ICAC has made three separate corruption findings against former NSW Minister for Resources Ian MacDonald. He’s pretty much a journalist’s dream. Misuse of ministerial power, dodgy deals, prostitutes, the works.
It was a bit surprising then that he sued the ABC for defamation over a news broadcast last year that falsely claimed he made millions of dollars from a coal deal with Eddie Obeid. The ABC broadcast a correction the next day but MacDonald filed suit regardless, saying his reputation was gravely injured.
It’s now reported that the ABC is defending the claim on the basis that, among other things, MacDonald’s reputation was so bad already that it couldn’t get any worse. Genius.
This kind of argument could defeat a defamation claim at the outset. A key element of the cause of action is defamatory meaning. That is, the publication has to make reasonable people think less of you. This implies a necessary negative change in the quality of your reputation. Logically then, if your reputation is at rock bottom already, it can’t get any worse no matter what people say.
It would be a novel approach. Bad reputations have been raised in the past, but generally as a basis to mitigate damages rather than to defeat a claim outright. In this case, MacDonald’s reputation was already tarnished on account of corruption findings about dodgy dealings. As such, an article that imputes that he was involved in corruption and dodgy dealings might not actually harm his reputation any further. As a result you could say it did not carry a defamatory meaning.
If the article had been on a different topic altogether, then the argument would be harder. Having an existing reputation for corrupt dealings wouldn’t help if the ABC had suggested that he was a terrorist. But they didn’t. The publication was closely tied to related ICAC corruption findings.
It’s kind of a crazy idea to suggest that someone is undefamable. But, in some cases, it just might work.