The Chaser Report - Michael Bradley on how NOT to get sued for defamation (ft. Craig Reucassel)

Episode Date: December 14, 2021

Star lawyer of Marque Lawyers Michael Bradley joins the show to follow up the discussion raised by his recent article for The Shot, "Defamation - A User's Guide". Michael is joined by Craig and Charles who go through all the do's and don'ts of defamation, and find out EXACTLY which words you can't use when describing Australia's leaders. WARNING: The Chaser Report does not take any responsibility for when you ultimately get sued for defamation after listening to this podcast. Hosted on Acast. See acast.com/privacy for more information.

Striving for mediocrity in a world of excellence, this is The Chaser Report. Hello and welcome to The Chaser Report for the afternoon of Tuesday, the 14th of December. I'm Charles Firth, and today we've got a very special episode. We're talking to Michael Bradley, who is a gun lawyer and a defamation expert. And joining me to talk all matters defamation is Craig Roocastle. That's coming up just after this. The Chaser Report. Now with Extra Whispers.

Joining us now is Michael Bradley. He's a lawyer with Mark Lawyers. And he recently wrote an article for The Shot, which is a great website and happens to be a sister website of The Chaser. Describing how to not commit defamation while on Twitter. That's a good article. Yeah. It's a very useful article. It's very useful.

Yeah, especially in this day. Michael, thanks for joining us. Good to be him. So is the article just don't call Peter Dutton a potato? Are you allowed to call Peter Dutton a potato? Like that's the first one, surely. Well, yeah, I mean, I did in the first paragraph. But isn't the truth that everything's defamatory?

Isn't that the problem without defamation law in Australia? Well, almost everything. Weirdly, vulgar abuse is not defamatory. And that's sort of one of the bits that the courts. lead out. So if you really go hard, like really, really hard, then you're safe. But it's got to be kind of like rude stuff, doesn't it? It's got to not have an implication of them actually being corrupt. It's like you are a cunt or you're a fuck-out. That kind of stuff. That's the vulgar abuse there, isn't it?

What about something like dodgy? Are you allowed to call, say, gladys perigalian dodgy? No, that's definitive. Okay. Well, I just want to say. I didn't say that. Yeah, she's a fuck with, but not dodgy. See? But I've learnt. But then isn't it also then about risk, isn't it? Because it's like, I think she's dodgy. I think she's dodgy.

Like, surely I'm allowed to say that. Well, if you say, I think, then that changes everything. So then it becomes an opinion, not a statement of fact. Oh, right. So you can say, I think. How much fact does that have to be based on? And like, for instance, if it got to court, would the team, would Gladys's team or somebody else be able to use against Charles the fact that all of his opinions in the past,

every single one of them has proved to be untrue? No, no. No, really? No, an opinion only has to be honest. It doesn't have to be right. And you don't have to have a track record for not being an idiot yourself. So what it has to be, however, is based on. on facts.

Right. Oh, that's going to get in the way of the Charles approach. Because Charles also constructs the facts by which he bases his opinions on. So that's not a good approach from a defamation perspective. Correct. And also, wasn't it, was it you who said, maybe it was in the article that you don't want to ever be in a defamation suit trying to argue the truth, the truth defense? because you've sort of already lost if you're having to prove something is true

because then you actually have to prove it, which is sometimes much, much harder than, you know, you can say, oh, well, Darryl McGuire was really dodgy in, you know, getting that money for the gun club. But then proving that to be true is a completely different thing. Well, that's right. I mean, yeah, if you make a direct defamatory allegation, about someone, then, yeah, you have to be in a position to prove that it's true if that's

the only defence that's available to you. And that's a bit of a lottery. So if you're saying basically avoid getting into a position where you have to prove something's true, what's your main kind of couple of takeaways for somebody who is just on Twitter trying to, you know, be part of the conversation and that, but not wanting to be sued at the same time? A big part of it is choosing your target. So, you know, there are, while certainly, you know, politicians have been suing a lot lately, most politicians don't sue. So you'd be pretty comfortable saying just about anything about Scott Morrison

because it doesn't appear that he's insultable and he doesn't. This is a fundamental, this is a big question I had because I've always been confused by this, right? So in the early 90s, we got this concept of a free speech, you know, free, what is it, a presumed kind of freedom of communication, implied constitutional freedom of political communication when it comes to politics, basically. That it's an essential part of our democracy to have that. I thought at the time, this is opening up, like, oh, basically politicians aren't going to be able to sue. Why is suddenly now, it's the favorite pastime of politicians to sue, and why are they getting away with it? Yeah, it was a classic false dawn. The High Court came up with that sort of established,

I mean, there was an established principle this implied freedom of political communication in the Constitution. And there was this case where they applied it to a defamation case. And so everyone went, wow, that's amazing. Now, we are actually protected, we can say what we like about politicians. and there's this new defense. And then a couple of years later, the High Court came back and said,

well, that's not actually what we meant at all. So they actually came back, did they? Yeah, in another case. And I mean, although they said, we're definitely not reversing ourselves, you've all just misunderstood us. They were definitely reversing themselves. Gee, the High Court are a bunch of lying pricks.

Is that mere abuse? That's definitely true. And also, I never knew the second part of that thing, the second ruling. Can I just say, well, I never heard that one. But like, can't we just go on the first one? Well, yeah, no. So total ignorance is not a defence. Damn.

To do anything at all. No, so, yeah, it kind of got muted quite quickly. And it is, it's still there in theory. The ABC was actually going to run the implied constitution point in the porter case if if it had gone ahead they were they were going to have a crack at it it's been quite rare that anyone's even bothered and so that would have been interesting um but yeah if it has any play at all in defamation it's very very limited the chaser report news you know you can't trust so unfortunately so we get to the position now where politicians are suing a lot

And, I mean, I mean, I'll be devil's advocate for them, briefly. I mean, it would suck if you're, you know, you're a politician. I know you have power, but if you're just constantly been abused for something you haven't done, you know, it would not be a great position to be in, particularly in certain social media settings. You know, do you think there should be a total freedom of speech when it comes to that? Yeah, totally. I mean, they've got unlimited. I tried to.

Reply. They literally They can go in And they can call you a child molester in parliament And parliamentary privilege Means that they can just say that They can just literally say anything they like about you But you're not allowed to say anything you like about them

I know whether your concept of a good political dialogue Is if everyone can call each other of child molester No but like it has happened I mean I think that is Darren Hinge's definition of Yeah There was a little Liberal Senator, I've forgotten his name, he was an asshole, but he was one of, he was like Howard's hitman.

Anyway, he got up in Parliament and underprivileged accused Michael Kirby, who was a High Court judge at the time. Bill Heffernan. He was Bill Heffernan. Yeah, that's right. Yeah, basically being, you know, a pedophile and with complete impunity. I mean, I thought the High Court should have reinstituted the constitutional position in retaliation. the ocean. But, yeah, I mean, they've, you know, so they can, they have that protection. They've got unlimited access to media to say, you know, to defend themselves, to defend their

reputation. They don't need defamation law at all. I mean, is there any, in any sense we're going to reform this? I mean, ironically, Christian Porter said, I think we should reform defamation laws. That was a few years ago. Hasn't mentioned it again as recently. Is there any chance of fixing this up, because Australia is amongst one of the most kind of huge defamation courts in the world, isn't it? Yeah, so we are the world leaders in defamation litigation. I mean, actually... I reckon Singapore, isn't the whole way Singapore sort of gets rid of its opponents?

Like, in Australia, you're supposed to vote on things. Over in Singapore, you literally just sue your political opponents into oblivion. That's only the political thing, whereas there's everything else in Australia. No, no, but I think it extends to... civil society. Like, literally, I see what the Libs are doing at the moment, just suing everyone, is just literally, they're trying to implement a sort of Singapore-style lawfare non-democracy. Like, sorry, but isn't that the case? Like, Singapore's worse than Australia, isn't it, for now? Well, it's worse in the sense that, yes, the government there has,

has a long-standing practice of using defamation law as a political weapon, and the courts have given them a 100% win rate. Maybe that's the law reform that Christian Porter was going to implement. So we have the benefit of an independent judiciary here. Poor Christian Porter didn't have that benefit. No. But yeah, you know, I mean, we're not a billion miles away from that either if the government of the day sort of continues down that path

of using this law to silence criticism and dissent, it's in the same territory. When we sort of admitted that we'd gone through a legal process over the Andrew Lamming thing, we had lots of trolls on Twitter sort of going, well, maybe you should just print facts rather than slurs, and sort of, and it really pissed me off all that stuff, because it was like, like if that actually happened, then you wouldn't be able to comment on anything at all. Yeah, you can't. It's not just about facts.

I think the U.S. courts are the best of them. The Supreme Courts, their kind of free speech doctrines when they actually write about it are amazing. They just talk about the fact that, you know, it's not like people have to be civil. You don't have to be the most intellectual person. To have a proper political dialogue means everyone can speak, and that's not necessarily going to mean, you know,

the guy down the pub who's talking about politics is going to be doing it just with facts and just in the most beautiful way. Exactly right. Yeah, the support. Supreme Court in the U.S., yeah, they speak really eloquently about free speech and its importance to a democracy. And they say, if you're going to have democracy, you need free speech.

If you're going to have free speech, then part of that freedom is freedom to be wrong. But interesting question, though, I guess, in the American, Michael, in the kind of American context right now, we've got, you know, a pendulum swings too far one way. You'd say the problem in America at the moment is there's so much free speech that and the whole point that you can be wrong, like you get a Trump-like figure and you can just everyone can be wrong. So you kind of go, is there a limit on free speech when it comes to this whole question of having facts, not having just disinformation, because particularly with the kind of media environment we have, if you have a system based purely on disinformation that cannot be punished in any way, is that kind of undermining democracy itself? Well, my view is that it is not the absence of defamation law, which has caused that problem in the US, and given that Australia is rapidly heading down the same path at the moment being led by our national leader, you know, it's not defamation law.

No, no, it's not defamational, but is there a way you can have? Because, you know, the whole point of free speech, is there a way you can go, okay, it's not defamation law? That's obviously just basically rich people suing each other over slides. Is there another way you can go, yes, we respect free speech. but we need to be able to limit it in some way so that it's not just disinformation. That is a really problematic question because...

Come up with a legal reform on this podcast immediately. Quickly come up with a piece of legislation, Michael. Yeah, no, the Misinformation Act, I'll draft it and send it through to you. My text message shortly. No, it's hard, though, is it? Like, it's fascinating. It's the only law that starts, I reckon. These things are now illegal.

Well, this has been disappointing. Charles, didn't you promise that Michael would come on here and solve all legal problems across the world? Yeah, yeah, yeah. That's the fact I'm basing my opinion that Michael has failed drastically in this podcast on. I don't know. Hang a second.

I shouldn't have done that. I have learned from this podcast. I should just call you a fuckwit. Is that right? But only if it's an honestly held opinion. No, no, no. It's just... Oh, no, that's vulgar abuse.

Oh, nice. Yeah, Michael, you're a cunt. You don't even have to believe it. It's lucky because I really actually... I quite like you, Michael. I don't. I don't. I don't tell anyone in that because that's defamatory against me.

Thank you, Michael. Let's hope that this has helped some people not get sued. Yeah, I doubt. And also, yeah. Well likely. I read his own. article because Michael's article is a lot better because it doesn't have

Charles and I totally fucking it up in the middle. I think that that's the crucial part that makes that that article so good, isn't it? Yeah, that is. Yeah, yeah. Well, um... Looking at the same thing, yeah. That seems very defafermish, Judge.

Should we sue this guy? So the article's at the shot.net.com. And Michael is available for kids parties and suing people. Or getting off base. Defender, yeah. Michael, we might be talking to you soon, okay? No worries.

Thank you. That's Michael Bradley from Mark Lawyers. We'll be back in a moment. None of the medical advice contained in the Chaser report should legally be considered medical advice. The Chaser Report. That's all we've got time for today. Our gear is from Road Microphones. We're part of the ACAST creator network.

And we'll see you again tomorrow.