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Specialist Guide to the
Global Leaders in Media Law Practice
Absent the pandemic, the state of press freedom in Australia has been called into question and economic challenges, the strength of online platforms and outdated defamation laws conspire to threaten our media.
Australia introduced uniform libel laws in 2005. Prior to that, eight separate defamation laws operated in the States and Territories. The uniform law was largely a compromise at its inception and its interpretation ever since has placed a premium on personal reputation at the expense of freedom of speech and the right of the public to know. As soon as proceedings are issued,media defendants find themselves on the back foot.
However, we are lucky to have some of the world's leading journalists and opinion writers, as well as media companies that are supporting their employees through difficult times. There is also cause for cautious optimism with legislative reforms on the horizon.
Cardinal Pell Contempt Charges
A series of suppression orders that had prevented reporting details of the trial and conviction of Cardinal George Pell (subsequently unanimously quashed by the High Court) for charges relating to historical child sexual abuse have sparked debate about whether current laws are striking the right balance between open justice in the digital age and the right to a fair trial.
An order made in the County Court of Victoria in mid-2018 by Chief Judge Kidd prohibited publication in all States and Territories of Australia of ‘any report of the whole or any part of these trials, and any information derived from these trials and any court documents associated with these trials’, including ‘on any website or other electronic or broadcast format accessible within Australia.’
This broad suppression order was intended to prevent jury prejudice in that trial, as well as in a second trial on other charges which would subsequently be abandoned. After the verdict in the first trial, some Australian media reported that an unnamed high-profile person had been convicted of a serious crime that could not be reported. Some overseas media outlets named Cardinal Pell and despite attempts at geo-blocking, a great many Australians learned of his trial and conviction through online publishers, on social-media where many were willing to breach the order, and by word-of mouth. However, until the order was lifted, anything that happened in one of the most important criminal trials in Australian history was unable to be reported on by Australian media.
Once the media were free to report on the case, they were also able to report about “show cause” notices sent to dozens of their number. 205 charges were filed against journalists and media outlets alleging contempt of court over reporting on the George Pell case.The Victorian Director of Public Prosecutions has since dropped more than half of the original charges.
At the time of writing, 100 contempt charges against 30 media outlets and journalists are still afoot. If the journalists are found guilty, they face possible terms of imprisonment, fines and conviction.
Geoffrey Rush v Nationwide News
The decisions in Rush v Nationwide News Pty Ltd related to a series of articles in which the Daily Telegraph had alleged that Geoffrey Rush had behaved inappropriately with an unnamed fellow actor during the 2015-16 Sydney Theatre Company production of King Lear.
In the first instance, Wigney J declined to hear from a then anonymous truth witness (now known to be actress Yael Stone) after a mid-trial bid from Nationwide News to amend their defence based on her evidence. Mr Rush succeeded in completely striking out the Daily Telegraph's defences of justification and qualified privilege.An attempt to re-introduce the particulars previously struck out was also rejected by Wigney J. In Nationwide News Pty Limited v Rush  FCAFC 70, the Full Court of the Federal Court (Allsop CJ, Rares and Lee JJ) denied leave to appeal and refused to disturb Wigney J’s decision.
In Rush v Nationwide News Pty Ltd (No 7)  FCA 496, Wigney J found that because of the reckless and sensationalist manner in which defamatory articles about Geoffrey Rush were published, Mr Rush was entitled to aggravated damages.
His Honour noted at  that ‘the cap in s 35 of the Defamation Act accordingly does not apply.’ Mr Rush was entitled to an award of damages for non-economic loss (including aggravated damages) in the amount of AUD850,000. In total, Mr Rush’s defamation damages award is AUD2.9 million.
In November 2019, the Full Court of the Federal Court (White, Gleeson and Wheelahan JJ) heard an appeal of Wigney J’s first instance decision by Nationwide News. In this appeal, Nationwide News submitted that Wigney J erred in making adverse findings as to witness credit and challenged the damages award. Grounds alleging that there was an apprehension of bias in Wigney J’s conduct of the proceedings were dramatically abandoned after one day of the hearing. The Court reserved its decision.
Voller v Nationwide News and Others
In a landmark decision, the Supreme Court of New South Wales held that businesses which permit comments on their social media posts may be considered “publishers” of those comments and thus can be held liable where those comments are defamatory. In Voller v Nationwide News and Ors  NSWSC 766, several media companies were successfully sued over public comments made by third parties on their Facebook posts regarding a former detainee at the Don Dale Youth Detention Centre.
This decision will significantly impact the way in which social media is used by media companies, who are now required to monitor and moderate comments posted in response to their Facebook page posts. Voller also opens up the possibility that other entities with public Facebook pages could similarly be held to be ‘publishers’ of third-party comments on their posts in the future. To reduce the risk of being sued, it may be necessary for all Facebook page owners to be cautious about their Facebook posts and whether they are likely to solicit defamatory comments. The defendant parties are seeking to appeal the decision.
AFP Raids Cases
Press freedom in Australia has been called into question in two recent high profile cases concerning Australian Federal Police (AFP) raids on journalists. In the first of the two cases, Justice Abraham of the Federal Court rejected all of the Australian Broadcasting Commission’s (ABC) grounds for challenging a search warrant under which a raid of its Sydney newsroom was conducted in June 2019. The shield laws that purport to protect journalists’ sources had no application as, with the exception of Victoria, they do not apply to search warrants.
Smethurst v Commissioner of Police  HCA 14, the second of the AFP raids cases, represented a hollow victory for media companies. Although the Full Bench of the High Court unanimously ruled that the AFP search warrant under which a raid on News Corp journalist Annika Smethurst’s Canberra apartment was conducted was invalid and should be quashed, the decision to invalidate the warrant was based on confined grounds.
Due to errors on the face of the warrant, none of the seven High Court judges that ruled on the matter thought it necessary to answer a much anticipated question on infringement of the implied freedom of political communication that exists under the Australian Constitution.
As the warrant was invalid, a secondary dispute arose about whether an injunction should be issued
requiring the return to Ms Smethurst of the information obtained by the Australian Federal Police.
The Court had to decide whether it had the power to grant an order to reverse the consequences of a
trespass on Ms Smethurst and return what was taken from her under the invalid warrant.
A majority of four justices (Kiefel CJ, Bell and Keane JJ, with Nettle J agreeing) declined to grant the
injunction, noting Ms Smethurst’s lawyers’ inability to identify a sufficient right or interest that required
protection and highlighting discretionary considerations that would have led to a denial of an
injunction in any case.
Although this decision sends a clear message that the raid on Ms Smethurst was illegal, it does not, nor could it be expected to rectify the lack of protection available to journalists and their confidential sources at Australian law.
There have been an increasing number of actions against Google. Several medical professionals and dentists are among those with claims against the tech giant. It has long been the practice of Facebook and Google to not disclose the names of individuals posting offensive and potentially defamatory material in lieu of a court order.
Privacy issues have also been prominent. In March 2020, the Australian Information Commissioner lodged proceedings against Facebook in the Federal Court, alleging that the personal information of Australian Facebook users was disclosed to the This is Your Digital Life app which shared data with the now-infamous British data analytics firm, Cambridge Analytica.
In April 2020, Federal Treasurer Joshua Frydenberg announced that a mandatory code of conduct will be drafted to govern the commercial relationship between digital platforms and media companies, opening up the possibility that tech giants may be forced to pay for news content
Defamation Law Reform
The Defamation Working Party established by the Council of Attorneys-General (CAG) and led by the New South Wales Department of Justice is currently considering whether our national defamation laws place unreasonable limits on freedom of expression and the publication and discussion of matters of public interest and importance. MinterEllison’s submission (available here) maintains that a long overdue recalibration should include:
(a) Amendment to our statutory qualified privilege defence through the introduction of a defence of publication on a matter of public interest. A defence analogous to section 4 of the Defamation Act 2013 (UK) is preferable to a defence with a focus on “responsible communication”;
(b) The introduction of a serious harm test which requires plaintiffs to establish that a publication caused, or is likely to cause, serious harm to their reputation. This test could largely mirror section 1(1) of the Defamation Act 2013 (UK) but also contain amendments to avoid procedural issues that have emerged in the United Kingdom;
(c) Amendments to clarify the nature of the cap on damages for non-economic loss and ensure that aggravation falls within a reasonable range of assessment; and
(d) The introduction of a single publication rule to provide that the applicable one-year limitation period runs from the date material is uploaded to the internet.
The Australian media is beset with challenges and there is no knowing what the media landscape will look like on the other side of the pandemic. Light at the end of the tunnel of a long-running law reform campaign, however, provides some cause for hope.
The profitability of traditional media has plummeted due to the development of social media, along with reduced advertising and publishing revenue. Now, the coronavirus pandemic threatens lives and livelihoods and Reporters Without Borders claim that it poses a threat to press freedom. Australia is not immune from global forces and we have already seen many regional publications suspend their operations.
Peter Bartlett is the National Head of the MinterEllison's Media Group, a team that has been ranked Tier 1 in every international directory. Peter is a past Chair of the Media Committee of the International Bar Association, a past Chair of the Media and Communications Committee of Law Council of Australia, a past Chair of the Communications & Technology Section of LAWASIA and a past Chair of the Defamation Committee of the Law Institute of Victoria. He presently Chairs the Melbourne University Centre for Advancing Journalism Advisory Board and serves on the International Committee and the Ethics Committee of the New York based Media Law Resource Centre. He is also the Deputy Chair of the Legal Practice Division of the International Bar Association.
Dougal Hurley is a Lawyer in the Media Group at MinterEllison, where he has acted in litigation on behalf of various publishers and provided pre-publication advice. Dougal also acts in commercial litigation, consumer law and regulatory enforcement proceedings.