What is Defamation – Law Essay
The law of defamation was meant to protect people’s reputations from unfair attack. Over the years, however, it has mutated into a heterogeneous mess invoked by the rich, who can afford to hire people clever enough to
navigate the maze that is today’s defamation laws, to protect exclude themselves from public scrutiny and criticism. To make things worse, defamation law differs from state to state, allowing those with deep enough pockets to shop around for the jurisdiction that most suits their needs. The sorry state of defamation law in Australia has prompted various calls for reform dating back from when Gareth Evens first took office as Commonwealth Attorney-General in 1983. Yet it is only recently that we seem to be headed for nationally uniform defamation laws. The proposal by the States is likely to bring more uniformity and less confusion to the law of defamation. However, it is likely to be clobbered by the national proposal from the Commonwealth Attorney-General’s department, which is likely to keep defamation in its current place as a weapon for the rich and powerful.
One need only examine the proposed amendment to the truth defence to see an example of how defamation can be used by those who can afford to invoke the wrath of the law to protect them from scrutiny. But before we can criticise the proposed truth defence, we need to understand the purpose of defamation law.
Purpose of defamation
For the purposes of this essay, discussion of defamation will be restricted to the civil tort, which is meant to clear the reputation of the defamed. The criminal offence is meant to punish defamers and protect the community, so would be less of a tool to be used to avoid scrutiny. In fact, because of the level of proof required, a criminal trial may increase the level of scrutiny on a victim relating to the alleged defamation.
The law of defamation historically refers to an aggregation of laws relating to slander and libel. Its purpose is and always has been the protection of people’s reputations. The basis for this was an acknowledgement that a good reputation took time and money to build up, like a house. This meant damage inflicted upon it should afford a remedy in the same way that vandalism affords a remedy to property owners. It should be noted that defamation protects a person’s reputation, not their character. It does not afford a remedy for wounded pride, sleepless nights, or hurt feelings. Instead, defamation only rectifies damage the the view others hold of you. The distinction between reputation and character is an important one, which has been confused even by judges.
Another source of confusion is the cause of action in defamation. When a defamatory statement is published, it is not the reprehensible motive of the publisher that gives rise to an action, but rather the effect of the statements published (and whether there was a legal basis for their publication). Defamation does not punish a publisher for thinking malice towards the victim, but rather for hurting the victim’s reputation. In this way, it is similar to the tort of negligence, which is not concerned with the intent of the negligent party, only the effect of their actions (and whether they fulfilled their legal duty).
The protection of people’s reputations inevitably will come into conflict with any pre-existing right to free speech. Defamation law has to balance these two rights, weighing the right to free speech against the right of people to their reputations. Today, free speech is encouraged by allowing people, at the common law to publish the truth without fear of being liable for defamation.
The problem with privacy
• What’s private? Definition difficulties.
• Whatever’s private is removed from public discussion.
• Defamation’s no good for protecting privacy.