Can I say that? Defamation vs Freedom of Political Speech


Actions of defamation with respect to political figures involves an inherent trade-off; the need to balance an individual’s (yes, even a politician’s) right to protecting their reputation against the right of freedom of political speech. While unlike America, Australia does not have a general freedom of speech enshrined in our constitution, there is a certain degree of protection extended over freedom of political speech. Just how far that protection extends is the subject this article.

Defamatory publications generally:

Despite the right to freedom of political speech, politicians are still afforded a great degree of protection in the form of the laws of defamation. Many politicians, including Bob Hawke, Tony Abbott, Peter Costello and Malcolm Turnbull have relied on the law of defamation to protect their reputation. Merely because a publication touches on a government or political matter does not mean it is automatically immune from a defamation suit. Rather the protection against defamation will only exist in cases of genuine political discussions. Furthermore, even in such cases, the publisher will not be protected if their actions are held to have been motivated by malice.

Even if all these conditions are satisfied, there is still a requirement that the publisher acted reasonably, which is a historically difficult threshold to satisfy. This element of reasonableness requires the defendant to prove they had reasonable grounds for believing the publication was true, they took proper steps to verify the accuracy of the material and if practicable, sought a response from the plaintiff prior to the publication. In short, if you are going to publish defamatory material with respect to a politician, you better have a very good reason for doing so.

Satire and ridicule:

The fact that satirical publications are not meant to be taken literally will not usually be a defence to any such material being held to be defamatory. A classic example of this is when Pauline Hanson was successful in obtaining an interlocutory injunction against ABC radio, restraining them from broadcasting the satirical song “Back Door Man”. The song consisted of words spoken by Hanson, which had been digitally rearranged as a catchy song designed to ridicule Hanson for her somewhat extreme positions on various issues including homosexuality. This case is reflective of a step away from freedom of political speech and demonstrates the courts’ position that ridiculing politicians through the use of satire will not usually be a defence to a suit of defamation, even though such satire is not designed to be taken literally.

Australia’s defamation laws seem to overrule freedom of political speech considerations in the vast majority of cases. It is generally easier to be a plaintiff than a defendant in a defamation case. If in doubt, it is safest not to publish anything without speaking to a qualified lawyer first.

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