Here and there – Mr Porter and the ABC

If someone does wrong by you, the law may allow you to recover compensation from the wrongdoer.  If the wrong is serious, the compensation may be large.  One such wrong is where someone says something that damages you by causing others to think less of you.  This wrong is called libel or defamation.  And if the libel is bad, the compensation may be very large.

But I am yet to meet a person who has recovered large – even massive – damages for a wrong who is glad that they were wronged so that they could get this compensation.  Ask Geoffrey Rush or Rebel Wilson.  Or a quadriplegic.  A late partner and friend of mine was cruelly defamed.  He recovered massive verdicts from a vulnerable press and his life was utterly ruined by the lawyers in the process.

The wrong of libel is very difficult in litigation because the whole process serves to rehearse the original publication – that is, to aggravate the wrong.  That is one reason why plaintiffs who clear all the hurdles can recover what looks to be huge damages.  But, again, I am yet to meet the plaintiff who says they are net better off at the end of it all than if the wrong had never happened.

Then in a libel action there is usually argument about the meaning of the publication.  Was the publisher saying that the plaintiff was guilty of a crime?  Or merely that there were grounds for saying so?  That then leads to a very murky area.  The publisher often wants to say: ‘I did not say you did it.  But I did say that there were good grounds to suggest that you did it.  And in that meaning, I say that my words were true.’

Next, the conduct of the parties may let in evidence that would not otherwise be allowed.  For example, the defence of protected political discussion is a wholly judge-made law of recent origin.  To succeed, the publisher has to persuade the court that it acted reasonably – by for example putting to the plaintiff precisely what they alleged.  I am not aware of any publisher who has so persuaded the court.  But this defence may let in evidence of what influenced the beliefs of the publisher – for example, friends of the plaintiff alleging that he admitted that he was wrong.

All these factors look to have been present in a magnified form in the case of Mr Porter v ABC.  If the plaintiff was well advised – and he was – he would have been told that this case was not about money.  It was about stanching the bleeding by ending the growing clamour.  If he could do that, and get on with his life, the action would have served the main purpose – always remembering that no plaintiff ever makes a full recovery from the original wrong.

If the ABC were well advised – and they were – they would have been told that they would find it hard to emerge from this fearful process with their reputation intact.  Mr Porter’s lawyers had made very serious but coherent allegations of grossly unprofessional conduct against the ABC.  The victim is dead and her supporters are very emotional – to the point of litigating against one of Mr Porter’s lawyers personally. 

I am advised by very experienced criminal lawyers that even if the victim had been alive and willing to proceed, the authorities would not have prosecuted.  There were too many obvious problems.  The alleged guilt of Mr Porter could not have been determined by the court.  But the allegations against the ABC were susceptible of proof, and causing great harm to the ABC in the process.

The ABC now accepts that there is no basis for saying that Mr Porter could be found guilty of rape.  When challenged in court, the national broadcaster agreed to settle by, among other things, stating: ‘The ABC did not contend that the serious accusations could be substantiated to the applicable legal standard – criminal or civil.’

The suggestion that there should be a public inquiry into the fitness for office of Mr Porter always looked misconceived to me.  It all comes back to an allegation that cannot be put to the test required before making a relevant finding against someone.  Ours is not a community where you can lose your job because someone is telling tales about you that cannot be tested.  Since the parties to this case have spent about one million dollars on the best lawyers in the land to come up with the statement of the ABC that the serious charges against Mr Porter could not be substantiated, I do not see how any disinterested observer could with a straight face or in good faith push for some form of inquiry.

Any litigation involves a lawful form of gambling.  On those grounds, the settlement yesterday should not surprise us.  It represents a conclusion of a horrendous and hazardous process that both sides can live with. 

Taxpayers should be grateful.  The friends of the deceased may be in mourning.

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