SYDNEY: Editors rarely sue for defamation in the modern era, for many good reasons. Of course, all citizens have the right to defend their reputations in the courtroom.
The reality is that any media outlet worth its salt is in the defamation business. The columns of newspapers, news websites and the broadcast news outlets should be laden thick with defamation every day if their journalists are doing their jobs properly. Lord Northcliffe is supposed to have said: “News is what somebody somewhere wants to suppress; all the rest is advertising.”
But the bulk of that defamatory material is — or should be — defensible. The defences vary somewhat between countries, and between jurisdictions within countries, but most allow truthful defamation, defamation in the public interest published reasonably, defamatory opinions on public matters based on provable facts, and fair and accurate defamatory reportage of important public gatherings.
Law in the United States developed further under its constitutional First Amendment protection of a free press to allow even untruths about public figures to be published, so long as they were not published maliciously.
Journalists do not normally sue each other — for a host of reasons.
•Given they are in the defamation business themselves, most see it as part of the cut and thrust of public debate.
•Many understand the defences and realise that the reputational slur will often be protected.
•Most are too poor, and defamation litigation can be unpredictable and costly, particularly if it reaches the appeal stage.
•Journalists are used to telephoning people and having it out with them at an intellectual level. Many disputes are resolved that way, both for and against the media.
•Most realise there are other avenues of recourse, perhaps through their own medium and perhaps via some mechanism for complaint.
To balance this, of course, sometimes someone will make the most heinous false allegation about them of a sexual or criminal nature, and everyone would understand them pursuing the matter through the courts, particularly if there were no other means of recourse.
But most have an editor or a news director who will counsel them against using libel laws to resolve a dispute, which brings us to the additional reasons editors rarely sue.
•Most have editorialised countless times about press freedom and it runs, like ink, through their veins. Most have quoted Voltaire, Milton, Mill, Jefferson and Burke in their editorials espousing how truth will win out and defending all citizens’ right to free expression. This extends to even allowing untruths to be aired and demolished in the marketplace of ideas. As Milton wrote: “Let her and falsehood grapple; who ever knew truth put to the worse, in a free and open encounter.’
•Editors fear their own example in suing for defamation will encourage more lawsuits against their own media outlet by others. It sends a message to the rich and powerful everywhere that even editors believe libel action is a superior method of dispute resolution to a Press Council or a journalists’ union complaint.
•Most editors and news directors have been involved in litigation themselves or have witnessed how time-consuming and distracting it can be for their journalists. Four Corners investigative reporter Chris Masters laments the decade he spent in the courts justifying his Moonlight State expose of corruption in Queensland. Most see lawyers and litigation as enormous time wasters, distracting them from their greater purpose.
•That said, some have been at the forefront of pursuing free expression through the courts. The Australian, through its parent company Nationwide News, was crucial in 1994 convincing the High Court to overturn a law that banned criticism of the Industrial Relations Commission or its members. This was one plank in the court’s development of an implied constitutional freedom to communicate on matters of politics and government and an historic victory for media freedom.
•Most editors and news directors would be loath to expose their own behaviour and their companies’ past performance to the scrutiny that is inevitable in the discovery process and trial. They might be purer than the Pope or the Dalai Lama, but lawyers will inevitably find, or create, examples in their past that erode their case. Most have seen this happen in countless pyrrhic victories in the courts where the “winner” has had all sorts of character slurs made against them.
•Related to this is the media coverage attached to the case itself, which normally increases a hundredfold the repetition of the original slur. Many a successful plaintiff has later said they regretted the whole process.
•Most have belonged to industry groups fighting for free expression in society. In Australia, such a group (Australia’s Right to Know) is headed by the chairman and chief executive of News Limited, John Hartigan, a former journalist and a vocal advocate of media freedom. It was a similar, but looser, alliance with the Australian Press Council that negotiated important defamation reforms in Australia in 2005.
•Most abhor the use of libel as a weapon in despotic regimes throughout the world and are members of organisations fighting against this.
•Most in Western democratic countries secretly covet the US First Amendment, which makes public figures fair game, particularly when the defamation — even falsities — relates to their performance.
Finally, and most importantly, unlike doctors, lawyers, sportspeople or politicians, the very act of suing for libel sends a reputational message about the editor himself or herself: that they are the kind of person who would use a defamation action to pursue someone who has exercised free expression. Unlike any other, that very act puts their reputation as an editor on the line among their peers and the broader thinking community. Most would prefer to be remembered for their accomplishments as an editor than to become a textbook case as the editor who sued.
This article was first published on Crikey.com on December 3.
Mark Pearson
