The political career of Christian Porter has been destroyed by the ABC. This is someone who was the Commonwealth Attorney-General – which perhaps tells us something about where power lies in Australia.
But the whole affair also provides a warning for public figures about the treacherous waters of defamation litigation. It has always been true that it is relatively easy for a plaintiff to initiate defamation proceedings but much harder to bring them to an end if he or she has a change of mind at some later stage. It is not hindsight to say that Porter was badly advised to begin the proceedings in the first place. This is not a criticism of his lawyers because we do not know what advice they provided. It may, however, be a criticism of some of his ministerial colleagues in Canberra who were anxious to avoid some form of parliamentary or judicial inquiry into the allegations of sexual assault and thought that this would be achieved by the commencement of a libel action.
But this was a case where no inquiry could advance the existing facts, given that the person who had made the complaint of sexual assault was no longer alive and, whatever had occurred more than 30 years ago, there was obviously no evidence available in the form of witnesses or forensic material. If the presumption of innocence means anything, it was open to Porter to simply deny the allegations and take no further action.
Once, however, defamation proceedings had been commenced, all this changed. The first problem for Porter, as the plaintiff, was that he was not identified by name in the Four Corners program. His identity did emerge on social media soon afterwards and this problem could probably have been overcome if the litigation had run its course but it was hardly the ideal starting point. A second problem was that there was bound to be a serious dispute as to just what the program had said about Porter. Did it say that he had in fact committed a sexual assault or did it only say that there were reasonable grounds for suspecting that this had occurred and these should be the subject of further investigation?
This is one of the most difficult areas of defamation law because the version chosen by the jury – or the judge if the case is heard without a jury – will often determine which party is successful. In this case, for example, it might be thought that the ABC would have found it impossible to establish guilt of sexual assault, even on the civil standard of proof of the balance of probabilities, as opposed to the criminal standard of beyond a reasonable doubt. But the question of reasonable suspicion is much more nebulous and allows the defendant considerably more scope for the calling of evidence that is damaging to the plaintiff. This was, of course, one of the ways in which the ABC proposed to defend the action brought by Porter.
In any event, the bringing of these proceedings ultimately turned out to be disastrous for Porter. Soon after the ABC filed its defences, he decided to abandon the action without receiving any damages or any apology from the ABC. He was left with significant legal bills, some or all of which were to be met by anonymous donations. This then resulted in his resignation from the Cabinet and banishment to the backbench – a sorry finale to a sorry saga.
There is now an additional defence available to the media which was not available to the ABC in the Porter case. This new defence came into effect on 1 July 2021 in all the Australian states and territories except for Western Australia, Tasmania and the Northern Territory where it will be enacted in the coming months. This new defence requires the defendant to establish that the publication concerns an issue of public interest and that the defendant reasonably believed that the publication was in the public interest. It is modelled on a similar provision in the UK defamation legislation. In deciding whether the defence is made out, the jury – or the judge where there is no jury – can take into account a range of factors, including the seriousness of the allegations, the journalist’s sources of information and any steps taken to verify the material published.
There had previously been a defence available where the conduct of the journalist was found to be reasonable. But media organisations, who pushed hard for the new defence to be put into the legislation, argued that the question of reasonability had been interpreted very narrowly by the courts so the defence was almost impossible to make out. Whether judges and juries construe the new provision more generously in assessing the conduct of journalists remain to be seen. The problem for the media is that the case is unlikely to have been commenced by the plaintiff unless there was some significant error in the story as published. So the journalist has to demonstrate that, notwithstanding the fact that the story was wrong in a major respect, he or she reasonably believed that the publication was in the public interest. This leads inevitably to an examination of the journalist’s sources and the research undertaken by the journalist to verify the allegations. This is what happens in the US where politicians and public figures can only succeed in defamation actions if they can show that the journalist had no belief in the truth of the material or was recklessly indifferent to its truth or falsity.
There is a more general question as to whether politicians should be bringing actions in defamation at all. There may be cases, such as an allegation of taking a bribe, where proceedings are justified but in most cases politicians would probably be better off using their open access to the media to respond to what has been published about them. Some may be tempted by the financial prospects of a successful defamation action but, as the Porter case demonstrates, there are many pitfalls on the long and costly path to such an outcome.
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