Defamation - are the courts getting it wrong?

18 October 2004

People tend to think of themselves as being more tolerant than the average person and this overestimation of the level of intolerance in our society has resulted in unnecessary restrictions on free speech. This is the main finding of groundbreaking research into defamation law being conducted at the Communications Law Centre of the University of New South Wales.

Over the last two years the CLC has been examining social attitudes and defamation. Its principal findings, released today, suggest that the law is based on false assumptions about what people think and how audiences interpret the media.

"Every time people sue for defamation, the question arises whether the offending publication harms their reputation", says Roy Baker, Project Director of the National Defamation Research Project. "Courts generally don't decide these questions on the basis of hard evidence. Instead they make assumptions, particularly about what behaviour is considered unacceptable".

To explore whether courts were likely to do this accurately, the researchers interviewed 3,000 randomly selected Australians. These people were asked whether they would think less of someone for some particular reason. For instance, would they think less of a man for being gay, or someone whose parent is a criminal?

They then asked whether people thought the 'ordinary reasonable person' would think less of the same person.

"What we found is truly staggering", says Roy Baker. "Only 18% of people said they would think less of a man for being gay. But 71% said they thought the 'ordinary reasonable person' would think less of him. 30% said they would think less of someone for having a criminal parent, while 77% thought the 'ordinary reasonable person' would judge such a person badly. Assuming our interviewees reflect ordinary reasonable people, then this shows how as a society we overestimate levels of intolerance."

"This is a real problem for the law. Courts ask judges and jurors to put aside their own opinions and to consider those of others. This allows these kinds of mistakes to creep in. The effect of this is that we believe people are often winning defamation cases against the media even when the damage to their reputations is minimal."

Now the researchers are concerned that current Federal proposals to redefine defamation will compound these problems, rendering far more publications 'defamatory' under the law. Under the proposed new rule someone will be able to sue the media if they can persuade the court that just a 'substantial and reputable' section of the public will think less of them, even though most people wouldn't. In most cases the media will then have to prove in court that what they published is true.

"In my view the current proposals have the potential to vastly increase the amount of litigation", says Mr Baker. "Basically if a report is not totally innocuous, then the chances are it will be classed as defamatory. This will be a worrying development for free speech in Australia. I would estimate that already around 15% of cases are wrongly decided because of the kind of misperceptions we have discovered."

For further details contact Roy Baker, Project Director, Communications Law Centre, UNSW: ph (02) 9385 7379, mobile 0402 719137.
Or Judy Brookman, UNSW Media Office, tel. 9385 3249, 0421 061251

Date Issued: 15 Oct 04