As a defamation lawyer, I sometimes have to consider the differences between Australian defamation law and the law of defamation in the United States of America. I had reason to further reflect upon these differences when I came across a report of a recent defamation case in the District Court of West Virginia.

As I am sure many of you know, Australia does not have a Bill of Rights. This is in stark contrast to the USA which has long had principles of liberty and equality firmly imbedded in its Constitution. Probably the most important of those freedoms is the right to free speech enshrined in the First Amendment to the Constitution.

A very recent illustration of the impact of the First Amendment on US defamation law was Murray & Ors v Home Box Office Inc & Ors, the facts of which were as follows:

  • In June 2017, Home Box Office Inc. (HBO) broadcast an episode of “Last Week Tonight with John Oliver”, a satirical news program about current events. The topic of the episode was coal.
  • The broadcast was about a matter of public concern that was undoubtedly protected by the First Amendment.
  • Mr Murray, who owns several coal mines in West Virginia, clearly took a strong dislike to the program. Among Mr Murray’s many complaints about the program were the following:
    • the description by the program host, John Oliver, of coal as “basically cocaine for Thomas the Tank Engine”;
    • the comparison that the program drew between Mr Murray and Dr Evil, the well-known comical villain in the Austin Powers movie series;
    • arranging for an employee of HBO to dress up as Mr Nutterbutter, a talking squirrel, and deliver the message “eat shit, Bob!” to Mr Murray (a stunt prompted by an allegation that Mr Murray once claimed a squirrel told him he should operate his own coal mines);
    • accusing the program of advancing HBO’s bias against the coal industry and its disdain for the coal-related policies of the Trump administration; and
    • alleging that the broadcast was the latest example of several broadcasts on the HBO channel which vigorously supported and advanced the political agenda of Hillary Clinton.

After commencing the defamation proceedings, Mr Murray then “doubled down” and filed a motion seeking to restrain HBO and Mr Oliver from making any further attacks against him on the program.

It is fundamental to the concept of free speech protected by the First Amendment that the media has the right under US law to criticise public figures and speak candidly and fearlessly on matters of public concern. As a result, the First Amendment places very strict limits on the application of defamation law in the US, and in particular, on the type of speech which can be the subject of defamation actions in that country.

It seems that Mr Murray’s case is doomed to fail. The material in the broadcast that he objected to was clearly not defamatory under US law – it consisted of satire regarding a public figure on a matter of public concern. Indeed, as the American Civil Liberties Union of West Virginia has said:

“Mr Murray’s request for a prior restraint that is a content-based restriction on a matter of public concern related to a public figure … really hits the protected speech jackpot!”

Indeed, so lacking in substance (both in fact and at law) does Mr Murray’s case appear to be that the Defendants have asked the Court to issue an order to show cause why the case should not be dismissed forthwith and for Mr Murray to be sanctioned for abuse of the US legal system. If I was a betting man, I would be putting a small wager on the Defendants succeeding with such an application, as the odds are very much stacked against Mr Murray.

This case got me thinking how a similar case would fare under Australian defamation law.

Freedom of speech is not enshrined in our Constitution. Unfortunately, there are several examples where rich and powerful individuals have used the legal system to attack media organisations and others for their coverage of a particular issue.

What would the outcome be if an identical situation to the Murray case occurred in Australia?

Firstly, there is no doubt that the broadcast would be defamatory under Australia defamation law. It is relatively easy for a plaintiff to prove that a broadcast or other publication contains “defamatory matter”. All he or she needs to show is that the material would cause right-thinking members of the community to think less of him or her.

Secondly, there would in my view, be no prospect of the defendant successfully obtaining the summary dismissal of the action. Not only is there no free speech protection enshrined in our Constitution, Australian defamation law does not recognise the concept of a “public figure”. As a result, satire regarding a public figure on a matter of public interest or concern can be the subject of a defamation action in Australia.

Thirdly, although Australian defamation law provides numerous defences (including defences of qualified privilege, fair comment and for the communication of political matters), the availability of these defences is only determined after a detailed examination by the Court of all the relevant facts and circumstances of the case. Moreover, these defences can be defeated if it is shown that the defendant acted with malice when publishing the defamatory material.

In other words, the defendant in an identical case tried under Australian defamation law would not be able to have the plaintiff’s case summarily dismissed (as would occur in the United States). Instead, the Australian defendant would have to incur the significant legal costs associated with preparing and running a defence all the way to trial with no certainty that the defence or defences they wished to run would succeed.

While well-resourced media organisations are willing and able to bear these costs (and the risks involved) in going to trial, not all defamation defendants are in that position. Will a well-resourced plaintiff be able to use Australian defamation law as a vehicle to chill free speech and silence people from making statements he or she disagrees with? Do we need to take another look at whether the Australian legal system properly protects free speech?