The slapfest is ON.

It started on Monday. Glenn Milne rehashed some old rumours about Prime Minister Julia Gillard that predate her joining parliament. The “crime” supposedly committed by Gillard was to share a house with her then partner that was allegedly bought with stolen union funds. According to Milne, this calls into question not just Gillard’s judgement but also her integrity – this despite the fact that Gillard had no knowledge of any ill doing.

Gillard contacted both News Limited’s John Hartigan and The Australian editor Chris Mitchell to complain about the article because it was factually incorrect and libellous.

The story was subsequently pulled and a formal apology to Gillard issued.

That should have been the end to the whole sorry mess.

Andrew Bolt, however, saw a conspiracy to silence those Stalwart Defenders of the Australian Democracy and wrote an article saying Julia had crossed the line by calling Harto.

The original story raised its ugly head for the first time more than 15 years ago in the Victorian state parliament, under the protection of parliamentary privilege. This is important, because you can say anything in Parliament and not be held accountable under defamation laws. It is the favourite location to pour shit (truth or not) on anyone.

Milne (who referenced Bolt heavily in the article) believed he had solid evidence (solid meaning a stat dec by embittered ex-Australian Worker's Union Victorian Vice President Bob Kernohan) and rehashed the whole sordid story on Monday.

It appears that no-one at News Ltd checked the story with their lawyers, or asked Gillard for a comment before publication.

One word, actually two, spring to mind when I read the article. “Defamation” and “Libel”. Pouring a bucket of factually incorrect shit on someone in a national newspaper is a big no-no.

However, in Boltistan, things are different.

“The Prime Minister overstepped the line when she called the chairman and CEO of News Limited, John Hartigan.”

Er, no. If a company publishes lies, you call them up and you tell them to retract it right the fuck now. Whether you speak to the receptionist or the CEO is almost irrelevant, the only difference being that the CEO is going to make it happen a lot quicker.

“Not being able to report on what I consider improper pressure by a desperate Prime Minister to kill a story meant I could not report fairly on the political scene as I saw it.”

There is nothing improper about ringing the head of a news organisation that is actively committing libel and threatening legal action. As the head of News Limited, Harto could be considered the publisher of the defamation and should be held accountable; Mitchell would certainly have also had to wear some responsibility. That has been common law for centuries. Making that contact is not actually the improper behaviour here.

Why?

Let’s look at the definitions here. It took me, oh, one google search to find a Monash University article THAT GAVE ALL THE RELEVENT INFORMATION! To whit:

What is defamation?

To determine whether material is defamatory, an assessment must be made of what imputations it conveys. It must then be considered whether those imputations are defamatory.

The following legal tests have been used to determine whether imputations contained in material are defamatory:

(a) Is the material calculated to injure the reputation of another by exposing them to hatred, contempt or ridicule; or

(b) Would the material tend to lower the plaintiff in the estimation of right thinking members of society; or

(c) Would the material tend to make people shun and avoid the plaintiff

There is no way News could argue against both a) and b) in this case.

Again from the Monash page:

The plaintiff need not prove that those to whom the material was published actually responded in the manner contemplated by these tests.

Nor must the plaintiff prove that the imputation is untrue - however the mere fact that the material published was untrue, or that the plaintiff is annoyed or hurt by the publication of private, personal or confidential information does not make such material defamatory.

There are some defences that a publisher can use to defend against defamation.

Truth – a stat dec is no where near the level most courts need to confirm the facts in this case.

Fair comment – From the Monash article: “No protection is given to statements presented as facts concerning or describing the subject.” The Milne and Bolt articles were not comment, they were presenting alleged facts, so fair comment doesn’t apply.

Consent – clearly, no consent was sought or given.

Innocent publication – News would have to prove that “they did not know the material was defamatory, that this ignorance was not due to negligence on their part; and they had no grounds for believing the publication was likely to contain defamatory material”, so no, this defence wouldn’t get up

Triviality – No one would attempt to argue that accusing the Prime Minister of being involved in spending stolen union funds is trivial.

So back to Boltistan.

“This, then, is how news can be kept from the public” Well yes. If by “news” you mean things that are not actually true, this is exactly how we keep public newspapers from printing them.

“You see, Gillard could have simply pointed out the errors and ridiculed the accusers as muckrakers. Instead, it appears as if she pulled strings and, with threats of inquiries and forced sales left hanging in the air, sought to shut down a debate.”

So pulling strings is contacting a person who committed libel against her, and demanded an article removed? Well Andrew, if I wrote an article claiming that you had sexual congress with a sheep, you can do the exactly same thing - demand the publisher remove the article, apologise for publishing it in the first place and state clearly that you have not, to the best of their knowledge, had sex with a sheep. This is not pulling strings, this is operating within the laws written to protect individuals from libellous attack and the public from malicious journalism.

There is no right of free speech in Australia, except for limited political discussion to ensure that our parliamentary democracy conducts informed elections. Whenever you say (or more importantly write), you need to be aware that you can and will be held liable for any defaming you have committed.

Glenn Milne should know this, Chris Mitchell should know this and you, Andrew, should definitely know this

This ham fisted attack on the Prime Minister by Milne and Bolt was shot down by one of the greatest gifts of the Westminster system - the common law. And after 1000 years of refining and testing it, I think it will outlast all of the grotty players in this farcical display of stupidity and hubris.

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