20 Murdoch U. L. Rev. 1 (2013)

handle is hein.journals/elajrnl20 and id is 1 raw text is: Craig Burgess

Criminal Defamation in Australia: Time to Go or Stay?

Criminal Defamation in Australia: Time to Go or Stay?
Craig Burgess*
Several jurisdictions have abolished the common law criminal defamation. The rationale for
its abolition is that criminal defamation is not only antiquated but a dangerous restraint on free
speech. While many would agree with the repealing of laws relating to sedition and obscenity,
not all would be convinced the time is right for the complete abolition of criminal defamation.
The disturbing rise in 'hate' speech on social networks and the seeming inability to regulate
the trend means criminal defamation may still have a valuable role to play. Although remedies
that include ordering web site owners to take down offending material, right of reply and
apology all have their place for cases of civil defamation, they do not adequately address the
extremely serious defamation, published with malicious intent. One advantage of the crime of
criminal defamation is that it is already on the statute books and therefore there is no need to
draft new laws to deal with defamation that satisfies the criteria of criminal.
Introduction
More than two years ago the United Kingdom Parliament voted to abolish common
1       2
law criminal libel offences. These included seditious libel, defamatory libel and
obscene libel.3 The demise of the offences was hailed by the media and civil rights
groups as a welcome step.4 The old laws were described as a blight on free speech in
the UK.5 It was said that one of the pleasing aspects of the repeal it was that it cleared
a path for UK campaigners to argue for the abolition of criminal libel overseas and so
enhance the shared human right to freedom of expression.6 The Italian Parliament is
also facing calls to decriminalise the country's libel laws after a journalist and a
former newspaper director were given gaol sentences.7 Critics noted that Italy, along
with Belarus, is one of the last two remaining countries in Europe where journalists
still receive prison sentences for defamation.8
*BA(USQ) LLM(QUT) Lecturer, University of Southern Queensland School of Law,
burgessc@usq.edu.au.
This article uses the term 'criminal defamation', though some statutes and scholars use the term
'criminal libel'. The two terms are considered synonymous for purposes of this article.
2 Coroners and Justice Act 2009 s 73.
3 Ibid.
The following offences under the common law of England and Wales and the common law of Northern
Ireland are abolished -
(a) the offences of sedition and seditious libel;
(b) the offence of defamatory libel; and
(c) the offence of obscene libel.
Criminal defamation was also abolished in New Zealand with the enactment of the Defamation Act
1992. Crimes Act 1961, ss 211-16; repealed by s 56(2) Defamation Act 1992.
4 Jonathan Heawood, 'Let's Cheer the Demise of Criminal Libel', The Guardian (online), 27 October
2009 <httpJ/www. uardiancou1&commentisfree/ibertyentralI2OO9/oct/27/criinaldibe-fr>; Natasha
Schmidt and Jacob Harbitz Niels, 'UK Government Abolishes Seditious Libel and Criminal
Defamation', Index on Censorship, 13 July 2009
<http://humanrightshouse.org/noop/page.php?p=Articles/1 1311 .html&print= 1>.
5Ibid, Heawood 13 July 2009,
<http://humanrightshouse.org/noop/page.php?p=Articles/1 1311 .html&print= 1>.
6 Ibid.
7 Italy Faces Reform Calls as Journalists Jailed for Libel', Press Gazette (online), 9 August 2012
<http://www.pressgazette.co.uk/node/49801>.
' Ibid.

Murdoch University Law Review (2013) 20(1)

1

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