUU-ITE.pdf">revised version</a> of the law on December 5 2023.</p>
<hr>
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Read more:
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<p>Activists have complained that, like other regressive laws enacted in Indonesia over recent years, deliberations on the revision were conducted largely <a href="https://safenet.or.id/id/2023/07/revisi-uu-ite-harus-terbuka-serius-menjawab-permasalahan-dan-tidak-boleh-terburu-buru/">behind closed doors</a>. </p>
<p>The revised law does include some improvements, including that statements made in the public interest or to defend oneself cannot be prosecuted. The maximum sentence for defamation has also been decreased to two years, yet it remains longer than provisions on defamation in the <a href="https://peraturan.bpk.go.id/Details/234935/uu-no-1-tahun-2023">new Criminal Code</a>, which will come into force in 2026.</p>
<p>Activists have argued for a complete dropping of criminal charges for online defamation. Given they have proven such an effective tool for smothering dissent, there was never any chance legislators were going to simply give up this weapon. </p>
<p>Haris and Fatia may be the highest profile Indonesians charged under the Electronic Information and Transactions Law, but they will not be the last.</p><img src="https://counter.theconversation.com/content/220651/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Tim Mann does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Two human rights activists have been acquitted of defaming a powerful government minister. It’s the latest in a string of concerning authoritarian uses of Indonesian law.Tim Mann, Associate Director, Centre for Indonesian Law, Islam and Society, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2146352023-10-04T20:30:38Z2023-10-04T20:30:38ZAre We Dating The Same Guy? Online groups toe the line between protecting women and defaming men<figure><img src="https://images.theconversation.com/files/551207/original/file-20230929-19-y6jzfd.jpg?ixlib=rb-1.1.0&rect=100%2C90%2C6609%2C4376&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Social media sites have given many the potential to reach millions of people instantly. With that reach, the risks and impacts of defamation can be far greater.</span> <span class="attribution"><span class="source">(Shutterstock)</span></span></figcaption></figure><iframe style="width: 100%; height: 100px; border: none; position: relative; z-index: 1;" allowtransparency="" allow="clipboard-read; clipboard-write" src="https://narrations.ad-auris.com/widget/the-conversation-canada/are-we-dating-the-same-guy-online-groups-toe-the-line-between-protecting-women-and-defaming-men" width="100%" height="400"></iframe>
<p>Infidelity and deception have always been part of dating and relationships. Traditionally managed privately between the parties or through legal processes, these issues have recently been co-opted by online vigilante communities that <a href="https://medium.com/sexography/are-we-dating-the-same-guy-has-become-a-hate-group-to-slander-innocent-men-a5f3a575585c">shame daters</a> — men in particular — who behave badly. </p>
<p>But are these online communities about more than shaming? Do they also safeguard women from getting exploited or hurt? </p>
<p>These questions are being debated in London, Ont., where a man featured on the Facebook group “Are We Dating the Same Guy? London, Ontario” <a href="https://www.cbc.ca/news/canada/london/are-we-dating-the-same-guy-facebook-group-london-ontario-1.6937007">launched a defamation lawsuit</a> against one of its administrators alleging he was called names, accused of sending lewd photos and labelled a bad parent.</p>
<p>As scholars who specialize in dating culture and defamation, this case is intriguing to us for the legal precedent it may set. It could also have far-reaching implications for people in the online dating world and anyone using social networking platforms.</p>
<p>Social media sites enable users to potentially reach millions of people instantly. With that reach, the risks and impacts of defamation can be far greater.</p>
<p>As university educators working in environments where online dating is widespread and incidents of gender-based and sexual violence <a href="https://ontariosuniversities.ca/student-voices-on-sexual-violence-survey">occur often</a>, we’re also interested in what this case could mean for university students.</p>
<h2>Are We Dating The Same Guy?</h2>
<p>The first group was launched on Facebook in New York in 2022 by women who wanted to protect one another from men who cheat, are violent or exploit them financially. </p>
<p>Since then, groups have sprouted up in hundreds of cities across <a href="https://mashable.com/article/are-we-dating-the-same-guy-facebook">North America</a>, <a href="https://www.radiofrance.fr/franceinter/podcasts/veille-sanitaire/veille-sanitaire-du-vendredi-02-juin-2023-4425553">Europe</a>, the <a href="https://www.standard.co.uk/insider/are-we-dating-the-same-guy-inside-the-facebook-group-where-women-vet-men-they-re-talking-to-dating-apps-b1058726.html">United Kingdom</a> and <a href="https://www.news.com.au/lifestyle/relationships/dating/inside-wild-dating-groups-exposing-australian-men/news-story/616da5fa9c3335d4af90cff25811b531">Australia</a>. Men in Toronto have retaliated by also creating their own Facebook page: <a href="https://streetsoftoronto.com/are-we-dating-the-same-girl-facebook-group-toronto/">Are We Dating the Same Girl?</a></p>
<p>Members of the women’s groups post information about “red flag” men using screenshots of dating app profiles, text exchanges and sometimes memes. <a href="https://www.vice.com/en/article/dy375q/are-we-dating-the-same-guy-facebook-groups">Many posts</a> are anonymous, contain trigger warnings and are difficult to read because they detail awful instances of coercion, assault, racism, extortion and abuse.</p>
<p>However, the degree to which these groups actually protect women is up for debate and so is the purpose they serve. In some instances, these groups may be used to make <a href="https://www.bendsource.com/news/are-we-dating-the-same-guy-yes-19906004">false claims</a> about men. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/551210/original/file-20230929-29-bmdb1b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A smartphone display with different dating app icons" src="https://images.theconversation.com/files/551210/original/file-20230929-29-bmdb1b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/551210/original/file-20230929-29-bmdb1b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/551210/original/file-20230929-29-bmdb1b.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/551210/original/file-20230929-29-bmdb1b.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/551210/original/file-20230929-29-bmdb1b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/551210/original/file-20230929-29-bmdb1b.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/551210/original/file-20230929-29-bmdb1b.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Online dating has proliferated in recent years and groups have popped up to highlight daters who behave badly.</span>
<span class="attribution"><span class="source">(Shutterstock)</span></span>
</figcaption>
</figure>
<h2>Online dating groups</h2>
<p>Online posts stating that someone has behaved poorly in the dating context could be considered defamatory. Men whose reputations suffer from the information featured in the groups <a href="https://theintercept.com/2023/07/22/metoo-defamation-lawsuits-slapp/">could sue</a> the people posting and the group administrators for defamation, especially if they are of high social or professional standing and have a lot to lose.</p>
<p>Post-writers might <a href="https://doi.org/10.3138/cjwl.34.1.03">defend themselves</a> against accusations of defamation through the defence of “truth.” The rationale for this defence is that a person cannot sue for reputational harm if the statement made about them is in fact true. </p>
<p>However, this defence would require posters to prove their allegations are true. We know from <a href="https://doi.org/10.3138/cjwl.22.2.397">decades of experience</a> that this can be especially difficult in stereotypical “<a href="https://doi.org/10.1350/ijep.2009.13.4.329">he said/she said</a>” situations. </p>
<p>Post-writers might also raise a “qualified privilege” defence. This protects someone against civil liability for defamatory statements made to <a href="https://www.canlii.org/en/on/onsc/doc/2013/2013onsc4796/2013onsc4796.html?autocompleteStr=vanderkooy&autocompletePos=1">protect the interests</a> of another party, a common interest or the public interest. </p>
<p>Although these groups were established to protect women from toxic or dangerous men, it’s unclear whether group members have a legal or moral duty to share and receive this information, which is the hallmark of qualified privilege.</p>
<p>If any information is shared with malice or includes statements that exceed what is necessary to protect someone’s interests, the post-writers cannot rely on this defence. This means that vitriolic statements or gratuitous complaints about someone’s dating behaviour aren’t protected by qualified privilege. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/551208/original/file-20230929-17-kdrt13.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A women on a laptop with a pensive look on her face." src="https://images.theconversation.com/files/551208/original/file-20230929-17-kdrt13.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/551208/original/file-20230929-17-kdrt13.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/551208/original/file-20230929-17-kdrt13.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/551208/original/file-20230929-17-kdrt13.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/551208/original/file-20230929-17-kdrt13.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/551208/original/file-20230929-17-kdrt13.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/551208/original/file-20230929-17-kdrt13.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Posters can defend themselves by saying their comments are truthful. But that can often be hard to prove in court.</span>
<span class="attribution"><span class="source">(Shutterstock)</span></span>
</figcaption>
</figure>
<h2>Gender-based violence on campus</h2>
<p>Online dating, social media posting and defamation have unique implications for university campuses where additional dynamics are at play. </p>
<p>Students who experience distressing dating experiences, including gender-based and sexual violence, may post the names and photos of the perpetrators online to call out violence and protect fellow students. However, in doing so they could be vulnerable to defamation suits if they cannot legally prove that the statements are true. </p>
<p>Individuals labelled offenders could <a href="https://yorkspace.library.yorku.ca/server/api/core/bitstreams/cc69509d-8744-4ad6-a7aa-493332530f4b/content">bring defamation claims</a> or complaints against their accusers under student codes of conduct. </p>
<p>This happened at Yale University when a former <a href="https://apnews.com/article/yale-rape-acquittal-colleges-sexual-assault-1d74bbe89517db23c49a4a098186bd89">student was sued for defamation</a> after she reported that a fellow student had raped her. In 2018, a fired Yukon College instructor also <a href="https://www.yukon-news.com/news/fired-yukon-college-instructor-sues-student-over-sex-assault-allegations/">sued a student</a> who accused him of sexual assault and posted about it online.</p>
<p>Such cases could escalate campus tensions regarding safety issues and make it harder for people to <a href="https://doi.org/10.1108/GM-07-2022-0228">come forward about sexual assault</a>, which are already infrequent due to fears of being disbelieved, shamed by peers or reliving the traumas related to the events. </p>
<h2>More safeguards needed</h2>
<p>The romantic escapades of celebrities once dominated news headlines, but in our digital society, anyone’s dating life can be thrust into the spotlight. Are We Dating the Same Guy? groups highlight the thorny social and legal implications of posting what could be considered defamatory content. </p>
<p>The proliferation of these groups across the globe means we must reflect on the complicated world of online dating, where there is little protection for daters and few ramifications for people who behave badly. </p>
<p>The potential for students to be pulled into similarly complex legal battles is equally important to consider. To safeguard students, universities should ensure they are able to come forward about abuse, whether to file formal complaints or to obtain other supports. </p>
<p>Universities should also consider distributing information about online dating and social media issues so students better understand their rights and risks when it comes to gender-based and sexual violence, dating and <a href="https://doi.org/10.1016/j.emospa.2023.100975">campus safety</a>.</p><img src="https://counter.theconversation.com/content/214635/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Social media groups have emerged designed to protect women from bad dating experiences. Those who use them could be liable to being sued for defamation.Treena Orchard, Associate Professor, School of Health Studies, Western UniversityErika Chamberlain, Professor and Dean, Faculty of Law, Western UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2138152023-09-19T16:30:37Z2023-09-19T16:30:37ZRussell Brand investigation: what good journalists should have to go through to report sexual assault allegations<p>The allegations of rape, sexual assault and emotional abuse by comedian and actor Russell Brand seemed like a bombshell scoop to many readers and viewers. But for the journalists at The Times, Sunday Times and Channel 4’s Dispatches, the publication of <a href="https://www.thetimes.co.uk/article/russell-brand-rape-sexual-assault-abuse-allegations-investigation-v5hxdlmb6">their report</a> was the result of four years of reporting, investigating and fact checking. </p>
<p>The claims related to four alleged victims from 2006-13, when Brand was at the height of his fame. Pre-empting the release of the <a href="https://www.channel4.com/programmes/russell-brand-in-plain-sight-dispatches">Channel 4 documentary</a> and the <a href="https://www.thetimes.co.uk/article/russell-brand-rape-sexual-assault-abuse-allegations-investigation-v5hxdlmb6">Sunday Times splash</a>, Brand <a href="https://www.youtube.com/watch?v=ZGr_PVUHn2I">posted a video</a> denying the allegations and stating that all his previous relationships were consensual. </p>
<p>Brand, who has amassed a following of over 6.5 million with his videos on wellness, politics and <a href="https://www.bbc.co.uk/news/entertainment-arts-66822781">conspiracy theories</a>, criticised the “mainstream media” and claimed he was a victim of a “coordinated attack” by those wanting to silence him. He ended by questioning whether there was “another agenda at play”.</p>
<p>Some of Brand’s defenders have <a href="https://www.nbcnews.com/tech/internet/russell-brand-sexual-assault-allegations-conspiracy-theory-media-rcna105678">added to this narrative</a>, implying that the timing of the report was connected to his critiques of mainstream media. In a reply to Brand’s video, X CEO <a href="https://twitter.com/elonmusk/status/1702818047063654910">Elon Musk wrote</a>: “Of course. They don’t like competition.”</p>
<p>But allegations of serious criminal offences cannot be published at the drop of a hat without serious consequences. Newspapers must be rigorous in reporting to avoid violating the <a href="https://www.legislation.gov.uk/ukpga/2013/26/contents/enacted">Defamation Act 2013</a>. </p>
<p>Defamation is a spoken or written statement that turns out to be false, but is harmful to the reputation of the person spoken or written about. To sue for defamation, a claimant must prove they suffered “serious harm” to their reputation, trade or profession as the result of a published statement. The statement can be spoken (slander), or published in writing or broadcast (libel). </p>
<h2>How much proof is needed?</h2>
<p>The “burden of proof” in England and Wales is different in criminal and civil courts. A jury in a criminal case must find the defendant guilty beyond “reasonable doubt”. In a civil case, like defamation, the burden of proof is lighter. The judge will decide on the “balance of probabilities” – they will weigh up all the evidence and decide who is telling the truth.</p>
<p>Among the handful of defences available, publishers or individuals accused of defamation may use the defences of “truth” and “public interest”. </p>
<p>A judge hears evidence from both sides and decides whether or not the allegations are “substantially true”. If the defendant uses a public interest defence, the court will scrutinise whether the information was researched and presented responsibly and the publisher reasonably believed publication was in the public interest.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/wagatha-christie-what-the-judgment-said-and-what-it-means-for-future-libel-litigants-187955">Wagatha Christie: what the judgment said, and what it means for future libel litigants</a>
</strong>
</em>
</p>
<hr>
<p>A publisher may present their reporting as proof of a truth defence. When actor Johnny Depp <a href="https://www.bbc.co.uk/news/uk-54779430">sued The Sun newspaper</a>, which published a story calling him a “wife-beater”, News Group Newspapers’ lawyers did just that. </p>
<p>They produced a raft of evidence including 38 witness statements, video recordings, live witness testimony, medical evidence, photographs, digital evidence and text messages. Depp lost the case, but two years later <a href="https://www.theguardian.com/film/2022/jun/01/johnny-depp-amber-heard-verdict-trial-ruling">won a defamation suit</a> in the US against his former partner Amber Heard, which was decided by a jury. </p>
<h2>How do newspapers investigate sexual assault allegations?</h2>
<p>Allegations about Brand were reportedly <a href="https://www.thetimes.co.uk/article/katherine-ryan-hinted-at-open-secret-of-russell-brand-allegations-bzr58dqqp">an “open secret” in the industry</a>. But rumour and gossip is not enough to defend a defamation case in court and it seems no outlet can have believed they had enough evidence to publish.</p>
<p>The Sunday Times said reporters were <a href="https://www.thetimes.co.uk/article/russell-brand-investigation-sunday-times-video-watch-latest-news-x33ss0kmk">working on the investigation</a> since 2019. As part of any investigation of this nature, media regulators set out guidelines around how ethical journalism should be conducted in their codes of practice. </p>
<p>The Independent Press Standards Organisation’s editor’s <a href="https://www.ipso.co.uk/editors-code-of-practice/">code of practice</a> – to which The Times and Sunday Times have signed up – says journalists must keep an “audit trail” of evidence gathered. The Ofcom broadcasting code has a <a href="https://www.ofcom.org.uk/tv-radio-and-on-demand/broadcast-codes/broadcast-code/section-eight-privacy">similar provision</a>. </p>
<p>The journalists in the Brand investigation reportedly interviewed “hundreds” of sources including friends and relatives of the alleged victims, comedians, TV and film executives, taxi drivers and therapists. It has been reported that accusers undertook lengthy interviews and provided information intended to corroborate the allegations. </p>
<figure class="align-center ">
<img alt="Photo of a woman's arms, writing in a notebook and on post-it notes on a desk" src="https://images.theconversation.com/files/549080/original/file-20230919-19-zc8txi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/549080/original/file-20230919-19-zc8txi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/549080/original/file-20230919-19-zc8txi.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/549080/original/file-20230919-19-zc8txi.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/549080/original/file-20230919-19-zc8txi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/549080/original/file-20230919-19-zc8txi.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/549080/original/file-20230919-19-zc8txi.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Journalists may spend years investigating allegations.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/cropped-image-creative-female-secretary-creating-587671433">GaudiLab/Shutterstock</a></span>
</figcaption>
</figure>
<p>Generally speaking, the material for an in-depth investigation can include signed and dated witness statements, affidavits, text messages, medical evidence, therapy notes, telephone call records, photographs, emails and other communications. Everything must be verified, and logged meticulously, which is why it takes so long for an investigation to see the light of day. </p>
<p>Once it is reported, the story is scrutinised by defamation lawyers – “legalled”, in industry lingo. Lawyers’ advice is given, intended to ensure every word is legally sound, and enough evidence has been gathered to run a defence in court, should the subject sue. It is up to the editors, however, if that advice is taken.</p>
<p>In order to run either a truth or public interest defence, the news organisation must usually offer the subject the chance to respond, known in law as a right of reply. Brand was approached and initially his lawyers refused to comment. He later published his YouTube denial. </p>
<h2>What are the consequences of a defamation suit?</h2>
<p>A defamation lawsuit can be costly – damages can reach £350,000 and court costs run <a href="https://www.theguardian.com/uk-news/2021/may/13/unite-blogger-must-pay-former-labour-mp-13m-legal-costs-libel-case">into the millions</a>. This is why most defamation cases are <a href="https://www.internetlawcentre.co.uk/defamation-cases#:%7E:text=Most%20of%20the%20defamation%20cases,desist%20letter%20to%20the%20defendant.">settled out of court</a>.</p>
<p>But it is not just the financial cost which makes editors cautious. Journalists have a professional responsibility to be accurate, and being successfully sued for libel could damage the reputation of a trusted media brand and a journalist’s career. </p>
<p>Editors may run a mile from difficult stories for fear of being sued, particularly if the subject is rich and famous. This was evident in the wake of the Jimmy Savile scandal, which was not reported until after his death – you can’t, in law, defame the dead.</p>
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<h2>Why are Brand’s accusers anonymous?</h2>
<p>In response to the reports, many social media commentators have made potentially libellous statements of their own about Brand and his accusers – remember, individuals can be <a href="https://theconversation.com/social-media-in-court-your-tweets-could-be-used-as-evidence-against-you-97739">sued for defamation too</a>. </p>
<p>Some of the comments about the victims have been rife with misogyny and <a href="https://metro.co.uk/2023/09/17/reaction-to-the-russell-brand-documentary-has-been-harrowing-but-unsurprising-19512721/">misconceptions about sexual assault victims</a>, accusing them of lying and questioning why they have remained anonymous. </p>
<p>In England and Wales, the identity of victims and alleged victims of sexual assaults are <a href="https://www.legislation.gov.uk/ukpga/1992/34/section/1">protected by law</a>. They are granted lifelong anonymity from the moment they disclose the attack to someone else, and even if they don’t report it to the police. It is illegal to publish their name or other identifying details, unless they are over 16 and waive their anonymity in writing.</p>
<p>Reporters do not just publish the allegations of anonymous victims. The complainant will not be anonymous to the reporter, they will know the person’s true identity and will be under pressure to conduct a detailed and meticulous investigation to verify their claims.</p>
<p>Ultimately, taking someone at their word alone is too risky. If you want to know whether you can trust a newspaper or television report, consider the amount of work that has gone into the story – and the high stakes for the publisher. The history of successful libel cases does, however, show that these high standards are not always adhered to.</p><img src="https://counter.theconversation.com/content/213815/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Polly Rippon does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>An expert on media law explains how newspapers avoid defamation when investigating a story.Polly Rippon, University Teacher in Journalism, University of SheffieldLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2094942023-08-08T20:06:13Z2023-08-08T20:06:13ZCatharsis, courage, a tribal media and lingering questions: two investigative journalists give their accounts of the Ben Roberts-Smith story<p>To trace the spectacular fall from grace of Australia’s most decorated living soldier, Ben Roberts-Smith, VC, you may face a dilemma – which newly released book to read? </p>
<p>Nine investigative journalist Nick McKenzie, and his mentor, veteran investigative reporter, Chris Masters, have both written rival book-length accounts of their investigation into the fallen war hero.</p>
<hr>
<p><em>Review: Crossing the Line: the Inside Story of Murders, Lies and a Fallen Hero – Nick McKenzie (Hachette)</em></p>
<p><em>Flawed Hero: Truth, Lies and War Crimes – Chris Masters (Allen and Unwin)</em></p>
<hr>
<p>Both McKenzie’s <a href="https://www.hachette.com.au/nick-mckenzie/crossing-the-line">Crossing the Line: the Inside Story of Murders, Lies and a Fallen Hero</a> and Masters’ <a href="https://www.allenandunwin.com/browse/book/Chris-Masters-Flawed-Hero-9781761069819/">Flawed Hero: Truth, Lies and War Crimes</a> draw heavily from the duo’s collaborative reporting into Roberts-Smith’s military career and alleged war crimes in Afghanistan. </p>
<p>Finding themselves at the centre of a high-stakes, multi-million dollar defamation case, their stories are as much about Australian journalism as they are about the deadly transgressions of some Australian soldiers abroad.</p>
<p>In court, the pair relied on a defence of truth – a high bar when relying on confidential sources. Australia has among the toughest defamation laws of any liberal democracy. </p>
<p>This adds to the already difficult task of public interest investigative journalism, which seeks to unearth truths that those with power wish to keep hidden. It requires media organisations prepared to invest in this genre of reporting, and if necessary, spend millions to defend it. </p>
<p>This is a tough ask in a news media environment where the lion’s share of advertising revenues that fund journalism has shifted away from legacy media to online competitors such as Google and Meta. McKenzie knew: </p>
<blockquote>
<p>It was vastly cheaper to settle and apologise than to fight, even when a paper had it right.</p>
</blockquote>
<p>Yet, despite these tough times, the journalists had their employer’s backing.</p>
<p>As Masters reminds us, watchdog reporting is different to everyday reporting. </p>
<blockquote>
<p>Investigative journalism is resource intensive and subject to eternal budgetary pressure. </p>
</blockquote>
<p>It also takes time – in this case, more than six years. Now, with Roberts-Smith announcing he will <a href="https://www.abc.net.au/news/2023-07-11/nsw-ben-roberts-smith-to-appeal-after-losing-defamation-case/102587878">appeal</a>, the end is unknown. In any case, “the burden stays with you, often well beyond publication,” writes Masters.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/australian-defence-force-must-ensure-the-findings-against-ben-roberts-smith-are-not-the-end-of-the-story-206749">Australian Defence Force must ensure the findings against Ben Roberts-Smith are not the end of the story</a>
</strong>
</em>
</p>
<hr>
<h2>‘Dry-retching from stress’</h2>
<p>McKenzie, a 14-times Walkley award winner, confides that over his investigative career he’s thought of quitting. He admits there were days in the bathroom “dry-retching from stress”. Add to that, “war crimes were notoriously hard to investigate, even for police.” </p>
<p>Big obstacles, outside their control, conspired against their fact-finding. The resurrection of the Taliban made it hard to reach Afghan witnesses; COVID lockdowns made travel to investigate claims and bring witnesses to a Sydney courtroom tricky. </p>
<p>A tribal media, terribly divided, meant News Corp and Seven West Media gave Roberts-Smith glowing coverage. More curiously, Masters writes his former ABC Four Corners investigative journalism colleague Ross Coulthart was commissioned by Channel Seven’s commercial director, <a href="https://www.sevenwestmedia.com.au/about-us/management-team/">Bruce McWilliam</a>, to “interrogate our work”. </p>
<p>Coulthart claimed to have evidence that would vindicate Roberts-Smith. Masters reports that after Coulthart cancelled a meeting with McKenzie, he undermined the journalists by texting their boss, Nine’s group executive editor James Chessell, and offering to “help fix a looming disaster for him and the paper.” Chessell was not swayed.</p>
<p>In a further display of the raw power of money, and of media mates backing Roberts-Smith, Seven’s owner, Kerry Stokes, gave him an executive job at Seven and footed his massive legal bills. </p>
<p>A central theme of both books is trust, and with it, truth. With some of Seven’s stories painting Roberts-Smith as a hero, and directly targeting Masters, why should the public trust these two journalists, or any for that matter? </p>
<p>The media wars left Masters musing: </p>
<blockquote>
<p>Who would have anticipated that my opponents would be neither the government nor the Defence Force, but a constellation of friends, fellow journalists and a television network?</p>
</blockquote>
<p>And how could key sources, such as brave SAS comrades troubled by what they had experienced on their deployments, trust anyone with their story, let alone reporters? Especially, as theirs is a culture that demands secrecy and condemns those who speak ill of mates. These were giant hurdles McKenzie and Masters – and a few other talented colleagues at the ABC and Nine whose reporting added pieces to the puzzle – would overcome. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/541406/original/file-20230807-17-3irzbj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/541406/original/file-20230807-17-3irzbj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/541406/original/file-20230807-17-3irzbj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/541406/original/file-20230807-17-3irzbj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/541406/original/file-20230807-17-3irzbj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/541406/original/file-20230807-17-3irzbj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/541406/original/file-20230807-17-3irzbj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/541406/original/file-20230807-17-3irzbj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Roberts-Smith meets the Queen in 2011 after being awarded the Victoria Cross.</span>
<span class="attribution"><span class="source">Anthony Devlin/AP</span></span>
</figcaption>
</figure>
<h2>‘Bloodings’ and ‘throwdowns’</h2>
<p>On the brink of a merger with Fairfax media in 2018, Nine Entertainment proved doubters wrong, backing its investigative reporters. With this institutional support over six years, McKenzie and Masters’ front-page stories in The Age, Sydney Morning Herald and Canberra Times, with special TV reports for Nine’s 60 minutes, alleged a very dark side to Roberts-Smith, exposing a broken culture within the Special Air Service (SAS) Regiment. </p>
<figure class="align-left zoomable">
<a href="https://images.theconversation.com/files/541427/original/file-20230807-29-24ggu2.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/541427/original/file-20230807-29-24ggu2.png?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/541427/original/file-20230807-29-24ggu2.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=913&fit=crop&dpr=1 600w, https://images.theconversation.com/files/541427/original/file-20230807-29-24ggu2.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=913&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/541427/original/file-20230807-29-24ggu2.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=913&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/541427/original/file-20230807-29-24ggu2.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1147&fit=crop&dpr=1 754w, https://images.theconversation.com/files/541427/original/file-20230807-29-24ggu2.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1147&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/541427/original/file-20230807-29-24ggu2.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1147&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption"></span>
</figcaption>
</figure>
<p>Roberts-Smith maintained he was a target of smear and lies because of jealousy over his medal success and hero status.</p>
<p>At the outset, Masters (like McKenzie) seriously considered “the proposition that some allegations might be driven by fear and loathing, rather than fact and logic, couldn’t be discounted”.</p>
<p>Prior to their investigations, rumours and allegations had been swirling about cruel and unlawful acts within the Australian special forces. These led to The Inspector-General of the Australian Defence Force Afghanistan Inquiry; also known as the Brereton report.</p>
<p>In 2020, that four-year inquiry, which examined a time period from 2005-2016, <a href="https://www.australiandefence.com.au/defence/general/brereton-igadf-redacted-report-released">concluded</a> there was “credible information” that outside the heat of battle, 39 individuals were unlawfully killed, a further two cruelly treated, and a total of 25 current or former ADF personnel were perpetrators. It added credence to Masters’ and McKenzie’s reportage these were not “fog of war” incidents and cast a long shadow over Roberts-Smith’s jealousy theory.</p>
<p>McKenzie’s and Masters’ evidence extended beyond a reliance on interviews, combining these with covert audio records, metadata of photographs from the front line, official documents, the journalists’ own observations of interviewees and informants over time, and more. In their books, they add the transcripts of court proceedings.</p>
<p>Given they worked so closely together, unsurprisingly their books are similarly structured, with a consistent and disturbing narrative about unlawful conduct in Australia’s longest war. </p>
<p>They introduce us to a lexicon of egregious acts consisting of “bloodings” (a rookie’s first kill ordered by a superior); “throw downs” (placing incriminating evidence on a dead body); “kill counts” and “drinking vessels” (such as the trophied prosthetic leg of a dead Afghan). </p>
<p>Both focus on Roberts-Smith’s striking physique (he is more than two metres tall) and Jekyll-and-Hyde character – charismatic and charming, but also a “frilled-neck lizard” if angered (as one detractor described him to Masters). But at the centre of their stories is the unlawful killings, as found by the Federal Court. </p>
<p>At times, they relay the same quotes and anecdotes, begging the question: why didn’t they continue the partnership? Masters’ in part answers that, writing: </p>
<blockquote>
<p>Nick and I worked well together as investigators, but regrettably could not co-ordinate the writing. We did try.</p>
</blockquote>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/541428/original/file-20230807-25-noqhg2.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/541428/original/file-20230807-25-noqhg2.png?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/541428/original/file-20230807-25-noqhg2.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=917&fit=crop&dpr=1 600w, https://images.theconversation.com/files/541428/original/file-20230807-25-noqhg2.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=917&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/541428/original/file-20230807-25-noqhg2.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=917&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/541428/original/file-20230807-25-noqhg2.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1152&fit=crop&dpr=1 754w, https://images.theconversation.com/files/541428/original/file-20230807-25-noqhg2.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1152&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/541428/original/file-20230807-25-noqhg2.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1152&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption"></span>
</figcaption>
</figure>
<p>For his part, McKenzie speaks of a past falling out: “We’d had a bust-up over secrets,” but with the tincture of time attributes it to “mixing two fiercely focused journalists with their own inbuilt securities.” </p>
<p>Looked at another way, one can understand the catharsis of writing a personal account after such a long, hard journey. Investigative reporting is incredibly challenging and can be a deeply lonely experience. When I <a href="https://www.taylorfrancis.com/books/mono/10.4324/9781315514291/investigative-journalism-democracy-digital-age-andrea-carson">interviewed</a> Masters in 2011 about his famous Moonlight State investigation in Queensland in the 1980s, which exposed systemic police corruption, he told me:</p>
<blockquote>
<p>It is easy to get really angry with how lonely you feel when you are in a big fight that goes on forever, and it seems that so often you have to wear most of it on your own.</p>
</blockquote>
<p>Tough stories demand you put your life on hold, especially if you are facing legal action, which of course McKenzie and Masters were (with colleague David Wroe). But, this lawsuit trumped all others, labelled the “defamation case of the century”. </p>
<p>Days before the verdict, many feared for investigative journalism’s future. With court costs above A$25 million, media academic Tim Dwyer told <a href="https://www.theguardian.com/australia-news/2023/may/31/ben-roberts-smith-defamation-verdict-to-end-high-stakes-battle-between-australian-media-giants?ref=confidentialdaily.com">The Guardian</a> a loss would </p>
<blockquote>
<p>have a chilling effect on investigative journalism on all media organisations who pursue these kinds of very consequential public interest stories.</p>
</blockquote>
<p>He was right to be worried. While globally, investigative journalism has adapted to the age, parsing big data, utilising cross-border collaborations (such as the Panama Papers) and diversifying its funding to survive; in Australia’s concentrated media market, legacy media still pay most investigative journalism bills. </p>
<p>Masters, a rare breed as an underpaid freelance investigator and an Australian Media Hall of Fame inductee, notes that “the digital age was steadily eroding what was left of the traditional revenue base for important news journalism”.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/why-investigative-reporting-in-the-digital-age-is-waving-not-drowning-121045">Why investigative reporting in the digital age is waving, not drowning</a>
</strong>
</em>
</p>
<hr>
<h2>Moral order</h2>
<p>Days later relief struck. The Federal Court’s Justice Anthony Besanko found against Roberts-Smith. Masters’ and McKenzie’s legal team had established the substantial truth that the former SAS soldier had committed war crimes. </p>
<p>Among them, was that Roberts-Smith had killed an Afghan man who had a prosthetic leg at an insurgent stronghold known as Whisky 108, and kicked a farmer from near the village of Darwan, Ali Jan, off a cliff, before ordering another soldier to shoot him.</p>
<p>“I find that the applicant was not an honest and reliable witness in the many areas I will identify,” Justice Besanko <a href="https://www.judgments.fedcourt.gov.au/__data/assets/pdf_file/0004/640057/J230555.pdf">wrote</a> in his 726-page judgement. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/a-win-for-the-press-a-big-loss-for-ben-roberts-smith-what-does-this-judgment-tell-us-about-defamation-law-206759">A win for the press, a big loss for Ben Roberts-Smith: what does this judgment tell us about defamation law?</a>
</strong>
</em>
</p>
<hr>
<p>Investigative reporting involves questions of moral order. It gives the voiceless a voice – like Ali Jan. It differentiates between victims and villains. This long investigation had plenty of both. It also has some quiet heroes.</p>
<p>Both journalists identify special people who “put principle and moral institution first” as Masters describes it. Among them were former SAS captain turned politician Andrew Hastie; Age journalist and mentor to McKenzie, the late Michael Gordon; Nine’s lawyer, the late Sandy Dawson SC, and the sociologist who first lifted the lid on the SAS’s excessive, unsanctioned violence in a secret Defence Department report, Samantha Crompvoets. </p>
<p>To compare the two books is somewhat pointless. Both are well-written and substantial (Masters’ just over 500 pages, McKenzie’s just under). Naturally, there are points of difference in style. Masters walks the reader through greater detail of some events with more personal contemplation – perhaps reflecting the different stage of his journalism career, and his deep knowledge of soldiers’ dispositions and army culture, acquired when he was embedded in war zones.</p>
<p>McKenzie artfully uses literary devices, such as first and third person narratives, to weave together multiple threads. These cover matters such as the progress of the investigation, the unfolding court room drama, and the personal toll of more than six years of painstakingly putting together the pieces to show a necessary, but ugly, truth. </p>
<p>A key, and somewhat distracting difference, is Masters is more reserved in naming names than McKenzie. He insists on using pseudonyms that can become confusing given the long list of characters in this story. </p>
<p>Both Masters and McKenzie knew from hearing Roberts-Smith’s voice on covert tapes leaked by a source that his “greatest hate” was reserved for them. “On the tape he made it clear he would do anything to bring us down,” McKenzie writes.</p>
<p>Investigative reporting is an extraordinarily stressful job, and McKenzie reveals throughout his book his battle with controlling his anxiety. Masters, for his part, is more understated, “being sued is not fun,” he writes, and being a freelance investigative reporter is a tough way to make a living: </p>
<blockquote>
<p>For a freelance investigative journalist like me, the deal is a miserly one. We get the conventional dollar a word rate, irrespective of the time and effort applied.</p>
</blockquote>
<p>War has always been the stuff of myth-making from the Anzacs to the present day. Both books shake the blind beliefs of those who unquestionably only see what they want to see – a war hero.</p>
<p>Of course, life is rarely that simple – and McKenzie colours in the outlines to show a deeper reality, with all its hues, concluding that a man recognised as a war hero, could also be described as “a war criminal, a bully and a liar.” </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/what-should-the-australian-war-memorial-do-with-its-heroic-portraits-of-ben-roberts-smith-206934">What should the Australian War Memorial do with its heroic portraits of Ben Roberts-Smith?</a>
</strong>
</em>
</p>
<hr>
<h2>Questions</h2>
<p>After finishing the two volumes, questions linger. How did the most senior ranks of the Australian military not know what was <em>really</em> going on?</p>
<p>How did the politicians who sent the same soldiers on multiple, lengthy missions to Afghanistan to risk suicide bombers and <a href="https://www.sbs.com.au/news/article/australian-troops-constantly-fear-green-on-blue-attacks/x0ryzacz1">green-on-blue-attacks</a> from men wearing Afghan uniforms, not think such exposure might recalibrate a soldier’s moral compass? </p>
<p>Masters gives us some insight: </p>
<blockquote>
<p>With special forces, secrecy was encoded, along with a bias for offensive action. </p>
</blockquote>
<p>Both books will appeal to a general audience, but also specifically to academics, students and practitioners of journalism with their contemplation of what it is to be an investigative journalist in uncertain times for Australian news media.
They show the salves of truth-telling, an independent judiciary and investigative reporting’s role in democratic accountability.</p>
<p>It must be remembered that Roberts-Smith continues to maintain his innocence, and is appealing the Federal Court decision. So for both McKenzie and Masters, the story is not over.</p>
<p>As to the opening dilemma? My advice is to read them both.</p><img src="https://counter.theconversation.com/content/209494/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Andrea Carson is a member of the research committee of the Public Interest Journalism Initiative (PIJI) and author of Investigative Journalism, Democracy and the Public Sphere (2020). She was previously a journalist with the Age (1997-2001) and radio producer at ABC Melbourne (2004-2010).</span></em></p>Two books by Nick McKenzie and Chris Masters about their reporting on Ben Roberts-Smith shed light on money, power, myth-making and the importance of investigative journalism.Andrea Carson, Professor of Political Communication, Department of Politics, Media and Philosophy, La Trobe UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2105142023-07-27T17:43:42Z2023-07-27T17:43:42ZGiuliani claims the First Amendment lets him lie – 3 essential reads<figure><img src="https://images.theconversation.com/files/539651/original/file-20230726-29-edulow.jpg?ixlib=rb-1.1.0&rect=11%2C11%2C7600%2C5055&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Rudy Giuliani admits to lying but says the Constitution protects him.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/GeorgiaElectionMisinformation/83aaf5c10aaf4da08f8f5e15cc5a21e2/photo">AP Photo/Patrick Semansky</a></span></figcaption></figure><p>In his response to a lawsuit filed by two Georgia election workers who said Rudy Giuliani harmed them by falsely alleging they mishandled ballots in the 2020 presidential election, <a href="https://www.nytimes.com/2023/07/26/us/politics/giuliani-georgia-election-workers.html">Giuliani has admitted lying</a>. But he says the women suffered no harm – and claims that his lies are protected by the <a href="https://constitution.congress.gov/constitution/amendment-1/">First Amendment</a> to the U.S. Constitution.</p>
<p>The Conversation U.S. has published several articles by scholars explaining what the First Amendment – which, broadly speaking, protects freedom of speech and the press – does and doesn’t say. That includes how it can and can’t be used to protect speech about political controversies, and whether speech that harms or threatens to harm another person is protected. Here is a selection from among those articles.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/507967/original/file-20230202-16618-otink6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A group of people stand nearby while a U.S. flag burns." src="https://images.theconversation.com/files/507967/original/file-20230202-16618-otink6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/507967/original/file-20230202-16618-otink6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/507967/original/file-20230202-16618-otink6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/507967/original/file-20230202-16618-otink6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/507967/original/file-20230202-16618-otink6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/507967/original/file-20230202-16618-otink6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/507967/original/file-20230202-16618-otink6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">It may be upsetting to see – but that’s part of the point of burning a flag, and a key reason it’s protected by the First Amendment.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/members-of-the-communist-party-usa-and-other-anti-fascist-news-photo/1230698352">Michael Ciaglo/Getty Images</a></span>
</figcaption>
</figure>
<h2>1. Not all speech is protected</h2>
<p>The First Amendment’s protections are not absolute, wrote <a href="https://lynngreenky.com/">Lynn Greenky</a>, a communications scholar at Syracuse University.</p>
<p>“When the rights and liberties of others are in serious jeopardy, speakers who provoke others into violence, wrongfully and recklessly injure reputations or incite others to engage in illegal activity <a href="https://theconversation.com/what-the-first-amendment-really-says-4-basic-principles-of-free-speech-in-the-us-197604">may be silenced or punished</a>,” she wrote.</p>
<p>“People whose words cause actual harm to others can be held liable for that damage,” she noted. That’s what the Georgia election workers are claiming in their lawsuit.</p>
<p>Lying about people and bullying them can have consequences despite free-speech protections, Greenky explained: “Right-wing commentator Alex Jones found that out when courts ordered him to pay more than US$1 billion in damages for his statements about, and treatment of, parents of children who were killed in the 2012 Sandy Hook Elementary School shooting in Newtown, Connecticut.”</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/what-the-first-amendment-really-says-4-basic-principles-of-free-speech-in-the-us-197604">What the First Amendment really says – 4 basic principles of free speech in the US</a>
</strong>
</em>
</p>
<hr>
<h2>2. Defaming someone can be costly</h2>
<p>Jones is not the only defamation defendant who has found lying costly. Dominion Voting Systems sued Fox News for spreading lies about its voting machines in the wake of the 2020 presidential election. Rather than go to trial, Fox settled for $787 million. </p>
<p>But communication scholar <a href="https://comm.osu.edu/people/kraft.42">Nicole Kraft</a>
at The Ohio State University warned that if the case had gone to trial, proving defamation might have been difficult. </p>
<p>“<a href="https://theconversation.com/defamation-was-at-the-heart-of-the-lawsuit-settled-by-fox-news-with-dominion-proving-libel-in-a-court-would-have-been-no-small-feat-203741">To be considered defamation</a>, information or claims must be presented as fact and disseminated so others read or see it and must identify the person or business and offer the information with a reckless disregard for the truth,” she wrote.</p>
<p>Another key question, she observed, is the amount of damage the statements do. “Defamation happens when someone publishes or publicly broadcasts falsehoods about a person or a corporation in a way that harms their reputation to the point of damage,” she wrote.</p>
<p>In his recent court filing, Giuliani appears to be saying the election workers weren’t harmed by his statements.</p>
<p>But they are claiming they were harmed, including that they <a href="https://apnews.com/article/giuliani-georgia-election-workers-lawsuit-false-statements-afc64a565ee778c6914a1a69dc756064">received threats and hateful and racist messages</a> from people in the wake of Giuliani’s allegations.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/defamation-was-at-the-heart-of-the-lawsuit-settled-by-fox-news-with-dominion-proving-libel-in-a-court-would-have-been-no-small-feat-203741">Defamation was at the heart of the lawsuit settled by Fox News with Dominion -- proving libel in a court would have been no small feat</a>
</strong>
</em>
</p>
<hr>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/505664/original/file-20230120-12-33u2r3.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A large, columned white building at the top of a grand, white set of stairs." src="https://images.theconversation.com/files/505664/original/file-20230120-12-33u2r3.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/505664/original/file-20230120-12-33u2r3.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/505664/original/file-20230120-12-33u2r3.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/505664/original/file-20230120-12-33u2r3.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/505664/original/file-20230120-12-33u2r3.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/505664/original/file-20230120-12-33u2r3.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/505664/original/file-20230120-12-33u2r3.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The U.S. Supreme Court has ruled that some false statements are ‘inevitable if there is to be open and vigorous expression of views.’</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/SupremeCourtDisabilitiesEducation/c46b6b0bf6ab45a4b6600360efe3083c/photo?Query=U.S.%20Supreme%20Court&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=8325&currentItemNo=19">AP Photo/Manuel Balce Ceneta, File</a></span>
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<h2>3. The case could be easier</h2>
<p>It’s not clear whether Giuliani has claimed to have been a politician at the time he made the false statements about the Georgia election workers. But he was <a href="https://www.nytimes.com/2023/07/26/us/politics/giuliani-georgia-election-workers.html">functioning as a personal attorney and representative</a> of Donald Trump, who is definitely a politician.</p>
<p>Allowing politicians to lie with impunity can be dangerous for democracy, warned Drake University constitutional scholar <a href="https://scholar.google.com/citations?user=aIWyIH8AAAAJ&hl=en&oi=ao">Miguel Schor</a>:</p>
<p>“<a href="https://theconversation.com/george-santos-a-democracy-cant-easily-penalize-lies-by-politicians-197267">The First Amendment was written</a> in an era when government censorship was the principal danger to self-government,” he wrote. “Today, politicians and ordinary citizens can harness new information technologies to spread misinformation and deepen polarization. A weakened news media will fail to police those assertions, or a partisan news media will amplify them.”</p>
<p>Schor found a potential solution in a 2012 opinion by Supreme Court Justice Stephen Breyer, which said laws and courts should be able to penalize not just the harms caused by speech but also “false statements about easily verifiable facts.”</p>
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Read more:
<a href="https://theconversation.com/george-santos-a-democracy-cant-easily-penalize-lies-by-politicians-197267">George Santos: A democracy can't easily penalize lies by politicians</a>
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<p><em>Editor’s note: This story is a roundup of articles from The Conversation’s archives.</em></p><img src="https://counter.theconversation.com/content/210514/count.gif" alt="The Conversation" width="1" height="1" />
To what degree can the First Amendment be used to protect someone from the consequences of lying?Jeff Inglis, Politics + Society Editor, The Conversation USLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1915032023-06-01T08:28:50Z2023-06-01T08:28:50Z‘Dismissed’: legal experts explain the judgment in the Ben Roberts-Smith defamation case<p>Today, Federal Court Justice Anthony Besanko <a href="https://www.theguardian.com/australia-news/2023/jun/01/ben-roberts-smith-loses-defamation-case-with-judge-saying-newspapers-established-truth-of-some-murders">handed down</a> his long-awaited judgment in the <a href="https://www.theage.com.au/national/110-days-41-witnesses-and-15-key-questions-to-answer-what-the-ben-roberts-smith-case-was-about-20230209-p5cjdp.html">defamation case</a> that Ben Roberts-Smith, Australia’s most decorated living former SAS soldier, brought against the Age, the Sydney Morning Herald and the Canberra Times.</p>
<p>The civil trial ended in July 2022 after an astonishing 110 days of evidence and legal submissions. The case was also interrupted by COVID lockdowns.</p>
<p>Besanko determined the newspapers did establish the “substantial truth” of some of the allegations, though not of others. He concluded that in light of these findings, “each proceeding must be dismissed”.</p>
<p>In his judgment, the judge said he was satisfied the most serious imputations were proven on the balance of probabilities, which is the test in such civil cases.</p>
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Read more:
<a href="https://theconversation.com/a-win-for-the-press-a-big-loss-for-ben-roberts-smith-what-does-this-judgment-tell-us-about-defamation-law-206759">A win for the press, a big loss for Ben Roberts-Smith: what does this judgment tell us about defamation law?</a>
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<p>This included allegations Roberts-Smith, in an area known as Darwan in 2012, <a href="https://www.theage.com.au/national/ben-roberts-smith-under-police-investigation-for-kicking-handcuffed-afghan-off-small-cliff-20190910-p52pys.html">kicked</a> a handcuffed prisoner over a cliff and ordered other soldiers to shoot him.</p>
<p>Justice Besanko also found the papers established substantial truth in the <a href="https://www.theguardian.com/australia-news/2023/may/30/the-ben-roberts-smith-allegations-war-crimes-domestic-violence-defamation-case-trial">allegations</a> that in 2009 in the village of Kakarak, Roberts-Smith carried a man with a prosthetic leg to a place outside the Whiskey 108 compound and shot him dead. </p>
<p>Further claims were made that Roberts-Smith had <a href="https://www.theage.com.au/national/ben-roberts-smith-case-live-updates-commonwealth-application-seeks-to-delay-historic-defamation-judgment-involving-former-australian-sas-soldier-20230601-p5dd37.html">forced</a> a young recruit to execute an unarmed elderly man as a form of “blooding”, which Besanko also found to be substantially true.</p>
<p>All of these allegations were particularly galling to a man who had been awarded the <a href="https://cove.army.gov.au/article/highest-honour-39-ben-roberts-smith-james-rogers">Medal of Gallantry</a> for his actions in Afghanistan in 2006, the <a href="https://www.awm.gov.au/collection/C1270259">Victoria Cross</a> for his bravery in Tizak in 2010, and a <a href="https://www.awm.gov.au/collection/C2087814">Commendation for Distinguished Services</a> for his outstanding leadership in more than 50 high-risk operations in 2012.</p>
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<h2>Substantial and contextual truth</h2>
<p>The legal battle began after a series of articles were published in the Sydney Morning Herald, the Canberra Times and the Age in 2018, alleging that Roberts-Smith, a patrol commander with the Special Air Service Regiment, was a war criminal. </p>
<p>The allegations were based upon witnesses’ accounts of events that took place in Afghanistan between 2006 and 2012. </p>
<p>The newspapers also alleged he had bullied, harassed and intimidated soldiers under his command, and that he committed an act of domestic violence in 2018. </p>
<p>Besanko also found allegations of <a href="https://www.theguardian.com/australia-news/2023/jun/01/ben-roberts-smith-loses-defamation-case-with-judge-saying-newspapers-established-truth-of-some-murders">bullying</a> by Roberts-Smith to be substantially true, but did not find that the newspapers had established the substantial truth of the domestic violence allegations.</p>
<p>The allegations of domestic violence and threats were held to warrant the defence of “contextual truth”. That is, given the newspapers had proved the most serious allegations were substantially true, they could rely on the defence of “contextual truth”. This meant Besanko was satisifed the domestic violence allegations would not further harm Roberts-Smith’s reputation, even though the claims weren’t proven to be substantially true.</p>
<p>The “contextual” truth changes came in a push to have uniformity in defamation laws back in 2005.</p>
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<p>According to Australian common law, a statement is defamatory if it exposes a person to hatred, contempt or ridicule, or would tend to make right-minded observers shun or avoid that person. Saying a decorated soldier is a war criminal invariably drew the papers deep into potentially defamatory territory.</p>
<p>The papers had to establish a defence, and their defence was that all of what they had reported was true. </p>
<p>Under the law, they needed only to show the “substantial” truth of what they had alleged. A defendant is thus given some leeway; they do not have to prove every last item is completely true.</p>
<p>Because the papers were able to establish the substantial truth of key aspects of the reporting, Roberts-Smith’s case failed.</p>
<p>Roberts-Smith’s lawyers, who were <a href="https://www.smh.com.au/national/stokes-funded-ben-roberts-smith-s-defence-out-of-public-company-funds-20210412-p57iia.html">funded by Seven West Media chairman Kerry Stokes</a>, claimed that some of the witnesses’ testimonies could not be relied upon. </p>
<p>In one case, the lawyers argued this was because the claims were framed in jealousy and based upon an “<a href="https://www.abc.net.au/news/2022-03-17/soldier-denies-trying-to-blacken-ben-roberts-smith-name/100917076">obsession</a>” with their leader, and in another case that witnesses were “<a href="https://www.smh.com.au/national/hero-or-psychopath-the-stark-binary-at-the-heart-of-the-ben-roberts-smith-case-20210607-p57ywa.html">fabulists</a>” and “fantasists”.</p>
<p>However, the imputations supported by the oral evidence of nearly all the witnesses were held to be reliable by Besanko.</p>
<h2>What happens next?</h2>
<p>It will now be up to the judge, in a further hearing, to determine how much the newspapers will be able to claim back from Roberts-Smith for their reasonable legal costs.</p>
<p>The newspapers requested three weeks to consider how much to seek for costs and third-party costs.</p>
<p>There’s little doubt that both sides have each spent millions on their respective legal teams. The issue of costs may prove just as interesting for observers as the defamation case itself.</p>
<p>Roberts-Smith’s barrister has already raised the possibility that <a href="https://twitter.com/Kate_McClymont/status/1664130451869663232">he will appeal</a>.</p>
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Read more:
<a href="https://theconversation.com/friday-essay-why-soldiers-commit-war-crimes-and-what-we-can-do-about-it-185391">Friday essay: why soldiers commit war crimes – and what we can do about it</a>
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<img src="https://counter.theconversation.com/content/191503/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Rick Sarre is an office bearer with the SA Labor Party.
</span></em></p><p class="fine-print"><em><span>Ricardo Villegas does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>In his judgment, the judge said he was satisfied the most serious imputations were proven on the balance of probabilities, which is the test in such civil cases.Ricardo Villegas, Senior Lecturer of Law, University of South AustraliaRick Sarre, Emeritus Professor of Law and Criminal Justice, University of South AustraliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2067592023-06-01T06:08:12Z2023-06-01T06:08:12ZA win for the press, a big loss for Ben Roberts-Smith: what does this judgment tell us about defamation law?<p>At the heart of the spectacular defamation trial brought by decorated Australian soldier Ben Roberts-Smith were two key questions. </p>
<p>Had the Age, the Sydney Morning Herald and the Canberra Times damaged his reputation when they published in 2018 a series of explosive stories accusing him of murder and other crimes while in Afghanistan? </p>
<p>And could the newspapers successfully defend their reporting as true?</p>
<p>Today, in Sydney, Federal Court Justice Anthony Besanko found the newspapers were indeed able to establish the “substantial truth” of key allegations around killing of unarmed Afghan male prisoners. </p>
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<p>An <a href="https://twitter.com/Kate_McClymont/status/1664130451869663232">appeal</a> may still be on the cards, but this is a high-profile loss for a very prominent person. The costs will be substantial. The usual rule is that the losing party pays their own costs and those of the winning party.</p>
<p>So, even though people say defamation law in Australia has a reputation for favouring plaintiffs, this case shows even plaintiffs do sometimes lose defamation cases in Australia.</p>
<p>More broadly, this case shows how hard it is to use defamation law to repair any perceived damage to your reputation. Once a case begins, you never can control what will be said in court.</p>
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Read more:
<a href="https://theconversation.com/why-defamation-suits-in-australia-are-so-ubiquitous-and-difficult-to-defend-for-media-organisations-157143">Why defamation suits in Australia are so ubiquitous — and difficult to defend for media organisations</a>
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<h2>What was this case about?</h2>
<p>The case centred on several defamatory meanings (or, as they’re known in defamation law, “<a href="https://www.fedcourt.gov.au/services/access-to-files-and-transcripts/online-files/ben-roberts-smith">imputations</a>”) that Roberts-Smith said the papers had made against him.</p>
<p>Among these were that he’d <a href="https://www.theage.com.au/national/110-days-41-witnesses-and-15-key-questions-to-answer-what-the-ben-roberts-smith-case-was-about-20230209-p5cjdp.html">killed</a> unarmed Afghan male prisoners and ordered junior soldiers to execute others in Afghanistan between 2006 and 2012.</p>
<p>Roberts-Smith denied wrongdoing, but the newspapers had pleaded a defence of truth. That means to win this case, they needed to prove the meanings conveyed by their reporting – even if those meanings were unintended – were true.</p>
<p>Besanko, reading a summary judgment today, said the newspapers were able to establish the substantial truth of some of the most serious imputations in the case. </p>
<p>For other imputations, Besanko found the newspapers were able to establish “contextual truth”. </p>
<p>Substantial truth means what is sounds like – that the allegation published was, in substance, true. Defamation law does not require strict, complete or absolute accuracy. Minor or inconsequential errors of detail are irrelevant. What matters is: has the publisher established what they published was, in substance, true?</p>
<p>Contextual truth is a fallback defence. The court has to weigh what has been found to be true against what has been found to be unproven. If the true statements about the plaintiff were worse than the unproven statements, then the plaintiff’s reputation was not overall damaged by the unproven statements, and the publisher has a complete defence.</p>
<p>In other words, Besanko found most of the imputations to be true. And, when considered against those which were not proven to be true, the remaining unproven imputations did not damage Roberts-Smith’s reputation.</p>
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Read more:
<a href="https://theconversation.com/lachlan-murdoch-could-well-have-won-his-crikey-lawsuit-so-why-did-he-drop-it-204279">Lachlan Murdoch could well have won his Crikey lawsuit, so why did he drop it?</a>
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<h2>What does this case tell us about defamation in Australia?</h2>
<p>The court heard several explosive claims during the course of this trial, including that evidence on USB sticks had been put into a <a href="https://www.theguardian.com/australia-news/2021/aug/13/court-hears-ben-roberts-smiths-ex-wife-dug-up-usb-sticks-from-family-backyard">lunchbox and buried</a> in a backyard and that Roberts-Smith had allegedly <a href="https://www.theguardian.com/australia-news/2022/may/13/woman-who-says-ben-roberts-smith-punched-her-sustained-an-injury-in-a-fall-earlier-on-same-night-defamation-trial-hears">punched a woman</a> in their hotel room.</p>
<p>Roberts-Smith said he didn’t bury the USBs or withhold information from a war crimes inquiry and denied that he had punched the woman. </p>
<p>But the fact this widely scrutinised case yielded such astonishing testimony, day in and day out, shows how risky it is to use defamation law to restore perceived injury to one’s reputation.</p>
<p>Defamation law is seeking to correct people’s views about the plaintiff. But it’s open to doubt that defamation law is actually any good at securing its own stated purpose of changing people’s minds about the plaintiff.</p>
<p>The problem is the law is a very blunt instrument. It’s very hard to get people to change their minds about what they think of you.</p>
<p>All litigation involves risk and defamation trials are even riskier. You never can control what can come out in court, as this litigation demonstrates so clearly.</p>
<p>Roberts-Smith has sued to protect his reputation, but in doing so, a range of adverse things have been said in court. And whatever is said in court is covered by the defence of absolute privilege; you can’t sue for defamation for anything said in court that is reported accurately and fairly.</p>
<h2>The 2021 defamation law reforms</h2>
<p>The law that applies in the Roberts-Smith case is the defamation law we had before major reforms introduced in July 2021 across most of Australia.</p>
<p>These reforms introduced a new defence known as the public interest defence. To use this defence, a publisher has to demonstrate that they reasonably believed the matter covered in their published material is in the public interest.</p>
<p>As this defence didn’t exist prior to 2021, the publishers in the Roberts-Smith case used the defence of truth.</p>
<p>If a case like this were litigated today following these reforms, it is highly likely the publisher would use the new public interest defence. </p>
<p>Given the <a href="https://theconversation.com/lachlan-murdoch-could-well-have-won-his-crikey-lawsuit-so-why-did-he-drop-it-204279">Murdoch versus Crikey</a> case was settled, we may yet wait some time to see what’s required to satisfy the public interest test in a defamation case.</p>
<p>But as today’s decision demonstrates, sometimes the truth alone will prevail.</p>
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Read more:
<a href="https://theconversation.com/high-court-rules-media-are-liable-for-facebook-comments-on-their-stories-heres-what-that-means-for-your-favourite-facebook-pages-167435">High Court rules media are liable for Facebook comments on their stories. Here's what that means for your favourite Facebook pages</a>
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<img src="https://counter.theconversation.com/content/206759/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>David Rolph has received funding in the past from the ARC. </span></em></p>More broadly, this case shows how hard it is to use defamation law to repair any perceived damage to your reputation. Once a case begins, you never can control what will be said in court.David Rolph, Professor of Law, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2046832023-05-01T06:35:44Z2023-05-01T06:35:44ZWhy was Bruce Lehrmann given the all-clear to sue media for defamation? A media law expert explains<p>Former Liberal Party staffer Bruce Lehrmann has been given the all-clear to <a href="https://www.abc.net.au/news/2023-04-28/bruce-lehrmann-allowed-to-sue-journalists-media-outlets/102269362">continue with defamation proceedings</a> against several media outlets and journalists regarding reporting about Brittany Higgins’ rape allegations.</p>
<p>Lehrmann has always maintained his innocence, and no finding has been made against him. The rape trial was abandoned last year following juror misconduct, and a second trial was not pursued amid fears for Higgins’ mental health.</p>
<p>Lehrmann is suing the Ten Network and former presenter of The Project Lisa Wilkinson, as well as News Life Media (the publisher of news.com.au) and journalist Samantha Maiden.</p>
<p>In New South Wales since 2002, and across Australia since the beginning of 2006, the limitation period for defamation claims is one year. However, the court has the power to extend the limitation period for up to three years.</p>
<p>Lehrmann needed the court to extend the limitation period because both Maiden’s story on news.com.au, and Wilkinson’s interview with Higgins on The Project, took place in mid-February 2021. Lehrmann commenced his defamation proceedings in the Federal Court almost two years later.</p>
<p>On Friday, Justice Michael Lee of the Federal Court of Australia extended the limitation period in these two defamation proceedings brought by Lehrmann.</p>
<p>As Justice Lee observed at the outset of his judgement:</p>
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<p>Any sentient person with an interest in newsworthy events in Australia would be familiar with the general background to the present disputes.</p>
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<p>To have the limitation period extended, Lehrmann needed to persuade the court that it was “not reasonable in the circumstances” for him to have commenced his proceedings within the one-year limitation period.</p>
<p>If the court was persuaded, it would be required to extend the limitation period, although it had discretion as to the length of the extension.</p>
<p>Justice Lee was satisfied that it was “not reasonable in the circumstances” for Lehrmann to have commenced defamation proceedings within the one-year limitation period.</p>
<p>This was mainly because it was not reasonable to commence defamation proceedings while criminal allegations were unresolved. This was the legal advice Lehrmann received from the solicitor with criminal law expertise he consulted.</p>
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Read more:
<a href="https://theconversation.com/why-was-the-lehrmann-trial-aborted-and-what-happens-next-193382">Why was the Lehrmann trial aborted and what happens next?</a>
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<p>As Justice Lee stated:</p>
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<p>Whatever way one looks at it, for Mr Lehrmann to have started defamation proceedings absent the resolution of the criminal allegations would have been for him to take a step into the unknown. Everything might well have worked out, and all respondents may have been passive, but one cannot discount as misconceived advice that taking the risk of starting was imprudent and distracting while criminal allegations were unresolved.</p>
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<p>Justice Lee’s decision followed a decision of the Full Federal Court in Joukhador v Ten Network Pty Ltd in 2021.</p>
<p>In that case, the court stated that, in general, where a person is facing a criminal charge and the publication being sued upon raises an issue about the person’s guilt or innocence, it will ordinarily not be reasonable to commence defamation proceedings within the one-year limitation period.</p>
<p>Justice Lee therefore extended the limitation period in both of the proceedings.</p>
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<p>In April this year, Lehrmann also commenced defamation proceedings against the ABC. This concerned the broadcast of the National Press Club address by Higgins and Grace Tame in February 2022.</p>
<p>Justice Lee indicated that he was inclined to hear all three proceedings together.</p>
<p>Justice Lee also raised the prospect that the case may be an appropriate one for trial by jury. This is significant because civil trials in the Federal Court are presumptively heard by a judge sitting alone. However, the court has the power to order trial by jury if “the ends of justice appear to render it expedient to do so”.</p>
<p>The Federal Court has only ordered a jury trial in civil proceedings <a href="https://abcalumni.net/2021/05/29/whos-to-judge/">once before</a>. In 2009, Justice Rares ordered a jury trial in defamation proceedings brought against The Daily Telegraph for reporting about sexual servitude allegations (the matter then settled before the trial).</p>
<p>Justice Lee sought submissions from the parties as to whether there should be a jury trial in this case. Jury trials tend to take longer and are therefore costlier than trials by judge alone.</p>
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Read more:
<a href="https://theconversation.com/can-juries-still-deliver-justice-in-high-profile-cases-in-the-age-of-social-media-193843">Can juries still deliver justice in high-profile cases in the age of social media?</a>
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<p>If a defamation case is brought in a State Supreme Court (other than in South Australia), either party can elect to have trial by jury. Juries are not available in defamation cases in the territories.</p>
<p>The possible trial date is mid-November this year, lasting for approximately four weeks.</p><img src="https://counter.theconversation.com/content/204683/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>David Rolph previously received funding from the Australian Research Council that ended in 2014.</span></em></p>The trial is likely to go ahead in November this year, and last for around four weeks.David Rolph, Professor of Law, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2042792023-04-24T06:01:40Z2023-04-24T06:01:40ZLachlan Murdoch could well have won his Crikey lawsuit, so why did he drop it?<p>Late last week, Lachlan Murdoch <a href="https://www.fedcourt.gov.au/__data/assets/pdf_file/0008/108692/NSD673-2022-Notice-of-Discontinuance.pdf">dropped</a> his defamation claim against key figures behind online publication Crikey.</p>
<p>Murdoch had a strong case. So why would he choose to drop it?</p>
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Read more:
<a href="https://theconversation.com/why-fox-news-settlement-with-dominion-voting-systems-is-good-news-for-all-media-outlets-204095">Why Fox News' settlement with Dominion Voting Systems is good news for all media outlets</a>
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<h2>The facts of the case</h2>
<p>For those under a rock: Lachlan Murdoch is the son of Rupert. He is an Aussie-American-Brit leading News Corp and Fox Corporation. His empire includes Fox News in the US and Sky News in Australia.</p>
<p>Murdoch was suing over a June 2022 <a href="https://www.crikey.com.au/2022/06/29/january-six-hearing-donald-trump-comfirmed-unhinged-traitor/">article</a> on the subject of the January 6 insurrection at the US Capitol. The piece called Donald Trump a “traitor”, and Lachlan Murdoch Trump’s “unindicted co-conspirator” – a reference to <a href="https://www.nytimes.com/1974/06/07/archives/jury-named-nixon-a-coconspirator-but-didnt-indict-st-clair-confirms.html">Richard Nixon’s treatment</a> by a grand jury with respect to the Watergate scandal.</p>
<p>The underlying allegation was that Fox News had supported Trump’s “<a href="https://www.theguardian.com/us-news/ng-interactive/2023/mar/09/trump-big-lie-2020-election-republican-supporters-congress">Big Lie</a>” that the 2020 US presidential election was stolen, which led to the insurrection; and that Lachlan Murdoch was responsible for Fox’s role in spreading the Big Lie.</p>
<p>After the article was published, Murdoch sent the publishers of Crikey a “concerns notice”, essentially threatening to sue them.</p>
<p>In response, the publishers <a href="https://fortune.com/2022/08/24/lachlan-murdoch-suing-crikey-defamation-capitol-insurrection-new-york-times-advert/">almost dared Murdoch to sue</a>. They even went so far as to take out an ad in The New York Times. According to <a href="https://www.theguardian.com/media/2022/nov/30/lachlan-murdoch-alleges-crikey-hired-marketing-firm-to-turn-legal-threat-into-subscription-drive">Murdoch</a>, those behind Crikey used his defamation threat as part of marketing campaign to drive subscriptions.</p>
<p>Challenging a billionaire to a defamation fight may not have been the smartest move. In September 2022, Murdoch <a href="https://www.fedcourt.gov.au/services/access-to-files-and-transcripts/online-files/murdoch-v-private-media">commenced proceedings</a> in the Federal Court of Australia. He sued the company publisher of Crikey, its editor, and the article’s author. Later, he also <a href="https://www.fedcourt.gov.au/__data/assets/pdf_file/0003/107778/02.1-Amended-Statement-of-Claim-filed-31-January-2023.pdf">sued</a> the chair and chief executive of that company.</p>
<h2>Crikey’s defences may have failed</h2>
<p>The Crikey respondents were defending the case on a number of bases. Each of these defences relies on legal principles that excuse the publication of content that is defamatory for the sake of other important interests.</p>
<p>Perhaps their strongest defence was a new one: a statutory defence of “<a href="http://classic.austlii.edu.au/au/legis/nsw/consol_act/da200599/s29a.html">publication of matter in the public interest</a>”. The defence became law in 2021. It means a defamatory publication is defensible if two conditions are met.</p>
<p>First, the publication must concern an “issue of public interest” – which the Crikey article clearly did. Second, the publishers must have “reasonably believed” that the publication of the matter (the article) was in the public interest.</p>
<p>The case may have turned on this second element of the new defence. What did the publishers believe? Was their belief about the public interest, or driving subscriptions for Crikey? There was a decent risk a court would have gone with the second option, and the defence would have failed.</p>
<p>If the defences had have failed, Murdoch would have won. So why would he choose to <a href="https://www.fedcourt.gov.au/__data/assets/pdf_file/0008/108692/NSD673-2022-Notice-of-Discontinuance.pdf">discontinue</a> his case?</p>
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<h2>The backdrop of the Dominion v Fox case</h2>
<p>Just days ago, Murdoch’s Fox settled what would have been one of the <a href="https://www.nytimes.com/live/2023/04/18/business/fox-news-dominion-trial-settlement">biggest defamation case of all time</a>. Dominion Voting Systems had sued Fox in the US, seeking a whopping US$1.6 billion damages.</p>
<p>It is extremely difficult to succeed in a defamation case against a media company under US law. But if ever there was a case where it could happen, this was it.</p>
<p>Through pre-trial procedures, Dominion had uncovered a treasure trove of evidence from people at Fox – including from the likes of <a href="https://www.nytimes.com/2023/03/07/business/media/fox-dominion-2020-election.html">Tucker Carlson</a> and <a href="https://www.nytimes.com/2023/02/27/business/media/fox-news-dominion-rupert-murdoch.html">Rupert Murdoch himself</a>. </p>
<p>There was plenty of ammo for Dominion to argue Fox was deliberately spreading lies about Dominion, which would have been required for Dominion to succeed.</p>
<p>Just before the trial was about to start, Dominion agreed to put an end to the case in exchange for a <a href="https://www.theguardian.com/us-news/2023/apr/18/dominion-wins-but-the-public-loses-fox-settlement-avoids-paying-the-highest-price">US$787.5 million payment</a> from Fox.</p>
<p>This was a steep price for Fox to pay but a loss would have cost substantially more in damages. And it would have cost more than money.</p>
<p>If the case had proceeded to trial, it would have caused tremendous damage to the Fox brand and that of its talking heads, further alienating the audience on which they depend. The evidence already uncovered was ugly, but it was about to get even uglier.</p>
<h2>Discontinuing the defamation case was a sound decision</h2>
<p>If Lachlan Murdoch continued the Crikey case, then all of the dirty laundry that was to be aired in the Dominion case could have been aired in Australia.</p>
<p>According to the <a href="https://www.alrc.gov.au/publication/traditional-rights-and-freedoms-encroachments-by-commonwealth-laws-alrc-interim-report-127/10-fair-trial/open-justice/">principle of open justice</a>, that evidence would have been heard in open court, with the global media watching. </p>
<p>Fox’s key benefit of the Dominion settlement – making the story go away, and not having to uncover further evidence – would have been destroyed. It would have been a massive own goal.</p>
<p>It’s likely Lachlan Murdoch himself would have been cross-examined.</p>
<h2>There are other reasons Murdoch would want the case to end now</h2>
<p>Say the case continued, and Lachlan Murdoch won. This would mean the Crikey respondents failed in their reliance on the statutory defence of “publication of matter in the public interest”. </p>
<p>The resulting judgment could set a precedent undermining the value of the new defence. </p>
<p>It is in Lachlan Murdoch’s ultimate interest that the defence remains strong: it will protect News Corp rags from publishing defamatory articles, which they are prone to do. Laying down his weapons now avoids that scenario.</p>
<p>And there is a reason <a href="https://www.theguardian.com/media/2023/apr/21/lachlan-murdoch-drops-defamation-proceedings-against-independent-australian-publisher-crikey">Lachlan Murdoch has himself</a> given for ending his case: he does not want to give Crikey any more ammo for a marketing campaign to attract subscribers.</p>
<p>Murdoch insists he was confident he would have won his case. He may have won defamation damages but he could have lost far more.</p>
<p>Murdoch may end up having to pay the legal costs of the Crikey respondents. But this case was never really about money. <a href="https://www.afr.com/companies/media-and-marketing/ego-hubris-and-ideology-judge-blasts-crikey-v-murdoch-motives-20230404-p5cxwz">As the judge said a few weeks ago</a>, it was more about “ego and hubris”. Many defamation cases are.</p>
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Read more:
<a href="https://theconversation.com/murdoch-v-crikey-highlights-how-australias-defamation-laws-protect-the-rich-and-powerful-189228">Murdoch v Crikey highlights how Australia's defamation laws protect the rich and powerful</a>
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<img src="https://counter.theconversation.com/content/204279/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michael Douglas is a consultant in a litigation firm, where he has worked on defamation matters and acted for plaintiffs. He has been a member of the ALP and the Australian Republic Movement. </span></em></p>After the article was published, Murdoch sent the publishers of Crikey a ‘concerns notice’, essentially threatening to sue them. In response, the publishers almost dared Murdoch to sue.Michael Douglas, Senior Lecturer in Law, The University of Western AustraliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1933982022-11-10T17:45:46Z2022-11-10T17:45:46ZA video of you goes viral without your consent – what does the law say?<figure><img src="https://images.theconversation.com/files/493564/original/file-20221104-23-c5yawz.jpg?ixlib=rb-1.1.0&rect=146%2C77%2C5604%2C3750&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Privacy law doesn't do much to protect you from being photographed in public, but there are nuances.</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/annoyed-upset-woman-glasses-looking-her-766125772">FGC / Shutterstock</a></span></figcaption></figure><p>Going viral was once a dream for creative types hoping to make it big on YouTube. But in the age of livestreaming and public shaming, it’s now the stuff of nightmares. TikTok trends, pranks and even <a href="https://www.theguardian.com/technology/2022/jul/14/melbourne-woman-dehumanised-by-viral-tiktok-filmed-without-her-consent">“acts of kindness”</a> have led to people finding accidental viral fame without their consent, or even their knowledge. </p>
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<iframe id="noa-web-audio-player" style="border: none" src="https://embed-player.newsoveraudio.com/v4?key=x84olp&id=https://theconversation.com/a-video-of-you-goes-viral-without-your-consent-what-does-the-law-say-193398&bgColor=F5F5F5&color=D8352A&playColor=D8352A" width="100%" height="110px"></iframe>
<p><em>You can listen to more articles from The Conversation, narrated by Noa, <a href="https://theconversation.com/us/topics/audio-narrated-99682">here</a>.</em></p>
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<p>If you’ve been filmed or photographed and gone viral, you may be wondering if there is any legal action you can take. In many areas the law has not caught up with technology and the social trends that come with it – but in certain circumstances it may be on your side. </p>
<p><a href="https://www.citizensadvice.org.uk/law-and-courts/civil-rights/human-rights/what-rights-are-protected-under-the-human-rights-act/your-right-to-respect-for-private-and-family-life/">Privacy rights</a> are protected by the UK Human Rights Act 1998, which aims to prevent other people from interfering with your life. It stipulates that personal information about you, including photographs and correspondence such as letters and emails, shouldn’t be shared publicly without your permission. Other personal information, such as your address and telephone number, is protected under the <a href="https://www.legislation.gov.uk/ukpga/2018/12/part/1/enacted">Data Protection Act 2018</a>.</p>
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<img alt="Quarter life, a series by The Conversation" src="https://images.theconversation.com/files/451343/original/file-20220310-13-1bj6csd.png?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/451343/original/file-20220310-13-1bj6csd.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=600&fit=crop&dpr=1 600w, https://images.theconversation.com/files/451343/original/file-20220310-13-1bj6csd.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=600&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/451343/original/file-20220310-13-1bj6csd.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=600&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/451343/original/file-20220310-13-1bj6csd.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=754&fit=crop&dpr=1 754w, https://images.theconversation.com/files/451343/original/file-20220310-13-1bj6csd.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=754&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/451343/original/file-20220310-13-1bj6csd.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=754&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<p><em><strong><a href="https://theconversation.com/uk/topics/quarter-life-117947?utm_source=TCUK&utm_medium=linkback&utm_campaign=UK+YP2022&utm_content=InArticleTop">This article is part of Quarter Life</a></strong>, a series about issues affecting those of us in our twenties and thirties. From the challenges of beginning a career and taking care of our mental health, to the excitement of starting a family, adopting a pet or just making friends as an adult. The articles in this series explore the questions and bring answers as we navigate this turbulent period of life.</em></p>
<p><em>You may be interested in:</em></p>
<p><em><a href="https://theconversation.com/social-media-how-to-protect-your-mental-health-187935?utm_source=TCUK&utm_medium=linkback&utm_campaign=UK+YP2022&utm_content=InArticleTop">Social media: how to protect your mental health</a></em></p>
<p><em><a href="https://theconversation.com/premenstrual-dysphoric-disorder-the-frightening-psychological-condition-suffered-by-dixie-damelio-193235?utm_source=TCUK&utm_medium=linkback&utm_campaign=UK+YP2022&utm_content=InArticleTop">Premenstrual dysphoric disorder: the frightening psychological condition suffered by Dixie D'Amelio</a></em></p>
<p><em><a href="https://theconversation.com/cost-of-living-crisis-what-are-your-rights-if-your-landlord-wants-to-increase-your-rent-189089?utm_source=TCUK&utm_medium=linkback&utm_campaign=UK+YP2022&utm_content=InArticleTop">Cost of living crisis: what are your rights if your landlord wants to increase your rent?</a></em></p>
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<p>The problem with privacy law is that it only applies where there is a “reasonable expectation of privacy”. This means your rights would be breached if someone hacked your phone and stole private photos, but not necessarily if they took a photo of you on public transport or in another public place. </p>
<p><a href="https://www.legislation.gov.uk/ukpga/2013/26/contents/enacted">Defamation law</a> could protect you if someone uses your image in a defamatory way. The legal test means it has to cause, or is likely to cause, serious harm to your reputation and only applies if what the person shares is untrue. So if the photo of you is real this is unlikely to apply, but if the image is manipulated to look like you are doing something that you didn’t do, <a href="https://theconversation.com/can-the-law-stop-internet-bots-from-undressing-you-149056">such as deepfakes</a>, then it could apply.</p>
<p>These rights also apply to children, even when the image is being posted by their parents. Given how parents document their children’s lives on social media, we’re likely to see legal cases on this soon. </p>
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<em>
<strong>
Read more:
<a href="https://theconversation.com/should-i-post-photos-of-my-children-online-heres-what-new-parents-need-to-know-about-sharenting-190507">Should I post photos of my children online? Here's what new parents need to know about sharenting</a>
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<p>Since 2015, the law has specifically prohibited the sharing of private, sexual photos or videos of another person without their consent. Since 2021, <a href="https://www.gov.uk/government/publications/domestic-abuse-bill-2020-factsheets/threats-to-disclose-private-sexual-photographs-and-films#:%7E:text=The%20offence%20at%20section%2033,with%20intent%20to%20cause%20distress.">this also includes</a> threatening to disclose intimate sexual images. <a href="https://www.gov.uk/government/news/upskirting-know-your-rights">Upskirting</a> – taking a picture under another person’s clothing without their knowledge – was criminalised in 2019. </p>
<p>Criminal laws like these depend on the Crown Prosecution Service to press charges against someone. This means that individuals have to report the incident to the police and rely on them to take it forward.</p>
<h2>Privacy, performance and the public</h2>
<p>When speaker and author <a href="https://mashable.com/article/covert-photos-strangers-going-viral-twitter">Ed Gillespie</a> tweeted a photo of topless man working on his laptop on the train in a heatwave, it went viral. But it didn’t actually breach the man’s privacy rights, because there is no expectation of privacy in a public place, according to the law. The person in the photo saw the tweet and replied: “Ed, I’m not sure why you felt entitled to photograph me and share it on Twitter without my permission, nor why others feel entitled to comment”, prompting Gillespie to delete it and apologise. Unfortunately for the man, the image had already been republished by the Mail Online, The Metro and The Sun.</p>
<p>Either way, Gillespie was the copyright holder of the photo. Copyright is a legal right that gives the owner the power to control the use of their content, including photos, videos and correspondence. This is how <a href="https://theconversation.com/meghan-markle-mail-on-sunday-loses-appeal-in-privacy-case-the-judgment-explained-173095">Meghan Markle</a> won her case against a newspaper who printed a private letter that she wrote to her father.</p>
<p>The copyright holder is usually the person who took the photo, made the video or wrote the letter. If your own photos or videos are shared publicly by someone else, you can ask websites to remove the content or sue them for copyright infringement. This might seem strange because we share other people’s content on social media all the time, but legally the rights holder is whoever took the photo – and copying it without permission is technically <a href="https://www.tandfonline.com/doi/full/10.1080/13600869.2018.1475897">copyright infringement</a>.</p>
<p>If someone else takes the photo or video, they have the copyright. This has been at the heart of cases against celebrities, including <a href="https://ipkitten.blogspot.com/2019/02/gigi-hadid-faces-another-copyright.html">Gigi Hadid</a> and <a href="https://theconversation.com/ten-things-you-should-know-about-instagrams-terms-of-use-102800">Khloe Kardashian</a>, who shared photos of themselves taken by paparazzi on their social media channels. The photographers, who owned the copyright, sued them. The cases settled out of court. Although these are US cases, the laws are the same in the UK.</p>
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<img alt="A view from above of a woman scrolling tiktok, with an influencer on the screen" src="https://images.theconversation.com/files/493567/original/file-20221104-13-r0erme.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/493567/original/file-20221104-13-r0erme.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/493567/original/file-20221104-13-r0erme.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/493567/original/file-20221104-13-r0erme.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/493567/original/file-20221104-13-r0erme.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/493567/original/file-20221104-13-r0erme.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/493567/original/file-20221104-13-r0erme.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">TikTok is one online platform where videos of strangers can go viral incredibly quickly.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/woman-viewing-social-media-content-on-2157458727">Kaspars Grinvalds</a></span>
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<p>If you are being filmed, other UK rights that could come into play are <a href="https://www.gov.uk/government/publications/performers-rights/performers-rights">performers’ rights</a>. These can stop someone recording a live performance without permission and can stop unauthorised copies of their performance being shared. This right only applies if you are acting, singing, dancing or performing a literary, dramatic or musical work. </p>
<p>The legal rules on what does or doesn’t count as a performance are quite vague – magicians, clowns, jugglers, impersonations, interviews and <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3239367">catwalks</a> probably count but sports performances do not. <a href="https://www.sweetandmaxwell.co.uk/Product/Media-and-Entertainment-Law/Performers-Rights/Hardback/42795558">Some argue</a> that it also includes improvisation, so you might even have a performance right if you are filmed having a tantrum in public. And it doesn’t have to be a paid performance to qualify. </p>
<h2>You’ve gone viral – now what?</h2>
<p>If someone is threatening to share – or has shared – explicit images or photos of you online, then this is a criminal offence and you should report the incident to the police.</p>
<p>If someone has filmed you in your home or a private setting where you have a reasonable expectation of privacy, this could be a breach of your right to private life. If someone takes photos or videos made by you and shares them without your permission, this could be a breach of your privacy or infringement of your copyright. In these cases, then it’s up to you to take legal action. </p>
<p>Privacy is a qualified right, meaning that it can be breached under certain circumstances, such as if it is in the public interest. This can be a useful defence for newspapers publishing intimate photos of high-profile politicians whose behaviour may reflect something important <a href="https://theconversation.com/why-matt-hancocks-private-life-is-very-much-in-the-public-interest-163444">about their leadership</a>.</p>
<p>Social media platforms also allow users to submit takedown requests if you think that someone’s content breaches any of your rights explained above, or doesn’t follow the platform’s community guidelines against bullying, harassment or hate speech. In cases where you’ve been photographed or filmed publicly that don’t involve explicit content, this is currently still the best course of action for immediate resolution.</p><img src="https://counter.theconversation.com/content/193398/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Hayleigh Bosher does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>In the age of TikTok, images of people in public go viral all the time. Here’s how the law does and doesn’t protect you.Hayleigh Bosher, Senior Lecturer in Intellectual Property Law, Brunel University LondonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1892282022-08-24T02:58:58Z2022-08-24T02:58:58ZMurdoch v Crikey highlights how Australia’s defamation laws protect the rich and powerful<figure><img src="https://images.theconversation.com/files/480688/original/file-20220824-11-lq8kfh.jpeg?ixlib=rb-1.1.0&rect=9%2C0%2C2002%2C1462&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Lachlan Murdoch, far left, with his father Rupert and brother James in 2014</span> <span class="attribution"><span class="source">Dan Steinberg/AP/AAP</span></span></figcaption></figure><p>There is no better example of how Australia’s defamation laws enable the rich and powerful to intimidate their critics than Lachlan Murdoch suing Crikey.com over a comment piece concerning Fox News, Donald Trump and the Washington insurrection of January 6 2021.</p>
<p>Crikey says it has <a href="https://www.crikey.com.au/2022/08/22/lachlan-murdoch-letters-crikey-why/">published the correspondence</a> between its lawyers and Murdoch’s in order to show how media power is abused in Australia. </p>
<p>The correspondence begins with a “concerns notice” Murdoch sent to Crikey, which is the essential first step in launching an action for defamation. In it, Murdoch claims that the <a href="https://www.crikey.com.au/2022/06/29/january-six-hearing-donald-trump-comfirmed-unhinged-traitor/">Crikey commentary</a> by Bernard Keane, published on June 29 2022, conveyed 14 meanings that were defamatory of Murdoch.</p>
<h2>Murdoch’s allegation and Crikey’s defence</h2>
<p>According to Murdoch’s claims, Keane’s piece alleges that Lachlan Murdoch illegally conspired with Donald Trump to overturn the 2020 US presidential election result and incite an armed mob to march on the Capitol to prevent the result from being confirmed.</p>
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Read more:
<a href="https://theconversation.com/web-activists-avaaz-put-lachlan-murdochs-media-interests-under-the-spotlight-7083">Web activists Avaaz put Lachlan Murdoch's media interests under the spotlight</a>
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<p>Crikey has responded by disputing that these meanings are conveyed, saying they are
“contrived and do not arise”. Crikey also argues that whatever it published could not possibly have done serious harm to Lachlan Murdoch’s reputation. </p>
<p>In order to get an action for defamation off the ground, Murdoch, the plaintiff in this case, has to satisfy the court that serious reputational harm has been done. The court may well decide this is the case.</p>
<p>Crikey says that given what much bigger media companies such as the Washington Post, the New York Times and the ABC (American Broadcasting Company) have already published about Murdoch’s Fox News and its propagation of the “Big Lie” that the 2020 presidential election had been stolen, what Crikey has published cannot further harm Murdoch’s reputation.</p>
<h2>US vs Australian defamation protections</h2>
<p>This brings us to the first way Australia’s defamation laws facilitate intimidatory action by the rich and powerful.</p>
<p>Since those two big American newspapers have published similar material to that published by Crikey, the question naturally arises: why has Lachlan Murdoch not sued them? The answer is that in the United States, there is a “public figure” defence to defamation. </p>
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<em>
<strong>
Read more:
<a href="https://theconversation.com/why-defamation-suits-in-australia-are-so-ubiquitous-and-difficult-to-defend-for-media-organisations-157143">Why defamation suits in Australia are so ubiquitous — and difficult to defend for media organisations</a>
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<p>In the US, Lachlan Murdoch would easily qualify as a public figure, being executive chairman and CEO of Fox Corporation. If he sued there, he would have to prove malice on the part of the newspapers. That means he would have to prove that the newspapers lied or were recklessly indifferent to the truth.</p>
<p>No such defence is available to the media in Australia, despite decades of intermittent campaigning by the media that it is needed. The reasons these efforts have gone nowhere are twofold.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/480694/original/file-20220824-12-swa4nd.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/480694/original/file-20220824-12-swa4nd.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/480694/original/file-20220824-12-swa4nd.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=411&fit=crop&dpr=1 600w, https://images.theconversation.com/files/480694/original/file-20220824-12-swa4nd.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=411&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/480694/original/file-20220824-12-swa4nd.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=411&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/480694/original/file-20220824-12-swa4nd.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=516&fit=crop&dpr=1 754w, https://images.theconversation.com/files/480694/original/file-20220824-12-swa4nd.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=516&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/480694/original/file-20220824-12-swa4nd.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=516&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Murdoch claims that Crikey’s piece alleges that he illegally conspired with Donald Trump to overturn the 2020 US presidential election.</span>
<span class="attribution"><span class="source">AAP</span></span>
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<p>First, Australian politicians are among the most avid users of defamation laws, and it would be unrealistic to expect they would change this convenient state of affairs. This has been illustrated recently by the <a href="https://www.theguardian.com/australia-news/2021/nov/05/friendlyjordies-%20defamation-case-jordan-shanks-apologises-to-john-barilaro-to-settle-claim">successful defamation action</a> taken by the former deputy premier of NSW, John Barilaro, against an online satirist, Jordan Shanks, aka friendlyjordies.</p>
<p>Second, the tradition of accountability in public life is weak in Australia and the tradition of secrecy is strong, as vividly demonstrated by Scott Morrison’s behaviour in the affair of the <a href="https://www.theguardian.com/australia-news/2022/aug/16/scott-morrison-five-more-secret-ministries-minister-portfolio-ministry-including-treasury-home-affairs">multiple portfolios</a>.</p>
<p>Another major factor in the chilling effect that the Australian defamation laws exert on the media is the extravagant damages the courts have awarded to plaintiffs that sue media companies, as well as the high cost of litigation. This has caused large media companies to settle cases even when they had an arguable prospect of defending themselves.</p>
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<em>
<strong>
Read more:
<a href="https://theconversation.com/australian-law-says-the-media-cant-spin-lies-entertainment-magazines-arent-an-exception-132186">Australian law says the media can't spin lies – 'entertainment magazines' aren't an exception</a>
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<p>A recent example was when the biography of the AFL player Eddie Betts was published, confirming what had happened at the now notorious training camp held by the Adelaide Crows in 2018. At the camp, Betts alleged he was targeted, abused and the camp “<a href="https://www.abc.net.au/news/2022-08-02/eddie-betts-autobiography-adelaide-crows-training-camp/101294046#:%7E:text=Former%20Adelaide%20star%20Eddie%20Betts,from%20the%20club's%20leadership%20group">misused personal and sensitive information</a>.” </p>
<p>However, when The Age broke the story initially, it was sued by the company that ran the camp. The newspaper <a href="https://www.theage.com.au/sport/afl/afl-players-betrayed-by-a-win-at-all-costs-culture-%2020220804-p5b78a.html">issued an apology</a>, although it did not admit the story was wrong.</p>
<p>The Age said its parent company, Nine Entertainment, had made a “business decision” to settle the case. In other words, it did not want to risk the costs and damages involved in contesting the suit.</p>
<h2>Liabilities for online publication</h2>
<p>A third main factor is the failure of the Morrison administration to bring to finality stage two of the defamation law reforms, which concern the liabilities and defences for online publication. </p>
<p>Currently, anyone who publishes a website or a blog is liable for the comments made there by <a href="https://www.abc.net.au/news/2021-09-08/high-court-rules-on-media-responsibility-over-%20facebook-comments/100442626">third parties</a>. Continuously moderating comment streams for potentially defamatory material is onerous and expensive at a time when media organisations have far fewer resources than they did in the pre-digital age.</p>
<p>Against this backdrop, it is hardly surprising that Lachlan Murdoch feels he can use his immense wealth and power to intimidate and silence a relatively small outfit like Crikey.com. Behind him stand corporations with a market capitalisation of billions. Crikey says its company, Private Media, is valued at less than $20 million.</p>
<h2>Murdoch’s demands</h2>
<p>Murdoch wants Crikey to take down the story and issue an apology. In
pursuit of his case, he has filed suit in the Federal Court.</p>
<p>In defiance of Murdoch’s claim, Crikey has published his 2014 oration at the State Library of Victoria named in honour of his grandfather, Sir Keith Murdoch, as part of its <a href="https://www.crikey.com.au/2022/08/22/lachlan-murdoch-letters-crikey-why/">publishing of the legal correspondence</a>:</p>
<blockquote>
<p>Censorship should be resisted in all its insidious forms.
We should be vigilant of the gradual erosion of our freedom to know, to be informed
and make reasoned decisions in our society and in our democracy.
We must all take notice and, like Sir Keith, have the courage to act when those
freedoms are threatened.</p>
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<p>Quite.</p><img src="https://counter.theconversation.com/content/189228/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Denis Muller does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Australia’s defamation laws have been inadequate for years - as this case starkly shows.Denis Muller, Senior Research Fellow, Centre for Advancing Journalism, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1829692022-05-20T11:09:51Z2022-05-20T11:09:51ZWagatha Christie: what the Vardy v Rooney case can teach you about avoiding libel on social media<p>The social media feud turned libel trial between Coleen Rooney and Rebekah Vardy has come to a close. While a judgement isn’t expected for some time, the legal battle between two media personalities married to former England footballers has proven at least one thing – that social media is a high-risk area for defamation claims.</p>
<p>The feud began in October 2019, when Rooney accused Vardy of leaking information from Rooney’s private Instagram account to The Sun. Her <a href="https://twitter.com/ColeenRoo/status/1181864136155828224?s=20&t=LcQrumh5psl16oByKh5Xcg">sleuthing</a> to name Vardy as the alleged leaker earned her the nickname “Wagatha Christie”. Vardy strongly denied the allegation and began libel proceedings in June 2020, claiming she had received a torrent of distressing abuse because of the accusations.</p>
<p>Historically, successful defamation claims have involved two steps. First, establishing what the ordinary, reasonable reader would have taken a statement (a press publication or social media post) to mean. Second, proving that the meaning of the statement is defamatory – namely that ordinary, reasonable members of the society would think less of the individual referred to. Recent changes to the law require that a publication must have caused, or is likely to cause, <a href="https://www.legislation.gov.uk/ukpga/2013/26/section/1/enacted">“serious harm”</a> to the claimant’s reputation.</p>
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<img alt="Quarter life, a series by The Conversation" src="https://images.theconversation.com/files/451343/original/file-20220310-13-1bj6csd.png?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/451343/original/file-20220310-13-1bj6csd.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=600&fit=crop&dpr=1 600w, https://images.theconversation.com/files/451343/original/file-20220310-13-1bj6csd.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=600&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/451343/original/file-20220310-13-1bj6csd.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=600&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/451343/original/file-20220310-13-1bj6csd.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=754&fit=crop&dpr=1 754w, https://images.theconversation.com/files/451343/original/file-20220310-13-1bj6csd.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=754&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/451343/original/file-20220310-13-1bj6csd.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=754&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<p><em><strong><a href="https://theconversation.com/uk/topics/quarter-life-117947?utm_source=TCUK&utm_medium=linkback&utm_campaign=UK+YP2022&utm_content=InArticleTop">This article is part of Quarter Life</a></strong>, a series about issues affecting those of us in our twenties and thirties. From the challenges of beginning a career and taking care of our mental health, to the excitement of starting a family, adopting a pet or just making friends as an adult. The articles in this series explore the questions and bring answers as we navigate this turbulent period of life.</em></p>
<p><em>You may be interested in:</em></p>
<p><em><a href="https://theconversation.com/your-forgotten-digital-footprints-could-step-on-your-job-prospects-heres-how-to-clean-up-179585?utm_source=TCUK&utm_medium=linkback&utm_campaign=UK+YP2022&utm_content=InArticleTop">Your forgotten digital footprints could step on your job prospects – here’s how to clean up</a></em></p>
<p><em><a href="https://theconversation.com/six-misunderstood-concepts-about-diversity-in-the-workplace-and-why-they-matter-181289?utm_source=TCUK&utm_medium=linkback&utm_campaign=UK+YP2022&utm_content=InArticleTop">Six misunderstood concepts about diversity in the workplace and why they matter</a></em></p>
<p><em><a href="https://theconversation.com/networking-online-how-to-make-professional-connections-remotely-and-why-it-matters-180361?utm_source=TCUK&utm_medium=linkback&utm_campaign=UK+YP2022&utm_content=InArticleTop">Networking online: how to make professional connections remotely and why it matters</a></em></p>
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<p>In a preliminary hearing for this case, the judge examined the level of seriousness of Rooney’s allegations. He <a href="https://www.bailii.org/ew/cases/EWHC/QB/2020/3156.html">ruled</a> that the whole purpose of her post was to point to the individual responsible for the alleged “<a href="https://www.bailii.org/ew/cases/EWHC/QB/2020/3156.html">serious and consistent breach of trust</a>”. The meaning of her words was judged as very serious, and thus Rooney would face a high bar at trial in proving her accusations as substantially true.</p>
<p>Regardless of the outcome, Vardy v Rooney illustrates the extent to which social media has become a liability landmine. The trial also has valuable lessons for observers about avoiding libel in your own posts. </p>
<h2>Steer clear of ambiguity</h2>
<p>There is a degree of unpredictability in libel proceedings, especially about how a judge decides the meaning of the published words. A court will often need to decide on a single meaning of a publication or post by considering the impression the words are likely to make on those reading it. This is not necessarily the meaning intended by the author – in this case, Rooney cannot claim “I did not quite mean it this way”. Try to eliminate ambiguity by communicating with precision.</p>
<p>In her original post, Rooney appeared convinced of her statement’s truth and identified (with several drama-enhancing and suspense-sustaining ellipses…) Vardy as responsible for leaking private posts to the press. Rooney’s position might have been different, had she made use of the language of opinion – phrases that are a genuine comment, not a factual assertion.</p>
<p><a href="https://www.legislation.gov.uk/ukpga/2013/26/section/3/enacted">Honest opinion</a> is one defence against defamation, and including words like “appears to” or “I reckon” can open the door to it.</p>
<h2>Consider who you post about</h2>
<p>Anyone can sue for defamation, but celebrities, business people and high-profile public figures are more likely to sue than others. Although defamation is not simply a numbers game, there is a greater likelihood of reputational damage if a statement is circulated to a wide audience via social media. </p>
<p>It seems that the general (on and offline) conversation that followed Rooney’s allegedly defamatory post mattered hugely to both parties. Vardy and Rooney were repeatedly encouraged to settle out of court, but neither side backed down. Their remarkable resolve may not earn the court’s sympathy, but it shows their determination to be proven right in open court and restore their social standing.</p>
<h2>Remember social media can be serious</h2>
<p>Various <a href="https://www.bailii.org/ew/cases/EWHC/QB/2018/3525.html">case law</a> has taken the view that users on a fast-moving and dynamic medium like Twitter scroll rapidly, skim content and quickly absorb (or ignore) messages. Courts <a href="https://www.supremecourt.uk/cases/docs/uksc-2018-0045-judgment.pdf">generally see</a> social media as a conversational medium where words are used in the context of a casual conversation (like people chatting in a pub) rather than a carefully chosen expression.</p>
<p>If allegations on social media are generally to be taken with a pinch of salt (compared to those in a newspaper for example), the reputational harm suffered will often be less serious. This is likely to play a prominent role in scrutinising the legal requirement for “serious harm” in the Vardy v Rooney spat.</p>
<p>However, social media users are not absolved from their responsibilities when it comes to other people’s hard-earned reputations. Food writer and anti-poverty campaigner Jack Monroe <a href="https://www.bbc.co.uk/news/uk-39234079#:%7E:text=Food%20blogger%20Jack%20Monroe%20has,serious%20harm%22%20to%20her%20reputation.">won</a> £24,000 damages (plus legal costs) in a <a href="https://www.bailii.org/ew/cases/EWHC/QB/2017/433.html">libel action</a> against columnist Katie Hopkins over a tweet. And Sally Bercow, the wife of the former Speaker of the House of Commons John Bercow, apologised for “<a href="https://www.theguardian.com/uk-news/2013/oct/22/lord-mcalpine-libel-row-sally-bercow">irresponsible use of Twitter</a>”. Her libellous <a href="https://i.dailymail.co.uk/i/pix/2012/11/12/article-2231288-15FCAA57000005DC-367_634x490.jpg">post</a> was found to have pointed the <a href="https://www.judiciary.uk/wp-content/uploads/JCO/Documents/Judgments/mcalpine-bercow-judgment-24052013.pdf">“finger of blame”</a> at Tory peer Lord McAlpine in the wake of a media report wrongly linking him to child sexual abuse claims.</p>
<h2>Take a risk, spend big</h2>
<p>The financial implications of losing a defamation action can be so punitive that even the winner can end up with a considerable loss. Although a court will usually order the unsuccessful party to pay for the legal costs, the successful party will most probably recover only a percentage of their bill. What’s more, damages tend to be much lower than the legal costs of defending a libel case. </p>
<p>The legal bill in Vardy v Rooney is expected to exceed £1 million for each side and damages, if Rooney wins, are likely to run into the modest five-figure range.</p>
<h2>Think before you post</h2>
<p>Social media posts do not usually benefit from the same level of editorial or legal input as traditional media or online publications, so it is always advisable to be cautious about what you post. Unless you can afford legal counsel before tweeting, it is important to have clear, credible, and reliable evidence for your allegations before sharing them with the world online.</p>
<p>If you do not have enough material to prove a statement is <a href="https://www.legislation.gov.uk/ukpga/2013/26/section/2/enacted">substantially true</a>, avoid taking the risk. You will probably be in a stronger position if you consider whether your post will be defensible if a trial follows.</p><img src="https://counter.theconversation.com/content/182969/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Alexandros Antoniou does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>With the high-profile defamation trial over, an expert explains how to avoid becoming the next Coleen Rooney or Rebekah Vardy.Alexandros Antoniou, Lecturer in Media Law, University of EssexLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1727432021-11-29T04:10:53Z2021-11-29T04:10:53ZThe government’s planned ‘anti-troll’ laws won’t help most victims of online trolling<figure><img src="https://images.theconversation.com/files/434348/original/file-20211129-21-1cyuuci.jpeg?ixlib=rb-1.1.0&rect=0%2C7%2C5000%2C3315&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>Yesterday, Prime Minister Scott Morrison and Attorney-General Michaelia Cash <a href="https://www.attorneygeneral.gov.au/media/media-releases/combatting-online-trolls-and-strengthening-defamation-laws-28-november-2021">announced</a> proposed new legislation aimed at making online “trolls” accountable for their actions. </p>
<p>Over the past few weeks, we’ve heard Morrison decry trolls as “cowardly” and “un-Australian”, language that made it into the talking points at yesterday’s media conference. But is his new-found concern about trolling all it’s cracked up to be?</p>
<p>The proposed new legislation would give courts the power to force social media companies to pass on to people the details of their trolls, so they can pursue defamation action against them. </p>
<p>This decision is largely a reaction to the High Court’s <a href="https://theconversation.com/high-court-rules-media-are-liable-for-facebook-comments-on-their-stories-heres-what-that-means-for-your-favourite-facebook-pages-167435">upholding</a> of the ruling in the Dylan Voller case, which now holds media companies responsible for defamatory comments posted on their social media pages. But there are some things that we need to be wary of in this legislation.</p>
<h2>Defamation isn’t the same as trolling</h2>
<p>Speaking to the media yesterday, Morrison argued this legislation is a necessary means to curb online trolling. But the policy proposal largely deals with issues of defamation, which isn’t necessarily the same thing. </p>
<p>As I have <a href="https://theconversation.com/the-media-dangerously-misuses-the-word-trolling-79999">previously pointed out</a>, trolling is a grossly overused term that encompasses a range of activities. Defamation, meanwhile, is far more specific and legally defined. To prove defamation, one has to prove the content posted has damaged the victim’s reputation. </p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/high-court-rules-media-are-liable-for-facebook-comments-on-their-stories-heres-what-that-means-for-your-favourite-facebook-pages-167435">High Court rules media are liable for Facebook comments on their stories. Here's what that means for your favourite Facebook pages</a>
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<p>Framing this announcement in the context of the very real harms of targeted online bullying and harassment is, I believe, disingenuous. I say this because those who suffer this kind of harassment aren’t likely to be bringing defamation suits. In short, this legislation won’t necessarily help them.</p>
<p>What’s more, a version of the newly announced powers already exists anyway. The recent <a href="https://www.esafety.gov.au/sites/default/files/2021-07/Online%20Safety%20Act%20-%20Fact%20sheet.pdf">Online Safety Act 2021</a> allows the e-Safety Commissioner to order social media companies to remove bullying or harassing content within 24 hours, or face a A$555,000 fine. Crucially, it also gives the commissioner powers to demand information about the owners of anonymous accounts who engage in online abuse.</p>
<p>Where social media companies fail to provide information about the offending poster, the newly announced laws would see them held accountable for the defamatory content. But that assumes they know this information in the first place.</p>
<p>Social media companies already collect users’ details on sign-up, including their name, email address, country of residence and, increasingly, telephone number. But for many social media platforms, there is nothing to stop users setting up an account with a fake name, using a throwaway email address or a “burner” phone, and then ditching all of that but maintaining the account once the information has been initially verified.</p>
<p>Even if the information provided is correct, it doesn’t mean the person will necessarily answer their phone or respond to an email. As one journalist asked yesterday, should social media companies be held accountable in that instance? The standard <a href="https://community.hrdaily.com.au/profiles/blogs/putting-the-reasonable-person-to-the-test">“reasonable person” assessment in law</a> would likely find not, meaning any defamation action brought against the company itself would likely fail.</p>
<h2>Social media ID laws by stealth</h2>
<p>My main concern with this proposed legislation is that it will prompt social media companies to collect enough information on their users so they become readily identifiable upon request. This seems a very similar concept to the government’s suggestion earlier this year that Australians who set up social media accounts should have to provide 100 points of identification. </p>
<p>That proposal was met with a <a href="https://www.smh.com.au/politics/federal/it-s-a-long-bow-social-media-id-push-dubbed-a-privacy-risk-20210402-p57g7d.html">barrage of criticism</a>, both for reasons of simple privacy, and because some experts, including myself, believe removing anonymity <a href="https://theconversation.com/ending-online-anonymity-wont-make-social-media-less-toxic-172228">won’t fix online toxicity anyway</a>.</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/ending-online-anonymity-wont-make-social-media-less-toxic-172228">Ending online anonymity won't make social media less toxic</a>
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<p>The other real issue, ironically enough, is one of user safety. Yes, online anonymity gives trolls a mask to hide behind, but it also allows people to access support for addiction or mental health issues, for example, or for a young LGBTQI+ person in fear of real-world violence or disapproval to find a community online. Online anonymity can be a crucial shield for victims of domestic violence who want to avoid being found by their abusers.</p>
<p>Forcing social media companies to provide users’ details to a court also opens up the possibility of “abuse of process”. This is where the legal process itself is used as a form of intimidation and bullying or, worse, for an abuser to gain access to their victim. The government has assured us the policy will contain safeguards against this, but has provided no detail so far on how this will be achieved.</p>
<p>Finally, it’s worth noting that several of the highest-profile current plaintiffs in Australian defamation cases involving social media defamation are to be found among the government itself. So while it might sound cynical, we’re entitled to wonder whom this policy is really designed to help.</p><img src="https://counter.theconversation.com/content/172743/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jennifer Beckett does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The government’s plan to make social media companies hand over trolls’ details aims to make it easier for victims to sue their harassers for defamation. But this conflates two very different concepts.Jennifer Beckett, Lecturer in Media and Communications, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1674352021-09-08T02:34:24Z2021-09-08T02:34:24ZHigh Court rules media are liable for Facebook comments on their stories. Here’s what that means for your favourite Facebook pages<figure><img src="https://images.theconversation.com/files/419718/original/file-20210907-23-1uhxohb.jpg?ixlib=rb-1.1.0&rect=0%2C26%2C5991%2C3970&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>A publisher can be held responsible for defamatory comments readers leave on its Facebook pages, the High Court <a href="https://eresources.hcourt.gov.au/downloadPdf/2021/HCA/27">ruled today</a>, in a decision that could have far-reaching consequences for social media users throughout Australia.</p>
<p>This decision may mean anyone who runs a social media page can theoretically be sued over disparaging comments posted by readers or random group members — even if you aren’t aware of the comment.</p>
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<p>In other words, if you post content on your social media page and encourage or invite comments — and people post defamatory comments there — you’re legally the “publisher” of those comments and can be sued, thanks to today’s ruling.</p>
<p>Today’s case focused on Facebook but the implications are not Facebook-specific. It can apply equally to Twitter, Instagram, and other social media too — or websites (such as The Conversation) that have comments sections.</p>
<p>Facebook and Instagram page administrators can turn off comments altogether, and Twitter allows you to restrict comments so only certain people can post to it. </p>
<p>Today’s <a href="https://eresources.hcourt.gov.au/downloadPdf/2021/HCA/27">ruling</a> may inspire many social media account managers to make greater use of these features and tightly restrict comments — or, where possible, switch them off completely.</p>
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Read more:
<a href="https://theconversation.com/media-companies-can-now-be-held-responsible-for-your-dodgy-comments-on-social-media-139775">Media companies can now be held responsible for your dodgy comments on social media</a>
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<h2>Former Don Dale inmate Dylan Voller and the comments</h2>
<p>Today’s case centres on former Don Dale Youth Detention Centre inmate Dylan Voller, who you might remember as the young man wearing the <a href="https://www.abc.net.au/news/redirects/backstory/investigative-journalism/2017-07-07/nt-juvenile-justice-system-issues-exposed-in-four-corners-probe/8687420">spit hood in a Four Corners</a> report on conditions in the Northern Territory juvenile justice system. </p>
<p>Three media companies published stories about Voller to their Facebook page, and readers left comments underneath those posts. The media stories themselves were not defamatory but Voller alleged some of those reader comments were, so he sued.</p>
<p>But he didn’t sue the commenters; he sued the media outlets who ran the Facebook pages, arguing they were “publishers” of the comments. Today’s case centred on whether or not the media companies could be defined as “publishers” of comments by readers and other “third party users”.</p>
<p>In 2019, the <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWSC/2019/766.html">Supreme Court of New South Wales ruled in Voller’s favour</a>. Justice Rothman held the media companies were indeed “publishers” of the comments from third-party users and were therefore responsible for them.</p>
<p>The media companies appealed, but last year the <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWCA/2020/102.html">New South Wales Court of Appeal</a> found again in Voller’s favour. In other words, the Court of Appeal agreed the media outlets were “publishers” of comments by random readers on their Facebook pages.</p>
<p>The decision sent shockwaves through the Australian media, which field countless comments on their social media pages every day. The media publishers appealed to the High Court, which brings us to today. The High Court <a href="https://eresources.hcourt.gov.au/downloadPdf/2021/HCA/27">decided</a>:</p>
<blockquote>
<p>The Court of Appeal was correct to hold that the acts of the appellants in
facilitating, encouraging and thereby assisting the posting of comments by the
third-party Facebook users rendered them publishers of those comments. The appeals should be dismissed with costs.</p>
</blockquote>
<p>Five judges ruled in favour of Voller and two dissented (Justice Steward and Justice Edelman). Essentially, Voller won today, the media companies are indeed “publishers” and the media companies have to pay his legal costs.</p>
<p>Today’s ruling doesn’t mark the end of the line for this case. </p>
<p>Now it’s been established the media companies are publishers of the comments, Voller’s defamation case can start in earnest — in other words, it’s still yet to be decided whether or not the comments were in fact defamatory and what defences the media publishers might have under defamation law.</p>
<p>You might be wondering: can the person who posted the comment also be held responsible for their comment, under defamation law?</p>
<p>The answer is yes, they can. But from the perspective of someone suing, it might not be worth going after an individual social media user or a troll, especially if they are using a pseudonym. A plaintiff is more likely to want to go after the media company itself as the publisher, with their deeper pockets.</p>
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<a href="https://images.theconversation.com/files/419906/original/file-20210907-22-6uvre7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Facebook logo" src="https://images.theconversation.com/files/419906/original/file-20210907-22-6uvre7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/419906/original/file-20210907-22-6uvre7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/419906/original/file-20210907-22-6uvre7.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/419906/original/file-20210907-22-6uvre7.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/419906/original/file-20210907-22-6uvre7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/419906/original/file-20210907-22-6uvre7.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/419906/original/file-20210907-22-6uvre7.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The question at the centre of this case was: can a publisher be held responsible for comments left on their Facebook page?</span>
<span class="attribution"><span class="source">Shutterstock</span></span>
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<h2>Broader implications for social media users</h2>
<p>Today’s ruling may mean if you post something to a social media platform and encourage or invite third party comments, you could be liable for any comments that follow. So it could affect individuals, online community groups, neighbourhood Facebook pages, the local P&C Facebook page, and so on.</p>
<p>One of the interesting things about the Voller case is his legal team sued straight away — they didn’t issue a concerns notice first (which is basically a legal letter sent to the person or organisation alleged to have made the defamatory comments, giving them a chance to respond).</p>
<p>That wouldn’t be allowed now. Under <a href="https://www.lexology.com/library/detail.aspx?g=0fdee022-1dae-4a80-83ff-e2891909ac26">new defamation laws</a> that came into effect this July in NSW, Victoria, South Australia Queensland and the ACT, plaintiffs must now serve a concerns notice on each defendant and wait at least a fortnight before suing.</p>
<p>Those same reforms also introduced what’s called a “<a href="https://corrs.com.au/insights/how-new-serious-harm-thresholds-could-affect-defamation-cases-in-australia">serious harm threshold</a>”. Under this rule, the plaintiff has to prove they have, in fact, suffered (or are likely to suffer) serious harm to their reputation as a result of the published comments.</p>
<p>This clause aims to rule out trivial defamation cases because while it’s true anyone can cause serious harm to a person’s reputation on social media, there is also a lot of banter and to-ing and fro-ing which might be offensive but might not cause serious harm to a reputation. This may give some protection to admins of social media pages in future, particularly private individuals.</p>
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Read more:
<a href="https://theconversation.com/the-policing-of-australian-satire-why-defamation-is-still-no-joke-despite-recent-law-changes-164076">The policing of Australian satire: why defamation is still no joke, despite recent law changes</a>
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<img src="https://counter.theconversation.com/content/167435/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>David Rolph has previously received funding from the Australian Research Council.</span></em></p>Today’s ruling may inspire many social media account managers to more tightly restrict comments — or, where possible, switch them off completely.David Rolph, Professor of Law, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1571432021-03-15T08:34:19Z2021-03-15T08:34:19ZWhy defamation suits in Australia are so ubiquitous — and difficult to defend for media organisations<figure><img src="https://images.theconversation.com/files/389478/original/file-20210315-14-1omijtj.jpg?ixlib=rb-1.1.0&rect=101%2C101%2C4906%2C2806&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Richard Wainwright/AAP</span></span></figcaption></figure><p>Attorney-General Christian Porter is <a href="https://www.smh.com.au/politics/federal/christian-porter-launches-defamation-action-against-the-abc-20210315-p57arg.html">suing the ABC for defamation</a> and claiming aggravated damages. </p>
<p>Porter is claiming that <a href="https://www.abc.net.au/news/2021-02-26/pm-senators-afp-told-historical-rape-allegation-cabinet-minister/13197248">an article published last month</a> included false allegations against him in relation to a historical rape. A statement from his lawyer says although Porter was not named, the article made allegations against a senior cabinet minister “and the attorney-general was easily identifiable to many Australians”.</p>
<p>So, how does defamation law work, what is its impact on the media, and why has Australia been labelled <a href="https://www.nytimes.com/2019/03/05/opinion/australia-defamation-laws.html">the defamation capital of the world</a>?</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1371245531083640833"}"></div></p>
<h2>What is considered defamatory?</h2>
<p>Defamation can be defined as a false statement about a person to their discredit. The legal action has three elements for the complainant to prove: publication, identification, and defamatory meaning. Significantly, the falseness of the published material is presumed.</p>
<p>A statement has defamatory meaning if it would lead an ordinary, reasonable reader to think less of the complainant, or if it would cause the complainant to be shunned or subjected to more than trivial ridicule.</p>
<p>Publication is broadly defined, including any communication to someone other than the complainant, whether written or spoken.</p>
<p>And identification requires reference to the complainant, which could be indirect if the ordinary, reasonable reader is able to read between the lines — as Porter is claiming in his case.</p>
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<strong>
Read more:
<a href="https://theconversation.com/view-from-the-hill-despite-his-denial-christian-porter-will-struggle-with-the-caesars-wife-test-156412">View from The Hill: Despite his denial, Christian Porter will struggle with the 'Caesar's wife' test</a>
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<p>A news organisation might carefully avoid naming a person, as the ABC did, but it could still be liable if a reader would have known who that person was. Porter was named in social media chatter around the ABC’s story - whether that sort of speculation constitutes identification is questionable, but not inconceivable.</p>
<p>Where a complainant’s identity is confirmed after publication — as Porter’s was when he <a href="https://thewest.com.au/politics/federal-politics/attorney-general-christian-porter-gives-press-conference-amid-rape-allegations-ng-b881811087z">fronted the media</a> two weeks ago — identification becomes straightforward for later downloads of the story. Each download is treated as a separate potential defamation under the law. At the time of writing, the ABC’s report was still on its site.</p>
<p>The elements of defamation are encapsulated in the <a href="https://blogs.umb.edu/quoteunquote/2012/09/25/even-if-it-looks-sounds-walks-and-quacks-like-an-orwell-quote-it-still-might-not-be-an-orwell-quote/#:%7E:text=%E2%80%9CJournalism%20is%20printing%20what%20someone,everything%20else%20is%20public%20relations.%E2%80%9D&text=%E2%80%9CNews%20is%20something%20somebody%20doesn,%3B%20all%20else%20is%20advertising.%E2%80%9D">expression</a> cherished by news editors:</p>
<blockquote>
<p>journalism is printing what someone else does not want printed.</p>
</blockquote>
<p>This reflects the reality that the media is exposed to defamation risk daily — and the risk is serious.</p>
<p>A complainant can sue any person involved with the story’s production, such as journalist Louise Milligan in the ABC’s case. Add the fact the complainant doesn’t need to prove any harm was actually done — and aggravated damages awards are uncapped — and it’s easy to see why defamation inspires fear among media organisations.</p>
<h2>What defences can media organisations use?</h2>
<p>The defences to defamation are notoriously difficult to establish.</p>
<p>While the complainant need not prove the material is false, the defendant can escape liability by showing that it’s true. In the Porter case, this means the ABC would need to prove matters from more than 30 years ago raised in a letter by a woman who is now deceased.</p>
<p>Moreover, the defendant must prove the truth of the “defamatory stings” — the discrediting imputations that an ordinary, reasonable reader would take from the published material, regardless of whether those were the intended meanings. </p>
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<em>
<strong>
Read more:
<a href="https://theconversation.com/social-media-and-defamation-law-pose-threats-to-free-speech-and-its-time-for-reform-64864">Social media and defamation law pose threats to free speech, and it's time for reform</a>
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<p>Even proving the truth of ordinary, factual reporting can be challenging in cases where journalists’ sources, such as whistleblowers, have legitimate reasons to preserve their anonymity.</p>
<p>These difficulties might be ameliorated if Australia had a “reportage” defence, like that of the United Kingdom. This defence excuses the media for reporting defamatory statements by third parties on matters of public interest, provided the media has merely reported the statement without adopting it.</p>
<p>Australia does have a “<a href="http://classic.austlii.edu.au/au/legis/vic/consol_act/da200599/s30.html">reasonable publication</a>” defence, but its requirements have proven near-impossible for media organisations to satisfy in court.</p>
<p>For example, the defence is probably a non-starter in cases where a news organisation reports unproven criminal allegations and the person of interest, being unnamed, is given no right of reply in the story.</p>
<h2>Reforming defamation</h2>
<p>Changes to Australia’s defamation law are in the works. Some will help potential defendants, such as a new threshold of serious harm and tighter time limits for bringing actions. </p>
<p>Other reforms will require a wait-and-see approach, like the new public interest defence, which aims to rebalance defamation law in favour of public interest reporting but retains elements of the old reasonable publication defence.</p>
<p>This leaves room for courts to maintain a tough stance on what is regarded as “reasonable” media conduct when it comes to defamation. That stance recently saw NSW courts hold three Australian media companies <a href="https://www.abc.net.au/news/2020-06-01/media-giants-lose-key-appeal-in-dylan-voller-defamation-case/12306792">liable for comments</a> that were posted on their Facebook pages about a former youth detention detainee.</p>
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Read more:
<a href="https://theconversation.com/australias-outdated-defamation-laws-are-changing-but-theres-no-revolution-yet-143532">Australia's 'outdated' defamation laws are changing - but there's no 'revolution' yet</a>
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<p>More meaningful reform might have established stronger public interest and reportage defences, or required complainants to prove that the material published about them was false - or even that the publisher knew it to be false but published it anyway.</p>
<p>Defamation cases involving public figures in the United States require proof that the publisher knew the material to be false, which is why US politicians almost never sue for defamation.</p>
<p>In Australia, by contrast, politicians do sue – and successfully. They often opt for the Federal Court where, compared with the state courts, they are likely to have their matter heard by a judge alone, rather than having to convince a jury of the merits of their case.</p>
<p>Citizens and institutions seeking to hold those in power to account are too often being silenced by our current defamation laws. In a strong democracy like Australia, we can — and must — do better.</p><img src="https://counter.theconversation.com/content/157143/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Brendan Clift receives funding from an Australian Government Research Training Program Scholarship.</span></em></p>Porter claims even though he wasn’t named in the ABC article, he was easily identifiable to many Australians. For the ABC, the defences to defamation are notoriously difficult to establish.Brendan Clift, Graduate researcher, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1492172020-11-03T15:33:31Z2020-11-03T15:33:31ZThe Johnny Depp libel trial explained<p>On November 2 2020, London’s High Court handed down its hotly anticipated judgment in the high-profile libel case brought by Hollywood actor Johnny Depp over a newspaper article which labelled him a “wife-beater”. In his 585-paragraph ruling the presiding judge, Mr Justice Nicol, dismissed the actor’s claim, holding in essence that the words used in The Sun’s report were legally acceptable.</p>
<p>Depp brought a libel action against The Sun’s publisher (and the newspaper’s executive editor Dan Wootton) in respect of an 2018 article which was first published online under the headline: “GONE POTTY: How can JK Rowling be ‘genuinely happy’ casting wife beater Johnny Depp in the new Fantastic Beasts film?” The story asserted that Depp was violent towards his ex-wife Amber Heard during their relationship.</p>
<p>Depp’s case was that the article made seriously defamatory allegations which bore the meaning that he was guilty of serious domestic violence against his former wife. The defence <a href="https://inforrm.org/wp-content/uploads/2020/07/Defs-Closing.pdf">maintained</a> that the evidence showed the claimant “was violent towards Ms Heard on multiple occasions” during their relationship, and thus the “wife-beater” claim was justified. They relied on 14 alleged incidents of serious physical assault against Heard which had occurred between 2013 and 2016. However, Depp <a href="https://inforrm.org/wp-content/uploads/2020/07/Day-16-transcript.pdf">consistently denied</a> the “reputation-destroying and career-ending” allegations. </p>
<p>The case was heard over the course of 16 days at London’s Royal Courts of Justice in July 2020. Importantly, neither Depp nor Heard was on trial. And this wasn’t a criminal trial either. In this libel dispute, there were two central issues: the meaning of the articles complained of; and whether the imputation conveyed by them (that the Hollywood actor engaged in unprovoked attacks and violent conduct against his ex-wife) was true in substance and fact. Mr Justice Nicol <a href="https://www.bailii.org/ew/cases/EWHC/QB/2020/2911.pdf">held</a> that the meaning of the words complained of was as contended for by The Sun, namely that Depp was violent to Heard, “causing her to suffer significant injury and on occasion leading to her fearing for her life”. </p>
<p>The judge also expressly acknowledged that Depp proved the necessary elements of his cause of action, that his reputation had been damaged. But, under UK defamation law, if a defendant proves that the published words are “<a href="https://www.legislation.gov.uk/ukpga/2013/26/section/2/enacted">substantially true</a>”, they will have a complete defence: they cannot be successfully sued regardless of the gravity of the allegations. In this case, the judge found that the great majority of alleged incidents of violent physical assault against his ex-wife were proved to be substantially true and dismissed Depp’s claim.</p>
<h2>Was it all worth it?</h2>
<p>Anyone following the case may have reasonably queried whether Depp’s action was ill-advised. Traumatic, intensely intimate and unflattering details of a tumultuous relationship apparently punctuated with blazing rows, a drug and alcohol-fuelled lifestyle and allegations of domestic abuse – strenuously denied – were uncovered in court and made front-page news worldwide. </p>
<p>A parade of witnesses, including A-list actors, strode into London’s High Court to support each side’s versions of events. The court heard details of a costly trail of destroyed property, a severed finger apparently caused by a thrown vodka bottle, profoundly acrimonious texts and <a href="https://bit.ly/34OxslB">“a large pile of faeces”</a> left in a bed.</p>
<p>In addition to the revelation of unattractive details of his personal affairs, Depp had to shoulder a taxing evidential burden as a result of a recent <a href="https://www.bailii.org/uk/cases/UKSC/2019/27.pdf">Supreme Court ruling</a>. The court’s decision in a 2019 defamation case involving two UK newspaper publishers established that the threshold test for “serious harm” in defamation actions has been significantly raised under the 2013 Defamation Act. This has made it more difficult for claimants to succeed in their actions. </p>
<p>Nevertheless, Depp must have considered that the trial was the lesser of two evils compared to unanswered reputational attacks of this magnitude. The conduct alleged was essentially criminal and highly defamatory, especially in the post-#MeToo landscape. The judge’s ruling suggests that the actor correctly assessed the potential reputational damage that the words “wife-beater” would cause to his future. </p>
<p>The heavy focus on Depp’s alleged criminal wrongdoing in The Sun’s article, the extent of its publication, the long-term effect of online libel and the undesired prospect of the actor’s removal from his role in a major film franchise provided a strong impetus for the claimant. </p>
<p>NGN took an equally bold, yet somewhat risky, decision. By relying on the defence of truth, the publisher was required to establish the essential truth of the “sting” of the libel. This means that it was not necessary for NGN to prove that every single aspect of the statement complained of was absolutely true, so long as, taken as a whole, it was accurate. </p>
<p>The standard of proof needed for a truth defence is that used in civil cases generally – the material must be proved true “on the balance of probabilities”. This is a lower bar to achieve than the usual criminal standard of being sure “beyond a reasonable doubt”.</p>
<p>Although one might think that NGN had a relatively easier task to achieve, it should not be forgotten that, when the truth defence is used, the burden rests on the publisher to prove that the allegations were true, rather than on the claimant (in this case, Depp) to show that they were false. This can give rise to further complications, as the success of a claim will regularly turn on the evidence in each individual case.</p>
<p>And when opposing accounts of what happened in private cannot be entirely ruled out, lawyers will struggle to persuade the court which version is more likely to be true. This is apparent in the <a href="https://inforrm.org/wp-content/uploads/2020/07/468417995-Johnny-Depp-Skeleton-Argument.pdf">position taken by Depp’s lawyers</a> that “the claimant was not violent towards Ms Heard; it was she who was violent to him”. </p>
<p>Hence, media organisations may often be reluctant to defend libel actions and may opt for an out-of-court settlement to avoid the risk of high legal costs or damages. This was not the case with NGN, which nevertheless sought to prove true a very serious allegation. It succeeded, despite the challenges associated with this defence.</p>
<h2>The case continues</h2>
<p>The outcome was bitterly unfavourable to Depp, who arguably suffered a crushing defeat, with all that this might entail for his career. Moreover, his case has reportedly led to an estimated £5m in legal costs, and on top of that, he is likely to be made to cover a significant percentage of the winner’s legal costs. </p>
<p>The Sun, meanwhile, emerged victorious from a tense legal battle. The outcome may stiffen the resolve of the English press to report on matters of domestic violence, but it does not necessarily follow that the approach taken by the High Court in Depp’s trial is a uniform one in all cases.</p>
<p>The High Court’s decision doesn’t seem to spell the end of the legal battle. Depp’s representatives said they found the decision “<a href="https://www.bbc.co.uk/news/uk-54779430">as perverse as it is bewildering</a>” and announced their intention to appeal. It will also be interesting to see whether the outcome in London can carry some weight and indirectly affect the libel rematch next May in the US against Heard herself over an opinion piece she wrote for Washington Post.</p><img src="https://counter.theconversation.com/content/149217/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Alexandros Antoniou does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The ins and outs of a fiercely contested defamation case.Alexandros Antoniou, Lecturer in Media Law, University of EssexLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1435322020-07-28T08:22:45Z2020-07-28T08:22:45ZAustralia’s ‘outdated’ defamation laws are changing - but there’s no ‘revolution’ yet<figure><img src="https://images.theconversation.com/files/349861/original/file-20200728-27-1brq2w8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">NSW Attorney-General Mark Speakman.</span> <span class="attribution"><span class="source">AAP/Joel Carrett</span></span></figcaption></figure><p>Australia’s defamation laws, so long criticised to so little avail, are finally changing. </p>
<p>New South Wales Attorney-General <a href="https://www.dcj.nsw.gov.au/news-and-media/media-releases/nation-agrees-to-nsw-led-defamation-revolution">Mark Speakman</a> trumpeted this week:</p>
<blockquote>
<p>Nation agrees to NSW-led defamation revolution.</p>
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<p>His announcement followed <a href="https://www.ag.gov.au/sites/default/files/2020-07/Council%20of%20Attorneys-General%20communiqu%C3%A9%20%E2%80%93%20July%202020.pdf">July’s meeting</a> of the <a href="https://www.ag.gov.au/about-us/committees-and-councils/council-attorneys-general-cag">Council of Attorneys-General</a>, where all Australian jurisdictions approved <a href="https://pcc.gov.au/uniform/2020/Model_Defamation_Amendment_Provisions_2020.pdf">amendments to the Model Defamation Provisions</a>.</p>
<p>Australian defamation law is made up of several components. A large part of it is common law, inherited from England and developed by Australian judges over many decades. Our common law heritage was modified through statutes in each of the states and territories, including the “<a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1307421.">uniform defamation laws</a>”.</p>
<p>The <a href="https://pcc.gov.au/uniform/2020/Original_Model_Defamation_Provisions_2005.pdf">Model Defamation Provisions</a> are a template of sorts, which underpin each of the statutes comprising the uniform defamation laws.</p>
<p>These changes to the Model Defamation Provisions are a long time coming. They haven’t been amended since 2005 – back when Facebook was only a year old and Twitter did not even exist. The first iPhone would not be released until 2007. The way we communicate and consume information has fundamentally changed since these laws were drafted.</p>
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Read more:
<a href="https://theconversation.com/australias-proposed-defamation-law-overhaul-will-expand-media-freedom-but-at-what-cost-128064">Australia’s proposed defamation law overhaul will expand media freedom – but at what cost?</a>
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<p>As a result, defamation litigation has changed too. <a href="https://www.uts.edu.au/sites/default/files/article/downloads/Trends%20in%20Digital%20Defamation_0.pdf">Courts are hearing</a> far more “backyard” defamation disputes - including fights over silly stuff on social media - than they once did.</p>
<p>So it’s trendy to say defamation law is “outdated”. This ignores the work courts have done to ensure your reputation continues to receive some protection as technologies and society change. These days, a hurtful lie can spread like wildfire and destroy a person.</p>
<p>Remember: a big chunk, or even most of defamation law, is made by judges. That won’t change.</p>
<p>I’m not convinced these new <a href="https://pcc.gov.au/uniform/2020/Model_Defamation_Amendment_Provisions_2020.pdf">provisions</a> will really “modernise” defamation law. They are certainly no “revolution”.</p>
<h2>What has changed?</h2>
<p>We have known about the bulk of the changes for a while. Most of them were <a href="https://www.ag.gov.au/sites/default/files/2020-03/Council-of-Attorneys-General-communique-November-2019.pdf">on the table in November 2019</a>.</p>
<p>Highlights include </p>
<ul>
<li>a new “serious harm” requirement</li>
<li>some new defences, including a new “public interest” defence</li>
<li>amendments to the way damages for certain kinds of nasty reputational damage are capped</li>
<li>a new approach to limitation periods that takes account of the fact content remains online for years.</li>
</ul>
<h2>Traditional media organisations are the real winners</h2>
<p>By “traditional media”, I mean the entities behind Australia’s newspapers, magazines and television stations, and associated online platforms.</p>
<p>Traditional media are typical defendants to defamation litigation. Risqué content engages readers and makes money. It also means defamation risk. Competing within a 24-hour news cycle means some companies jump to press too hastily, damaging reputations in the process. They may end up paying substantial sums of money to defamed persons by way of damages – for example, <a href="https://www.abc.net.au/news/2020-07-02/daily-telegraph-loses-defamation-appeal-in-geoffrey-rush-case/12414536">Geoffrey Rush’s almost A$2.9 million victory</a> against the publisher of The Daily Telegraph.</p>
<p>So traditional media have an incentive to lobby for more “media freedom”, which includes stronger weapons to fend off defamation cases. Their <a href="https://yourrighttoknow.com.au/media-freedom/get-the-facts/">recent lobbying</a> paid off with a new public interest defence.</p>
<figure class="align-center ">
<img alt="Actor Geoffrey Rush and his wife Jane Menelaus at the Federal Court." src="https://images.theconversation.com/files/349862/original/file-20200728-27-16ujmto.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/349862/original/file-20200728-27-16ujmto.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/349862/original/file-20200728-27-16ujmto.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/349862/original/file-20200728-27-16ujmto.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/349862/original/file-20200728-27-16ujmto.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/349862/original/file-20200728-27-16ujmto.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/349862/original/file-20200728-27-16ujmto.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Actor Geoffrey Rush was awarded almost $2.9 million in damages over defamatory articles published by The Daily Telegraph in 2017.</span>
<span class="attribution"><span class="source">AAP/Bianca de Marchi</span></span>
</figcaption>
</figure>
<p>A <a href="https://www.justice.nsw.gov.au/justicepolicy/Documents/review-model-defamation-provisions/consultation-draft-of-mdaps.pdf">previous draft</a> of the proposed changes had a defence based on <a href="http://www.nzlii.org/cgi-bin/sinodisp/nz/cases/NZCA/2018/278.html">New Zealand law</a>. The latest iteration of the defence, the proposed “section 29A”, is a bit different. It is based on <a href="https://www.legislation.gov.uk/ukpga/2013/26/section/4/enacted">UK legislation</a>. It reads:</p>
<blockquote>
<p>29A Defence of publication of matter concerning issue of public interest</p>
<p>(1) It is a defence to the publication of defamatory matter if the defendant proves that:</p>
<p>(a) the matter concerns an issue of public interest, and</p>
<p>(b) the defendant reasonably believed that the publication of the matter was in the public interest.</p>
<p>(2) In determining whether the defence is established, a court must take into account all of the circumstances of the case.</p>
<p>(3) Without limiting subsection (2), the court may take into account the following factors to the extent the court considers them applicable in the circumstances […]</p>
</blockquote>
<p>The difference between “of public interest” and “in the public interest” is significant. Gossip pieces — for example, which celebrity did what with whom — may be “of public interest”, but its reporting is not necessarily “in the public interest”.</p>
<p>Several factors will guide whether a defendant publisher’s conduct satisfies the defence. They include the integrity of sources, and whether the publishers bothered to get the other side of the story. The new law should thus not protect the kind of dodgy journalism that led to <a href="https://www.abc.net.au/news/2017-09-13/rebel-wilson-defamation-damages/8936850?nw=0">Rebel Wilson’s massive defamation win</a> after gossip mags went after her.</p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/OuwVC6gY-ss?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
</figure>
<p>The new defence is not too different from the “<a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=809885">qualified privilege</a>” defences to defamation that already exist. Traditional media rarely win with a qualified privilege defence because their conduct is often not “reasonable”. The new defence gets to a similar place through different words. One difference is that the new defence may succeed even if the defendant defamed someone with “malice”. So the new defence could embolden more aggressive, “gotcha” journalism designed to hurt people.</p>
<h2>What about people who aren’t celebrities?</h2>
<p>There is a bit in there for us too.</p>
<p>Most significantly, there is a new requirement that the plaintiff suffer “serious harm” in order to sue. We already had a defence of “triviality” for smaller cases, but this amendment inverses it: rather than it being something for the defendant to argue in response to a plaintiff, the plaintiff needs to overcome the threshold.</p>
<p>Judges are encouraged to stop defamation cases that do not involve “serious harm” as quickly as possible.</p>
<p>This may weed out a few backyard defamation disputes. But it will not go as far as some suggest. “Harm” might arguably extend to offence and distress; it will be interesting to see how courts interpret the new law.</p>
<p>Much more could be done to modernise defamation law for the sake of the public as a whole. <a href="http://www.austlii.edu.au/au/journals/UNSWLJ/2018/42.html">Creating a way</a> for smaller defamation disputes to be resolved quickly and cheaply would be great. Just because a case does not turn on big money does not mean the interests at stake are not worth protecting. Say, for example, your ex falsely called you a domestic abuser to your friends and family on Facebook: you shouldn’t need to be cashed up to protect your reputation.</p>
<p><a href="https://mumbrella.com.au/a-push-to-make-social-media-companies-liable-in-defamation-is-great-for-newspapers-and-lawyers-but-not-you-607831">There is a second stage of defamation law reform on the way</a>, which will likely look at the liability of social media companies for defamation.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/a-push-to-make-social-media-companies-liable-in-defamation-is-great-for-newspapers-and-lawyers-but-not-you-127513">A push to make social media companies liable in defamation is great for newspapers and lawyers, but not you</a>
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</p>
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<p>If traditional media and <a href="https://www.smh.com.au/politics/federal/law-should-treat-social-media-companies-as-publishers-attorney-general-20191120-p53cch.html">Attorney-General Christian Porter</a> have their way, the reform to come will level the playing field between traditional media and tech companies like Google by making life harder for the tech giants.</p>
<p>Ironically, the key drivers of the so-called “modernisation” of defamation law are those traditional media companies furiously resisting the demise of their business model.</p>
<p>For better or worse, they have the ears of Australian governments.</p><img src="https://counter.theconversation.com/content/143532/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michael Douglas works as a consultant at defamation firm Bennett + Co. He is a member of the ALP.</span></em></p>While the latest changes to defamation laws are a step in the right direction, much more could be done to improve them for the benefit of the public.Michael Douglas, Senior Lecturer in Law, The University of Western AustraliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1397752020-06-02T05:58:22Z2020-06-02T05:58:22ZMedia companies can now be held responsible for your dodgy comments on social media<figure><img src="https://images.theconversation.com/files/339102/original/file-20200602-133902-dpfqzx.jpg?ixlib=rb-1.1.0&rect=46%2C318%2C4671%2C3127&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Robin Worrall/Unsplash</span></span></figcaption></figure><p>Part of growing up is learning to take responsibility for the hurtful things you say. As a person who often says stupid things, I often need reminding.</p>
<p>Defamation law reflects that lesson. When you say something that hurts another person, it can cost you. </p>
<p>A recent decision has stretched this commonsense intuition. <a href="https://www.caselaw.nsw.gov.au/asset/1726e364ecd60c63532d1466.pdf">According to the New South Wales Court of Appeal</a>, media companies are not just responsible for the content written by their journalists. Now they are also “publishers” of comments made by readers on their social media accounts.</p>
<p>The decision means those who encourage engagement on social media – including media companies, journalists and “<a href="https://mediakix.com/blog/top-australian-social-media-influencers-to-follow/">internet famous</a>” people — can be held responsible for things said by random people who “engage” by commenting on content produced by others.</p>
<h2>The Dylan Voller case</h2>
<p><a href="https://www.theaustralian.com.au/search-results?q=dylan+voller">Dylan Voller</a> is the young man whose poor treatment in custody at the Northern Territory’s Don Dale youth detention centre inspired a 2016 Royal Commission. Countless stories about him have been published by media companies, which then shared them on their social media pages.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/can-you-be-liable-for-defamation-for-what-other-people-write-on-your-facebook-page-australian-court-says-maybe-119352">Can you be liable for defamation for what other people write on your Facebook page? Australian court says: maybe</a>
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</p>
<hr>
<p>This is not unusual. On the contrary, it is <a href="https://slate.com/technology/2018/06/facebooks-retreat-from-the-news-has-painful-for-publishers-including-slate.html">a core part of their business model</a>. Content producers want “engagement”, such as comments, because it helps them make more money by selling advertising. </p>
<p>Many social media users commented on posts about Voller. Some said awful things, and Voller sued for defamation. </p>
<p>But he did not sue the people who made the awful comments. Rather, he sued the media companies behind the Facebook pages: the publishers of The Australian and the Sydney Morning Herald, among others. Voller argued they were responsible as “publishers” for the defamatory comments written by others.</p>
<p>Last year, <a href="https://www.abc.net.au/mediawatch/episodes/facebook/11267410">to the shock of media companies</a>, the Supreme Court of New South Wales <a href="https://www.caselaw.nsw.gov.au/decision/5d0c5f4be4b08c5b85d8a60d">agreed</a> with Voller. <a href="https://theconversation.com/can-you-be-liable-for-defamation-for-what-other-people-write-on-your-facebook-page-australian-court-says-maybe-119352">Justice Rothman decided</a> the media companies had “published” the comments of third-party users, opening the door to the companies’ liability in defamation.</p>
<p>The media companies argued Justice Rothman made a mistake, and they could not possibly be <em>publishers</em> of their readers’ comments. So they appealed.</p>
<h2>Dismissal</h2>
<p>In <a href="https://www.caselaw.nsw.gov.au/decision/1725e1ead406ec197776976c">rejecting the media companies’ arguments</a> this week, the Court of Appeal drew on defamation law that has been centuries in the making.</p>
<p>The court’s majority ruling explained: “defamation is an actionable wrong that lies in the publication to a reader, listener or observer of matter that injures another person’s reputation”. It does not require intention.</p>
<p>All members of the court agreed that, generally, a person who participates and is instrumental in bringing about the publication of defamatory content is potentially liable, even though others may have participated in the publication to different degrees. </p>
<p>In this case, the media companies maintained and encouraged comments on their Facebook pages by users, and therefore were “publishers” of those comments.</p>
<p>Arguably, this is the logical application of old <a href="https://www.britannica.com/topic/common-law">common law</a> to the needs of contemporary society, and that is exactly what the common law is meant to do. As the Court of Appeal majority said, “it is not uncommon for persons to be held liable for the publication of defamatory imputations conveyed by matter composed by another person”. </p>
<h2>It’s not over</h2>
<p>The Court of Appeal’s latest decision was the sequel to the determination of a “preliminary question” by Justice Rothman. This means there will be more to this fight. The media companies will likely be able to argue other defences. They might still be able to avoid paying Voller damages.</p>
<p>Yet losing this battle could mean they will also lose the broader war against anyone who sues them for defamation. Worried about the precedent, the media companies <a href="https://www.smh.com.au/national/media-companies-lose-appeal-over-facebook-defamation-ruling-20200601-p54y8s.html">are considering pursuing a further appeal to the High Court</a>. </p>
<p>The case is sure to attract the attention of the <a href="https://www.justice.nsw.gov.au/defamationreview">New South Wales Defamation Working Party</a> currently considering defamation law reform. Until legislatures or the High Court intervene, it will remain the law.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/australias-proposed-defamation-law-overhaul-will-expand-media-freedom-but-at-what-cost-128064">Australia’s proposed defamation law overhaul will expand media freedom – but at what cost?</a>
</strong>
</em>
</p>
<hr>
<h2>A big loss for big media</h2>
<p>For the media, this case isn’t good news from a business point of view. Companies will have to invest more in moderating comments. But this is not as unjust as some may suggest.</p>
<p>It’s common sense that you are responsible for the hurtful things you say. It’s also common sense that you are responsible for the damage you cause.</p>
<p>Media companies want to publish controversial stuff that keeps us engaged. Spicy content inspires spicy comments from your weird old uncle. Media companies may want those comments even if they cause damage. Before now, those comments were a <a href="https://www.cbsnews.com/news/explainer-moral-hazard/">moral hazard</a> rather than a legal one.</p>
<p>But it’s also true that a <a href="https://www.fedcourt.gov.au/digital-law-library/judges-speeches/speeches-former-judges/justice-edelman/edelman-j-20150907">failure to act can cause damage</a> just as much as a “positive” act. We hold politicians to account for <a href="https://theconversation.com/scott-morrisons-biggest-failure-in-the-bushfire-crisis-an-inability-to-deliver-collective-action-129437">what they fail to do</a> all the time, or at least try. Omissions can be intentional and have moral weight, deserving the attribution of responsibility through law. </p>
<p>The Voller case holds media responsible for a new class of omissions. It’s a new high-water mark of media responsibility. The media may not like it, but others will.</p><img src="https://counter.theconversation.com/content/139775/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michael Douglas is a consultant at Bennett + Co, a defamation litigation firm. He is a member of the ALP.</span></em></p>The NSW Court of Appeal’s Dylan Voller decision means the media may be liable for the hurtful things users write on social pages. This will have many media companies in a panic.Michael Douglas, Senior Lecturer in Law, The University of Western AustraliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1321862020-02-23T19:58:30Z2020-02-23T19:58:30ZAustralian law says the media can’t spin lies – ‘entertainment magazines’ aren’t an exception<figure><img src="https://images.theconversation.com/files/316534/original/file-20200220-92507-1k2lhc.jpg?ixlib=rb-1.1.0&rect=247%2C217%2C3368%2C2372&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>In a <a href="https://www.theguardian.com/media/2020/feb/17/womans-day-headline-declaring-meghan-and-harrys-marriage-over-blatantly-incorrect">recent ruling</a> the Australian Press Council has given a signal to gossip magazines it is OK to make up and publish rubbish about people, so long as the stories aren’t “blatantly incorrect”. </p>
<p>This is despite the council’s own guidelines stating all member publications must strive for accuracy and avoid being misleading. </p>
<p>The council, which adjudicates complaints against the print media, has also suggested it’s OK to have less rigorous standards when reporting on royalty and celebrities. </p>
<p>And all this happened in a ruling <em>against</em> a magazine for publishing falsehoods. </p>
<h2>A confused adjudication</h2>
<p>The council has upheld a complaint about an article published in Woman’s Day on May 27 2019. The cover declared: “Palace confirms the marriage is over! Why Harry was left with no choice but to end it.” </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/316531/original/file-20200220-92558-18qkil4.jpg?ixlib=rb-1.1.0&rect=5%2C0%2C1911%2C1149&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/316531/original/file-20200220-92558-18qkil4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=360&fit=crop&dpr=1 600w, https://images.theconversation.com/files/316531/original/file-20200220-92558-18qkil4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=360&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/316531/original/file-20200220-92558-18qkil4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=360&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/316531/original/file-20200220-92558-18qkil4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=452&fit=crop&dpr=1 754w, https://images.theconversation.com/files/316531/original/file-20200220-92558-18qkil4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=452&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/316531/original/file-20200220-92558-18qkil4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=452&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The Woman’s Day from May 27 2019 at the centre of this ruling.</span>
<span class="attribution"><span class="source">Woman's Day</span></span>
</figcaption>
</figure>
<p>The inside story was titled “This is the final straw” and claimed: “Prince Harry has been left enraged and humiliated by a series of shock revelations about his wife’s past” and he “has finally reached breaking point”. </p>
<p>In upholding the complaint, the <a href="https://www.presscouncil.org.au/document-search/adj-1773/">Press Council said</a> the headline was “blatantly incorrect” and not supported by the article’s contents. It also ruled the headline “was more than just an exaggeration […] it was misleading”.“ </p>
<p>But the council has sent a strong signal it will be lenient with publications that exaggerate. </p>
<p>It said: ”[A]n entertainment publication can be expected to use some exaggeration" and “celebrity and gossip magazines are purchased for light entertainment, with readers not necessarily assuming that everything presented is factual”. </p>
<p>The phrase “not necessarily” suggests some people might believe what’s presented <em>is</em> factual. But, that aside, why is the Press Council making rulings at odds with its own general principles? </p>
<p>The <a href="https://www.presscouncil.org.au/statements-of-principles/">first principle</a> says publications should “ensure that factual material in news reports and elsewhere is accurate and not misleading and is distinguishable from other material such as opinion”.</p>
<p>How does it reconcile these two contradictory ideas? It’s a question Marcus Strom, the president of the journalists’ union, MEAA Media, has been considering. He told The Conversation:</p>
<blockquote>
<p>The Press Council guidelines are clear that all member publications must strive to be factual and not misleading. I’m surprised that falsehoods – where not “everything presented is factual” – are allowed within that definition.</p>
</blockquote>
<p>If you’ve walked past a rack of magazines in the supermarket and wondered just how many times the same celebrity can become pregnant, you may have asked yourself why these publications can print falsehoods on an almost industrial scale. You might have concluded they’re just gossip magazines and no one takes them seriously. </p>
<p>That same thinking seems to be driving the Press Council’s comments. But is that good enough? </p>
<p>The idea these publications have a special exemption from journalistic standards is a concept with almost no foundation in law. There is no special provision under Australia’s defamation laws for this class of magazines. </p>
<p>There is no “celebrity” defence that allows the media to make up lies about people. Even the defamation law’s defence of “triviality” offers very little protection. The Rebel Wilson case made that perfectly clear. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/rebel-wilsons-4-5-million-win-a-sobering-reminder-that-defaming-a-celebrity-can-be-costly-83968">Rebel Wilson's $4.5 million win a sobering reminder that defaming a celebrity can be costly</a>
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<p>Lawyer Dougal Hurley, of Minter Ellison, tells The Conversation gossip magazines trade on light entertainment, and readers “can and do expect a level of hyperbole that they would not in news media”. </p>
<p>However, he concludes:</p>
<blockquote>
<p>This does not mean that the defence of triviality will succeed if these magazines are sued for defamation. Indeed, the rejection of triviality defences by the jury [in the case of] Wilson is evidence of this. Gossip magazines that have not already changed their editorial practices risk being liable for significant defamation payouts.</p>
</blockquote>
<h2>Out-of-step thinking</h2>
<p>The other controversial suggestion in the ruling is that the media can apply less rigorous standards when reporting on the royal family and celebrities. </p>
<blockquote>
<p>The Council also acknowledges that the reasonable steps required to be accurate and not misleading in an article concerning royalty and celebrities can, depending on the circumstances, be different to those required in respect of other persons, particularly those who are not usually in the public eye.</p>
</blockquote>
<p>The council offers little reasoning for this, but is no doubt assuming that, as public figures, they should expect incursions on their privacy and sensationalised coverage. Again, the council’s thinking is looking out of step with the <a href="https://www.afr.com/companies/media-and-marketing/australia-the-defamation-capital-of-the-world-20190904-p52nuh">increased use of the courts</a> to combat inaccurate reporting and false gossip. </p>
<p>Hurley says: “Although in many respects gossip magazines are as they ever were, it is also true that they are bearing more risk in circumstances where they purport to report news and publish to a global audience instantaneously.”</p>
<p>He continues:</p>
<blockquote>
<p>While international celebrities may appear to be easy targets for gossip magazines, our notoriously plaintiff-friendly defamation laws mean that these celebrities can and will sue in Australia. Only a major overhaul of Australia’s defamation laws will prevent the libel tourism that has contributed to Australia becoming the defamation capital of the world.</p>
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<p>Perhaps in these circumstances, the Press Council might do its members – and the public – a greater service by insisting proper standards apply to all reporting, and that accuracy and fact checking be the norm, even for the magazines at the supermarket checkout.</p><img src="https://counter.theconversation.com/content/132186/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Andrew Dodd does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The Australian Press Council’s ruling suggests an exemption for ‘entertainment magazines’ from the standard of factual reporting. This ruling has no basis in Australian defamation law.Andrew Dodd, Director of the Centre for Advancing Journalism, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1280642019-12-01T12:15:36Z2019-12-01T12:15:36ZAustralia’s proposed defamation law overhaul will expand media freedom – but at what cost?<figure><img src="https://images.theconversation.com/files/304546/original/file-20191201-156090-1apa7om.jpg?ixlib=rb-1.1.0&rect=50%2C16%2C5509%2C3684&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">These reforms are a big win for the media industry. </span> <span class="attribution"><span class="source">AAP Image/Mick Tsikas</span></span></figcaption></figure><p>Last Friday, Australia’s attorneys-general <a href="https://www.ag.gov.au/About/CommitteesandCouncils/Council-of-Attorneys-General/Documents/Council-of-Attorneys-General-communique-November-2019.pdf">agreed on proposed amendments</a> to the <a href="https://www.justice.nsw.gov.au/justicepolicy/Documents/review-model-defamation-provisions/model-defamation-provisions-as-amended.pdf">provisions</a> which underpin Australian defamation laws. </p>
<p>This means Australian governments have a plan for <a href="https://www.justice.nsw.gov.au/justicepolicy/Documents/review-model-defamation-provisions/defamation-final-background-paper.pdf">how to change defamation law</a>. </p>
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Read more:
<a href="https://theconversation.com/politicians-suing-for-defamation-is-usually-a-bad-idea-heres-why-113837">Politicians suing for defamation is usually a bad idea: here's why</a>
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<p>Politicians are spinning this as a “<a href="https://www.dcj.nsw.gov.au/news-and-media/media-releases/nation-unites-on-defamation-reform">modernisation</a>” of laws that <a href="https://www.justice.nsw.gov.au/justicepolicy/Documents/defamation_act_submission_-_associate_professor_rolph_attached_article.pdf">haven’t been changed in 15 years</a>. </p>
<p>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 <a href="https://www.smh.com.au/national/a-culture-of-secrecy-what-is-the-right-to-know-campaign-about-20191018-p5323v.html">campaign for media freedom</a> by Australia’s news organisations has paid off. </p>
<h2>A new public interest defence</h2>
<p>Perhaps the most significant aspect of this proposal is a new defence of “responsible communication in the public interest” – a version of a defence <a href="http://www.nzlii.org/cgi-bin/sinodisp/nz/cases/NZCA/2018/278.html">developed in New Zealand</a>.</p>
<p>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. </p>
<p>The defence will probably become the focus of a lot of litigation. </p>
<p>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 <a href="https://10daily.com.au/news/politics/a190919pwsua/scott-morrison-finally-addresses-lingering-engadine-maccas-jokes-20190919">what happened to the Prime Minister at Engadine Maccas in 1997</a>, but that doesn’t mean reporting on it is in the public interest. </p>
<p>Likewise, would reporting on <a href="https://www.smh.com.au/politics/federal/you-re-not-clark-kent-barnaby-joyce-says-press-freedom-campaign-hypocritical-20191021-p532ka.html">the private life of a politician who espouses conservative values</a> be in the public interest? That’s debatable. And litigation lawyers pay for their BMWs with “debatable”.</p>
<p>When is a publication “responsible”? The proposed changes set out a list of relevant factors, which include</p>
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<p>the extent to which the matter published relates to the performance of the public functions or activities of the person. </p>
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<p>In other words, reporting on politicians is more likely to be “responsible” than reporting on what your neighbour is up to.</p>
<p>Another factor relevant to whether reporting is “responsible” is the sources of the information in the matter published, including the source’s integrity. </p>
<p>This is a good addition. It means journalists won’t have a defence if they engage in dodgy journalism.</p>
<p>It’s unlikely, for example, gossip mag-publisher Bauer Media would have been covered by this defence when <a href="https://theconversation.com/rebel-wilsons-4-5-million-win-a-sobering-reminder-that-defaming-a-celebrity-can-be-costly-83968">sued by Rebel Wilson because their source was unreliable</a>.</p>
<h2>Don’t we already have this?</h2>
<p>We do already have a version of this public interest defence called “<a href="https://law.unimelb.edu.au/__data/assets/pdf_file/0020/1708112/28_2_5.pdf">qualified privilege</a>”. This defence remains, with some tweaks, under the proposed reforms. But the new public interest defence is stronger.</p>
<p>A key difference between qualified privilege and the new defence is qualified privilege is defeated if the publication was made with malice. </p>
<p>So for example, when <a href="https://theconversation.com/hockeys-defamation-win-is-dark-news-for-democracy-and-free-speech-44129">Fairfax media reported Joe Hockey was a “Treasurer for Sale”</a>, the judge determined journalists wanted to get back at Hockey, so they couldn’t use a qualified privilege defence. Hockey walked away from his defamation case <a href="https://theconversation.com/hockey-wins-200-000-in-fairfax-media-defamation-case-44086">with A$200K</a>. </p>
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<a href="https://theconversation.com/hockeys-defamation-win-is-dark-news-for-democracy-and-free-speech-44129">Hockey's defamation win is dark news for democracy and free speech</a>
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<h2>A serious harm threshold</h2>
<p>Another key feature of the proposed reforms is the introduction of a <a href="https://theconversation.com/a-push-to-make-social-media-companies-liable-in-defamation-is-great-for-newspapers-and-lawyers-but-not-you-127513">threshold of serious harm</a>.</p>
<p>Inspired by <a href="http://www.legislation.gov.uk/ukpga/2013/26/section/1/enacted">UK legislation</a>, it means a person cannot even sue unless they have actually suffered, or are likely to suffer, <a href="https://inforrm.org/2017/03/25/twitter-defamation-and-serious-harm-david-rolph/">serious harm</a>. </p>
<p>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. </p>
<p>On the other hand, this change may deter some people from suing at all.</p>
<h2>Less money for defamation plaintiffs</h2>
<p>Other proposed reforms include tweaks to the cap on damages for non-economic loss. There is <a href="http://www5.austlii.edu.au/au/legis/nsw/consol_act/da200599/s35.html">already an upper limit</a> on the amount of damages that may be awarded for defamation which does not cause measurable economic loss but still harms the plaintiff’s reputation. </p>
<p>The cap can be exceeded if the defendant was particularly dodgy, where “<a href="https://www.researchgate.net/publication/337655841_The_Damages_Award_in_Wilson_v_Bauer_Media">aggravated damages</a>” are justified. In cases like that brought by <a href="https://mumbrella.com.au/telegraph-branded-recklessly-irresponsible-as-judge-awards-aggravated-damages-to-geoffrey-rush-574392">Geoffrey Rush</a>, courts <a href="https://www.theaustralian.com.au/business/media/industry-calls-for-rigid-damages-cap-in-defamation/news-story/efd5d06fd6ead978f60a6a85aac0edd7">have interpreted</a> the legislation to mean massive awards are available if the defendant has done something to “aggravate” the plaintiff’s suffering. </p>
<p>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.</p>
<p>Basically, this means we’ll probably see smaller sums of money being awarded to winners of defamation cases.</p>
<h2>A single publication rule</h2>
<p>Under legislation called <a href="https://www.legislation.wa.gov.au/legislation/prod/filestore.nsf/FileURL/mrdoc_41137.pdf/$FILE/Limitation%20Act%202005%20-%20%5B00-c0-01%5D.pdf?OpenElement">Limitation Acts</a>, a person wronged by another only has a certain amount of time they can sue.</p>
<p><a href="https://www.judcom.nsw.gov.au/publications/benchbks/civil/defamation.html">For defamation</a>, time starts running out when “publication” occurs. </p>
<p>But under existing laws, there is a <a href="https://jade.io/article/68368">new publication</a> each time something is downloaded from the internet. This is called the “<a href="https://www.austlii.edu.au/au/journals/UNSWLJ/2010/24.pdf">multiple publication rule</a>”. It means online publishers, like news organisations, are under perpetual threat of being sued.</p>
<p>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. It’s another significant improvement for the media. </p>
<h2>A big win for the media</h2>
<p>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. </p>
<p>Is that a good thing? It cuts both ways. </p>
<p>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. </p>
<p>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. </p>
<p>This is not much of a victory for mainstream Australia. More than anyone else, this is a win for <a href="https://mumbrella.com.au/australia-falls-in-world-press-freedom-index-with-report-citing-pm-media-mergers-and-draconian-laws-575913">the lucky few who hold they keys to Australia’s media</a>, whose support is essential to the political survival of those proposing these changes.</p>
<h2>What next?</h2>
<p>These proposed reforms are just that: proposed. Those in charge of the reform process are <a href="https://www.justice.nsw.gov.au/defamationreview">inviting submissions</a>.</p>
<p>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. </p>
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Read more:
<a href="https://theconversation.com/a-push-to-make-social-media-companies-liable-in-defamation-is-great-for-newspapers-and-lawyers-but-not-you-127513">A push to make social media companies liable in defamation is great for newspapers and lawyers, but not you</a>
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<p>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. </p>
<p>For everyone else, <a href="https://theconversation.com/a-push-to-make-social-media-companies-liable-in-defamation-is-great-for-newspapers-and-lawyers-but-not-you-127513">it would be less great</a>. These are not the “cyber age” reforms <a href="https://www.9news.com.au/national/attorneys-to-consider-defamation-reform/f8d17be3-15cf-4c73-9bf5-8644a7c8ccd2">we are being promised</a>.</p><img src="https://counter.theconversation.com/content/128064/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michael Douglas is a consultant at defamation litigation firm Bennett + Co, and editor of the Media & Arts Law Review, published by LexisNexis. He is a member of the ALP. </span></em></p>Media freedom is good, but absolute media freedom could lead to a nastier, more brutish public discourse.Michael Douglas, Senior Lecturer in Law, The University of Western AustraliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1275132019-11-22T02:08:04Z2019-11-22T02:08:04ZA push to make social media companies liable in defamation is great for newspapers and lawyers, but not you<p>At his Wednesday <a href="https://www.attorneygeneral.gov.au/media/speeches/address-national-press-club-canberra-20-november-2019">address to the National Press Club</a>, Attorney-General Christian Porter said the federal government is pursuing “immediate” defamation law reform.</p>
<p>The announcement seemed a bit odd, as defamation is a subject for state and territory governments to legislate on. A NSW-led law reform process has been ongoing for years.</p>
<p>Last June, the NSW Department of Justice <a href="https://www.justice.nsw.gov.au/justicepolicy/Documents/defamation-act-statutory-review-report.pdf">released a report</a> on its statutory review of the NSW legislation. In February, a further <a href="https://www.justice.nsw.gov.au/justicepolicy/Documents/review-model-defamation-provisions/Final-CAG-Defamation-Discussion-Paper-Feb-2019.pdf">discussion paper was published</a> by a NSW-led Defamation Working Party. </p>
<p>The theme of these documents, and the various <a href="https://www.justice.nsw.gov.au/defamationreview">public submissions that followed</a>, is that Australian defamation law is not suited to the digital age.</p>
<h2>Holding social media companies responsible as publishers</h2>
<p>Porter suggests we should “level the playing field” by <a href="https://www.smh.com.au/politics/federal/law-should-treat-social-media-companies-as-publishers-attorney-general-20191120-p53cch.html">holding social media companies responsible for defamation</a>. </p>
<p>Under current laws, liability depends on an entity being a “publisher” of defamatory content. A publisher is not the same as an author. </p>
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Read more:
<a href="https://theconversation.com/can-you-sue-someone-for-giving-you-a-bad-reference-70520">Can you sue someone for giving you a bad reference?</a>
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<p>For example, a newspaper can be held liable for publishing a defamatory letter to the editor. This is why they have lawyers on staff, to ensure defamatory content is filtered. </p>
<p>Porter’s proposal seems to be that Facebook, Twitter and other social media companies be held to the same standards as traditional media companies such as <a href="https://www.newscorpaustralia.com/brands/">News Corp</a>.</p>
<p>This means, if you write something defamatory on Facebook, not only could you be sued, but Facebook could be too. </p>
<p>One way the government could make this happen is by amending the <a href="https://www.legislation.gov.au/Details/C2004A04989">Broadcasting Services Act 1992</a>. The Act essentially provides that state and territory laws have no effect to the extent they make “internet content hosts” liable. </p>
<p>This could mean “<a href="http://www.austlii.edu.au/au/journals/UNSWLJ/2014/2.html">internet intermediaries</a>”, including social media companies, have some protection from defamation law.</p>
<h2>The potential hurdles</h2>
<p>The proposal to make social media companies responsible for defamation is problematic for a few reasons. </p>
<p>First, it assumes these companies cannot currently be held responsible. If the recent <a href="https://www.sbs.com.au/nitv/article/2019/06/25/court-rules-favour-voller-defamation-case-brought-against-media-outlets">Dylan Voller case</a> is anything to go by, perhaps they can. </p>
<p>In June, the <a href="https://jade.io/article/649085">NSW Supreme Court held</a> media companies such as Nationwide News (a News Corp subsidiary) could be responsible in defamation for posts by users on the Facebook pages of newspapers such as The Australian. The <a href="https://www.abc.net.au/mediawatch/episodes/facebook/11267410">contentious decision</a> is currently <a href="https://www.smh.com.au/national/push-for-overhaul-of-national-defamation-laws-to-weed-out-trivial-claims-20191120-p53cf5.html">being appealed</a>. </p>
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Read more:
<a href="https://theconversation.com/can-you-be-liable-for-defamation-for-what-other-people-write-on-your-facebook-page-australian-court-says-maybe-119352">Can you be liable for defamation for what other people write on your Facebook page? Australian court says: maybe</a>
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<p>Second, even if Australian defamation law allowed Facebook and Twitter to be held liable, how would you enforce such a judgement? </p>
<p>The companies behind these platforms are based overseas. Some are based in the United States, where <a href="https://www.eff.org/issues/cda230">section 230 of the Communications Decency Act</a> states “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider”. </p>
<p>Relying on this law, a US company subject to an Australian defamation judgement may simply ignore it. Or worse, it may get an order from an American court declaring it doesn’t have to comply. Google <a href="https://www.researchgate.net/publication/321417379_Douglas_M_2017_Google_challenges_the_Supreme_Court_of_Canada's_global_injunction_in_the_United_States_Gazette_of_Law_Journalism">has done this before</a>.</p>
<p>Third, a common theme of defamation reform rhetoric is that current laws are harsh on freedom of speech. If this reform goes through, plaintiffs will have high incentive to litigate: they’ll be able to reach into the deep pockets of tech companies. </p>
<p>Defamation lawyers will be licking their lips. Meanwhile, the change wouldn’t stop the average citizen who posts defamatory content from being sued. It may actually increase litigation against members of the public, sued in tandem with tech companies. </p>
<h2>Less trivial defamation claims</h2>
<p>Another reform flagged by Porter is the introduction of a threshold of serious harm, inspired by <a href="http://www.legislation.gov.uk/ukpga/2013/26/section/1/enacted">UK legislation introduced in 2013</a>. This means people who aren’t actually <a href="https://inforrm.org/2017/03/25/twitter-defamation-and-serious-harm-david-rolph/">seriously harmed</a> by defamation would no longer be able to sue.</p>
<p>This may see fewer petty claims clogging up the courts, which is good.</p>
<p>Disputes between regular people over social media mudslinging <a href="https://www.uts.edu.au/sites/default/files/article/downloads/Trends%20in%20Digital%20Defamation.pdf">form an increasing share of courts’ defamation work</a>. The law should assume we have thicker skin.</p>
<p>But arguably, we don’t need it. <a href="http://classic.austlii.edu.au/au/journals/SydLawRw/2017/15.html">A few cases have already held</a> a publication that doesn’t cause serious harm is not “defamatory”. This proposal’s value is largely symbolic.</p>
<h2>More substantive reforms to look out for</h2>
<p>Porter flagged some other reforms that could have consequences. The way current legislation “caps” defamation damages, theoretically preventing huge awards of money, <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3285857">is controversial</a>. If that is changed, smaller damages awarded will mean less incentive to sue.</p>
<p>Porter also flagged a “public interest defence”, protecting responsible communication on a matter of public interest.</p>
<p>But <a href="https://www.smh.com.au/national/push-for-overhaul-of-national-defamation-laws-to-weed-out-trivial-claims-20191120-p53cf5.html">we kind of already have one</a>, called “qualified privilege”. How a new defence interacts with what we already have could pose tricky issues even lawyers may struggle with. When it comes to law reform, trickiness is not a virtue.</p>
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Read more:
<a href="https://theconversation.com/defamation-in-the-digital-age-has-morphed-into-litigation-between-private-individuals-93739">Defamation in the digital age has morphed into litigation between private individuals</a>
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<p>In my view, the biggest issue to address is corporate defamation. Currently <a href="https://www.abc.net.au/news/2018-03-20/before-you-write-that-scathing-online-review-beware-defamation/9566400">only small companies can sue</a>. This means McDonald’s can’t sue you for defamation over a harsh happy meal review. If this changes, freedom of speech could be massively curtailed.</p>
<h2>Getting the balance right is not easy</h2>
<p>There’s a lot of technical detail in defamation law, reflecting centuries of development. </p>
<p>Even Chief Justice Susan Kiefel <a href="https://sydney.edu.au/law/news-and-events/news/2016/10/03/the-definitive-book-on-australian-defamation-law.html">describes it as complex</a>. We all agree this area of law needs an update, but disagree on the best way forward. </p>
<p>In my view, enhancing media freedom is an important goal of the reform process. But that doesn’t mean we should get rid of defamation altogether.</p>
<p>In an environment where media power is dangerously concentrated in the hands of a few, defamation law is one of the few tools people have to protect themselves from destructive media commentary.</p>
<p>As Porter acknowledged, striking a balance between competing values, like freedom of speech and reputation, can be difficult. Whether these reforms will get it right remains to be seen.</p><img src="https://counter.theconversation.com/content/127513/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michael Douglas is a consultant at Bennett + Co, a defamation litigation firm in Perth, and editor of the Media & Arts Law Review, published by LexisNexis. He is a member of the ALP.</span></em></p>Defamation law reform is on the horizon. Social media companies may be held more liable for what they publish. But this could come at the expense of everyday users.Michael Douglas, Senior Lecturer in Law, The University of Western AustraliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1193522019-06-25T01:36:12Z2019-06-25T01:36:12ZCan you be liable for defamation for what other people write on your Facebook page? Australian court says: maybe<figure><img src="https://images.theconversation.com/files/281066/original/file-20190625-97745-c75kth.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">In some ways, this case just adapts the old authorities on publication to a modern situation.</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/march-5-2018-bangkok-thailand-young-1040165275?src=-4IZ4bUOFKr57qX5VeIDAA-2-97&studio=1">Shutterstock</a></span></figcaption></figure><p>When you go online and write something nasty about a person, or even a small business, you <a href="https://www.abc.net.au/news/2018-03-20/before-you-write-that-scathing-online-review-beware-defamation/9566400">risk being sued for defamation</a>. </p>
<p>But if someone else goes online and writes something nasty about a person on your social media page, can you be held liable even though you didn’t write it? Depending on who you are: maybe.</p>
<p>A <a href="https://www.caselaw.nsw.gov.au/decision/5d0c5f4be4b08c5b85d8a60d">recent decision</a> of the Supreme Court of New South Wales determined that media companies could be liable for the defamatory comments made on news stories on their Facebook pages. </p>
<p>That is, media organisations could be held liable for the comments of random people on the internet. Journalists, the companies that employ them, and a bunch of people on Twitter are <a href="https://www.theaustralian.com.au/business/media/dylan-voller-defamation-case-media-companies-liable-for-facebook-posts-court-rules/news-story/f567a1860898e172e133964bb002313f">not happy</a>.</p>
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Read more:
<a href="https://theconversation.com/before-you-write-that-scathing-online-review-beware-of-defamation-92595">Before you write that scathing online review, beware of defamation</a>
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<h2>Voller’s case</h2>
<p>Dylan Voller is the young man whose <a href="https://www.abc.net.au/4corners/australias-shame-promo/7649462">treatment in custody</a> inspired a <a href="https://www.royalcommission.gov.au/royal-commission-detention-and-protection-children-northern-territory">Royal Commission</a>. His case attracted significant press coverage, as well as “<a href="https://twitter.com/theboltreport/status/981836487548219392?lang=en">commentary</a>” which seems to pass itself off as news but is really something else.</p>
<p>Voller sued the publishers of <a href="https://www.smh.com.au/national/nsw/dylan-voller-suing-media-organisations-for-defamation-over-facebook-comments-20190206-p50w4e.html">The Sydney Morning Herald, The Australian, the Centralian Advocate, Sky News Australia and The Bolt Report</a>. He sued them for defamation for content on their Facebook pages. </p>
<p>What makes this case unique is that Voller did not sue based on posts made by the media companies who were responsible for the pages. Rather, he sued based on comments made by members of the public on ten Facebook posts, arguing that the media companies behind the pages were responsible. </p>
<p>The <a href="https://jade.io/article/583406">media defendants argued</a> that Voller’s case was based on an incorrect understanding of the law. Justice Rothmam disagreed, <a href="https://jade.io/article/583406">holding</a> that they were “publishers” of third-party comments on their public Facebook pages.</p>
<h2>Anyone can be a ‘publisher’ of defamation</h2>
<p>The case turns on the concept of “publication”. </p>
<p>To be liable for defamation, you must <em>publish</em> something that is defamatory. In defamation law, publication is the process of communication of defamatory “<a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/da200599/s4.html">matter</a>” to a person other than the plaintiff.</p>
<p>This means that a publisher of defamatory content is <a href="https://jade.io/article/63746">not necessarily the author</a> of the defamatory content. For example, consider a defamatory letter to the editor. Although the newspaper does not author that letter, it may still be treated as a publisher because it communicated that defamatory letter. </p>
<p>“Publication” does not even require a positive act: in certain cases, an omission may constitute a publication of defamation. More than <a href="https://swarb.co.uk/byrne-v-deane-ca-1937/">90 years ago</a>, an English court determined that owners of a golf club could be liable for defamation posted on the club notice board which they did not author. <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1699027">The court reasoned</a> that the owners knew of the defamation, and could have prevented it, but didn’t.</p>
<p>The common law adapts that old reasoning to the internet age. Before Voller’s case, <a href="https://inforrm.org/2014/09/22/case-law-new-zealand-murray-v-wishart-web-hosts-defamation-liability-restricted-steven-price/">a New Zealand court held</a> that a host of a Facebook page could be liable for defamatory comments on their page if the host actually knew about the comments and failed to remove them in a reasonable time. </p>
<p>Providers of digital forums and platforms – from businesses with Facebook pages, to <a href="https://jade.io/article/550125">Google itself</a> – could be liable for defamatory content authored by other people if they know about it and fail to act.</p>
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Read more:
<a href="https://theconversation.com/protecting-google-from-defamation-is-worth-seriously-considering-98252">Protecting Google from defamation is worth seriously considering</a>
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<h2>A landmark case?</h2>
<p>In some ways, this case just adapts the old authorities on publication to a modern situation. It is also a fact-specific decision, made with reference to evidence of the particular moderation functionality available to the hosts of these particular pages on particular dates. </p>
<p>But the reasoning deployed in Voller’s case does have broader significance. The fact that the Facebook pages of the defendants allowed them to vet comments in advance meant that they had some <em>control</em> over those comments. The defendant companies could have dedicated staff to ensure any comments were not defamatory before making them visible, but failed to do so. Their control over the comments opened the door to their responsibility for the comments as “publishers”.</p>
<p>The court also considered the business model of the defendants. It should go without saying, but it is important to remember that the production of news and commentary is a business. Media companies depend on broad readership to make money. Arguably, social media platforms like Facebook <a href="https://slate.com/technology/2018/06/facebooks-retreat-from-the-news-has-painful-for-publishers-including-slate.html">have helped media companies</a> build readership by linking to news websites. The public’s “engagement” with media companies’ social media content via the comments sections of news posts could be one of the factors keeping those companies alive.</p>
<p>The court heard evidence that the appearance of defamatory comments was a “thoroughly predictable” result of posting a relevant article onto a public Facebook page. Social media defamation risk is a moral hazard of the modern media business.</p>
<p>Here is the controversial gist of Voller’s case: by encouraging engagement, the media walked into this mess. In the <a href="https://jade.io/article/649085/">judge’s words</a>:</p>
<blockquote>
<p>[a] defendant cannot escape the likely consequences of its action by turning a blind eye to it. </p>
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<p>This means that media companies, and <a href="https://www.theverge.com/2018/10/30/18040510/stochastic-terrorism-democratic-recession-gab">anyone who drums up social media engagement with controversy</a>, are well advised to dedicate more resources to content moderation.</p>
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Read more:
<a href="https://theconversation.com/can-you-sue-someone-for-giving-you-a-bad-reference-70520">Can you sue someone for giving you a bad reference?</a>
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<h2>The sky has not fallen in</h2>
<p><a href="https://www.smh.com.au/national/nsw/media-companies-liable-for-facebook-comments-made-by-others-court-finds-20190624-p520rf.html">According to</a> my friend and professor of media law <a href="https://sydney.edu.au/law/about/people/profiles/david.rolph.php">David Rolph</a>, the case “seems to go further than any decision in the common law world holding intermediaries liable for defamation as publishers”. </p>
<p>It is, however, a first-instance decision, which <a href="https://www.theaustralian.com.au/business/media/dylan-voller-defamation-case-media-companies-liable-for-facebook-posts-court-rules/news-story/f567a1860898e172e133964bb002313f">may be appealed</a>. Justice Rothmam’s decision is on the issue of publication, not liability.</p>
<p>Further, even if an “intermediary” like a media company is held to be a publisher, it may still escape liability. In certain cases, would-be publishers will have an <a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/da200599/s32.html">innocent dissemination defence</a> for the publication of defamatory content they did not know about. </p>
<p>A <a href="https://www.justice.nsw.gov.au/justicepolicy/Documents/review-model-defamation-provisions/Final-CAG-Defamation-Discussion-Paper-Feb-2019.pdf">NSW-led law reform process</a> is considering bolstering that defence even further. The parts of Voller’s case which media companies do not like may be short lived. </p>
<p>Until then: be wary of what people say on your social media pages.</p><img src="https://counter.theconversation.com/content/119352/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michael Douglas is a consultant at Bennett + Co, a Perth-based defamation litigation firm. He is a member of the ALP. </span></em></p>Journalists are not happy about a decision of the Supreme Court of New South Wales finding that media companies could be liable for defamatory comments made under news stories on their Facebook pages.Michael Douglas, Senior Lecturer in Law, The University of Western AustraliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1040782018-10-03T14:10:31Z2018-10-03T14:10:31ZSouth African law needs a zero tolerance approach to racist utterances<figure><img src="https://images.theconversation.com/files/238446/original/file-20180928-48659-1sx21na.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">South African President Cyril Ramaphosa was recently the subject of a racist video rant.</span> <span class="attribution"><span class="source">Lintao Zhang/EPA</span></span></figcaption></figure><p>A “selfie” video rant has landed a South African man, Kessie Nair, in hot water. Nair faces six counts of crimen injuria and two of incitement to public violence after recording himself <a href="https://www.thesouthafrican.com/kessie-nair-arrested-k-word-cyril-ramaphosa/">spewing racist language</a> at the country’s President Cyril Ramaphosa. He has since <a href="https://www.news24.com/SouthAfrica/News/forgive-me-kessie-nair-apologises-to-ramaphosa-public-for-k-word-slur-20180926">apologised</a> to the president.</p>
<p>But what is crimen injuria, and why is it being used in this instance?</p>
<p>Crimen injuria is a supple common law offence that has been applied to a diverse array of conduct. It’s a unique feature of South African criminal law, and focuses on the protection of dignity and privacy, rather than the protection of reputation, which is encompassed by the <a href="https://docplayer.net/61883297-Protecting-dignity-under-common-law-and-the-constitution-the-significance-of-crimen-iniuria-1-in-south-african-criminal-law.html">law of defamation</a>. </p>
<p>It’s <a href="https://www.saps.gov.za/faqdetail.php?fid=9">defined</a> in South Africa as “unlawfully and intentionally impairing the dignity or privacy of another person”. The early recorded cases tended to involve incidents of private or public indecent exposure and invasions of privacy, especially cases involving what’s colloquially termed “peeping Toms”. </p>
<p>Subsequently, the crime was also applied to demeaning conduct and offending words. This includes the deeply racist and derogatory term <a href="https://www.news24.com/Columnists/GuestColumn/mogoeng-we-are-too-soft-on-racism-20161108"><em>“kaffir”</em></a>, which was central to another recent high profile case of crimen injuria. A woman named Vicki Momberg was sentenced to three years in prison (one of which was suspended) for her racist abuse of black police officers at a crime scene. This was caught on camera. </p>
<p>The severity of Momberg’s sentence caught headlines: it’s believed to be <a href="https://theconversation.com/jail-time-for-south-african-woman-using-racist-slur-sets-new-precedent-94179">the first case</a> resulting in a substantial prison sentence for racist utterances alone. Critics lauded the magistrate in Momberg’s case for taking a zero tolerance approach to racism. In Nair’s case, too, there has been a swift and loud public outcry for a harsh penalty.</p>
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<p>But does a zero tolerance approach necessarily mean harsher penalties? Is it a good precedent to use prison for harmful words alone rather than harmful actions? Momberg’s sentence is being <a href="https://citizen.co.za/news/south-africa/1988865/momberg-to-appeal-prison-sentence/">appealed</a>; this is due to be heard in November. The outcome of this appeal is bound to have an impact on Nair’s case, should he be convicted. So what can be learned from previous similar cases?</p>
<h2>The costs of prison</h2>
<p>Even though the use of the word <em>“kaffir”</em> is currently considered one of the most serious forms of verbal crimen injuria, courts have been reluctant to assign prison sentences to such convictions. </p>
<p>In one instance, a prison sentence for a man who directed the word at a black traffic officer was <a href="http://www.saflii.org/za/cases/ZAECHC/2004/14.html">overturned on appeal</a>. Part of the reason for the appeal judge’s decision was that “neither [the Defence] nor [the State] were able to refer us to any decision of the High Court in which an effective term of imprisonment was imposed or confirmed on review or appeal in a case of crimen iniuria of this nature”. </p>
<p>Arguably there is sound justification for the court’s reluctance to assign prison terms for verbal crimen injuria. Prison is expensive for society. It costs the taxpayers <a href="http://www.dailymaverick.co.za/article/2017-07-18-fact-sheet-the-state-of-south-africas-prisons/">over R100 000 a year</a> to house an inmate in prison. That money could be going to education, employment initiatives and other social services to help prevent offending in the first place.</p>
<p>Prison also costs society in non-monetary terms. In many respects prison contributes to a cycle of offending and desocialisation that causes widespread damage in communities. So, prison should be reserved for the most serious offences and for offenders who pose a risk to society.</p>
<h2>Deterrence</h2>
<p>Calls to impose harsh prison sentences for verbal crimen injuria are often premised on the need to deter such behaviour. Prison sentences are unlikely to achieve this laudable goal. </p>
<p>There are two aspects to deterrence in criminal justice. The first is called <a href="https://legaldictionary.net/general-deterrence/">general deterrence</a>. This entails using punishment to deter other would-be offenders from committing similar crimes. The second aspect is called <a href="https://legaldictionary.net/specific-deterrence/">specific deterrence</a>: using the punishment to deter a particular offender from offending again in the future.</p>
<p>Regarding general deterrence, <a href="https://www.bloomsbury.com/au/principled-sentencing-9781841137179/">research has shown</a> for many decades that the most important feature in using the criminal justice system to deter would-be offenders is not the severity of punishment. The concepts of “certainty” and “publicity” are far more important. In other words, even if the death penalty could be applied for crimen injuria, if offenders believe they will not be caught it will do little to deter them. </p>
<p>Conversely, a fine that’s believed to be certain, due to the consistency with which it’s applied as well as the publicity of its application, will put far more people off the offensive conduct.</p>
<p>From a specific deterrence perspective, prison is a particularly blunt tool to rid people of racism. Journalist <a href="https://www.dailymaverick.co.za/article/2018-03-29-analysis-why-the-vicki-momberg-racism-sentence-deserves-scrutiny/">Rebecca Davis’s observations</a> of the Momberg case ring true here:</p>
<blockquote>
<p>There are presumably few people who would argue that time in prison will ‘cure’ Momberg of her evidently deeply ingrained racism. A jail term in this case may feel intuitively satisfying to many, but does little to address the wider social problem of racism and its causes.</p>
</blockquote>
<h2>A smarter approach</h2>
<p>The frequency of apparent incidences of verbal crimen injuria involving racism displays that the criminal justice system must adopt a zero tolerance approach. But this approach needs to be a much smarter one than simply throwing these offenders in prison. </p>
<p>It’s too soon to tell if Nair’s case will result in a conviction. Currently it is postponed for him to undergo psychiatric evaluation to determine whether he is mentally fit to stand trial. </p>
<p>If Nair is eventually convicted and punished, the criminal justice system should devise a sentence that has the sophistication, constructiveness and humanity that’s so devoid from his reprehensible behaviour.</p><img src="https://counter.theconversation.com/content/104078/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kelly Phelps does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Calls to impose harsh prison sentences for verbal crimen injuria are often premised on the need to deter such behaviour.Kelly Phelps, Senior Lecturer in Criminal Justice, University of Cape TownLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/982522018-06-15T06:03:47Z2018-06-15T06:03:47ZProtecting Google from defamation is worth seriously considering<p>It has been a <em>huge</em> week for defamation law.</p>
<p>Last Thursday, the NSW Government announced a push to reform Australia’s uniform defamation laws. It is calling for a “<a href="http://www.justice.nsw.gov.au/Pages/media-news/media-releases/2018/review-recommends-defamation-cyber-age-reboot.aspx">cyber-age reboot</a>”. That proposal was backed by a <a href="http://www.justice.nsw.gov.au/justicepolicy/Documents/defamation-act-statutory-review-report.pdf">“statutory review” of the NSW Defamation Act</a>. At a meeting of the Council of Attorneys-General, the states and territories agreed to reconvene a working party to consider <a href="https://www.ag.gov.au/About/CommitteesandCouncils/Council-of-Attorneys-General/Documents/Council-of-Attorneys-General-communique-June-2018.pdf">reform</a> of equivalent statutes around Australia.</p>
<p>The following Wednesday, the High Court delivered its <a href="http://www.hcourt.gov.au/assets/publications/judgment-summaries/2018/hca-25-2018-06-13.pdf">most important defamation judgment in years</a>. In a case that fits perfectly with the theme of the NSW proposals, Milorad “Michael” Trkulja succeeded in his <a href="http://eresources.hcourt.gov.au/downloadPdf/2018/HCA/25">appeal against Google</a>. The Court found that Trkulja could sue the American company for defamation in respect of search results which <a href="https://www.smh.com.au/technology/high-court-allows-man-to-sue-google-for-defamation-in-search-results-20180613-p4zl6l.html">potentially indicated that he had ties to Melbourne’s criminal underworld</a>.</p>
<p><a href="http://www.abc.net.au/news/2018-06-14/rebel-wilson-defamation-payout-reduced-on-appeal/9868300">The next morning</a>, the Victoria Court of Appeal allowed Bauer Media’s appeal from the judgment that <a href="https://theconversation.com/rebel-wilsons-4-5-million-win-a-sobering-reminder-that-defaming-a-celebrity-can-be-costly-83968">awarded Rebel Wilson A$4.5 million in damages</a>. The Court held that Wilson was entitled to A$600,000, and not to millions extra for lost opportunity to earn from roles that she may have been offered had the defendant not defamed her in its gossip magazines. The previous assessment of damages depended on the spread of the defamatory allegations on the internet via the “<a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3148794">grapevine effect</a>”.</p>
<p>The record for Australia’s largest defamation judgment is now barrister Lloyd Rayney’s <a href="http://www.abc.net.au/news/2017-12-20/lloyd-rayney-awarded-two-million-dollar-defamation-payout/9275316">A$2.6 million defamation win against the State of Western Australia</a>, litigated by Perth firm Bennett + Co. If Rayney’s current appeal is successful, <a href="http://www.abc.net.au/news/2018-01-31/lloyd-rayney-launches-appeal-against-defamation-decision/9381000">that figure may increase even further</a>.</p>
<p>There’s a lot to think about. </p>
<p>The NSW proposal to allow large corporations to sue for defamation is <a href="https://www.linkedin.com/pulse/defamation-law-should-protect-those-who-speak-truth-power-douglas/">particularly worrying</a>. It would have a significant <a href="https://www.theaustralian.com.au/business/media/reforms-will-silence-journos-experts-warn/news-story/9eef33151db4a9b0aaf3c70c22fd9e1b">chilling effect on journalism</a>.</p>
<p>But the issue that the NSW government chose to highlight from its statutory review was that defamation law is ill-equipped for the digital era. I agree that the way we communicate has <a href="https://www.smh.com.au/national/nsw/way-we-communicate-has-changed-and-law-must-too-20180607-p4zk52.html">completely changed in the 13 years since our Uniform Defamation Acts were introduced</a>.</p>
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Read more:
<a href="https://theconversation.com/defamation-in-the-digital-age-has-morphed-into-litigation-between-private-individuals-93739">Defamation in the digital age has morphed into litigation between private individuals</a>
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<h2><em>Trkulja v Google</em> shows it is time for reform</h2>
<p><a href="https://www.perthnow.com.au/technology/google/high-court-allows-milorad-trkulja-to-sue-on-google-over-searches-he-claims-defame-him-ng-b88865061z">Trkulja was shot in the back</a> in a Melbourne restaurant in 2004. As you’d expect, people wrote about it on the internet. Google provided access to that content through its search engine: web crawlers discovered web pages relevant to Trkulja, indexed them, and ranked them via its <a href="https://www.google.com/search/howsearchworks/">Google Search algorithms</a>.</p>
<p>The result of those processes was that Trkulja was associated with some shady figures through Google search. A Google image search for his name would display Trkulja’s picture with <a href="https://www.businessinsider.com.au/a-melbourne-man-is-suing-google-for-defamation-because-he-shows-up-beside-criminals-in-an-image-search-2018-6">those of Melbourne criminals</a>. The results pages contained keywords like “melbourne criminals” and “melbourne underworld photos”.</p>
<p>Google’s autocomplete results would also <a href="https://www.perthnow.com.au/technology/google/high-court-allows-milorad-trkulja-to-sue-on-google-over-searches-he-claims-defame-him-ng-b88865061z">cast him in a poor light</a>, returning terms like “michael trkulja criminal” or “michael trkulja underworld”. The results page linked to content which described Trkulja as a “former hitman”.</p>
<p>Trkulja sued, claiming that this computer-generated material defamed him. Google argued that the claim was so weak that it should come to an end even before a trial. Victoria’s Supreme Court <a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSC/2015/635.html">rejected Google’s argument</a>.</p>
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Read more:
<a href="https://theconversation.com/craig-mclachlan-defamation-and-getting-the-balance-right-when-sexual-harassment-goes-to-court-91223">Craig McLachlan, defamation and getting the balance right when sexual harassment goes to court</a>
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<p>But the Victorian Court of Appeal <a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSCA/2016/333.html">allowed Google’s appeal</a>, agreeing that the claim had no prospect of success. It found that the <a href="http://www.austlii.edu.au/au/journals/SydLRev/2017/24.html">ordinary, reasonable person</a> would not understand that the search results conveyed “imputations” which damaged Trkulja’s reputation. In their view, ordinary people would understand that there may be a disconnect between the words you type into Google and the results that follow.</p>
<p>On further appeal, the High Court unanimously decided that the Court of Appeal was wrong. At least some of the search results complained of <a href="http://www.hcourt.gov.au/assets/publications/judgment-summaries/2018/hca-25-2018-06-13.pdf">had the capacity</a> to convey the idea that Trkulja was associated with dodgy characters. Trkulja was given “<a href="http://www.abc.net.au/news/2018-06-13/milorad-trkulja-sues-google-for-defamation/9863686">the green light to sue</a>” Google. Trkulja’s claim can now proceed.</p>
<h2>Even before this case, you could sue Google for defamation</h2>
<p>Like other foreign companies, Google is not immune to litigation <a href="https://www.researchgate.net/publication/321306294_Douglas_M_2017_The_exorbitant_injunction_in_X_v_Twitter_Communications_Law_Bulletin">because it is based overseas</a>. On old principles, Google can be responsible for third party content which it <a href="http://www.austlii.edu.au/au/journals/UNSWLJ/2014/2.html">“published” by sharing</a>. It might have a defence of “<a href="http://www5.austlii.edu.au/au/legis/nsw/consol_act/da200599/s32.html">innocent dissemination</a>”, but perhaps not if the defamed person <a href="https://inforrm.org/2017/02/04/australia-lnternet-publication-liability-and-context-dr-david-rolph/">drew the problem to the company’s attention</a>.</p>
<p>People have won against Google before. A few years ago, <a href="https://theconversation.com/australian-court-holds-google-is-responsible-for-linking-to-defamatory-websites-49883">Janice Duffy succeeded</a> in her claim that Google should be responsible for linking to defamatory websites. So in a sense, yesterday’s judgment is nothing really new.</p>
<p>It does provide some clarity on whether something like search results has the “capacity” to convey defamatory meaning. <a href="https://www.afr.com/business/legal/google-braces-for-conga-line-of-search-engine-claims-20180614-h11dj5">It is likely that Google will continue to be sued</a> by all sorts of people who are aggrieved by search results that cast them in a poor light.</p>
<p>The case also demonstrates that our old laws are perhaps ill-suited to the digital era.</p>
<h2>We should stop shooting the messenger</h2>
<p>Reflecting on this case, it is worth considering whether we should cut <a href="https://www.oecd.org/internet/ieconomy/44949023.pdf">internet intermediaries</a> some slack when it comes to defamation law.</p>
<p>We could do so by giving effect to the “safe harbour” proposal flagged in the NSW statutory review. It would provide internet intermediaries <a href="https://www.smh.com.au/national/long-overdue-defamation-law-review-an-important-first-step-20180608-p4zkcq.html">with a shield from liability for third parties content</a>. <a href="https://www.afr.com/technology/technology-companies/google/google-tech-firms-at-odds-with-content-creators-over-australian-copyright-safe-harbour-ruling-20171208-h01ket">Telcos already enjoy </a>something like this in Australia, which protects them from liability for copyright infringement.</p>
<p>Faced with cases like <em>Trkulja</em>, you would understand if Google simply acceded to every request to remove content from its search results. But what if Google did that for <a href="https://www.theguardian.com/technology/2014/may/15/hundreds-google-wipe-details-search-index-right-forgotten">complaints by paedophiles</a>, murderers <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3137526">or dictators</a>?</p>
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Read more:
<a href="https://theconversation.com/before-you-write-that-scathing-online-review-beware-of-defamation-92595">Before you write that scathing online review, beware of defamation</a>
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<p>Google provides a free public service which is indispensable to our way of life. Without Google’s assistance, many of us would be lost online. When access to the functionality of Google and other intermediaries is limited, <a href="https://theconversation.com/google-expands-the-right-to-be-forgotten-but-australia-doesnt-need-it-54887">our substantive access to information is limited</a>.</p>
<p>Extending safe harbour to internet platforms is worth seriously considering – other countries, <a href="https://www.researchgate.net/publication/321417379_Douglas_M_2017_Google_challenges_the_Supreme_Court_of_Canada's_global_injunction_in_the_United_States_Gazette_of_Law_Journalism">like the United States</a>, are already doing this.</p>
<p>The NSW statutory review does not go into these difficult issues in enough depth. In light of the rapid developments in media and technology, <a href="https://www.smh.com.au/national/long-overdue-defamation-law-review-an-important-first-step-20180608-p4zkcq.html">the best way forward is for the Australian Law Reform Commission to consider this in detail</a>. We need to make sure that we get the right balance between freedom of speech, free access to information, and protection of reputation.</p><img src="https://counter.theconversation.com/content/98252/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michael Douglas is a Consultant at Bennett + Co, a litigation firm acting for Lloyd Rayney in his appeal. He is a member of the ALP and the Communications and Media Law Association, and editor of the Media and Arts Law Review.</span></em></p>Google has lost a High Court appeal in defamation litigation brought by Michael Trkulja. It is time to consider that extending “safe harbour” to Google may be a good idea.Michael Douglas, Senior Lecturer in Law, The University of Western AustraliaLicensed as Creative Commons – attribution, no derivatives.