Hockey v Fairfax: Defamation - The Substance Survives But Not the Spin

In the recent case of Hockey v Fairfax Media Publications Pty Limited[2015] FCA 652, handed down on 30 June 2015, Justice White of the Federal Court has found in part for the Federal Treasurer Joe Hockey, in his defamation case against the Fairfax Media. A case directed to a series of articles, twitter posts and advertising signs and placards which appeared across the three Fairfax Media newspaper mastheads (The Sydney Morning Herald, The Age and The Canberra Times) on 5 May 2014. Receiving particular attention, and raising the most reaction, was a page one article published under the headline "Treasurer for Sale" in two of the Fairfax newspapers. As a result of the decision, the Federal Treasurer received an $80,000 payout for two tweets from The Age's Twitter account in May 2014 and a $120,000 payout for similar words on newspaper advertising signs and a placard - in all a total of $200,000 in damages.

Decision a Victory of Sorts

While in some sources, the decision has been seen as a total vindication, such as was sought by the Federal Treasurer, the decision is reported by others as not being a total victory for the Federal Treasurer, with one commentator, Associate Professor David Rolph, a media law expert at the University of Sydney being reported as saying, that the core decision by Justice White was:

". . . unsurprising and orthodox given the principles of defamation law as they are, . . .What was found to be defamatory was the posters outside newsagents and the tweets that were sent to promote the story. But the article[s] itself, with the headlines and the allegations set out, were held not to be defamatory."

Substance Fine - Spin Not So

In effect, the decision seems to target the selling of the article, not the substantive story, which was not found to have defamed. Thus, in respect of defamation being found proven against Fairfax Media, it was found to lie in the material promoting the article on social media and generally, rather than the article and headline itself.

In this way, the decision of Justice White throws up a novel twist to the law and glaringly highlights some of the legal pitfalls that may lie with social media, such as Twitter and Facebook, which rewards quick response and often snappy concise content stripped of context and explanation.

Arising out of the judgment there is, as was pointed out on the PM program, the implication for editors and journalists in general that what is tweeted and what is put in headlines is, as a result of the decision, ". . . substantially more dangerous than the stor[y] itself".

In the decision, Justice White distinguished Charleston v News Group Newspapers Ltd [1995] 2 AC 65, a UK decision in which two television actors were allegedly defamed by a page one article in the News of the World newspaper screaming "Porn Shocker for Neighbours Stars" which also featured doctored images from a computer game. In that case, it was made clear that headlines and photographs should be read in the context of a newspaper article but in the current case, Justice White said that the words "Treasurer for Sale" assumed a different complexion when they were reproduced in isolation on Twitter and on an advertising signs and placard. Referring to cases which make it clear that newspaper posters are in a "special position", because they are published to people who may never read the "very considerable qualifications" in a newspaper article, at par 160 Justice White states.

". . . It was common ground that the meaning conveyed by the posters is to be assessed on the basis that they were a discrete publication. In World Hosts Pty Ltd v Mirror Newspapers Ltd [1976] 1 NSWLR 712 at 725, Glass JA said that 'posters stand in a special position, for the obvious reason that they are published to many persons who do not read the newspaper itself'. Glass JA referred in this respect to the finding of the New South Wales Court of Appeal in West v Mirror Newspapers Ltd (unreported, 14 May 1973) that 'a plaintiff may declare upon words published in a poster, and disregard the very considerable qualifications placed upon those words by what appears in the newspaper, . . . "

In the current case, Justice White indicated the poster was read in the context of the "heightened consciousness of issues of corruption in New South Wales at the time" around ICAC investigations into other political figures and would have for those who read no further conveyed a different meaning than for those who read the full article. At paras [168] and [169] he says as follows:

"168 In the circumstance of the heightened consciousness of issues of corruption in New South Wales at the time, to which I referred earlier, some ordinary reasonable readers are likely to have understood that the poster was indicating that the SMH contained an article concerning corrupt conduct by Mr Hockey. The words “for sale” implied that that conduct involved the receipt by him of payment of an improper kind, or a willingness on Mr Hockey’s part to receive such payments. In context, the ordinary reasonable reader would have understood there to be an assertion that Mr Hockey was taking, or willing to take, payments which were influencing his decisions as Treasurer of the Commonwealth. That is to say, ordinary reasonable readers would have understood the poster, considered by itself, to be conveying imputations (c) and (d).

169 Those readers who later read the SMH article would, for the reasons given earlier, have appreciated that that was not what the SMH was in fact conveying. However, those who did not read the SMH article would not have had their initial understanding removed in this way."

Is Our Defamation Law in Need of a US style “public figure” doctrine?

Again, this case raises questions as to whether a public figure like the Federal Treasurer should be able to be criticised more widely by the media and public alike, than an average citizen, and that recourse to laws like defamation should not be as readily available for public figures and politicians in an open and democratic society where government in particular is meant to be accountable. As The Conversation states:

"The Australian people deserve a more robust debate. It is worth considering whether we should follow the US 'public figure' doctrine, which makes it harder for politicians to be successful in a defamation claim."

An interesting add-on to this is that in times when technology and Google are here, the decision and all that surrounds it will linger-longer, for as is pointed out by The Conversation:

"The irony in all of this is the attention it has brought on the issue, and on Hockey. The public might have long forgotten Fairfax Media’s headline, but with this decision, the wound is re-opened. Google 'Treasurer For Sale', and see what happens."

The Take Away

The decision is an interesting decision that makes the general public more  cautious about how they personally will use Twitter in future - maybe just for LOL Cat stories? Can cats sue? 

Sources:

Hockey v Fairfax Media Publications Pty Limited [2015] FCA 652 (30 June 2015)

Joe Hockey's defamation win highlights the legal pitfalls of social media (SMH - 1 July 2015)

Hockey’s defamation win is dark news for democracy and free speech (The Conversation - 1 July 2015)

Joe Hockey awarded damages in defamation case against Fairfax Media (ABC PM Program Transcript - 30 June 2015)

New Anti-Copyright Piracy Laws Commence in Australia

The Copyright Amendment (Online Infringement) Bill and the new measures it introduces to address illegal downloading of copyright material became an Act last month on 26 June 2015 and commenced operation as the Copyright Amendment (Online Infringement) Act 2015 (No. 80 of 2015) (the Act) on 26 June 2015.

The purpose of the new legislation in broad terms is stated as being to ". . . introduce a key reform to reduce online copyright infringement". The scheme introduced by the legislation is said by the government to be ". . . deliberately prescriptive" and ". . . intended as a precise response to a specific concern raised by copyright owners". The Act is designed to prevent Australians accessing the many overseas websites, like The Pirate Bay to download, in particular, movies and television programs, without paying.

The General Consensus

Most of the technology experts take the view that online piracy will become more difficult for many Australians but that the new law will not actually stop people who insist on downloading illegal content from overseas websites. The reasoning behind this is that methods for side-stepping ISP filters are numerous and details for how to use these methods are well known and widely published online. Effectively, those who are currently downloading movies and music without paying, may need to change their ways now that these new copyright rules have become law - but rather than ceasing what they do, they may just find new ways of doing it undetected.

The Key Elements and Some Questions Left Unanswered

The new law that commenced on 27 June 2015 means that the holders of intellectual property rights, for example, Hollywood movie studios, will be able to to initiate actions in the Federal Court of Australia to force Carriage Service Providers (commonly known as Internet Service Providers, or ISPs) to take reasonable steps to block access to an overseas website. For this to happen, it must be proven that infringing copyright is the offending website's primary purpose. The amendments to the Copyright Act 1968(Cth) made by the Act do not deal with whether the ISP will need to block IP addresses, which identify web servers, or web addresses. On this, the Act's explanatory material provides that the Federal Court may order the parties to establish a landing page to inform users of the reasons why the website is blocked. The Act's explanatory material also indicates that Virtual Private Networks (VPNs) will not be the target of the Act, but no explicit protections for VPNs are contained in the Act.

What Changes?

The view generally appears to be that while the legislation has generated much interest nothing will change for the average user (down loader/file sharer) until a copyright holder is successful in the Federal Court by getting an order for an ISP to block a website. At that point, an ISP would be required to take "reasonable steps" to block the website from its customers' access - a process which has also some questions as to its effectiveness. As an article by SBS News reports:

"Methods of side-stepping ISP filtering can be easily found using a search engine. . . . In the UK, BitTorrent website The Pirate Bay has been blocked since 2012 but research suggests pirates have turned to smaller pirate websites that have not been blocked. . . The same research says when several pirate websites are blocked, the difficulty of accessing pirated content increases."

Another issue is the cost of the changes made by the Act as it is not yet clear whether an ISP and their customers will pay the costs for blocking a website. In this respect it should be noted that the Act's explanatory material does indicate that when a site is to be blocked then the Federal Court has the power to decide if rights holders or the ISP must pay for the costs of implementing an order.

Some Comments

SSB News reports the view of major film and DVD distribution and cinema company, Village Roadshow, as supporting the new law, saying continued piracy had the potential to shut down Australia’s film and television drama industry. In its submissions to a senate inquiry Village commented that:

"Pirate websites were run by criminals, who received advertising money while facilitating theft, . . ."

Vanessa Hutley from Music Rights Australia is reported as telling SBS Newsthat ". . . it was an important step for rights holders".

Consumer advocate magazine Choice is reported as saying that ". . . ISP filtering was ineffective, but provided some insight into why Australians pirate content". Namely, prohibitive prices and the availability of content were the main reasons, and that but for that ". . . many would exhaust legal options for accessing content before resorting to piracy".

Sources:

Copyright Amendment (Online Infringement) Act 2015 (No. 80 of 2015), the Bill and Explanitory material.

How will Australia's anti-piracy law affect you? (SBS News - 24 June 2015)

Government Introduces Citizenship Amendment (Allegiance to Australia) Bill

On Wednesday (24 June 2015), the Australian government finally introduced the much debated and speculated upon proposed changes to Australian citizenship legislation. The changes proposed in the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 (the Allegiance Bill) will primarily give authorities the power to revoke the Australian citizenship of people who hold dual citizenship convicted of terrorism offences.

Key Changes Proposed by the Allegiance Bill

The Allegiance Bill proposes three mechanisms that will lead to automatic loss of citizenship:

1. There is a new provision where a person renounces their citizenship if they act inconsistently with their allegiance to Australia by engaging in certain terrorist conduct;
2. There is an extension to the current loss of citizenship provision for a person fighting in the armed forces of the country at war with Australia. Under the extension a person ceases to be an Australian Citizen if they fight for, or are in the service of, a specified terrorist organisation overseas; and
3. A new loss of citizenship provision if the person has been convicted of a specified terrorism offence by an Australian court.

The above three key changes, it should be noted, are all automatic, requiring no ministerial or executive action to apply; and, as per the Minister for Immigration and Border Security's second reading speech, are all proposed under the caveat that:

"In accordance with Australia's international law obligations, no-one will lose citizenship under any of these provisions unless they are a national of another country".

This meaning the law, once enacted, can only be applied to those already having or entitled to dual citizenship.

Policy Behind the Changes Proposed

In introducing the Allegiance Bill into Parliament, the Minister stated that it was the implementation of the Australian government's promise ". . . to address the challenges posed by dual citizens who betray Australia by participating in serious terrorism related activities".

In his speech, the Minister focused on the view that the proposed legislation emphasised ". . . the central importance of allegiance to Australia in the concept of citizenship". The Minister saying also that because the world had changed ". . . so our laws should change accordingly". The Minister then announced a purpose clause to be inserted into the Allegiance Bill stating that:

". . . by these amendments, the parliament recognises that Australian citizenship is a common bond, involving reciprocal rights and obligations, and that citizens may, through certain conduct incompatible with the safety and shared values of the Australian community, demonstrate that they have severed that bond and renounced their allegiance to Australia".

The purpose clause which uses concepts from the current Citizenship Actpreamble is effectively a reworked definition of "Australian citizenship" as it is seen by the government, with the government stating its intent, to be implemented by the changes in the Allegiance Bill, is the protection of the community and the upholding of the communities' values, rather than punishing people for terrorist or hostile acts.

More interestingly with respect to the focus on the term "allegiance" is the view expressed by the Minister that:

"The concept of allegiance is central to the constitutional term 'alien' and to this bill's reliance upon the aliens power in the Constitution. The High Court has found that an alien is a person who does not owe allegiance to Australia. By acting in a manner contrary to their allegiance, the person has chosen to step outside of the formal Australian community."

This seems to be foreshadowing how the government might respond to any challenge to the legislation in the courts, particularly in the High Court.

Further, because the proposed changes are delivered in sections of the Citizenship Act which are "automatic" or "self-executing", that is, rather than requiring a decision by the Minister, the sections operate once a situation exists or criteria are met - they are seen as avoiding opposition from some of the government's senior ministers and legal experts who argued issues and challenges would arise legally and constitutionally with respect to the separation of powers.

Comment and Reaction

The ABC reports Constitutional lawyer, Professor Greg Craven as saying:

". . . a person's citizenship could lapse or self-cancel if they fell under a certain category.

There's no action by a minister, there's no action by the executive Government of the Commonwealth, and that's important because it means that you're not having an executive officer exercising judicial power,

If your citizenship did lapse in that way, and you presented yourself in Australia, you would be perfectly free to say, 'No, that's not the case, I didn't do it, I wasn't there, I wasn't a member of that body', and ultimately that would have to be determined by a court."

In this way, Professor Craven, is reported as saying the matter is open for a court appeal and would counter concern the process could be abused:

"It's a fundamental distinction, because in Australian law only judicial officers can exercise judicial power, . . "

A contrary view and one that points to evidence issues, is that of Greg Barns from the Australian Lawyers Alliance whose criticism as reported by The ABC is:

"On who's evidence are we going to rely? It's unlikely to work, it's certainly unfair, and it's unnecessary. . . There's no doubt there are still constitutional problems with this bill, and that's one of them. . . . It is not the executive in our system of governance to assume the role of the judiciary, and that's what it looks like."

The Federal opposition is reported as saying it will support updating the citizenship act to automatically strip citizenship from Australian terrorists with dual citizenship as long as it doesn't render people stateless. The Federal opposition is not so supportive of the idea of the law applying retrospectively, a possibility floated by the Prime Minister, the view of the opposition being it should be examined by the Parliamentary Joint Committee on Intelligence and Security:

"It's not an idea that we would normally support ... but we'll look at what the proposal actually contains today and the appropriate place for that to now go is the committee and we'll work through that issue on the committee. . . It is a question that needs to be examined carefully by the committee." 

The Bill is expected to pass the House of Representatives and the Senate where the opposition is expected to support it.

References

Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 and 2nd Reading Speech

Terror citizenship laws: Lawyers divided on merits of bill to strip dual nationals of citizenship (ABC News - 24 June 2015)

Proposed terror laws open to challenge, says legal expert (The Australian - 23 June 2014)Jnr