The Law Council noted that section 22 requires judges to determine the amount of damages to be awarded, even in jury trials. It said that as judges are not privy to the reasoning of juries, there is a risk that judges would make disproportionately low awards where the jury considers the publication to be seriously defamatory and vice versa.
Cap on damages One key UDA feature was the “cap” imposed on damages for non-economic loss to end million dollar windfalls. With indexation the current cap is $324,000. Litigation tricks, however, have re-opened the prospect of plaintiff lotteries. According to the Law Council while the cap in section 35 has largely achieved its intended purpose two aspects need clarification. One is a need to amend section 23 to consolidate multiple proceedings by the same plaintiff where it involves the same matter, irrespective of whether different publishers or different communication media published it. The other point needing clarification concerns the maximum amount of damages so that it is not computed by tallying up each cause of action or publication. In 2011, Sydneybased liquidator, Andrew Wily, issued seven separate defamation proceedings in relation to a number of articles in the Sydney Morning Herald and The Age and associated websites. FreeTV called for a stop to “multiple actions against different defendants” involving the same defamatory matter except with the court’s leave. It also wanted the cap to be based on circumstances at the time of publication rather than at the time of judicial determination as the latter situation exposes the defendant to higher damages awards caused by delays in disposing of a case. It said delays could result in “manipulation or gaming of the proceedings.”
Communications via the Internet The Communications Alliance, Australia’s primary telecommunications industry body, said “the question of when an online intermediary will be treated as publisher of defamatory content is unsettled” and that this unreasonably burdened publishers and potential plaintiffs. It said that merely indexing defamatory matter or facilitating its dissemination should not amount to publication of the defamatory matter. The Alliance called for a “safe harbour” so that an online intermediary who merely facilitates dissemination should not be deemed as a publisher of that matter regardless of whether that intermediary is on notice of the allegedly defamatory matter. It also wanted matter to be treated as not defamatory unless “it has caused or is likely to cause substantial harm” to the plaintiff’s reputation, as has been proposed in the UK Draft Defamation Bill.
Conclusion While the Law Council view is that the UDA is “substantially achieving” its objectives the Chief Judge at Common Law in NSW, Justice Peter McClellan thinks otherwise. He said the Defamation Act 2005 certainly does nothing to dispel views concerning the rigidities and complexity of court adjudication, the length of time it takes and the expense to government and the parties. Justice McClellan said he has “little doubt that the path we have gone down was not the correct one – either from the plaintiff or defendant’s viewpoint.” He said generally the financial cost of failure would be a greater burden for a plaintiff than a defendant and that it would dissuade many potential plaintiffs from starting proceedings or going to trial. More recently Ray Finkelstein QC made a similar observation in his report on the media inquiry that he conducted: “A successful plaintiff whose case runs to judgment will often incur costs of $500,000 or more. Only around 50 per cent can be recovered from the defendant.” In the UK a House of Lords report in February 2012 observed that the country’s libel laws “can, on occasion, have a discouraging effect on responsible investigative journalism” and called for it to be examined. Close on the heels of that observation the UK Supreme Court unanimously breathed new life into protection for investigative journalism in Flood v Times Newspapers Limited 76 UKSC 11. In that case the defendant newspaper was found not liable in defamation for publishing allegations about police corruption even though the policeman concerned was cleared of any wrongdoing. The court found that although the article was damaging to the plaintiff, it was balanced, those implicated were given the opportunity to comment, and their denials were recorded and that the newspaper’s judgment “merits respect”. The UK media views that decision as giving some comfort in what are otherwise gloomy times for journalists amid the Leveson inquiry proceedings following the phone-hacking scandal. The Media Alliance thanks Associate Professor Joseph Fernandez, head of the journalism department at Curtin University.