Matthew Knott, crikey.com.au
It’s simple economics that the upstart online publications expected to flourish in coming years will be less able to fight big legal battles. If you’re a small, independent publisher you’re unlikely to have the resources to be launching High Court appeals.
The ‘watchdog’ journalism that reporters pride themselves on, journalism that holds the powerful to account, that exposes wrongdoing, isn’t just expensive to produce. It’s expensive to defend.
Without an Australian bill of rights, it’s traditionally been left to big media companies to fight for press freedom through the courts, often at great expense. Australians only enjoy an implied right to freedom of political communication because News Limited and the ABC fought defamation cases all the way to the High Court.
Fairfax last month successfully appealed a decision that two Age journalists appear as witnesses, a verdict that may have important implications for the confidentiality of journalists’ sources.
But with revenues spiralling and the industry increasingly fragmented, an ominous question hangs in the air: are these days numbered?
‘Are publishers and employers going to have the revenue to fight a deep-pocket litigant prepared to throw hundreds of thousands of dollars at a legal case?’ asks Paul Murphy, head of the Media Arts and Entertainment Alliance’s media division. ‘It is a serious concern.’
Media lawyer Mark Polden, a former in-house counsel at Fairfax, says Australia already has some of the most ‘media-unfriendly’ defamation laws in the world. Now, thanks to the media’s financial troubles, the scales are tipping even further in favour of cashed-up litigants.
‘Courts have traditionally seen media companies as big and ugly enough to look after themselves; that isn’t the case any more,’ Polden told Crikey. ‘There is already a trend that media companies are less likely to take defamation cases to court, and are more reluctant to take them to the court of appeal. They would rather just leave it and move on, even if it makes problems for another day. There is a real chill on free speech in this country because of court costs.’
Peter Bartlett, a senior partner and media lawyer at Minter Ellison, said: ‘There are signs the media are not opposing as many applications for suppression orders as previously because of reduced budgets’.
Mark Pearson, a media law expert at Griffith University, hopes media companies will continue to take on legal fights, including appeals and test cases. But he fears this will become increasingly unlikely. Media companies don’t have the deep pockets they used to have. And private equity firms that own media companies are less likely to defend a case on principle than old-school media proprietors.
The Packers, Murdochs and Fairfaxes would front up and stand up for freedom of expression issues,’ Pearson said. ‘Although Fairfax and News have different political positions, you can’t say they have walked away from defending their journalism and taking cases all the way to the High Court. The question has to be whether they can continue to do that.’
A fragmented media future promises more choice and more competition. But also smaller newsrooms, smaller profits, and smaller legal budgets.
Pearson says it’s ‘simple economics’ that the upstart online publications expected to flourish in coming years will be less able to fight big legal battles. ‘If you’re a small, independent publisher you’re unlikely to have the resources to be launching High Court appeals,’ Pearson said.
Defamation cases are hard for the media to win because they have to defend not just what they actually report, but the imputations that arise from it. Even if media outlets do win, the time and money involved in court battles are huge. ‘The Moonlight State’, Chris Masters’s famous Four Corners report on Queensland corruption, took a decade and cost the ABC more than $600,000 to defend.
Mark Polden can foresee a future in which media outlets increasingly ‘gut their copy or settle unmeritorious cases’ rather than defend their reporting in court.
Defamation, while the most common, isn’t the only legal issue media outlets face. There are also suppression orders, demands to reveal confidential sources, freedom of information appeals and (as seen in the Andrew Bolt case) racial vilification laws.
There are no easy solutions, Polden says. But magistrates could help by granting ‘security for costs’ orders, which would ensure successful defamation defendants could recoup their legal costs even if the plaintiff is unable to pay. This would counteract the trend of lawyers taking on defamation clients on a ‘no win, no fee basis’ (with success fees up to 20 per cent).
‘The courts need to have a good, hard look at themselves,’ Polden said. ‘The system is out of balance.’
As for publishers, options include taking out third-party insurance (which is cost-prohibitive for many) or building a collective war chest for legal cases. Small media outlets may even have to crowdsource funds from readers to fight future court battles.
Peter Bartlett says media outlets will have no option but to fight legal battles, despite the heavy costs. ‘The last thing the media wants to spend money on is lawyers, but if they don’t they will get more and more of these cases,’ he said. ‘If they get a reputation for settling actions without merit they will attract more actions from people trying to intimidate them.’
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