Editorial: Without Fear or Favour

IF there is a factual error made on scone.com.au we want it fixed immediately and do so as soon as it is brought to our attention, but when it comes to people claiming defamation it can be a different matter.

In Australia defamation is not as clear cut as the American or English systems, which are more supportive of free speech and there are many in our law fraternity wanting fundamental change.

As Robert Todd explained, in Ratepayers Not to Foot Defamation Costs, to take a case to court and argue the ‘facts’ typically begins with a price tag of $200,000 without factoring in the time preparing a court case.

When we began scone.com.au we understood we could get defamation cases so were appropriately advised and have defamation specialists in Sydney at the end of the phone when we need them.

Of course, this is one of those rare occasions where as a publisher, having no money is a huge advantage.

If someone thinks they should sue and spend $200,000 or more, they probably should just give it to charity and get a tax deduction.

Our legal advisors warned us that as a small independent publisher many would think we were easy pickings, but on the flip side anyone suing would be hard pressed to come out with any financial gain from doing so.

Moreover, we can’t think of many things we would be willing to argue the toss over when the price tag starts at $200,000 so issuing apologies is usually the preferred option despite if we think there are firm grounds for the statements of our sources.

On the flip side I have spent most of my career in media issues management advising large corporations and I have never advised any to pursue defamation.

Instead I’ve advised to think carefully and reassess the next day, when typically they have put things into perspective and as John Preston aptly put it ‘got over themselves’.

Like John Preston I’ve also been on the receiving end of criticism that is arguably defamatory and my choice has always been to move on.

In the public sector politicians and public servants in key roles also come in for criticism which even the Office of Local Government says is a waste of the public purse to pursue to get tangled up in a defamation case.

Councils have been directed that they must not use public funds for the bringing of any defamation case or to fund any Councillor or employee who does.

The philosophy in government is that you are there to serve the public, the public should be able to criticise and question you and as John Preston outlined if you can’t stand the heat then you should probably get out of that kitchen.

But there is a growing trend for defamation to be used as a tool to stifle free speech and criticism, which is not something, even as a small publisher, to which we would readily kowtow.

The ‘facts’ to argue for defamation are rarely straight forward, for example if there was a claim made that a politician was smoking crack and with hookers which could not be substantiated that is fairly clear cut, but for a member of the public to say a politician is an ‘idiot’ can also be defamatory in some circumstances, although normally it would represent an opinion which, if honestly held, usually provides a complete defence.

Once again, if someone wanted to spend $200,000 and sue, the person with the opinion could be called upon to justify their comment in court and their honest opinion that the person is an ‘idiot’ with a range of facts that would go beforethe judge and possibly a jury.

And in fairness we would always offer the right of reply so that the politician called an ‘idiot’ could respond and present their perspective, but it is their choice if they want to offer that balance.

In reality most people do not want to spend $200,000 pursuing a relatively minor criticism, even if not well supported, but there are some in both private and public sector who do.

It is absolutely their right to do so, but we also support the rights of the community to be critical of issues and decision makers and we will continue to report a range of perspectives for a range of issues.

The threat of defamation is often used simply to stifle dissidence, which is a healthy part of any democracy.

As one solicitor said to me recently, “this is not North Korea, keep going.”

So if there is an error we will fix it immediately, but if there are conflicting views we will still cover it, without fear or favour.

 

 

Elizabeth Flaherty
Editor of scone.com.au