Freedom of speech and defamation are two faces on the same coin

Journalists, broadcasters and publishers will be keeping a close eye on the New South Wales Court of Appeal in the coming weeks, after Channel Nine declared its intention to appeal against an unusual order made by Justice Rothman late on Friday.

A team of investigative journalists from Nine and the Sydney Morning Herald have recently run a series of stories on cosmetic surgeons. It seems like low-hanging fruit for high-powered journalists, but there’s no doubt that these stories attract clicks and eyeballs, and the team had turned its attention to a practice conducted by a Dr Ajaka in (surprise!) Double Bay. When 60 Minutes aired a promotion for its piece on Dr Ajaka, lawyers were summoned.

It’s notoriously difficult, in Australia, to obtain an injunction restraining the publication of defamatory material. As two judges of the High Court explained in Australian Broadcasting Commission v O’Neill in 2006, “the public interest in free communication of information and opinion… is basic to the caution with which courts have approached the topic of prior restraint of allegedly defamatory matter”. In O’Neill’s case, the High Court refused to restrain the publication of a story which contained allegations of the murder of children – as serious a defamation as could be imagined – in part because of the importance it attached to freedom of speech.

But Dr Ajaka’s lawyers didn’t ask for an injunction. Instead, they sought an order for pre-action discovery – a procedure which allows a potential plaintiff to obtain access to documents in order to see whether a real claim exists.

The application was heard by Justice Rothman, who accepted the argument that there was a risk that the level of damage to Dr Ajaka and his clinic might be so serious that damages would not provide an adequate remedy, and he ordered Nine and the Herald to hand over the drafts of the 60 Minutes program and newspaper stories so that they could be reviewed by Dr Ajaka’s lawyers.

There is an undeniable logic to Justice Rothman’s decision: if an injunction restraining publication can be sought – and it is possible, though difficult – the potential plaintiff faces the problem of proving that he or she is likely to be defamed, without having seen the publication in question and without that publication being before the court. One way to resolve that difficulty – the route chosen by the judge – is to make the material available to the plaintiff (and, by extension, the court) for forensic examination.

But that decision also creates a different set of problems, because it creates the risk that a well-resourced plaintiff who becomes aware that he or she is the subject of a media investigation can then use the pre-trial discovery mechanism to see what material the journalist has gathered and how the journalist plans to present it. What Channel Nine will argue in the Court of Appeal is that this is inconsistent with the protection of free speech upheld in ABC v O’Neill, and that Justice Rothman’s order will have a chilling effect on the work of journalists.

Whatever it decides, the Court of Appeal’s decision is likely to have a significant impact on the manner in which defamation cases are conducted in New South Wales.