Pass the source to Helen Liu
Tuesday, February 21, 2012
Justinian in Artemus Jones, Defamation, Free speech, Journalists sources

The Age ordered to cough-up journalists sources for Joel Fitzgibbon exposé ... Tidal wave of cases dismantling free speech ... Liu v The Age ranks as one of our most important constitutional free speech cases ... The newspaper must fight on ... Artemus Jones on the junking of the newspaper rule 

McCallum: delivering bad news for the mediaI have just read Justice Lucy McCallum's long awaited decision in Liu v The Age handed down earlier this month.

It is an important decision and decidedly bad news for media organisations.

The plaintiff, wealthy Chinese business woman Helen Liu, sought orders, under the preliminary discovery rules, compelling The Age to disclose the identity of its sources for an article published in February 2010.

The article was seriously defamatory of Ms Liu, alleging that she had corruptly paid the former defence minister Joel Fitzgibbon $150,000. 

 Liu has sued The Age for defamation and also wants to sue the sources (who appear to be disgruntled employees).

The Age resisted the application on two grounds.

First, it argued that the preliminary discovery rules were rendered completely inoperative as a result of the Lange implied constitutional freedom to discuss government and political matters.

Alternatively, it was submitted that the court should reject the application in the exercise of its discretion under the rules.

At the heart of the case was the interaction between the Lange implied freedom and the so-called "newspaper rule" - a rule that permits publishers to avoid disclosing the identity of sources in advance of trial.

The newspaper rule makes investigative journalism possible and is an important plank in the edifice of the so-called "right to free speech".

Justice McCallum rejected The Age's submissions and ordered that the identity of the sources be disclosed. 

In my view, Justice McCallum's reasoning is flawed for the following reasons:  

  1. The decision fails to properly acknowledge the importance of the newspaper rule and its implications for free speech.
  2. As a matter of principle, the Lange implied freedom should strengthen the newspaper rule, rather than weaken it. 
  3. It is odd to hold that, because a journalist has betrayed a source (by publishing some material the source wanted to keep confidential), the identity of the source should be disclosed. Surely the newspaper rule exists, at least in part, to protect sources. 
  4. As a matter of principle, the Lange implied constitutional freedom should operate to modify the High Court decision in Fairfax v Cojuangco (1988) 165 CLR 346, rather than reinforce it.
  5. It is difficult to see how, on the facts, defences of qualified privilege could have any prospect of success. 

Even more troubling, however, are aspects of the case run by the defendants, including the following: 

Liu is a strange and troubling decision. Like Manock , Gacic, Trad  and a host of other recent cases, it tilts the balance much too far in favour of personal reputation over freedom of speech.

Helen Liu: wants to sue newspaper's sourceThe decision severely curtails that freedom by diminishing the effectiveness of the newspaper rule - or perhaps, more accurately, by failing to expand the rule's operation in accordance with the constitutional imperative.

The decision falls squarely within the current judicial tidal wave of cases dismantling various aspects of "the right to free speech".

The tidal wave shows no sign of retreating. A few weeks ago the High Court heard argument in Trad v 2GB, and appears on the verge of introducing notions of reasonableness and proportionality into the defence of "response to attack" qualified privilege - thereby effectively destroying the defence.

I understand that The Age is to appeal, as it should. 

The article undoubtedly comes within the Lange principle and, as Justice McCallum correctly held, the first limb of Lange is clearly engaged.

It is difficult to see how it can be correct that defences of qualified privilege could succeed. It follows that the prospects of an appeal must be reasonable, notwithstanding that the history of the application of the Lange implied freedom has been a somewhat chequered one.

Alternatively, The Age could simply discard the defences of qualified privilege and put an end to the matter without further ado.   

It is important that large media organisations fight to preserve those legal principles that underlie "the right to free speech".

However, that cannot be done by arguing the unarguable. Nor can it be done by adopting a "victim" mentality.

No doubt many judges, with good reason, dislike publishers and journalists.

One only has to lightly peruse the judgments of former Justice Ian Callinan, or read the farewell speech of any retiring judge to appreciate that.

Yet, these negative views do not ultimately determine the outcome of cases. Sound legal judgment and top flight advocacy win cases, even in the face of judicial distaste. 

It will be interesting to see what The Age does.

In my view, the Liu decision may well turn out to be the most important constitutional case concerning freedom of speech in recent decades. In any event, it is a case that needs to be won on appeal if the judicial tidal wave currently destroying free speech is to be stalled. 

Artemus Jones 
Dieppe

Article originally appeared on Justinian: Australian legal magazine. News on lawyers and the law (http://justinian.com.au/).
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