Page 11 - Week 01 - Tuesday, 14 February 2006
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Taking away the right of a company to use legal means to protect its reputation from unwarranted or false claims may have far-reaching impacts on a company’s value.
We should take the time to reflect that those brand names are critical to our purchasing decisions. The integrity and reputation of those brands influence us as we make our daily purchasing decisions, whether it is in the supermarket or purchasing a motor vehicle or electronic goods and services. If a company’s name is severely damaged by a defamatory action by others, it may well have a marked adverse affect on that business. There ought to be remedies under this legislation so that a company can move to protect its reputation and also to make it very clear to individuals or organisations that there will be consequences for malicious and defamatory actions.
The remedies that are available through other vehicles or through other legislation are inadequate. It is very clear, if one reviews the legislation and other examples of where these matters have appeared, that to take away this right is an adverse step, notwithstanding the quest by attorneys-general for uniformity.
In his presentation speech the Attorney said:
In recent times large corporations had used this action—
That is, defamation:
to stifle public comment on the quality of products and service of companies.
He provides no examples of when and where this has occurred. The perceived threat of large corporations exploiting the right to sue for defamation ignores several points. First of all, the opposition to the so-called strategic lawsuits against public participation ignores the simple fact that corporations can be defamed and the defamation can cause significant damage. The negative publicity that such action would generate is also overlooked in that assumption. This was certainly established in the so-called McLibel case in Great Britain, where that company, I would suggest, actually lost a deal of credibility, albeit they may have had a compelling case, by suing two activists over defamatory leaflets that they were handing out which maligned the reputation of that company.
By attempting to stifle public comment the corporation exacerbated the damage that the original action caused. Indeed, that is always a consideration with defamation, that notwithstanding the malice or falsehoods contained therein, one has to assess whether pursuing those matters against either impecunious individuals or individuals who may relish the publicity does more harm than good. But that is an individual decision one must take when dealing with these examples.
The other point is that the bill only excludes two classes of corporations: those that do not seek financial gain and those with less than 10 employees. But, of course, if you look at figures from the Australian Bureau of Statistics, 90 per cent of Australian businesses employ between one and 19 staff. At the other end of the scale, only one per cent employs more than 200. It is logical to assume therefore that the corporations that will be affected by the legislation are not necessarily giant corporations, able to pressure
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