Nyst Legal director and litigation lawyer Brendan Nyst discusses the truth defence to defamation.
Q. Are Australia’s defamation laws too tough?
A. Well, that’s a matter of opinion and, as always, opinions can differ wildly.
If you ask most Australian journalists, they’re likely to tell you defamation laws here in Australia are far too burdensome and silence free speech. In relatively recent times, there’s been a pretty robust campaign by various sectors of the Australian media to push law reform here that would see us adopt defamation laws more in line with the model that applies in the United States.
Both in the United States and in Australia, truth is an absolute defence to a defamation claim. But the difference is that in the States, if someone claims they have been defamed, the onus is on them to prove the defamatory statements made about them are false.
Here in Australia, it works the other way around. In Australia, it’s up to the person who made the defamatory statement to prove on the balance of probabilities that what they said, or wrote, is true.
It’s a crucial, fundamental difference, which essentially springs from the American Bill of Rights. Once upon a time, the United States’s libel laws largely mirrored our own. But in 1964, the US Supreme Court ruled, in the landmark case of New York Times vs Sullivan, that such laws were inconsistent with their First Amendment right to freedom of speech.
Following that decision, the onus of proving truth was reversed, which of course had a huge impact on the gossip columns. Ever since then, the American press has been able to report all kinds of information about a broad range of people without having to prove the accuracy of what they are saying, knowing that if anyone complains, the onus is on them to prove on the balance of probabilities that what has been said about them is untrue. Of course, that can be a somewhat daunting prospect, so the effect of the change has been to largely unshackle the American media.
Many people strongly argue, on the basis of freedom of speech, that the approach taken in the United States is preferable to our own position. Recently, one of the founders of the MeToo movement, Tarana Burke, asserted that Australia’s defamation laws work to silence victims of sexual violence and misconduct.
However, I personally believe there is good sense in the Australian model, which requires a person making defamatory comments in the public sphere to back up their comments with proof they are true.
Of course, it means people making damaging statements about others need to be much more careful and measured about what they say, but it also reduces the risk of innocent people being unfairly subjected to untrue, hurtful, and perhaps highly-damaging defamation of their character and reputation. In the end, our personal reputation defines virtually everything about us, including who we are and how we will be remembered. So it’s undoubtedly one of our most valuable assets in life and, for that reason, I think it should be staunchly defended.
While in some ways our defamation laws are burdensome, in other ways they are rather forgiving. Unlike US courts, Australian courts are relatively conservative when it comes to awarding damages for defamation.
In the United States, it is not uncommon to see damages awards in the tens of millions, but here in Australia even the most serious cases of defamation rarely result in damages over the $1 million mark.
That was recently demonstrated in the Victorian Court of Appeal decision that overturned actress Rebel Wilson’s record defamation payout, reducing her original award of more than $4.5 million to a relatively modest $600,000.
Too tough? I don’t think so. But in any event, for the time being at least, if you’re going to say something nasty about someone else, you’d better make sure to first get your facts right.
Brendan Nyst, Dispute Resolution & Litigation, Wills & Estates, Defamation, Nyst Legal