Costs benefit paralysis

The attacks on journalism in this country are many and insidious. Laws criminalise reporters and their sources. Government monitoring is an unhappy and constant reality. National security is used as a cover for restricting scrutiny or removing it entirely.

None of this should be ignored or lightly accepted. But in broader terms, the greatest threats to journalism in this country are vindictive and ill-balanced defamation laws. The threat is greater because it is pervasive and its effects deadening to all debate.

The conclusion of Joe Hockey’s defamation action against Fairfax this week was a case in point. He lost on all key imputations, and yet the proceedings may still cost Fairfax somewhere in the order of $1.3 million. The cost of defending the case was five times more than the damages Hockey actually won.

The extraordinary price of both bringing and defending defamation actions make the laws largely about defending privilege. It is no coincidence that the richest Australians are also the most litigious.

Defamation stands to make journalist and publishers timid. For some, this is the residual benefit of these actions. No flaw was found in the reporting of Hockey’s involvement with paid access at the North Sydney Forum. Damages were calculated on an errant poster and a few stray tweets. But for journalists reporting on the powerful, and for the organisations publishing this reportage, the impact of a case such as this is numbing.

For small media organisations, even winning a defamation case can imperil an operation. New Matilda makes this explicit. Its latest subscription drive is “to try and cover some of our burgeoning legal costs”.

Tens of thousand of dollars can be spent exchanging letters before a complaint gets to court, if ever. The risks produce settlements and apologies that can be more about avoiding costly legal action rather than about what is right and correct. The Hockey decision will only cement this.

In celebrating his win, pyrrhic as it was, Hockey said: “After nearly 20 years in public life I took this action to stand up to malicious people intent on vilifying Australians who choose to serve in public office to make their country a better place. Whilst the cost of this action has been considerable for me, my family and friends, it has been far greater for Fairfax Media.”

The latter part of this is true; the first part, a nonsense. Hockey’s reputation is in no way repaired by the court because the court found it had been fairly damaged. The story was accurate. It was written not by malicious people bent on vilifying public officials but by journalists doing their job. Public life would be better if there were more of this, not less.

Australia desperately needs its defamation laws reformed, as has happened in Britain and Canada. Truth, while an absolute and useful defence, should be allowed to be proved in a tribunal without the wild costs of a court. Discussions should be between principals, not lawyers. If imputations are accepted, they should then be tested at a higher level and with representation.

This is not to defend the publication of reckless misinformation. It is to protect against the vexatious use of a system that has grown to favour the rich and powerful.

Even in celebrating, Hockey will be several hundred thousand dollars worse off for this case. If that alone is not proof the system is broken, it is hard to think what might be.

Reputation is expensive. Especially when you are buying it.

This article was first published in the print edition of The Saturday Paper on July 25, 2015 as "Costs benefit paralysis".

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