Defamation law change even more crucial after Chau Chak Wing’s win against Four Corners

You have to admire the editors at Nine. Having just gone down with Four Corners to the tune of $590,000 in Dr Chau Chak Wing’s latest defamation win, they came straight back out yesterday with a fresh swing at him.

Chau is 3-0 in the courts, having settled for $65,000 and an apology from News Corp and winning a $280,000 verdict against Fairfax in 2019. With this latest victory, he’s up nearly a million dollars before costs.

The media’s willingness to keep going after him — with keen support from members of the Morrison government backbench who have used parliamentary privilege twice to drop extremely serious allegations against him — is not explicable on any economic basis. He will sue, and so far he hasn’t lost when he does.

He remains a live target because the media smells blood, so richly arterial that they can’t resist the temptation to keep gnawing at the wound.

The safest way to describe the territory we’re in here is in Chau’s own words — by the ways in which he alleged Four Corners defamed him. He claimed the program labelled him a traitor to his country, Australia; as a member of the Chinese Communist Party carrying out the work of the CCP’s secret lobbying arm, the United Front Work Department; he gave enormous bribes to Australian political parties to influence decisions in the interests of the CCP; he paid a $200,000 bribe to the then president of the UN General Assembly, John Ashe.

Briber, traitor, spy. Very John le Carré. More importantly, it plays right into one of the key narratives of our current politics: the emergence of insidious foreign influence, particularly from China. It’s sexy, salacious and deadly serious.

Chau won his latest case because the defamatory imputations he pleaded were so wild the media couldn’t run a defence of truth. They could only run with the all-or-nothing defence that the imputations didn’t arise from what they broadcast. But Justice Steven Rares found they did tell their audience that Chau was engaged in political bribery and influence-seeking as a secret CCP agent. That was defamatory, and massively damaging to his reputation.

Immediately afterwards, Liberal MP Tim Wilson was on his feet in federal parliament reading from a secret FBI report addressing some of the same subject matter on which Four Corners had reported and come unstuck.

I have nothing to say about Chau, other than that he is very rich. However, his litigation focuses the mind on the key point of the ABC’s response yesterday: the urgency of the need for defamation law reform. Specifically, the new defence of public interest journalism.

The reforms were agreed by all the state and territory attorneys-general some months ago, and New South Wales moved immediately to pass them through parliament. But they have not become law yet because it was agreed everyone would get them through and they’d take effect everywhere simultaneously. That’s the best outcome for defamation law, to avoid the problem of forum-shopping plaintiffs.

In the non-NSW jurisdictions, the pace has been leisurely — there’s no indication of when the amending bills will even be tabled.

When the law is finally changed, the media will breathe a huge sigh of excited relief. The new defence is designed just for them. The key elements will be that the subject matter of the defamatory publication must be one of public interest, and that the publisher must at the time have reasonably believed it was in the public interest.

I recently explored whether this defence would have saved the publisher in Geoffrey Rush’s case, concluding that it would not. The problem wasn’t public interest, but the reasonableness of the publisher’s actions.

In the Chau context, it would (hypothetically) be a closely fought argument. The subject is of legitimate public interest, but the reasonableness of the media’s belief that what it published was in the public interest calls into question all the steps taken in the investigation leading to publication, and the language and tone of the broadcast.

Rares was heavily influenced by how he viewed what the Four Corners program had done: “The viewer was invited to put to one side the program’s disclaimers of Dr Chau’s guilt and be drawn towards the conclusions [alleged by him].” The program “would convey the impression … that the author is anxious to wound but fearful to strike too obviously”.

Rares would presumably still think the same if the new public interest defence had been available. That is, the Four Corners program had been a little too cute in its protestations that it wasn’t directly accusing Chau of anything in particular, but was merely pointing to a long list of peculiar circumstances, couched in the context of national security concerns bordering on xenophobic paranoia.

The short answer is I don’t know. The public interest journalism defence will make life easier for investigative reportage, for sure. It will not, however, relieve the media of the burden of extreme caution when framing what it wants to say about its targets.