Life without reputation - Page 4
From Griffith REVIEW Edition 5: Addicted to Celebrity
© Copyright Griffith University & the author.
Written by Margaret Simons
IT WAS THE FINE AND FASCINATING DECISION, BUT IN PRACTICE, AS ALWAYS in defamation law, it operates differently from might be expected. To claim qualified privilege, the publisher must establish that its publication was "reasonable in the circumstances". What does this mean? It depends on the circumstances. At the very least, the High Court said, the publisher has to prove that it has done everything it could to check truth, believes the publication to be true and has sought and published a right of reply from the person defamed.
Peter Bartlett, one of the nation's most senior defamation lawyers who has held my hand through the legalling of many stories, believes the idea of "reasonableness" operates very unreasonably indeed from a journalist's perspective. The decided cases, he says, make it clear that a journalist will almost never be able to satisfy the test. In the eyes of a judge or jury with complete hindsight, there will almost always be one more person the journalist should have contacted, one more call to make. As well, any journalist who relies on confidential sources – which happens in almost every story of import – will have trouble satisfying the reasonableness test without revealing his or her source.
The Lange defence has only rarely been successfully invoked in court. Nevertheless the High Court decisions have had a real effect. After the decision came down, many writs from politicians who would otherwise have gone to court settled. Since then, the number of writs from politicians has plummeted.
TODAY, THEOPHANOUS, ACKNOWLEDGES THAT HE IS SOMEONE almost entirely without good reputation, a situation he describes as surreal. On the one hand, he has to accept that the media can say almost anything about him – above and beyond what has been found true by the courts. Most people, he says, are under the impression he got a Chinese woman a visa in return for sexual favours. There was evidence (which he disputes) that he suggested he might take sex instead of money to help her out. But there was no charge and no finding on this. He says he never met the woman.
Theophanous is never mentioned in public without the baggage of his conviction. On the other hand, life continues. His friends remain his friends. His family stands by him and loves him. It is almost as though, in the circle of those who know him personally, there is no such thing as damaged reputation. Even for a public figure, in the end there is only human connection. The real impact of destroyed reputation, Theophanous suggests, is that the circle narrows. You are denied membership of society – and even, in a sense, denied existence. In public life, the person becomes a label – corrupt MP – rather than a human being. Theophanous feels he truly exists only in the eyes of the people he can reach out and touch.
Whether David Lange feels the same way is impossible to know. He lives a semi-reclusive life. The New Zealand ALP has been told not to hand out his email address or his telephone number, only a post office box address is available. I wrote to him and got no reply. To whom and how does he exist, in the wake of the reputation-damaging case now part of legal history? It is impossible to know.
THE BREAST BEATING OVER DEFAMATION LAW IS INEVITABLE, IF DULL. When the words are so grand and abstract, so removed from the way people actually talk and think, a tone of righteousness and portentousness is inevitable. On the one side we have honour, dignity and reputation. On the other is freedom of speech, and that amorphous and jangling term, the public's right to know (which always begs the question – what and why?).
The real issues in defamation law are both bigger and smaller than these words suggest. They are to do with human contact and the way in which the information age and journalism have changed the way we perceive our fellow human beings. We know so much and so little. The spreading of news by means other than by word of mouth assumes both a reduction in intimacy and its expansion. These are the facts of modern life that the High Court says makes "inevitable" the new kind of qualified privilege. But the world viewed from a distance loses its subtle shades of grey.When we hear about dinner at the White House, we receive the information in order to judge it. When we see the ambulance at the bottom of the street, our hearts are more likely to jump with sympathy and concern, even if we have no mechanism, no neighbourly network, to help us find out what it means. Both law and journalism are social constructs – regulating and binding us together. They meet and clash in defamation law.
Now you know something about Philip Ruddock's family. You know something of my family. You know something of Andrew Theophanous and how he appears to me now, in the wake of his disgrace. You will doubtless read this new knowledge into any future media accounts of the actions of these men and anything else you read by me. You are, in a sense, a member of the same "club" as Ruddock and Theophanous and me. You touch us, engage with us. We exist to you.
Ruddock, in particular, ignites passion. Many of you will have said things about him that cannot appear in print without fear of defamation. As Ruddock wishes, you know there are limits. Gossip remains gossip. When we speak prudently in public, we construct our little walls of facts, express opinion on those facts and pretend that reputation can be regulated. ♦