Western Australia Senator Linda Reynolds is already embroiled in a bruising defamation fight against her former staffer Brittany Higgins. Now, Opposition Leader Peter Dutton is reportedly considering suing independent MP Zali Steggall after she told him to “stop being racist”.

It has become impossible to miss the fact that our political class – including some who invoke freedom of speech while disparaging others – is remarkably keen on defamation litigation in response to actual or perceived slights.

It’s rarely a good look when the powerful sue the less powerful. It is an especially bad look for a democracy when politicians, who enjoy not just power but privileged access to communication platforms, pursue legal avenues likely to bankrupt all but the best-resourced defendants.

The freedom to speak one’s mind

Flawed democracies such as Singapore are rightly condemned for leveraging defamation law and compliant courts against political dissent.

While Australia’s situation is less problematic, our defamation laws historically favour reputation over freedom of speech.

An oft-cited case in contrast is the United States, where politicians and other public figures can succeed in defamation only if they prove the publisher knew they were communicating a falsehood, or were reckless (careless to a very high degree) as to the truth.

Statements of opinion – for instance, that Donald Trump is racist – are practically never in violation of the law. In the words of the US Supreme Court:

it is a prized American privilege to speak one’s mind, although not always with perfect good taste, on all public institutions.

The US approach is based on the classical liberal idea that “the fitting remedy for evil counsels is good ones”: speech should generally be free, and public debate in the marketplace of ideas will sort out right and wrong.

Putting conditions on free speech

The argument for free speech without guardrails may be losing traction in a post-truth world. Many modern audiences, willingly or not, occupy echo chambers and filter bubbles in which biases are reinforced rather than challenged.

It is almost as if the High Court of Australia foresaw this in a 1997 defamation case where it held that Australia’s Constitution did not require total freedom of political communication. Reasonable limits were appropriate because widespread irresponsible political communication could damage the political fabric of the nation.

Although the High Court reached its conclusion via textual interpretation of the Constitution rather than deeper philosophical musings, the court’s position reflects modern preoccupations with how speech should be regulated in a democracy.

But the political appetite for defamation litigation in this country suggests the law has not yet struck the right balance.

The point of defamation law

Recent reforms to defamation law have tried to eliminate frivolous lawsuits by introducing a threshold requirement of serious harm to reputation. A better approach may have been to presume that all defamation is trivial.

Unlike other civil wrongs, which often result in physical injury or property damage, defamation’s effect on a person’s reputation is intangible.

Unfairly tarnished reputations can usually be repaired by a public apology and correction, perhaps aided by nominal compensation for hurt feelings and to deter further defamation.

It is therefore a mystery why courts and legislatures have allowed defamation proceedings to become some of the most complex and expensive civil claims around, and why damages are so large.

A high-profile case can easily generate millions of dollars in legal costs on both sides, dwarfing the final award which might itself run to hundreds of thousands of dollars.

Taiwan offers a useful contrast. There, although politicians can sue for defamation, proceedings are relatively simple and damages are much smaller – one might say proportionate to the harm done.

Under both approaches, the successful litigant, whether it be the publisher or the person whose reputation has suffered, is vindicated. Surely that is the point.

Where only the wealthy can afford to assert their rights, and where vindication of reputation takes a back seat to airing grievances, punishing opponents and enriching lawyers, defamation law is in a state of dysfunction.

Should pollies sue?

It’s sometimes said that politicians should not be able to sue for defamation at all because they themselves can say what they like under the protection of parliamentary privilege, immune from defamation and other speech laws.

Parliamentarians do enjoy that protection, but its personal benefit is secondary. Parliamentary privilege, like courtroom privilege, exists because the nature of democratic (and judicial) deliberation requires that anything can be said.

If a politician steps outside parliament and repeats a defamatory statement first made within its walls, they are vulnerable to being sued. David Leyonhjelm learned this the hard way, and Steggall may, too.

It’s reasonable that politicians should also have rights of action in defamation. But those rights must be constrained according to what is appropriate in a democratic society.

A way to better align defamation law with democratic expectations may be to return cases to the state courts and reinstate juries to a prominent role. Currently, the overwhelming majority of cases are brought in the Federal Court, where they are decided by a judge sitting alone.

If a public figure claims their reputation has been tarnished in the eyes of the community, we should test that factual claim with members of that community under the legal guidance of a judge. That might make for a welcome injection of common sense.

Brendan Clift, Lecturer in Law, The University of Melbourne

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