The letters journalists fear | Agents of Influence | Part 5

Key Concepts:

• Defamation law in Australia
• Reputational risk
• Plaintiff lawyers vs. Media
• Strategic communications/PR
• "Chilling effect" on journalism
• Public interest defense
• Imputations in defamation cases

1. Introduction and Context:

• The episode is the final installment of "Agents of Influence," a series by Background Briefing, focusing on the influence of defamation law on journalism in Australia.
• Australia is described as the "defamation capital of the world," with a high volume of defamation cases, although cases peaked in 2020.
• The episode explores how defamation cases can shape news stories and influence what the public sees and hears.

2. The Journalist's Perspective and Initial Incident:

• Gina Mchuan, the reporter, recounts an incident in the Background Briefing office where a colleague, Marty Smiley, received a legal letter from Giles George, a law firm specializing in reputational risk.
• The letter concerned Marty's story about Sir Leonard Blatnik, a billionaire and oligarch, even before the story was published.
• This incident highlights the common experience of journalists in Australia receiving legal letters, which can be daunting and influence their reporting.

3. Rebecca Giles and Giles George:

• Rebecca Giles is introduced as a prominent defamation lawyer and one of the principals at Giles George, a firm specializing in reputational risk.
• Giles has represented high-profile clients like Sarah Hanson-Young, Brittany Higgins, and Christian Porter.
• The reporter was granted access to Giles George's offices and attended a "lunch and learn" session, providing a rare glimpse into how defamation lawyers operate.
• Giles's personal history as a survivor of the 2004 Boxing Day tsunami is discussed, suggesting it may have influenced her drive and focus on justice.
• Giles emphasizes that her firm offers strategic communications advice in addition to legal services, including connecting clients with journalists.

4. Sue Crosanthu and the "Lunch and Learn" Session:

• Sue Crosanthu, a well-known barrister in defamation law, is featured as the speaker at the "lunch and learn" session.
• The session covered updates in defamation law, including the requirement to prove "serious harm" to reputation and the handling of defamatory comments online.
• An example is given of a case where a legal notice about a defamatory comment led to the publisher removing the entire article, demonstrating the potential power of such notices.

5. Rebecca Giles's Approach and Strategic Communications:

• Rebecca Giles's approach is described by some journalists as "aggressive," but she defends it as advocating fiercely for her clients and holding the media accountable.
• Giles George offers "strategic communications" services, including media strategy and connecting clients with journalists, setting them apart from other law firms.
• The case of Sam Fricker, a former Olympic diver, is presented as an example of a client who successfully used social media to respond to criticism without resorting to legal action.
• Fricker released a video on LinkedIn addressing an article that called his podcast a "flop," showcasing the real numbers and correcting the journalist's misrepresentation.

6. The Other Side: Kate Mcclymont's Experience:

• Kate Mcclymont, a Walkley Award-winning journalist, shares her experience of receiving legal letters from Rebecca Giles and other lawyers.
• Mcclymont describes the process as unpleasant and highlights the challenges of fighting back against "imputations" – implied meanings in a story.
• She discusses the "chilling effect" of defamation law, where financial pressures and the risk of costly legal battles can lead journalists to soften or spike stories.

7. The Hon Russell Case and the Public Interest Defense:

• The case of Hon Russell v. ABC is examined, where the ABC and journalist Josh Robertson were sued over a story implying Russell's involvement in the death of an Afghan prisoner.
• The ABC argued a "public interest defense," which allows media to publish stories they reasonably believe are in the public interest, even if defamatory.
• Josh Robertson describes his experience in court, being cross-examined by Sue Crosanthu, and the challenges of defending his journalism.
• The court ultimately ruled against the ABC, ordering them to pay Russell $390,000 in damages, plus interest and legal costs.

8. Differing Perspectives on Defamation Law Reform:

• Rebecca Giles believes that defamation laws are not onerous enough and that it is too difficult for individuals to vindicate their reputations.
• Matt Collins, a prominent defamation lawyer, argues for radical reform, suggesting that the burden of proof should be on the plaintiff to prove falsity, rather than on the media to prove truth.
• Collins believes that the current system tilts the balance away from serious investigative journalism.

9. Final Incident and Conclusion:

• Just before the episode's publication, the reporter, Gina Mchuan, receives an email from Rebecca Giles outlining concerns about her approach to the story.
• The email, while not threatening legal action, includes editorial commentary and highlights the power balance between plaintiffs and the media.
• The episode concludes by emphasizing the influence of defamation law on journalism and the ongoing debate about how to balance the rights of individuals to protect their reputations with the public interest in free and open reporting.

10. Synthesis/Conclusion:

The episode "Agents of Influence" provides a detailed exploration of the complex and often contentious relationship between defamation law and journalism in Australia. Through interviews with defamation lawyers, journalists, and analysis of specific cases, the episode reveals how legal threats and financial pressures can shape news stories and influence what the public sees and hears. The differing perspectives on defamation law reform highlight the ongoing debate about how to balance the rights of individuals to protect their reputations with the public interest in free and open reporting. The episode underscores the importance of understanding the legal landscape in which journalists operate and the potential impact of defamation law on the quality and scope of news coverage.