As another year draws to a close, it’s a good time for reflection and assessment – although I advise caution. If our assessment is too harsh, 2023 might sue for defamation.
At least that’s how it feels after a year in which defamation law received yet another bruising workout. The surprise was that public interest journalism fared uncharacteristically well. In April, Lachlan Murdoch dropped his suit against Crikey. In May, Bruce Lehrmann dropped his suit against News Corp, before later settling with the ABC. And in June, Justice Besanko dismissed the defamation action brought by Ben Roberts-Smith against Nick McKenzie and Chris Masters following their war crimes exposé. It was a dramatic victory. In 2008, Chris Masters told me that practising investigative journalism sometimes felt like a ‘death by a thousand courts’. For both journos, this protracted legal tussle was particularly torrid.
Not all journalists were victors, however. In October, Heston Russell won his case against the ABC, who failed to convince Federal Court Justice Michael Lee that its reporting was in the public interest under a new defamation defence enacted in 2021. Meanwhile, Lehrmann’s case against Ten continues, also before Justice Lee. Along the way, there’s been some remarkable fallout. Last week, the Walkley Foundation, who run Australia’s premier journalism awards, revoked the finalist status of the TV interview with Lehrmann that aired on Seven’s Spotlight program. Contrary to the rules, Seven had failed to disclose it had paid for Lehrmann’s accommodation for a year.
This year wasn’t just about defamation. In Canada, Bill C-18 passed into law. Otherwise known as the Online News Act, the law followed Australia’s news media bargaining code to prompt Google and Meta to compensate news media businesses for the use of their content. Meta promptly withdrew news from its services; and Google threatened the same, before reaching a $100m deal last month. The law comes into effect next week. Meanwhile, the Australian code is nearing its third birthday, which is significant given that many of the deals struck by news media businesses with Google and Meta were three-year deals. This week, I spoke with ex-ACCC chair Rod Sims, journalism scholar Anya Schiffrin and media consultant Hal Crawford about whether the code was a news saviour or a platform shakedown. It was a revealing conversation – which you can catch on Youtube, Spotify or Apple Podcasts - covering fairness, transparency and whether the code should be extended to cover generative AI.
Speaking of AI, Europe’s AI Act is taking shape. Last week, the EU finally reached a deal on what will be the world’s first piece of comprehensive legislation to tackle the daunting challenge and opportunity that is gen-AI. It includes specifying systems that will be banned, including systems that: manipulate human behaviour affecting free will; use elements of predictive policing; and employ emotion-recognition technology in workplaces and schools.
It’s been a big year here at the Centre for Media Transition too, culminating most recently in two major reports. In today’s newsletter, the last for 2023, you can read about both: Michael reveals our research into AI and newsrooms, hot off the press this week; and Monica describes the CMT’s deep dive into regional media. Meanwhile, Derek outlines some last minute developments in media policy and regulation.
From all of us at the CMT, thanks for reading, and all the very best for the holiday period. Indeed, may your festive season be entirely free of defamatory imputations. Read it in full here.
Sacha Molitorisz, Senior Lecturer - UTS Law