Defamation and reputation in the Australian press

This paper reports on a comparative study of four types of Australian newspapers' coverage of defamation and related issues. This was part of the National Defamation Project conducted at the Communications Law Centre in Sydney, 200220051. It was found the press gave limited coverage to defamation, focusing on court cases and newsworthy personalities' reputations, and provided scant contextual background about defamation issues. Howevel; the media soften satirical reporting ofprominent cases, and its populist discourses generally, can be argued to have liberalised attitudes to reports of potentially defamatOl), personal behaviours and "lifestyles" (such as sexual orientation). Current Australian law fails to reflect public altitudes as indexed by the press. Culturally, the distinction between private morality and public virtue is breaking down. Reputation is a narrow concept in the press. and increasingly appears to be an asset only ofthose who are already rich orfamous. The problem of defamation At the beginning of 2006, only a few days after the death of Kerry Packer, several defamation law reforms became operative in Australia. The Sydney Morning Herald noted these changes, and Richard Ackland commented (2006): "The new, new thing is that we're back to full-length jury trials . (rather than a split procedure that) . ended up being a minefield of technicalities, appeals, retrials and immense expense. " Judges, not juries, will, in future, determine general damages, which are to be capped. Yet suing for defamation is likely to remain an option more or less exclusively open to the already rich and famous, if the concept of "reputation" which defamatory imputations supposedly "lessen" in the eyes of the "ordinary reasonable person" continues to reflect cultural stereotypes of power and celebrity that are the currency of the popular media. Defamation law presupposes that individual citizens "possess" a reputation, Illoral or professional, and that this is an objectively assessable asset. Defamation and reputation in the press, AJR 28( I), pp. )25-141 125 Copyright of Full Text rests with the original copyright owner and, excepTas pe~m,itted und,er the C? pyright Act 196,8, copying t~iS t~pyri~h~~:terial i~,~~:~b~~~o~~t~~~~~~~6~~~i~~i~O~)0~;~~~~~e[r:;) its exclusive licensee or agent or by way of a licence from Copyright Agency Limited. For information about such licences con ac opyng gency I Only a minor part of the larger research project is discussed in this paper. This focuses on how the press constitutes cultural meaning around the concepts of reputation and defamation. Is the concept of "reputation" as the law and the media assume? What does it mean to "have a reputation" in the current media/cultural context? If reputation is a cultural-legal "fiction", is it likely that press representations contribute to, or construct, the very notion of reputation that is at stake in defamation litigation? Although it cannot be directly addressed, it can also be asked: If knowledge of defamation law and practice depends entirely on the media (as it must, for most people), what kind of knowledge might the accumulated press coverage present? And, finally, what do the media assume about the public's acceptance of changing moral, ethical or professional values and attitudes (which may be at stake in defamatory reporting)? Do the media self-censor? Are they cautious or conservative, inhibited by the possibility oflegal action should they imply or allege defamatory criticism of citizens? Reporting may reflect the "silencing" or "chilling" effects of the law on the media. This may have been compounded in Australia by the lack of uniformity across federal and state jurisdictions. Dent and Kenyon (2004) compared United States with Australian press reports, quantifying those that could be judged to include potentially defamatory allegations against public and political figures. Because US and local laws "strike different overall balances between reputation and free speech", Dent and Kenyon concluded that the chilling effect would be reflected in different frequencies of published articles which "appeared to be defamatory" in each national jurisdiction. They concluded: [T]he sample of US articles contained allegations which appeared to be defamatory, at nearly three times the rate of the Australian sample. Second, the balance between allegations against political or corporate figures was very different in each country, and the Australian media may be less comfOltable making allegations against corporations and corporate figures than its US counterpart. Third, the range of commentary within US articles included far more extreme material than the Australian sample. (Dent & Kenyon, 2004, p. 5) Dent and Kenyon see these differences as indicating that the Australian law "may well have a chilling effect on media content". One implication of these findings may be that, in Australia, the commonly held assumption concerning legally defensible "reputation" itself is relatively narrow, centred on private morality more than on public or corporate ethical or professional values. Ironically, compared with the US, Australia may have fostered a more privatistic and individualistic/moral rather than professional/ethical emphasis in popular understandings of reputation. 126 Australian Journalism Review Framing reputation and its discontents Peal'son and Brand (200 I) note that new media are seen by most researchers as significantly influential in three ways: they set the agenda of issues, giving prominence to some and not others and, to some extent, set up the linguistic categories that label and frame the agenda items and influence both the public and other media who re-publish authoritative sources. Newspapers are seen as the most influential medium in the news products of other media such as television (p. 8). This is consistent with the assumption that newspapers "break" news, set the major political agenda and provide more complex and detailed repotting and "editorial" (opinion) than do television or radio (McQuail, 2000). Newspapers constitute the detailed background or standard agenda to which other media refer for comparison with their own output. Newspapers are frequently cited as a source in repOlts in other media (for example, "A poll released by The Australian today shows . ") The press is not best understood as having direct, strongly deterministic influences on individuals' opinions or knowledge, but instead as exerting more indirect influence on how people think about issues, and on what they are concerned about (McQuail, 2000; Kidd-Hewitt & Osborne, 1995). Bell (1991, pp. 238-247) argues that audiences and readers recall few specific facts from individual media stories. On complex issues about which only media-circulafed information is available to, or accessed by, the majority, considerable misunderstanding of the issues in the news report may result. Bell studied public knowledge ofclimate change, concluding that: "All infonnants who knew anything about (climate change) cited the principal daily media as a source of their information. " (p. 239) Like defamation, climate change is a complex issue, and Bell's finding that people's sole reliance on the media did not result in technically detailed or systematic understanding is salutary. Adding these observations to the findings of Dent and Kenyon (2004), it might be expected that popular knowledge of defamation laws and remedies, of jurisdictional differences and of what constitutes "reputation", will be very unreliable and paltial. Flllthermore, research by Grimes (Gibbons et ai, 2003) suggests that, at least in the case of television news repOlts, viewers often erroneously recall contested defamatory allegations or speculations as though they were true or actually defamatory. Grimes calls this "unintentional defamation". Audiences forget or do not notice the verbal qualifications in news reports that reporters use to protect themselves from accusations of defamation. Unlike crime repOlting, the coverage of an abstract area of litigation such as defamation has no obvious, easily mobilised "newsworthiness". Crime reports engage moral, psychological and social drama, and generally assume a public consensus. Readers tend to accept the frameworks of interpretation by which the press reports crime and punishment and, indeed, may be easily moved by the press to its point of view concerning the judiciary and the nature of crime prevention and deterrence (Cowdrey, 200 I). Because crime generally involves little definitional conDefamation and reputation in the press, AiR 28( I), pp. 125-141 127 tention, has identifiable victims, and is the stuff of fictional and factual drama, readers generally agree with the media about what constitutes a crime or alleged crime, and have strong ideas about legal sanctions. Defamation is necessarily more technical and has no victim save the plaintiff whose suffering is in contention in the courts. Moreover, the "villain", not just the "victim", is often difficult to identify, being a corporation or an individual not necessarily well known to the public. Defamation and related issues in the Australian press, 1990-2003 The National Defamation Project of which this report is part surveyed public attitudes to various kinds of potentially defamatory imputations based on actual cases from Australian law during the past decade (for example, Baker, 2004). This repmi presents a non-technical summary of the study of923 items published on defamation and related issues during the period 1990-2003, in four Australian newspapers. Among the questions addressed were: How do different kinds of Australian newspapers present defamation, and attitudes to the moral and professional imputations at stake in the courts? How does the press characterise "reputation"? For example, are some classes of defamation cases more frequently and fully reported than others? What opinion or e