Donald Trump recently said that if elected President he would “open up our libel laws so when [newspapers] write purposely negative stories…we can sue them and make lots of money”.
That sounds eerily familiar to observers here in Australia, where there is a long history of politicians suing or threatening to sue the news media.
The United States media, in contrast, has long enjoyed immunity from politicians suing over scrutiny of their public conduct. Under the current US Supreme Court interpretation of the First Amendment, US news outlets are immune from “libel” (read “defamation”) claims by politicians and political candidates, even if they get their facts wrong, provided that they did not do so maliciously. However, as commentators have been quick to point out, even President Trump would not be able singlehandedly to cut back press freedom.
Back in 1964, in the landmark civil rights case of New York Times v Sullivan, the Court affirmed the signal importance of free debate about the public activities of politicians and other officials. In that case the supervisor of police in Montgomery, Alabama claimed he was identified and defamed in an advertisement taken out in the New York Times in support of Martin Luther King. The Alabama statute in question allowed the award of damages on the “presumption” of malice and falsity once the libel (defamation) was proven, without the need to prove actual harm to reputation. While the Court acknowledged that the advertisement contained some inaccuracies, it found that the Alabama law was unconstitutional:
…”every newspaper [may] express its view on matters of public concern, and may not be barred from…publishing because those in control of government think that what is said or written is unwise, unfair, false, or malicious”….
Back to 2016: the Guardian reports that if Trump’s wishes were somehow granted, US law would be like “oppressive” libel laws in the UK:
“Trump seems intent on making US libel law more like the far more oppressive free-speech laws in the UK. There, the burden is on the defendant to prove the truth of every statement made. A plaintiff does not need to show any actual harm”.
However, the UK is no longer as oppressive as it was. A “serious harm” test was introduced in the UK in 2013. A claimant there must now prove that they have suffered actual serious harm to their reputation, such as the loss of a job prospect resulting from the defamatory publication, before they can claim damages.
But sadly Australian defamation law still doesn’t have a serious harm test, or a public figure defence for that matter. The ranks of politicians lining up to threaten or sue Australian media outlets includes several former or sitting Prime Ministers among many others. Australian journalists such as Chris Masters and Paul Barry have spoken about the chilling effect of Australian defamation laws on their investigative work.
Despite the public interest in stories about the activities of politicians, many Australian news outlets have found that defending allegations in court is notoriously difficult. While we do have a limited “implied freedom of political communication” defence established by the High Court of Australia in the Lange case, it has proven notoriously unreliable. Litigation can last for years and legal costs can balloon far beyond damages awards.
In contrast, the US Supreme Court in Sullivan held that laws like that would chill public debate:
“…would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is, in fact, true, because of doubt whether it can be proved in court or fear of the expense of having to do so”.
Suing is not the only way for pollies to defend themselves against negative reporting. Like Donald Trump, Australian politicians have plenty of airtime and column inches with which to counteract any untrue public statements. They can rely on other journalists vigorously to hold their colleagues to account. Responsible news outlets do voluntarily retract serious errors of fact, both here and in the US. And politicians themselves enjoy the special privilege of immunity from defamation when they take to their own defence inside Parliament.
American free speech laws are not perfect, and will never be transplantable here in their entirety. However, they do keep lawsuits out of public political debate. Meanwhile, Australian defamation laws need fixing to make it harder for politicians to stifle public debate with threats of legal action. Let’s hope they can be reformed before President Trump looks to us for a template.