IT was Justice David Ipp – the judge who famously went on to head the Independent Commission Against Corruption – who came up with the best known description of Australian defamation law.
In a speech to a judges’ review conference in 2007 he described Australian defamation law as “the Galapagos Islands division of the law of torts”. In other words, it’s somewhat isolated from other parts of the law, has its own exotic ways of doing things and is complex and strange for that reason.
In a defamation decision as far back as 1977 a Canberra judge referred to the quite specific problems with defamation law in NSW. The judge said he was “far from confident that I have succeeded in finding my way through the labyrinthine complexities of the defamation law of that state”.
In a speech to other lawyers in 2009 the NSW judge who went on to be chair of the Royal Commission into Institutional Responses to Child Sexual Abuse, Justice Peter McClellan, said Australian defamation law retained “a sense of romance” for some in the legal profession.
“An important person, perhaps famous, takes on the media baron who has allegedly traduced his or her reputation. Powerful persons were pitted against powerful corporations,” Justice McClellan said, in a speech that called for change.
Then social media came along, and the Galapagos Islands division of the law of torts – which had also become notoriously expensive because of its exotic rules – suddenly didn’t appear romantic at all because ordinary people were forced to negotiate those “labyrinthine complexities”.
Facebook posts typed up in anger, sorrow, fear and loathing were followed by legal letters to the authors – bus drivers and coal miners, nurses and mechanics, mums and dads – and requests for damages.
Ordinary people who had never heard of imputations and pleadings, qualified privilege and truth as a defence were being told their homes were on the line because of something they had written in a rage after a blue with their next door neighbour.
In May NSW District Court Judge Judith Gibson warned that claims based on things written on the internet, email and social media far outweighed defamation claims against traditional media.
A Facebook post and an email are at the centre of two Port Stephens cases before the NSW Supreme Court. The cases are a warning for everyone about to press “Send”.