‘Unfavourable legislation’: Media executives call for defamation law reform

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‘Unfavourable legislation’: Media executives call for defamation law reform

By Zoe Samios

Media executives have called on the Albanese government to urgently reform defamation laws, warning expensive legal battles are crippling the industry and investment in public interest journalism.

The Sydney Morning Herald and The Age last week successfully fought a second attempt by a cosmetic surgeon to force award-winning journalist Adele Ferguson to hand over drafts of an investigation before publication. The investigation has since been published by the mastheads and aired on 60 Minutes.

Mike Sneesby, the chief executive of the Herald and The Age’s parent company Nine, and ABC News boss Justin Stevens, said the legal battle highlighted why the current laws governing defamation are no longer fit for purpose.

Nine chief executive Mike Sneesby: “This week’s example is a sign that we need to move on this, and we need to move quickly.”

Nine chief executive Mike Sneesby: “This week’s example is a sign that we need to move on this, and we need to move quickly.”Credit:Anna Kucera

“In comparison to the rest of the world, Australia obviously has very unfavorable legislation in terms of defamation as it relates to media businesses being able to report on public interest journalism,” Sneesby said. “The way it reflects in a media organisation is significant costs ... when we’re trying to deliver public interest journalism effectively.”

In Australia, defamation laws are a matter for state and territory parliaments. The laws have been criticised by media outlets for being archaic, failing to adapt to the rise of social and digital media outlets, or provide greater protections to reports in the public interest.

NSW became the first state to pass law reforms in 2020. The reforms, modelled on British law, included a “serious harm” test aimed at weeding out minor claims before a costly trial and a new public interest defence. Attorney General Mark Dreyfus, a public supporter of defamation law reform and the public’s right to know, has yet to meet with appropriate stakeholders in each state and territory to discuss the matter.

Stevens said Ferguson’s most recent legal fight was a “worrying development” for press freedom. “Adele Ferguson’s reporting with ABC Four Corners led to the banking Royal Commission,” he said. “Imagine if the courts had been used as a means to halt that work, depriving Australians of much needed reform in the banking sector?

“Accountability matters and journalism should be held to the highest account, but laws should not be used as a means of silencing that journalism. And after a story is published, defamation law should not be used to intimidate journalists and publishers into avoiding topics that are challenging and difficult, but important for the public to hear.”

Michael Miller, News Corp Australasia’s executive chairman, said last week court’s decision, which allowed Ferguson to publish her investigation, was “the right outcome for Australians’ right to know and the media’s ability to do its job without censorship”.

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Ferguson is not the only journalist at Nine to face legal action in recent months. The Herald, the Age and the ABC landed a victory in May when actor Craig McLachlan dropped his claim that he was defamed by news reports accusing him of indecently assaulting and sexually harassing female performers during the 2014 stage production of The Rocky Horror Show. McLachlan, who dropped the action two weeks into the case, was ordered to pay the legal costs of Nine and the ABC.

Nine is still waiting on the outcome of a lengthy defamation trial brought by SAS soldier Ben Roberts-Smith against The Age, the Herald and The Canberra Times over a series of articles in 2018, which he says portrayed him as a war criminal who was involved in the unlawful killing of Afghan prisoners. He denies all wrongdoing.

The media outlets are seeking to rely on a defence of truth and allege Roberts-Smith was involved in six unlawful killings.

“Breaking news has the ability to bring about the risk of defamation and legal action,” Sneesby said. “As we spend more and more money on defending ourselves, that’s more cost that doesn’t go towards reporting facts, uncovering stories, and in particular the cost of investigative journalism. The government no doubt has it in their headlights in terms of the legislation needing reform and all I would say is that this week’s example is a sign that we need to move on this, and we need to move quickly.”

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