To put salt in the wound, Adele Ferguson acted as any responsible journalist should. In the days leading up to Ajaka’s request, she gave him the opportunity to give any denial or appropriate explanation about the subject matter of the 60 minutes story. Ordinarily, this is of some significance to publishers because it relates to a specific defence. Unfortunately, it appears this line of inquiry rushed Ajaka’s candidacy and was used against Nine and Ferguson in the arguments. Hopefully that won’t deter responsible journalism in the future.
Adele Ferguson’s journalism has, for good reason, been celebrated in the past. Indeed, he played an important role in setting up the royal commission in Australian banks and financial institutions. This investigation led to a comprehensive reform to prevent embezzlement and a compensation bill estimated at 10 billion dollars. Pause to imagine if Ferguson’s line of inquiry into these topics killed or delayed this story. There are countless other examples of investigative journalists exposing those in power. Kate McClymont’s investigation of Eddie Obeid and Nick McKenzie’s investigation of Crown Casino come immediately to mind.
Investigative journalism therefore plays an essential role in our democratic society. The media acts as a public watchdog. While it’s important for the public to know about a particular allegation, it’s also important that they know about it quickly – especially if it concerns those who wield power and control over others.
Postponement of such publications should be discouraged. In this context, defamation law was recently amended to ensure that the law does not impose an unreasonable burden on freedom of expression and a new “public interest” defense was even established. Apart from other defenses, such as justification, this new defense must now be given the opportunity to do its job. It may otherwise be rendered useless. Any damage to reputation, if it occurs, should be compensable in accordance with established practice.
It should be no different for a business. Although some are barred from suing for defamation, it is nonetheless open to a business to recover any loss using the other tort of injurious lying. This is what the Cosmos clinic in Ajaka relied on before the Supreme Court. Although it may be a bit more complex than defamation, an important difference in its favor is that an award of exemplary damages can be made as a form of punishment. This is not available as a remedy in defamation law.
Recent years have been concerning for Australian journalists with the Australian Federal Police raids on ABC and Annika Smethurst, and the High Court’s decision to hold three media entities liable for posting third-party comments on their Facebook pages. This most recent ruling is therefore just the latest case to upset journalists and media lawyers.
However, as always with all defamation cases, this will not be the end of the matter. Nine has sought to appeal the orders and the case could even be resolved as early as next week. Hopefully the Court of Appeals can clarify the situation and allow Blackstone to rest undisturbed in his grave.
Matt Lewis is a media lawyer. He has represented and advised plaintiffs and defendants, including the publisher of this title and all major Australian media outlets.