Why Jarryd Hayne’s spitting mate proves that defamation law is an ass

It is obvious that defamation law is broken. A recent spate of ridiculous cases proves it.

Keep in mind that defamation should be an important part of our justice system, protecting citizens, and repairing damaged reputations. But it also places a clog on our freedom of speech, so it is essential we get the balance right.

Mina Greiss confronts media after his friend Jarryd Hayne was sentenced in Newcastle in May 2021.Credit: Dominic Lorrimer

The sad truth is that defamation law is fulfilling none of its purposes, it is curtailing press freedom, and producing grossly unjust results.

As though to prove the point, this week the Federal Court delivered a remarkable judgment. The claim had a sordid background. A young woman was sexually assaulted by Jarryd Hayne, the former rugby league player. Hayne was convicted of two counts of sexual intercourse without consent. Without that woman’s courage, a serious crime would have gone unpunished, and Hayne would still walk free in our community.

But that is only background; the defamation case did not involve the young woman or Hayne. The man who successfully sued Seven for defamation damages was Mina Greiss, a friend of Hayne who was present on the day Hayne was sentenced.

The young woman assaulted was leaving court after giving a victim’s impact statement detailing the effect Hayne’s brutality had on her. The defamation judge found that Greiss was “angry” at the woman and held her in “contempt” because he thought Hayne was innocent and that the young woman “had not told the truth”. Greiss moved toward the woman. He urged the surrounding press to report something adverse about her. (I will not repeat it because that is what Greiss wanted).

The judge found that Greiss was “staring at” the woman and then “spat towards” her. Yes, Greiss spat in the direction of a victim of a brutal sexual assault. So you might ask: Why was Greiss suing? And how on earth did he succeed?

Well, enter the stupidity of our defamation laws. Journalists covered the incident. One reported that Greiss had “stared down” the young woman; another, in a Facebook post, said he spat “at” her. The defamation judge found that this reporting was wrong and, when it came to the spitting, so badly wrong that Greiss was entitled to damages.

In fact, any error was barely noticeable. The judge said that while Greiss was actually angrily staring at the woman, he was not “staring her down”. It’s galling that Seven even needed to defend the line, but it beat this particular complaint for two of three publications on the grounds of contextual truth. Not, sadly, in the third one. Although the judge found Greiss had “spat towards” Hayne’s victim or “in her direction”, she said Greiss had not spat “at” her. Tiny difference, but the judge accepted Greiss felt “humiliated” by that difference and gave him almost $40,000 in damages.

If defamation law requires compensation be paid to the spitter in those circumstances then defamation law is an ass.

It gets worse: on her way to ordering that Greiss be compensated, the defamation judge found that Greiss had given false evidence on crucial issues. For example, Greiss denied any spitting, even though it was caught on CCTV and he admitted spitting at the scene. Yet he still got damages because the journalists’ reporting was “imprecise”.

Greiss’ case is emblematic of the failures of our defamation law. He only got just under $40,000, but that is still a tidy payday which most of us would welcome. Meanwhile, the legal costs will be in the order of $500,000, swamping the damages. That is always the case.

In the past 20 years, there would have been only two or three cases where the damages awarded exceeded the legal costs. Usually, costs exceed damages by a factor of 20. So, you might ask, for whose benefit do we have defamation cases?

Defamation litigation is plainly not for the benefit of the ordinary person; it is usually only open to the rich and powerful. The purpose of defamation is to repair damage to a person’s good reputation. In that sense, I would claim that my reputation is just as valuable as that of a billionaire, but I also accept that it has no more value than the good reputation of a homeless man. That is a product of simple human dignity. But defamation law has little to do with human dignity. The rich get richer; the poor are often left without a remedy.

And look at how defamation law misaligned with community values in the Greiss case. Greiss, who did the spitting and gave false evidence about it, is respectfully referred to as “Mr Greiss”. Hayne, the rapist, is described as a “star rugby league player”. Meanwhile, the young woman is said to be “the victim”. That is wrong: She is not just some “victim”, she is a hero. If you want to find the “star” here, she is the star.

Our defamation laws need a radical overhaul and not some inquiry where a retired defamation lawyer receives evidence and submissions from current defamation lawyers. We have had those. They have led to ineffective tweaks and left the lawyers’ gravy train firmly on its tracks.

When a system collapses, you bring in problem-solvers, not lawyers. To bring about true reform, we need an inquiry presided over by clear-thinking outsiders. And lawyers should be locked out of the room.

Geoffrey Watson is a director at the Centre for Public Integrity. He has acted as an adviser to federal, state and territory politicians on integrity and corruption matters.

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