Yes but did you ensure compliance with r 16.43. of the Federal Court Rules 2011 when you wrote and published your story?-More on Rares J's not spying -only foreign intereference comment

by Ganesh Sahathevan 

As previously noted on this blog, the decision and comments by judge Steven Rares of the Federal Court Australia in the defamation matters brought by Dr Chau Chak Wing has thrown-up a number of bewlidering issues:


Not spying, only foreign interference : How are Australian journalists meant to report something like the story of Amos Dawe and Moscow Narodny given the Federal Court Australia's guidance on who might not be called "spy".


Reporting on Huawei -How do journalist say anything about Huawei after the Federal Court's not spying-maybe foreign interference distinction?


In a China related matter Federal Court Australia makes distinction between "foreign interference" and "spying" :Distinction has chilling effect on China OSINT researchers, including journalists, academics ,think tanks


To the above is added the following paragraphs from Rares J's judgment in Wing v The Australian Broadcasting Corporation [2018] FCA 1340 (31 August 2018)
  1. The particulars do not specify in any way how Dr Wing, whom the particulars also asserted was a billionaire who owned and operated a business conglomerate, even knew that Mr Ashe was to be paid any amount or why he was to be paid. There is no indication in the particulars of whether Dr Wing, or some company he controlled knew about, let alone made or agreed to, that payment, what the payment or its source was, when it was made or how, or even if, one of his companies was involved in it far less, that Dr Wing knew all of the essential matters to establish that the payment was to be made and what its purpose was.
  2. The striking feature of the particulars is the absence of any allegation about what Dr Wing did, when he did it or how he knew anything about any of the matters alleged. Moreover, the particulars of Dr Wing’s alleged state of mind in par 80 do not comply with r 16.43. Perhaps this is why par 80 then asserted, without any basis, that Dr Wing “must have known that [Ms] Yan was corrupt” and that he somehow “knowingly participated” in the payment of the USD200,000 bribe.
In essence journalists and editors are expected to ensure that what is published complies with  Defamation laws and rules of court, as defined. Judges,barristers and lawyers routinely debate what the laws and rules mean,and journalists and editors are expected nevertheless to decide what the laws and rules mean and tailor their stories accordingly. 
Needless to say by doing so what is published will resemble a statement of claim rather than a readbale news story, but even that may not be sufficient to defend against a claim of defamation.


END 









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