Attorney-General Christian Porter declares media level playing field a ‘very necessary’ reform

Christian Porter says online platforms should be held to same standards as traditional publishers.

Attorney-General Christian Porter says “what is clear is the playing field is not at all fair at the moment” at the National Press Club in Canberra this morning. Picture: AAP

Attorney-General Christian Porter declared online publishers like Facebook and Twitter should be held to essentially the same standards as traditional media as he flagged a national overhaul of defamation laws.

Addressing the National Press Club in Canberra, Mr Porter said this was a “very necessary” change and required a “sensible measured approach”.

His call for change comes ahead of next week’s meeting at which the nation’s Attorneys-General will be presented with a reform plan for defamation that aims to wind back record payouts, introduce a new “public interest” defence for the media and place more emphasis on freedom of expression.

Those familiar with the plan say it would change the balance in defamation to reduce the legal risk confronting the media while introducing a new mechanism to protect responsible journalism.

A new threshold of “serious harm” to reputation would weed out trivial claims before they came to court and would replace the current defence of triviality.

Mr Porter will push the case for “proceeding immediately”.

If his state counterparts agree, a new uniform defamation act could be ready for enactment around the nation by the end of the financial year.

The reform proposal, which has been drawn up by officials from all states and territories, follows calls for change from the media after the industry was rocked by a series of record-breaking payouts.

NSW Attorney-General Mark Speakman, whose officials have led the reform project, said the current balance in defamation law was “out of whack”.

“We don’t want reckless journalism but there is a fear that responsible journalists who take precautions and publish in the public interest could be unduly exposed to litigation,” Mr Speakman said.

“We know that the number of defamation claims per head in Australia exceeds comparable countries and NSW and Sydney appears to be the defamation capital of the world,” he said.

The media industry’s Right to Know coalition said it had been 14 years since unified defamation laws were put in place, making the issues that require fixing and updating longstanding and well understood.

One of the plan’s major changes would clarify the operation of the statutory cap on damages which has been criticised after courts ordered payouts that exceeded the cap because of the presence of aggravated damage.

Mr Speakman said that if the cap did not apply whenever aggravated damage was present “then the cap is illusory and we need to restore the balance”.

The reform plan includes a new “public interest” defence that would protect the publication of information that is in the public interest and has been published in a responsible manner.

The plan would also introduce a new defence for peer-reviewed academic and scientific publications as well as moving to a “single publication” rule based on the date at which material is uploaded to the internet, not downloaded by a reader.

This is aimed at overcoming the potential for the endless extension of the limitation period for bringing defamation proceedings by repeatedly downloading an article.

Small corporations with less than ten employees or contractors would be able to sue for defamation but they would need to show they had suffered a serious financial loss as well as meeting the normal threshold test of serious harm to reputation.

In order to avoid delaying the reform plan, next week’s meeting is expected to consider pushing ahead quickly instead of waiting for the response of the federal government to the digital platforms inquiry by the Australian Competition and Consumer Commission.

Measures dealing with the tech giants could be added later.

Mr Porter said the regulatory approach for digital platforms would need to take account of the differences in the volume of material hosted by Twitter and Facebook and traditional newspapers.

“But what is clear is the playing field is not at all fair at the moment.”

ADDITIONAL REPORTING: ZOE SAMIOS

Attorney-General Christian Porter at the National Press Club in Canberra today. Picture: AAP