Friday, December 20, 2002

Not too much blog action happening on the recent verdict in Richard Carleton defamation case:

Which is disappointing, but perhaps understandable, given that, two days on, the written judgement hasn’t been uploaded onto austlii (the usual legal portal for Oz cases), and that Google can’t find it, either (I only found it by going through the civic bowels of Canberra online; aka )

A quick read of the judgement confirms for me that the broadsheet reports (Age, Australian and SMH) of the case did not really do justice to the case in their respective 19/12 reports. This is in striking contrast to the previous week’s Gutnick, verdict, which received abundant analysis, including on the day after the judgement (journo’s and commentators have about a 12 hour window between the judgement hitting the web around 11 am and their evening deadlines).

Of course, Gutnick was bigger news than Richard Carleton – a higher court, strong international aspects, and, most importantly of all for news value perhaps, an element of car crash shock. While I doubt that the comparatively soft reporting on Richard Carleton was caused by his being a fellow journalist, I think that indirectly, reporters did not want to be seen as gloating on his defeat. Hence, the main angle of all reports was equivocal; a victory of sorts for both sides being had.

In other words, the case was a “tie”, if not a nonsense. Now THAT is “lazy journalism”. Legal judgements may be long, obscure and boring, but they usually (and this one definitely) leave no doubt as to who won and who lost.

Does this reflect a deeper problem: with Oz journalists not being adept at making good news (as clearly this was) into hard news? Well, someone’s got to do the job, so here goes.

The Richard Carleton defamation case did have a couple of unkind things to say about the ABC Media Watch people. In the main event, though, they were totally shielded by the “fair comment” defence. For non-lawyers out there, I don’t propose to write a treatise on this, other than to say every serious writer/blogger should be up with it, if they are not already – it is not a mater of dry law, as much as constructing and styling one’s arguments.

In brief, the “fair comment” defence separates “facts” from “opinion”. As long as the false and defamatory elements are in the “opinion” part, then the defence will operate. Of course, it’s a bit more qualified than that; but the two most important, and related subsidiary points are that the underlying “facts” must be true, and that the “facts” and “opinions” are clearly separated. The latter was found to be made out on the facts, of course.

More importantly for writers/bloggers, though, is that what I would call the Media Watch “house style” was a form of prophylaxis in this regard. By crediting their viewers with some intelligence – and in particular, inviting them to draw their own conclusions from the bare facts – Media Watch have made a virtuous circle (and legal defence) for themselves out of being opinionated.

So take note, writers/bloggers out there.

P.S. The letter to the editor in The Australian, mentioned in the previous posting) about baby boomers having finished off their CD collections, so causing the dramatic drop in CD sales in the last two years, was by Phil Turnour, of Thornbury QLD (The Australian IT section, 7 December 2002). Go Phil!

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