If Attorney-General Michaelia Cash is serious about defamation reform, she needs to muscle up and invoke the spirit of her predecessor, Philip Ruddock.
Cash needs to remind the states about how Ruddock terrified them into setting aside their differences in order to establish uniform state-based defamation laws by threatening a federal takeover. There was substance in Ruddock’s threat, and the states knew it.
The second step is the most important. Cash needs to demand uniform state legislation overturning the High Court’s disastrous decision in the recent Voller case.
If the states decline to act, that would be the perfect justification for a federal defamation act that would prevent everyone with a Facebook page from being liable for the defamatory remarks of others. At its heart, that is what the High Court’s Voller decision established.
And that is the idea Cash should be working to destroy.
Some of the Attorney-General’s reform ideas are sensible; others are not. Yet they all seem designed to address the ludicrous consequences of the Voller ruling while leaving the source of the problem alone.
It means everyone with a Facebook page is now considered to be the publisher of defamatory comments that are left on those pages without their knowledge or consent. That means individuals, community groups and the federal government itself have been exposed to an unknown potential liability for damage inflicted by online trolls without their knowledge.
Even if Cash’s proposals were implemented, the Voller decision would still mean innocent people would be at risk of being dragged into defamation proceedings because of someone else’s defamatory remarks.
Some of Cash’s changes might be helpful but those innocent people would still need to spend money on lawyers and deal with the worry of potentially ruinous defamation payouts to opportunistic litigants.
Cash is absolutely right to be pushing the states for reform, but she should be pushing them to address the cause of the problem, not merely its consequences.
The Voller decision has the effect of shifting liability for defamation away from the real wrongdoers and exposing innocent people and organisations to demands for payouts.
Patch-up remedies might appeal to lawyers but as long as the Voller decision remains the law of the land, everyone with a Facebook page is at risk.
The real solution is uniform state-based legislation stating that nobody can be held liable under the law of defamation unless they intended to publish the material in question.
That would stop greenmailers in their tracks. Nobody would face demands for payouts because of defamatory remarks published by others.
If the states refuse to play ball, Cash should remind them that a federal defamation act, drawing on every possible constitutional head of power, would cover most big cases and leave them with the scraps.
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