Australia Is Uniquely Bad for Defamation

Journalists are keenly aware of this imbalance. In its 2021 Press Freedom Survey, the Media, Entertainment, and Art Alliance (MEAA) found more than 88% of Australian journalists thought that the defamation laws made reporting more difficult; nearly a third reported having a news story killed in the last 12 months over fears of defamation action; and almost 8% had actually received a defamation writ within the past two years. Louisa Lim, a former correspondent for the BBC and NPR in China, now a Senior Lecturer in Journalism at the University of Melbourne, has even compared the muzzling effect of Australia’s “oppressive and notoriously complex defamation laws” to the regime of censorship in authoritarian China: public interest journalism is stifled in both countries, just in very different ways.

Defamation law is, of course, not unique to Australia, so what is it about Australia’s legal framework that is so unusually harsh?

Defamation is the publication of material, whether written, spoken, or pictorial, that harms a person’s reputation. A plaintiff, the aggrieved person, brings a defamation action against the person or organization that published the defamatory material, the defendant. An example of a defamatory statement might be: “The plaintiff walked out of an electronics store with a laptop he did not pay for.” Defamation is not limited to the exact wording of the statement; it also includes anything it implies. For example, the plaintiff could claim the statement implies that he’s a thief, but he can also claim it implies any number of other things, for example, that he is a liar, a member of the mafia, or a spy. Depending on the situation, some of these claims might sound bizarre and ridiculous, but it will be up to the jury (or judge, in federal court) to determine which implications are valid. But because defendants don’t know which implications will be accepted by the court, they usually respond to all of them, just in case.

In most Western jurisdictions, like the US, Canada, and New Zealand, it is up to the plaintiff to prove that they have been defamed by the defendant – making the defendant innocent until proven guilty. But in Australia, it’s the opposite: the burden is on the defendant to prove that they have NOT defamed the plaintiff, which means they are guilty until proven innocent.

This makes it much harder for people to defend themselves against defamation lawsuits. Bernard Keane, the political editor of Crikey magazine, one of few remaining independent Australian news sources, spoke of his own experience being sued for defamation: “It is distressing. It is distressing personally. It is distressing for your publication. Afterwards it leaves you with a sense that you are performing without a net.” Like Keane, many Australian journalists and whistleblowers have been buried under the weight of the paperwork needed to prove their innocence, and all the while their other public interest stories remain uninvestigated and unwritten because there is no time left once the legal system has extracted its pound of flesh. Chris Masters, who has won the Walkley Award for excellence in journalism five times, for instance, spent 10 years defending a defamation claim (that he ultimately won) and almost quit the profession because of the stress.

Similarly, in the process of proving that defamation has occurred, most Western jurisdictions require the plaintiff to prove how, and to what extent, the alleged defamation has harmed them (e.g. through lost business opportunities or lost revenue). But in Australia, prior to the 2021 reforms (more on that later), the plaintiff did not have to prove harm at all; the simple existence of unflattering material (which is presumed to be untrue) was considered proof enough that harm had been done to the plaintiff (Defamation Act 2005, s7.2). Thus, the plaintiff has a leg up from the get-go as they are automatically entitled to damages if the defendant cannot establish a defense.

The maximum damages that can be awarded for non-economic harm is $296,000 (all figures have been converted to USD) (an amount that has steadily increased from $171,000 in 2005); but this figure has regularly been exceeded. For example, a South Australian lawyer won $512,000 over a campaign of negative Google reviews; former NSW Deputy Premier John Barilaro won $489,000 over “vulgar” videos on YouTube that Google had refused to remove; the Wagners, a regular (albeit wealthy) family, were awarded $1.75 million after a popular radio host, Alan Jones, made a series of “vicious and spiteful” claims that the family were criminally responsible for flooding fatalities on their property; Geoffrey Rush won $2 million over claims of inappropriate behavior on set; and Rebel Wilson won $3.2 million (later reduced to $410,000 on appeal) over claims that she was a serial liar.

And, in addition to the fact that courts can simply override the cap if they feel that aggravated damages are appropriate, plaintiffs can also bring separate motions against different publishing entities even if they are all owned and operated by the same company, effectively rendering the cap pointless, as each case will entitle the plaintiff to separate damages if they win.

Another key difference between Australia and other liberal democracies is the fact that Australia doesn’t make a distinction for public figures. Although the accepted precedent is that “a man who chooses to enter the arena of politics must expect to suffer hard words at times,” (Australian Consolidated Press Ltd v Uren (1966)), the reality is that Australian politicians are some of the most prolific plaintiffs. They regularly feel the need to protect their thin skins, clogging up the courts by suing everyone from senators to the prime minister, from Australia’s publicly funded broadcasters (like the ABC) to random, small-fry Twitter commentators over the smallest slights.