Why don't journalists sue for defamation more often?

Schwartz Media podcaster Osman Faruqi successfully sued failed Labor leader and successful One Nation NSW Upper House candidate Mark Latham, when the politician accused the journalist of encouraging terrorism and of fostering "anti-white" racism. Columnist, lawyer and doctor Lisa Pryor also settled her defamation action against Latham over a column he penned in The Australian Financial Review entitled "Why left feminists don't like kids". Columnist and associate editor for The Australian, Chris Kenny, settled with The Chaser when it suggested the journalist was a "dog f---er". And the then editor-in-chief of The Australian, Chris Mitchell, sent a lawyer's letter to academic Julie Posetti when she tweeted about a former colleague's time at The Australian. The matter didn't proceed, although it rightly concerned Posetti, now global director of research at the International Centre for Journalists. Mitchell says now he never intended to proceed.

This issue is in the news this week because The Australian published an editorial on Tuesday about two journalists, Sally Neighbour and Louise Milligan, which was just awful.

Neighbour is the executive producer of the ABC's flagship current affairs program, Four Corners. Milligan is a Four Corners reporter. Never mind that these two and their colleagues have won awards for their reporting - it's enough to admire that Four Corners continues to produce groundbreaking investigations over decades and over a broad range of areas, and that hundreds and thousands of Australians watch the program every week. It has covered everything from worldwide investigations of corruption and money laundering to the sexual harassment of political staffers in the episode Inside the Canberra Bubble (this is pretty much the one, along with the following Milligan story about a historical rape allegation against a cabinet minister later revealed to be Christian Porter, which has The Australian's knickers knotted. The episode was watched by over 900,000 people. Porter strongly denies the allegation).

The Australian editorial found little to admire. I'm not in a position to determine whether the statements about the two journalists might constitute defamation, but I can tell you the editorial was a cluster of adjectives meant to deride and hurt. Lots of claims, little proof. Weirdest editorial ever.

Editorials are meant to set the tone of the paper. According to Denis Muller, senior research fellow at the University of Melbourne's Centre for Advancing Journalism, editorials "present the newspaper's position on an issue".

"They are called leaders or leading articles because they are intended to lead public opinion," he says. "The newspaper's view ought to be the public's view."

As he puts it, "They don't succeed."

Without wishing to further harm either of the two journalists, the editorial attacks the ABC and the two women. It does the usual Murdoch thing of saying how big and expensive the ABC is - drone, drone - and then finishes by saying: "Many senior people at The Australian know well the work, the habits and the hubris of Sally Neighbour and Louise Milligan ... the most dangerous enemy of the journalist is bad, lazy, deceitful journalism."

Hmm. I asked around. The man most familiar with the work of these two, Chris Mitchell, a former editor-in-chief of The Australian, thought the sentence in the editorial mentioning the two journalists was "very odd". He worked with Neighbour closely, with Milligan less so. He recalls fighting hard to keep Neighbour from going to television.

"Both of them left the paper in completely good stead, valued; and I like them both and I would have taken Sally back if I was still there," says Mitchell. He was also, he says, on the judging panel for Australia's most prestigious international reporting awards, the Lowy Institute awards, which gave Four Corners its media prize in 2019.

So, the question is: should the two journalists sue for defamation?

Mostly, the advice is no. Jonathan Holmes, former MediaWatch host and commentator, is clear. Although he thought the editorial was "a disgrace", and wrote an as yet unpublished letter to The Australian explaining why, he says there would have to be very specific allegations about specific misconduct to be worth pursuing.

As Muller says, "It was nasty, incoherent and hypocritical, [coming] as it does from an organisation which has been described by a British parliamentarian as an organised crime syndicate."

But he, too, advises not to sue. "Apart from anything else, it just oxygenates the original slur and defamation is a very uncertain area of law. The Australian might run a defence of comment, and might succeed. And all you have done is expose yourself to the risk of hundreds and thousands of dollars of legal costs. It takes a former attorney-general, or a Bob Hawke, or a Kerry Packer or someone financed by Kerry Stokes to run defamation cases."

Eric Beecher, chairman of Private Media, publisher of Crikey, and chairman of Solstice Media, says there shouldn't be carte blanche, but "at a very personal level you should be allowed to sue".

"But it should have nothing to do with your professional performance or your work as a journalist," he says.

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So, does anyone think it's a good idea for journalists to sue for defamation? Josh Bornstein, the lawyer who ran Osman Faruqi's successful case, is writing a book on free speech and work. He says he gets why journalists avoid suing for defamation.

"They have an instinctive dislike of defamation because of their experience of threats to sue them and sometimes writs," he says.

"They see defamation law as impeding their work and impeding important journalism, important investigative journalism, so it's become an article of faith that journalists don't sue."

But, as Bornstein points out, life is far more complicated than that.

"Journalists are ideologically and illogically opposed to defamation law ... I don't agree with the ideological hostility to defamation," he says.

He acknowledges defamation proceedings are both stressful and expensive, but says it is also vital that journalists feel safe in their workplaces and doing their work. The attacks on Milligan and Neighbour make that less possible.

"Your reputation is critical to having a healthy career and if it is falsely damaged or destroyed that will impact all aspects of your life," he says.

"Should people be able to say any old shit about you? Defamation law recognises the immense power of the media to cause harm. It is even more important now because we don't properly regulate media abuses. The Murdoch media [has] a cancerous effect on democracy, it's toxic and antidemocratic. Defamation is one of the few ways to hold that media power to account in cases of abuse."

The other aspect is that journalists are more targeted than they used to be. From the stupid ("you are a fat slut") to the threatening ("coming to kill you and your family"), journalists have a right to protect themselves from harm.

Where once a rival publication would just try to find a follow-up on a big story, and do a brilliant job of that follow-up, now they like to undermine another publication's big story and harness troll armies with their attacks.