DOES Defamation NEED Reform FOR Trivial OR NON Serious Claims PDF

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DOES DEFAMATION NEED REFORM FOR TRIVIAL OR NON SERIOUS CLAIMS?...

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DOES DEFAMATION NEED REFORM FOR TRIVIAL OR NON SERIOUS CLAIMS? INTRODUCTION Technology and the internet continues to provide new ways in which material is published and distributed. While social media platforms for instance afford users to generate their own content and express their views, these easily accessible forums also allow material which is potentially defamatory to have a wider public reach. Australia’s defamation laws remain largely unchanged and it will be argued that they fail to appropriately protect people on both sides of a defamatory suit. More specifically, there is a gap in the defence of triviality and a serious harm threshold should be introduced to prevent trivial claims from using the court’s time and resources.

WHAT IS SUMMARY JUDGMENT?

The purpose of a summary judgment is to avoid parties and the courts getting involved in time consuming and expense process associated with litigation. There are a few circumstances where summary judgements can apply, including where issues of lack of serious harm arise (Kostov v Nationwide News Pty Ltd [2018]). However, it was held that "The power to order summary judgment or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried." (Fancourt v Mercantile Credits Ltd the High Court (1987) at 99). It is also important to note that in the case of defamation matters, summary judgement applications brought on the basis of trivial claim were not successful in NSW (Barach v University of NSW [2011]). This raises the question of what

avenues are available for small defamation claims which front the onset see no prospect of success. This view is also taken by Dough Fox (2017) who writes that “The availability of the summary judgment procedure does little to address the issue – in the context of pleaded triviality defence

What is the gap with the triviality defence? Current there is a triviality defence available for publications which are defamatory if proven (by the defendant) that the material was unlikely to cause the plaintiff harm to their reputation. The COAG made the recommendation in their discussion paper that a threshold harm test be introduced. The effect of this would be to place the onus on the plaintiff to demonstrate before the case proceeds to court, that they suffered real harm to their reputation. This test would mirror the serious harm threshold found in UK defamations laws introduced in 2013 which has shown evidence of a reduced number of claims brought to court for trivial claims. A criticism of the defence of triviality is that it is difficult to establish. Only after the plaintiff demonstrates that the material published by the defendant caused or would be likely to cause harm can the defence be applied. A serious harm threshold would on the other hand prevent these small claims from even coming to court, simultaneously reducing time and saving the court’s resources.

Mickle v Farley [2013] NSWDC 295 Facebook posts and tweets by a schoolboy contained defamatory and abusive material about Christine Mickle, a music teacher. While the defendant only has around 63 followers on twitter, the material was duplicated and spread to other teachers, students and parents, as well as people outside the school. The plaintiff who was found to have experienced the “devastating” effects of the publication, particularly since the material was shared outside school community was awarded $105,000 in damages (inclusive of aggravated damages). Elkaim SC DCJ said “That when defamatory publications are made on social media it is common knowledge that they spread... Their evil lies in the grapevine effect that stems from the use of this type of communication.” At [21].

Threshold versus defence- court time and cost Under the defamation laws in the UK 2013, the ‘serious harm threshold’ purports to somewhat filter which defamation claims should and should not be brought to court. The purpose of this is to discourage people from bringing a claim which is trivial and would waste the court’s time and resources. The act requires that published material caused, or is likely to course, serious harm to the reputation of a person before it can be found defamatory. According to former justice minister, Shailesh Vara, the introduction of the 2013 law would not only protect the reputations of people, but it aims to protect freedom of expression and encourage people to engage in public debate without the fear of getting sued (the guardian; libel: new defamation act will reverse chilling effect ministers claim, 2013). It seems that the ‘serious harm threshold’ effectively targets potentially defamatory material in a digital era where so much content is being disseminated in short amounts of time. By trying to resolve disputes directly between the parties and not further publicised by going to the court. However, in Australia, plaintiffs need not demonstrate that they suffered a minimum level of harm. All that is required is that the material read another person, that is, is published and is, to a reasonable person, likely to cause harm of their reputation. Arguably defamation laws in Australia engage in a low level. The court process for a defamation case is lengthy. First it will need to be established whether the material in question was a publication which identified the plaintiff and was disparaging of their reputation. If it is established that the publication did damage that person’s reputation, it is for the defendant to establish a defence/s. Tribunals the answer? The wide application of defamation law to all material, not just those which are discriminatory, means that not only can large publishing companies be liable, but individuals. More specifically, individuals have become publishers on the internet. Social

media platforms such as Facebook and twitter afford users to generate content, reaching a wide audience. Nonetheless, it should be noted, as ‘Professor David Rolph, media law expert at USYD, points out, the mere fact a publication is online does not necessarily make it trivial. The law needs to distinguish between genuinely trivial claims that should not be dealt with in the courts, and small claims involving real damage to reputation in online social circles.’ (Sydney morning herald ‘fixing Australia’s broken defamation laws 2018)

‘Australian law has no effective small claims dispute resolution system for defamation in the way that it does for other small claims, such as debts. More effective and more accessible remedies are another aspect of defamation law reform worth exploring.’

Chilling effect? People are afraid of coming out in fear of getting sued Issue with metoo movement is that when we hear about assault or indecent conduct towards a woman, the context of the metoo movement may shadow the current situation and people will jump to conclusions. This may create issues where an action is brought to court and a jury may have pre-concieved views on the issue....