Does Emma Husar have a case against BuzzFeed?

Emma Husar is, politically, not so much toast as she is one of those bits of the toast that get stuck in the bottom of the toaster, lingering and charring until you finally find the right pointy instrument to get them out.

In her parting, Husar fingered the famously invisible forces of faction in the Labor Party, NSW branch, which no doubt have a trophy room somewhere at Sussex Street displaying a row of decapitated heads. The media, gratified by her eventual surrender to the leaking waves of salaciousness which just kept coming, turned as it always does when it has its corpse, to discussing the story of the story; that is, to talking about itself.

There has been much analysis of whether BuzzFeed, which broke the story of the internal ALP investigation into the many allegations of misconduct against Husar and followed with further devastating leaks, did the right thing by publishing at all. There is a fair debating point of journalistic ethics in this, since the publication did root Husar royally, rendering the investigation process fairly pointless.

A separate question is whether BuzzFeed has anything to worry about, legally speaking. Will Husar sue for defamation? Her reputation has been destroyed and her political career ended, by what BuzzFeed published. If she does sue, will she win?

[Anguished social media warriors have it wrong on Husar]

The double-edged sword of defamation hangs sharply over a case like this. If Husar wanted to have a crack, she’d have some tough tactical decisions to make. When you sue for defamation, you have to identify the defamatory imputations which you say have been conveyed; not just what was said, but what it said about you.

If Husar wanted to argue that BuzzFeed’s publication of the leaked allegations conveyed to readers that she is guilty as charged, then she’d have trouble. BuzzFeed was careful to report the allegations without any editorial commentary, saying nothing about whether they were true. It also reported Husar’s denials, so far as she made any.

A more subtle approach would be to argue that the publication of the allegations, regardless of their truth, was defamatory — on the basis that readers would assume that where there’s smoke, there’s fire. That is to say, maybe she was being stitched up by her factional enemies but, as reader logic may go, surely with so much dirt being thrown there must have been a little bit of truth in there somewhere.

BuzzFeed would probably run three defences to this type of claim: it would argue that the imputations didn’t arise; alternatively, it would run a truth defence; and as the final back-up, qualified privilege for straight reporting on a matter of genuine public interest. (Don’t @ me for how inadequately I’ve just summarised the entire law of defamation. I know, ok?)

BuzzFeed would need complainants willing to come forward and back up the allegations in court, for a truth defence to stack up. For Husar, this could be a debacle, as she’d have created the opportunity for a full airing of the claims against her. BuzzFeed wouldn’t need to prove everything, just that there really was some kind of fire making all that smoke.

There’s a chance that the complainants melt away and BuzzFeed is left with the unproved allegations which it published, unable to prove them itself. In a qualified privilege fight, the field gets way more level as BuzzFeed would have to prove public interest and that it acted reasonably.

As attractive as the qualified privilege defence looks to publishers in theory, in practice the courts have made it a bit of a nightmare. Reasonableness isn’t just putting the allegations to the subject before publishing; it goes to the decision to run the story in the first place. While there is public interest in Husar’s running of her office and how she treated her staff, and definitely an interest in the public knowing that the ALP had commissioned an independent investigation, that doesn’t necessarily extend to publicising every little speck of mud that’s been thrown at her.

So, if it came to it, there might be some uncomfortable moments for BuzzFeed. Not that Husar should sue — the risks are too high for that to make sense. And I think she’d lose.

Which brings us back to the ethical question, and whether BuzzFeed should be feeling like that was a job well done. I’d ignore the journos who are proclaiming that they wouldn’t have published this stuff; they all have a dog in the race.

Personally, I think publishing was fair enough. Husar, her office and her employees are publicly funded; it is appropriate that she is held to the highest standards of professional conduct. The wrong, which made it right for BuzzFeed to expose this story when it did, was the ALP’s attempt to keep it secret. That may be appropriate in a private workplace, but not in the political office of a member of parliament. Transparency can be extremely unpleasant, but that’s the whole point.