Defamation and Journalism

This paper highlights the consequences of defamatory content to journalists’ career ambitions, the defamation laws laid down by the Australian legislature, safe work practice, risks involved between journalism and defamation, legal cases, and other laws relevant to defamation and journalism.

Running Head: Defamation and Journalism 1
The Link between Defamation and Journalism
Student Name
Institutional Affiliation

Defamation and Journalism
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Journalists encounter several obstacles while going about the day-to-day reporting
activities. Controversies and unsubstantiated accusations about public figures are covered in
the course of reporting. Journalism requires a good comprehension of the Australian
defamation laws; this helps in avoiding the risks associated with the publication of
defamatory content (Ackland, 2019, P. 5-7). Defamation is a statement of fact maliciously
published to harm the person’s reputation (Pearson & Polden, 2014, p. 22).This paper seeks
to highlight the consequences of defamatory content to journalists’ career ambitions, the
defamation laws laid down by the Australian legislature, safe work practice, risks involved
between journalism and defamation, legal cases, and other laws relevant to defamation and
journalism. The necessary claim elements and defences available to journalists will also be
explained.
The law of defamation seeks to regulate the content published by media houses. The
law intends to avoid publication of information that is harmful to an individual’s or
organisation’s reputation; this is done with the aim of protection reputation as well as not
limiting the freedom of speech (Conroy, 2010, P. 18). However, the freedom of speech is not
unequivocally explained in any of Australia’s statutes or constitutional rights (Ifex, 2019).
Australia uses a common law approach towards defamation cases. There is a three-pronged
test applied when determining cases of defamation; the defendant published some
information; the information is about the claimant; the content is likely to cause harm to the
claimant’s reputation. The defendant must defend the material with honest opinion, truth,
qualified privilege, and other defences available to the defendant. The journalist does not
need to have intended harm; the three elements of defamatory content a sufficient in a
defamatory case.
The defamation laws in Australia are exceptionally strict and prevent journalists from
reporting false information. The punitive measures put in place makes it difficult for
journalists to expose corrupt activities by public figures without proof. The threat imposed by
defamation laws muzzles the media thus forcing them to filter the content published in the
media streams and newspapers (Pearson & Polden, 2014, 22-38). Majority of the publication
materials are cross-checked by layers; advocates modify the content reduce the risk of a
possible defamation suit. Readers want to know more, but they barely get a glimpse of the
process undertaken to get the information out there (Finkelstein, 2012, P. 30-45)). Journalists
have been for a long time sued for publishing information that is deemed to be false.

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In the case of Chau v Fairfax Media Publications PL [2019], the defendant was
accused of publishing an article that was harmful to the plaintiff’s reputation (Defamation
Watch, 2019). Mr Chau was alleged to have been involved in a conspiracy of bribing the
United Nations Council so as to avoid extradition charges. The author basically based his
information on a FBI investigation in the United States. If the reporter could justify the
claims then that (justification) would act as a relevant defence.
Section 28(3) of the Defamation Act (2005) grants the reporters the duty of
disseminating information that might be of public interest; was Mr. Chau’s involvement in a
bribery scandal would be appropriate news to publish owing to the fact that he is a public
figure (billionaire business man). The Federal Court, however, argued that the publication
was not a reasonable conduct and $280,000 damage was awarded to Mr. Chau. The union of
journalists (MEAA) in Australia bases its opinion on Chau’s defamation case. According to
the union, the system is not workable; the public’s right of getting information has been
inhibited. Instead of the defamation laws protecting reputations and promoting fairness, they
are being used to threaten media organisations and question the legitimacy of reporting. The
kind of journalism that has the public interest as the first priority is threated by the chilling
effect. The defamation laws have become the major obstacles to public interest journalism.
In another case, Cummings v Fairfax [2018], the plaintiff sued the defendant for
posting an article that conveyed a message that he was a harsh person, mean to animals, cruel
to racehorses, and also harsh to the horses he trained (Defamation Watch, 2019). The
defendant had also published information concerning a case where the claimant sued another
company for an overdue debt. The defence of absolute privilege was used by the defendant. It
was held that Fairfax merely summarised the debt collection event (subject to the public
documents defence in section 28 of the Defamation Act 2005), but it had also implied the
statements for which he plaintiff sued. International treaties have also paved the way for
cross-border defamation suits. Where two countries are part of an international treaty, you
can be extradited to face charges for defamatory content. The Australian Journalists'
Association Code of Ethics 1994 tasks journalists with the duty of reporting honest and
substantiated information. Was that not the situation in the Cummings v Fairfax case? The
information was based on accurate facts collected from a precedent court proceeding
involving the plaintiff.

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The two cases are examples of how the defamation laws regulate the information
published by journalists. In the Chau case, the reporter did not base his news on proven facts;
the facts were mere allegations by a foreign FBI agent. The defamation defences available to
reporters expect journalists to report true and honest information. In the Cummings case, the
journalists reported on court proceedings; therefore, the information was factual. However,
there were a whole lot of emotions in the information; the information was dishonest. The
reporter was intent on harming the claimant’s reputation. The two cases are an embodiment
of what defamation laws seek to root out; lying to the public through the media.
The safest practice for reporters is avoiding defamatory statements in their
publications. These are the kind of statements that create ridicule or contempt of the party in
question. The legal fees and damages involved in defamation suits are very high for a local
broadcaster. Journalists should also publish substantial and true information; unsubstantiated
content should be avoided since the burden of proof, in a court of law, is placed on the
defendant (journalist). Journalists should also be intent in adhering to the law of
confidentiality as stipulated in the “Commonwealth Privacy Act 1988” and the “Privacy and
Personal Information Act 1998” (NSW). The law bars a confidant from publishing
information that was confided in him without consent. Legal suits for breach of confidence
attract monetary damages; the reparations could be very high depending on how it affects the
client’s reputation.
There are several risks involved in cases of journalistic defamation. A reporter could
lose his media reporting license; the access to certain organisations will be limited. The
media organisation risks losing viewers as it will be termed a defamatory journalists’’
organisation; this could lead to serious financial losses. Defamation attracts huge monetary
damages, and in some cases extreme punitive measures. The failing drawn from the two legal
cases are journalists should not let their personal opinions or emotions cloud their judgement
as in the case of Chau v Fairfax; this causes problems when a legal action is instigated against
them.
To conclude, defamation laws have proven to be strict to journalism. Hover,
journalists should also endeavor to publish honest and true information. The laws should be
amended to be favorable to journalistic activities; it should comply with the freedom of
speech.

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References
Articles, Books, and Reports
Conroy, S. (2010). Convergence review: terms of reference. Media Release of, 14. Retrieved
30 April 2019, from <www.minister.dbcde.gov.au/media/media_releases/2010/115>.
P. 18
Defamation Watch (2019). Horse trainer’s claims scratched: Cummings v Fairfax [2018]
NSWCA 325. Retrieved 30 April 2019, from http://defamationwatch.com.au/horse-
trainers-claims-scratched-cummings-v-fairfax-2018-nswca-325/
Finkelstein, R. (2012). Report of the Independent Inquiry into the Media and Media
Regulation. Report to the Minister for Broadband, Communications and the Digital
Economy. Australian Government, viewed, 8, 13. Retrieved 30 April 2019, from
<www.dbcde.gov.au/__data/assets/pdf_file/0006/146994/Report-of-the-Independent-
Inquiry-into-the-Media-and-Media-Regulation-web.pdf>. P. 30-45
Pearson, M., & Polden, M. (2014). The Journalist's Guide to Media Law: A handbook for
communicators in a digital world (5th ed.). New South Wales: Allen & Unwin. Pg. 22
– 38.
The Australian Journalists' Association Code of Ethics 1994. Retrieved 30 April 2019, from
https://accountablejournalism.org/ethics-codes/Australia-AJA
Newspapers
Ackland, R. (2018). Your right to know: how Australia's defamation law stifles public interest
journalism | Richard Ackland. The Guardian. Retrieved 30 April 2019, from
<https://www.theguardian.com/media/2018/nov/30/your-right-to-know-how-
australias-defamation-law-stifles-public-interest-journalism.> P. 5-7
Australia urged to overhaul defamation law - IFEX. (2019). IFEX. Retrieved 30 April 2019,
from https://www.ifex.org/australia/2019/02/23/overhaul-defamation-law/
Cases
Chau v Fairfax Media Publications PL [2019] FCA 185
Cummings v Fairfax [2018] NSWCA
Legislation
Commonwealth Privacy Act 1988
Defamation Act 2005 (NSW)
Privacy and Personal Information Act 1998 (NSW)