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QC says insurers cutting defamation insurance capacity

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Anecdotal evidence suggests that insurers are reducing their capacity and availability for defamation cover amid an “explosion” in lawsuit damages, Victorian barrister David Gilbertson QC says.

He says higher premiums for defamation insurance are inevitable because of out-of-control payments. “Reputation and hurt feelings are worth more than serious personal injuries.”

A current cap of $407,000 for non-economic loss exists, but aggravated or special damages – such as for lost income – don’t attract a payment cap.

Actor Geoffrey Rush received $2.9 million in total damages for a defamatory article alleging abusive behaviour. Actor Rebel Wilson received $4.6 million damages in a court case she won against Bauer Media, which was reduced to $600,000 on appeal. Former treasurer Joe Hockey received $200,000 in damages in a defamation lawsuit.

Some complainants are taking Federal Court Action to avoid jury trials in certain jurisdictions, Mr Gilbertson says. The laws are not keeping pace with advances like social media. It is unlikely laws will be reviewed quickly and there are no easy solutions.

“Today, everyone is a publisher.”

According to media reports earlier this year, Malcolm Turnbull’s publisher Hardie Grant was forced to find new defamation cover after Chubb declined to renew the company’s policy over fears that the former prime minister’s memoir would lead to defamation lawsuits. Chubb declined to discuss the report with insuranceNEWS.com.au.

Mr Gilbertson will address the Australian Insurance Law Association’s national conference in Tasmania from October 30.