Treasurer Joe Hockey, the latest politician to take on the media for defamation, has been awarded $200,000 in damages from Fairfax for publishing defamatory promotional tweets and a poster advertising articles about the ‘Treasurer for Sale’. But it is a hollow victory for Mr Hockey (he went down on most of his claims), and an even worse outcome for defamation law in Australia.
Hockey lost on his claim that the articles and headlines were defamatory. The articles reported the damning details of his relationship with the North Shore Forum – so we count this as a loss for Hockey.
The promotional captions (ie.’ Treasurer for Sale’) were published independently to the articles, but hyperlinked. The Court thought this enhanced the defamatory imputations which arose from the captions. If the reader didn’t go on to read the article, their impression that Mr Hockey was ‘corrupt’ would not be displaced.
We struggle with this. On their own, those words are open to a number of interpretations. Without having read the underlying article, we think the reader was unlikely to detect the defamatory imputations which Hockey argued arose.
But surely there is some protection for the media to be able to freely report on our politicians?
You’d think so, it seems pretty important to a well-functioning democracy for the press to be free to investigate and report on methods by which politicians skirt (legally or otherwise) political party funding laws. In the US, there is very strong protection for reporting on "public figures".
But Fairfax wasn’t able to rely on the qualified privilege defence in the Defamation Act or the implied freedom of political communication in the Australian Constitution. Emails surfaced during the proceedings showing SMH staff aggressively pursuing a damning article about Mr Hockey and the NSF, which the Court thought was motivated by Mr Hockey’s demands for an apology about an earlier SMH article. This meant malice, and Fairfax couldn’t persuade the Court that its conduct in publishing the articles and captions was reasonable.
In our view, it’s a prime example of the failures of our current defamation laws when it comes to protecting bold reporting in the public interest. Bring on reform.