Do Australia’s strict defamation laws help protect high-profile abusers?
Last week, ABC Sydney broadcaster, author and journalist Richard Glover posted a link to a feature article he’d written about Don Burke in 1991.
Published in Fairfax’s Good Weekend, the piece offers an at-times damning depiction of Burke as an ultra-controlling narcissist, but hints at worse.
It added to a chorus of accounts that suggested the allegations of sexual harassment by the Burke’s Backyard presenter were something of an open secret for decades.
So why did such allegations never make it to print?
“Don Burke is a resident in New South Wales. Sydney is regarded as a defamation capital of the world, so there is a greater risk that he would sue,” leading media lawyer Peter Bartlett says.
“We’re in the unfortunate position that we have some of the most restrictive media laws in the world.”
A partner with Minter Ellison, Mr Bartlett has provided defamation advice to Fairfax Media for decades.
He believes that too often, our laws stop allegations coming to the light.
“I think the balance is weighted too much in in favour of the plaintiffs and very much against freedom of speech,” he says.
The truth — and something like the whole truth
If published material has the potential to lower an individual’s reputation then there is a defamation risk.
While it’s not illegal to publicly lower someone’s reputation, you need a strong defence to do so. Typically, that defence is the truth.
A journalist can feel certain that a source is telling the truth, and be confident in publishing their allegations, but if a defamation case is taken to court, that truth can become easy to undermine.
Truth in historical cases can be difficult to prove in a courtroom setting, particularly in situations involving only two parties and no witnesses.
In Australia, if the court can’t determine who is telling the truth, the defendant (that is, the publication and source) will typically lose.