SCUM AT THE TOP

The Bannockburn Yellow Gum Action Group was a small community group formed to protect a grassy woodland. Barwon Water, under its then chairman, Frank De Stefano, wanted to bulldoze the woodland for a sewage farm. The residents, angered by this plan, ran off a witty bumper sticker: "Barwon Water Frankly Foul."

Frank could have laughed it off. Or he could have created his own bumper sticker. Or he could have used his influence in the media to reply to his critics.

Instead, he sued for defamation, pleading that the joke carried the imputations that: (a) Frank De Stefano was a foul person; (b) he was a person smeared with the sewage that the authority of which he was chairman treated; (c) he was a person who smelt like sewage; (d) he was a person unfit to hold the position of chairman of Barwon Water.

The case became enmeshed in complexity and cost. The Bannockburn group fell apart as people saw their assets at risk and ran for cover. In the end they apologised and paid $10,000.

This case is typical of the way defamation writs are increasingly being used to silence the community.

Community groups are one way in which the average person can make a contribution to society. Such groups stand in a precarious place when powerful interests seek to silence them. Victorians should be sick of seeing the community muzzled by threats of defamation proceedings.

The press is also an important feature of democracy, and the impact of defamation laws on the way the press operates is obvious. A story about real corruption is hard to run, because you might spend, as Chris Masters has done over the Moonlight State Four Corners report, 10 years defending it in court. What journalist will want to have a cloud over their professionalism for that length of time?

It is time to change the law.

Four freedoms should be enshrined in law:

1. Freedom to speak about corporations. Historically, defamation laws were about the protection of the reputations of individuals. There are taxation and other benefits in organising as a corporation. Unless people can speak freely about them, they can operate without regard to community values. So often when corporations sue an individual they are outlaying a negligible amount of money on a taxdeductible basis, whereas the individual stands to lose their home. If corporations are to be kept accountable, people should be free to speak about them.

2. Freedom to speak on matters of public interest. The law should not silence the community from speaking about matters of public interest. This is the very place where the community should be free to speak without threat of litigation.

3. Freedom to speak about the performance of public officers. Unless someone is speaking out of malice, the community should be able to comment about the way the holders of public office are performing. This is the principle that underlay the decision of the High Court in the Theophanous case, from which the court has now unfortunately retreated.

As the Governor-General, Sir William Deane, then on the High Court, held in the Theophanous case: "The use of defamation proceedings in relation to political communications and discussion has expanded to the stage where there is a widespread public perception that such proceedings represent a valued source of taxfree profit for the holder of high public office who is defamed and an effective way to 'stop' political criticism."

4. Freedom to speak without the fear of unspecified damages. Why should the method of dealing with defamation be to pay a person large sums of money? Is the law such a blunt instrument? There are much more creative responses. Why not pay for any actual, demonstrated loss, and otherwise use a range of remedies such as declaring that the statement complained of was untrue?

It is time to speak.

Melbourne barrister Brian Walters is a committee member of Free Speech Victoria, which is holding a Let the People Speak symposium at the Melbourne Central Conference Centre at 10am tomorrow. Email: info@fsvonline.org

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