Hockey's defamation win is dark news for democracy and free speech

We should all be careful before saying anything that will hurt our politicians’ feelings: they might sue us for defamation. On Tuesday, Treasurer Joe Hockey was awarded A$200,000 damages against Fairfax Media in relation to a series of publications that focused on his political fundraising activities.

That this case was brought at all is ridiculous. That Hockey won is absurd. His victory marks a dark day for freedom of speech in Australia.

The decision

In a lengthy decision, Federal Court Justice Richard White found that Hockey was defamed by a poster advertising the story’s headline, and tweets on Twitter linking to the articles. Significantly, the court found that the actual articles that the poster and the tweets related to were not defamatory.

The means of publication proved critical. By the nature of the medium, the poster was brief. It contained the words: “Treasurer For Sale”. The tweets contained a similar message, but also a hyperlink to electronic versions of the Fairfax stories.

The court accepted that these headlines were written merely to attract readers to the actual story. Nevertheless, it found that the meaning of tweets and posters may be determined in isolation, without reference to the story.

The court awarded $200,000 in damages: $120,000 for the poster and $80,000 for two tweets. The award followed the usual principles for awarding damages in defamation cases. Among other reasons, the damages were awarded to Hockey as “consolation” for the distress and hurt caused.

Don’t newspapers have a defence in these kinds of cases?

There is uniform law in Australia providing a defence of “qualified privilege”. The defence protects publishers like Fairfax Media that provide information to recipients (the public) who have some interest in receiving it.

The defence protects a vital function in our democracy. A well-informed population makes public debate – and so our country – stronger. This is particularly important in respect of discussion of political issues. In this case, Justice White quoted a previous High Court decision, which held:

The common convenience and welfare of Australian society are advanced by discussion – the giving and receiving of information – about government and political matters.

So why didn’t the defence hold up this time? Because the Federal Court found that Fairfax Media’s conduct was not “reasonable”.

Qualified privilege requires that the publisher was reasonable in its conduct in publishing the matter, in all of the circumstances. Fairfax Media argued that if it was reasonable to publish the articles, then it was also reasonable to draw attention to them with the posters and tweets. The court disagreed.

Extraordinarily, Justice White proposed more “reasonable” posters and tweets, which would have satisfied the defence of qualified privilege. “Access to treasurer can be bought” could cost Fairfax nothing, but “Treasurer For Sale”? 200K.

If this case holds up, we might expect some seriously boring newspaper headlines in the future.

So will it be appealed?

It is not yet clear if Fairfax Media plans to appeal. It has 21 days to decide whether it wants to.

If it does decide to appeal, Fairfax Media faces further hurdles. The court made a number of findings just in case the matter is appealed. These included a finding that the defamatory publications were made with malice.

Under the national legislation, a qualified privilege defence will be defeated if it is proven that the publication was “actuated by malice”.

Defamation as a political weapon

Media law academic David Rolph recognises that Australian politicians of all political stripes have been great consumers of defamation law. For example, earlier this year, former Queensland Premier Campbell Newman sued shockjock Alan Jones for defamation, but later dropped his case.

Such claims are risky from a legal perspective. Journalists can claim a number of defences, and so there is a very real prospect that a litigious politician will lose. So why do they do it?

A defamation case can be used as a political weapon. A rapid legal response to a negative publication can give a politician some legitimacy in dealing with the bad publicity. A victory in court adds weight to that legitimacy, albeit some time later. The law recognises that one of the purposes of awarding cash for defamation is so the defamed person can be vindicated in the eyes of the public.

But this tactic reeks of desperation. Picking a fight with a media company should not be a politician’s priority.

We deserve better

One MP was quoted as saying:

Politicians are fair game and people should be able to speak freely.

I wholeheartedly agree.

The elephant in the room in this case was the actual story that was being attacked. There is a legitimate need for a broader conversation about the role of money in Australian politics. It is a conversation that Hockey, apparently, would prefer that we not have. Media organisations ought to be able to instigate the debate without fear of reprisals by litigious politicians.

The Australian people deserve a more robust debate. It is worth considering whether we should follow the US “public figure” doctrine, which makes it harder for politicians to be successful in a defamation claim.

The irony in all of this is the attention it has brought on the issue, and on Hockey. The public might have long forgotten Fairfax Media’s headline, but with this decision, the wound is re-opened. Google “Treasurer For Sale”, and see what happens.

Michael Douglas does not work for, consult to, own shares in or receive funding from any company or organisation that would benefit from this article, and has no relevant affiliations.