Page 12 - Week 01 - Tuesday, 14 February 2006
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individuals and use other means, but in fact mid-sized businesses that will be, in effect, by this legislation left without legal protection.
Corporations need the right to sue for defamation, not as a way to pressure individuals or stifle free speech, but as a legitimate means of protecting their corporate reputation. The alternative sources of law available—such at the Trade Practices Act, particularly section 52—and suing for injurious falsehood do not compensate for the loss of the right to sue for defamation.
For example, the Trade Practices Act only provides recourse against other corporations. Similarly, the argument that corporations can wage expensive counter-advertising campaigns does not sit well. I put it to the Assembly: why should a corporation have to spend millions of dollars defending a carefully built and deserved reputation against malicious and false attack? The law should exist to protect that reputation.
It might also be argued that smaller businesses will be protected because individual directors will still be able to personally sue for defamation. Whilst a victory for the individual may provide some financial compensation, if they can demonstrate that they as an individual have suffered injury, it will do little to restore the reputation of a small business, and the value of a small business’s reputation is immeasurable.
Another element of this legislation is the capping of damages at $250,000. The opposition will not be opposing this measure. Whilst to some it may appear large, I believe that in circumstances it will not often provide sufficient compensation to an individual who could have suffered severe damage to their reputation. A sustained defamatory campaign run in the media or elsewhere against an individual could in fact damage that individual’s long-term reputation. It could result in lost opportunities or a loss of standing and reputation. So we will watch with some deal of interest how the introduction of this cap impacts on future conduct.
I certainly imagine that in the period ahead Mr Stefaniak may choose to revisit that on behalf of the opposition because, notwithstanding that the bill will allow for aggravated damages to be awarded in the case of a maliciously driven campaign, it does not alter the fact that under the legislation people may be unable to be compensated properly for damage suffered as a result of a non-malicious but still defamatory publication.
The other significant change to the law that the bill will make, if passed, is to change the defence of truth. Previously in the ACT a defendant would have to show that the matter was both substantially true and published for the public benefit. This bill seeks to remove the public benefit requirement to make truth or justification a complete defence. This is yet another example of altering the balance between freedom of speech and the protection of every individual’s reputation, a position that up to this point the Chief Minister has extolled in every corner of this country. It surprises me that he chooses to abandon it in the quest of uniformity.
An example of the public benefit or public interest that has existed in some jurisdictions was seen in the matter of Chappell v. TCN 9, Channel 9. In that case TCN 9 was going to air a program in which an individual who claimed to have a relationship with test cricketer Ian Chappell was going to discuss that relationship publicly. Chappell
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