Defamation law

is today's topic in a regular piece in our state newspaper. There are some changes being made and, while they have some merit, they are also of concern.

Defamation was once defined as "bringing someone into hatred, ridicule or contempt" and only truth was considered to be a defence. That sounds reasonable and it is still what defamation is about. What has changed is how easy it is to defame someone and how much harm it can do.

Social media has made it easy to "publish" defamatory comments about anyone. If you are tech savvy enough you can do so with little chance of getting caught if you choose to be anonymous. It can do immense harm. People who are victimised in this way have ended up committing suicide even when they have done no wrong. Others have suffered immense harm to their personal reputations even though they are innocent of any wrong doing. Even if people know the perpetrators taking action against them is far too costly to contemplate.

The son of someone I have known for many years was accused of sexual assault. He lost his employment. The media made a fuss about it. They did it in such a way that it was possible to identify him without naming him. Then, quite suddenly, the police dropped all charges. There was no sexual assault at all. It was a vindictive act by someone else - a person who has never been prosecuted because of the false claims he made.

Under the proposed changes it would be possible to name the accused person "in the public interest".   It brings up the question of just what is really in the public interest. In this case the media knew that the allegation was, at best, dubious but they went ahead anyway. What they have done is left a man bankrupt and without employment in the effort to clear his name. There will always be a question mark hanging over him. 

I believe our courts should be open and that, apart from children, proceedings should rarely be closed to the public. At the same time I don't believe that this gives us the right to comment on what has gone on in them unless we have heard the evidence given and the case has been brought to a conclusion. That applies to the main stream media just as much as it applies to the rest of us. 

And the other change is that the information published has to do "serious harm" to the reputation of the person defamed and the person being defamed has to show that this is the case. That is lifting the bar far too high for most people. "Serious harm" is not something that can be easily measured. It is about much more than the loss of employment or other financial harm. How do you measure the loss of family or friendship or health or mental well being or any of many other things? It is surely difficult enough to lose those things without being put in the position of having to show that these things have happened.

The ease with which mainstream media and social media can send out a story has made it far too easy to make false claims about other people and not have to take responsibility for them. The onus needs to be on them to prove they have not done harm - not the other way around.