Defamation in Australia 9780455228570, 0455228574

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Defamation Law

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Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-19 00:52:11.

Defamation Law

DR DAVID ROLPH BA (Hons) LLB (Hons) PhD (Sydney)

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Associate Professor The University of Sydney Faculty of Law

LAWBOOK CO. 2016

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Published in Sydney by Thomson Reuters (Professional) Australia Limited ABN 64 058 914 668 19 Harris Street, Pyrmont, NSW National Library of Australia Cataloguing-in-Publication entry Libel and slander—Australia. Libel and slander—Law and legislation—Australia. Reputation (Law)—Australia. Includes index.

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ISBN 978 0 455 228570 345.940256 © 2016 Thomson Reuters (Professional) Australia Limited This publication is copyright. Other than for the purposes of and subject to the conditions prescribed under the Copyright Act, no part of it may in any form or by any means (electronic, mechanical, microcopying, photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior written permission. Inquiries should be addressed to the publishers. All legislative material herein is reproduced by permission but does not purport to be the official or authorised version. It is subject to Commonwealth of Australia copyright. The Copyright Act 1968 permits certain reproduction and publication of Commonwealth legislation. In particular, s 182A of the Act enables a complete copy to be made by or on behalf of a particular person. For reproduction or publication beyond that permitted by the Act, permission should be sought in writing. Requests should be submitted online at http:// www.ag.gov.au/cca, faxed to (02) 6250 5989 or mailed to Commonwealth Copyright Administration, AttorneyGeneral’s Department, Robert Garran Offices, National Circuit, Barton ACT 2600. Editors: Merilyn Shields and Lara Weeks Product Developer: Paul Gye Printed by Ligare Pty Ltd, Riverwood, NSW This book has been printed on paper certified by the Programme for the Endorsement of Forest Certification (PEFC). PEFC is committed to sustainable forest management through third party forest certification of responsibly managed forests. For more info: http:// www.pefc.org

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To

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Jackson Wherrett

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Copyright © 2015. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved. Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-19 00:52:11.

Foreword There can be no doubt of the importance of defamation law, not only to the protection of reputation, but also in its effects upon freedom of speech. However, any lawyer, practising or academic, who has had to grapple with it would almost certainly agree with the observation by Dr David Rolph, in the introduction to his text, that it has a deserved reputation for being arcane, complex, technical and obscure. Dr Rolph addresses how and why defamation law has developed in this way. As is the case with so many areas of the common law, defamation law is best understood by reference to its history. The author explains its early development, from multiple sources and over many centuries, and the influences which have shaped it. He points to the development of a distinctive Australian law of defamation, following its reception in the colonies.

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It may seem contrary to the self-image of Australians as “robust and laid­back”, the author suggests, that they might resort to an action for defamation, yet the popularity of the action in Australia suggests a certain tenderness of feelings so far as their reputations are concerned. The action became sufficiently popular to warrant specialist lists in some courts. The management of cases in those lists might be thought, by some, to have contributed to the technicalities which affect this area of the law. Especially is that so with respect to pleadings which, the author observes, are something on which defamation law appears to be fixated. A law having as its subject the effect of publications upon a person’s reputation cannot be comprehended in all its aspects without an understanding of the aims of that law. In addressing this question, the effect of defamation law upon freedom of expression must be confronted. Dr Rolph’s discussion of the emphasis placed by Australian law upon protection of reputation over such freedom is illuminating. It might be expected that it will be in the operation of the defences to an action for defamation that these competing interests are balanced. The interest of the High Court of Australia in defences such as that of qualified privilege is evident from the number of appeals it has continued to entertain in recent years. The reader will benefit from Dr Rolph’s analysis of the case law concerning the defences. Dr Rolph’s text combines both academic and practical approaches to this complex topic. He provides a comprehensive explanation of the theory of defamation law and a guide to its many aspects in practice. The author also speaks with the voice of a law reformer. He points out that, despite defamation law in Australia now being uniform, it has not been subjected to real reform. The

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Foreword

opinions he expresses as to the steps which could be taken to simplify this area of the law provide a valuable contribution to resolving what many regard as unfinished business.

The Hon Justice Susan Kiefel AC

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High Court of Australia

viii

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Acknowledgments This book reflects over a decade of researching, teaching, thinking and writing about defamation law. As a subject for study, defamation law is endlessly fascinating, in spite of, or perhaps because of, its complexity. In the writing of this book, I have been fortunate to have had the sustained support of a number of wonderful colleagues, who have enabled or endured my enthusiasm for defamation law – Ross Anderson, Wayne Courtney, Arlie Loughnan, Elisabeth Peden, Joellen Riley, Kristin Savell, Greg Tolhurst and Kim Weatherall. Particular mention should be made of Penny Crossley, who was always available for a restorative coffee and conversation, and Jacqueline Mowbray, who has acted as my most valued reader. I would also like to thank especially Barbara McDonald, whose friendship, mentoring and advice, delivered with the serene style which is her hallmark, has been invaluable to me.

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In the research and writing of this book, I have been fortunate to have had the benefit of excellent research assistance from Joanna Connolly, Bowen Fox, Sam Farrell and Alice Zhou. Tom Blackburn SC provided useful feedback on the manuscript, for which I am extremely grateful. In relation to the editing and production of the book, I would like to thank Belinda Drake, Lara Weeks, Patrick Wu and Paul Gye. Robert Wilson also deserves special thanks for his unwavering belief in, and commitment to, this project. Finally, and most importantly, I would like to thank my parents, Ken and Jan, my sister, Emma, and my nephews, Lincoln and Bastian, who have loved and supported me throughout this project; Simon Bensley, whose friendship, humour and intellect is indispensable to me; and Jackson Wherrett, who, more than anyone else, lived through the writing of this book and to whom this book is dedicated. This book has been supported by funding from a grant from the Legal Scholarship Support Fund, from the Public Purpose Fund of the Law Society of New South Wales. The research in this book has also been funded in part under the Australian Research Council’s Discovery Projects funding scheme (project number DP120103538). It states the law as to 15 April 2015. Any errors remain my own.

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Copyright © 2015. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved. Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-19 00:52:11.

Table of Contents Foreword ................................................................................................................. vii Acknowledgments ......................................................................................................ix Table of Cases ......................................................................................................... xii Table of Statutes ................................................................................................... xliii 1 Introduction .......................................................................................................... 1 2 The Competing Interests in Defamation Law .................................................. 9 3 The History and Sources of Defamation Law ................................................ 39 4 Criminal Defamation ......................................................................................... 57 5 Preliminary Matters .......................................................................................... 67 6 Defamatory Capacity and Meaning ................................................................ 91 7 Identification ..................................................................................................... 121 8 Publication ........................................................................................................ 139 9 Justification ....................................................................................................... 173

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10 Absolute Privilege .......................................................................................... 203 11 Qualified Privilege .......................................................................................... 217 12 Protected Reports ........................................................................................... 251 13 Fair Comment and Honest Opinion ............................................................ 271 14 Miscellaneous Defences ................................................................................. 291 15 Damages .......................................................................................................... 305 16 Injunctions ...................................................................................................... 339 17 Offers of Amends and Other Remedies ...................................................... 349 18 Causes of Action Other Than Defamation ................................................. 363 Index ...................................................................................................................... 401

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Table of Cases

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A A v Google New Zealand Ltd [2012] NZHC 2352 ............................................................. 8.190 A v Ipec Australia Ltd [1973] VR 39 .................................................................................... 9.40 AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 1395 ............................................................................ 18.30, 18.50, 18.60, 18.230 Abbey v Gilligan [2012] EWHC 3217 ................................................................................ 8.210 Abbott v Coombs (1887) 13 VLR 917 ................................................................................. 12.30 Abbott v TCN Channel Nine Pty Ltd (1987) Aust Torts Reports 80-138 ........................ 7.40 Abraham v Advocate Co Ltd [1946] 2 WWR 181 ................................................... 7.80, 15.260 Abrams v United States 250 US 616; 40 S Ct 17 (1919) ................................................... 2.100 Adam v Ward [1917] AC 309 ....................... 11.10, 11.30, 11.40, 11.50, 11.60, 11.80, 11.90 Adams v Sunday Pictorial Newspapers (1920) Ltd [1951] 1 KB 354 .................... 13.10, 13.100 Addis v Crocker [1961] 1 QB 11 ......................................................................................... 10.30 Advanced Hair Studios Pty Ltd v TVW Enterprises Ltd (1987) 18 FCR 1 ..................... 18.110 Advanced Medical Institute Pty Ltd v Channel Seven Sydney Pty Ltd [2007] NSWSC 793 ................................................................................................................... 16.60 Advertiser-News Weekend Publishing Co Ltd v Manock (2005) 91 SASR 206; [2005] SASC 82 .............................................................................................................. 9.120 Age Co Ltd v Elliott (2006) 14 VR 375; [2006] VSCA 168 ................................. 9.40, 15.210 Age Corporation Ltd v Beran [2005] NSWCA 289 ............................................................... 6.40 Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676 ........................................... 5.40, 13.110 Ahmed v Harbour Radio Pty Ltd [2013] NSWSC 1928 ........................... 5.160, 15.20, 15.130 Ahmed v Harbour Radio Pty Ltd (No 2) [2011] NSWSC 20 ............................................. 6.120 Ajinomoto Sweeteners Europe SAS v Asda Stores Ltd [2011] QB 497; [2010] EWCA Civ 609 ..................................................................................................... 1.30, 18.60 Aktas v Westpac Banking Corporation (2010) 241 CLR 79; [2010] HCA 25 ..... 11.50, 11.80, 11.90 Al Amoudi v Brisard [2007] 1 WLR 113; [2006] EWHC 1062 ........................................ 8.80 Alcott v Millar’s Karri & Jarrah Forests Ltd (1904) 90 LT 722 ............................. 18.30, 18.40 Aldridge v John Fairfax & Sons Ltd [1984] 2 NSWLR 544 ............................................ 15.230 Alexander v North Eastern Railway Co (1865) 6 B & S 340; 122 ER 1221 ...................... 9.30 Ali v Nationwide News Pty Ltd [2008] NSWCA 183 ...................................................... 15.260 Allbutt v General Council of Medical Education and Registration (1889) 23 QBD 400 ......................................................................................................................... 12.50 Allen v John Fairfax & Sons Ltd [1971] 1 NSWLR 773 ........................... 12.20, 12.30, 12.40 Allen v John Fairfax & Sons Ltd (unreported, NSW SC, Hunt J, 2 December 1988) ............................................................................................................ 9.170 Allsop v Allsop (1860) 5 H & N 534; 157 ER 1292 ......................................................... 15.90 Allsop v Church of England Newspaper Ltd [1972] 2 QB 161 ................................. 6.30, 6.120 Allsop v Incorporated Newsagencies Co Pty Ltd (1975) 26 FLR 238 ..................................... 9.50 Allworth v John Fairfax Group Pty Ltd (1993) 113 FLR 254 .................. 9.30, 9.50, 9.60, 9.80 Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 153 ............ 3.30, 6.30, 6.60, 6.80, 6.110, 6.160, 6.180 Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 ........................ 11.120 Amanatidis v Darmos [2011] VSC 163 ............................................................................... 8.120 xii

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Table of Cases

Amanatidis v Darmos (No 2) [2011] VSC 216 ..................................................................... 1.10 Amann v Damm (1860) 8 CB(NS) 597; 141 ER 1300 ..................................................... 8.120 American Cyanamid v Ethicon Ltd [1975] AC 396 .................................................. 16.40, 16.50 Anderson v Eric Anderson Radio & TV Pty Ltd (1965) 114 CLR 20 .............................. 8.150 Anderson v Gorrie [1895] 1 QB 668 .................................................................................... 10.30 Anderson v Mirror Newspapers Ltd (No 2) (1986) 5 NSWLR 736 ................................. 15.190 Anderson v Nationwide News Pty Ltd [1970] 1 NSWR 317 ................................... 12.30, 12.40 Andrews v Chapman (1853) 3 Car & K 286; 175 ER 588 ........................ 12.10, 12.20, 12.30 Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 ........... 5.100, 7.40, 15.80, 15.230 Andreyevich v Kosovich (1947) 47 SR(NSW) 357 .......................... 11.20, 11.70, 11.80, 11.160 Ange v Fairfax Media Publications Pty Ltd [2010] NSWSC 1383 ...................................... 5.160 Animal Liberation (Vic) Inc v Gasser [1991] 1 VR 51 ...................................................... 18.230 Annabel v Seven Network (Operations) Ltd [2005] ACTSC 54 ........................................... 16.60 Argus Probity Auditors & Advisors Pty Ltd v Queensland Rail Ltd [2014] QSC 161 ...................................................................................................................................... 5.40 Arrowcrest Group Pty Ltd v Advertiser News Weekend Publishing Co Pty Ltd (1993) 113 FLR 57 ........................................................................................................ 8.170 Association of Quality Child Care Centres (NSW) v Manefield [2012] NSWCA 123 .................................................................................................................................... 8.180 Astaire v Campling [1966] 1 WLR 34 ................................................................................. 7.100 Astley v Younge (1759) 2 Burr 807; 97 ER 572 ................................................................. 10.30 Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 ................. 2.90, 18.220 Attrill v Christie [2007] NSWSC 1386 ............................................................................. 15.130 Attwood v Chapman [1914] 3 KB 275 ................................................................................. 10.30 Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354 ........ 11.130, 11.160, 11.170, 11.180 Australand Holdings Ltd v Transparency & Accountability Council Inc [2008] NSWSC 669 ............................................................................................ 18.30, 18.50, 18.60 Australian Broadcasting Corporation v Chatterton (1986) 46 SASR 1 ................................. 10.40 Australian Broadcasting Corporation v Comalco Ltd (1986) 12 FCR 510; 68 ALR 259 ............................................................... 5.100, 6.190, 11.30, 11.90, 13.50, 15.70 Australian Broadcasting Corporation v Hanson [1998] QCA 306; (unreported, Qld CA, de Jersey CJ, McMurdo P and McPherson JA, 28 September 1998) ................................................................................................................................ 16.40 Australian Broadcasting Corporation v Hodgkinson [2005] NSWCA 190 ........................... 9.140 Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63 ................ 1.20, 2.90, 2.100, 2.120, 2.150, 5.110, 9.60, 16.20, 18.200, 18.220 Australian Broadcasting Corporation v McBride (2001) 53 NSWLR 430; [2001] NSWCA 322 ...................................................................................... 15.200, 15.210 Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46 .... 1.20, 1.60, 2.90, 5.60, 9.60, 15.20, 16.20, 16.40, 16.50, 16.60, 16.70, 16.80, 16.110, 16.130 Australian Broadcasting Corporation v Obeid (2006) 66 NSWLR 605; [2006] NSWCA 231 ..................................................................................................................... 6.40 Australian Broadcasting Corporation v Reading [2004] NSWCA 205 ................................. 6.280 Australian Broadcasting Corporation v Waterhouse (1991) 25 NSWLR 519 ........... 8.130, 8.150 Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 ......... 1.50, 2.120, 2.140, 9.60, 11.110 Australian Competition and Consumer Commission v Channel Seven Brisbane Pty Ltd (2009) 239 CLR 305; [2009] HCA 19 ............................................................... 18.140 Australian Consolidated Press Ltd v Ettingshausen (unreported, NSW CA, Gleeson CJ, Kirby P and Clarke JA, 13 October 1993) ..................... 2.80, 9.60, 18.200 Australian Consolidated Press Ltd v Uren (1966) 117 CLR 185 ........................................... 9.50 xiii

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Table of Cases

Australian Consolidated Press Ltd v Uren [1969] 1 NSWR 745 ......................................... 6.200 Australian Football League v Age Co Ltd (2006) 15 VR 419; [2006] VSC 308 ............. 18.220 Australian Medical Association (WA) Inc v McEvoy [2012] WASC 50 .............................. 5.100 Australian Newspaper Co Ltd v Bennett [1894] AC 284 .............................................. 6.50, 6.70 Australian Ocean Line Pty Ltd v West Australian Newspapers Ltd (1985) 58 ALR 549 .............................................................................................................. 18.80, 18.90 Axel Springer AG v Germany (2012) 55 EHRR 6 ........................................ 2.70, 2.100, 2.150

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B Baffsky v John Fairfax & Sons Ltd (1990) 97 ACTR 1 ...................................................... 8.170 Bailey v Truth and Sportsman Ltd (1938) 60 CLR 700 ........................................... 13.50, 15.10 Bainton v John Fairfax & Sons Ltd (1991) Aust Torts Reports 81-143 .............. 12.40, 12.80 Baird v Wallace-James (1916) 85 LJPC 193 ......................................................................... 11.30 Balfour v Attorney-General [1991] 1 NZLR 519 ............................................................... 18.170 Ballina Shire Council v Ringland (1994) 33 NSWLR 680 ......... 1.70, 2.10, 2.90, 5.120, 18.30, 18.50, 18.60 Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379 .............................................. 18.190 Baltinos v Foreign Language Publications Pty Ltd (1986) 6 NSWLR 85 ............................. 7.100 Barach v University of New South Wales [2011] NSWSC 431 ........................................... 8.210 Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 ........ 7.20, 7.40, 7.50, 11.80, 11.90, 11.100, 11.160, 11.180 Barbaro v Amalgamated Television Services Pty Ltd (1989) 20 NSWLR 493 .... 11.130, 11.150, 11.180 Barclay v Penberthy (2012) 246 CLR 258; [2012] HCA 40 ............................................. 18.160 Bargold Pty Ltd v Mirror Newspapers Ltd [1981] 1 NSWLR 9 .............................. 5.100, 6.180 Barnes & Co Ltd v Sharpe (1910) 11 CLR 462 ................................................................. 5.100 Barratt v Kearns [1905] 1 KB 505 ....................................................................................... 10.30 Barrett v Associated Newspapers (1907) 23 TLR 666 .......................................................... 18.40 Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; [2004] HCA 5 ................... 11.20, 11.30, 11.50, 11.60, 11.70, 11.80, 11.90, 12.10, 12.40 Bass v TCN Channel Nine Pty Ltd (2003) 60 NSWLR 251; [2003] NSWCA 118 ...................................................................................................................... 11.60, 11.100 Bata v Bata [1948] WN 366 ................................................................................................ 8.140 Bateman v Fairfax Media Publications Pty Ltd (2013) 8 ACTLR 13; [2013] ACTSC 72 ....................................................................................................................... 5.150 Bateman v Fairfax Media Publications Pty Ltd (No 2) [2014] NSWSC 1380 ........... 9.80, 9.120 Bateman & Idameneo (No 123) Pty Ltd v Fairfax Media Publications Pty Ltd (2013) 8 ACTLR 13; [2013] ACTSC 72 ............................................................ 1.10, 8.170 Baturina v Times Newspapers Ltd [2010] EWHC 696 ........................................................ 8.210 Bayly v Harris (1507) 101 Selden Society 21 ...................................................................... 3.20 Beach v Fresson [1972] 1 QB 14 ........................................................................................... 11.40 Beckham v Drake (1849) 2 HL Cas 579; 9 ER 1213 .......................................................... 5.70 Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 ............... 16.40, 16.50 Beechwood Homes (NSW) Pty Ltd v Camenzuli [2010] NSWSC 521 .................. 5.110, 18.230 Beitzel v Crabb [1992] 2 VR 121 ......................................................................................... 10.40 Belbin v Lower Murray Urban and Rural Water Corporation [2012] VSC 535 ................... 15.60 Belbin v Lower Murray Urban and Rural Water Corporation (Ruling No 1) [2012] VSC 359 .............................................................................................................. 5.160 Bell v Byrne (1811) 13 East 554; 104 ER 486 ..................................................................... 8.60 Bell-Booth Group Ltd v Attorney-General [1989] 3 NZLR 148 ........................................ 18.170 Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 .............. 9.50, 9.60, 12.10, 13.10, 13.70 xiv

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Table of Cases

Bennette v Cohen (2005) 64 NSWLR 81; [2005] NSWCA 341 ........................................ 6.200 Bennette v Cohen (2009) Aust Torts Reports 82-002; [2009] NSWCA 60 ........ 2.110, 11.20, 11.30 Benson v Flower (1629) Cro Car 166; 79 ER 745 ................................................................ 5.70 Beran v John Fairfax Publications Pty Ltd [2004] NSWCA 107 ........................................... 6.40 Berezovsky v Michaels [2000] 2 All ER 986; [2000] 1 WLR 1004 ........................ 8.130, 15.30 Berkoff v Burchill [1996] 4 All ER 1008 .... 2.30, 6.30, 6.60, 6.70, 6.80, 6.150, 6.220, 6.260, 6.270 Besser v Kermode (sub nom Fairfax Media Publications Pty Ltd v Kermode) (2011) 81 NSWLR 157; [2011] NSWCA 174 ..................................................... 9.170, 6.20, 6.30 Bestobell Paints Ltd v Bigg [1975] FSR 421 .................................. 16.40, 16.70, 16.110, 18.230 Betfair Ltd v Nason [2006] ACTSC 111 ............................................................................. 9.120 Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474 .............. 13.40, 13.80, 13.90, 15.80, 15.190, 15.230, 15.250 Bidstrup v Cullen [2013] SASC 136 ....................................................................................... 5.40 Bik v Mirror Newspapers Ltd [1979] 2 NSWLR 679n ................................. 6.150, 6.170, 8.60 Bird v Jones (1845) 7 QB 742; 115 ER 668 ..................................................................... 18.190 Bishop v New South Wales [2000] NSWSC 1042 .................................................................. 8.50 Bjelke-Petersen v Burns [1987] 2 Qd R 129 .................................................... 7.90, 13.40, 13.50 Blackshaw v Lord [1984] 1 QB 1 ......................................................................................... 11.50 Blennerhassett v Novelty Sales Services Ltd (1933) 175 LT 393 .............................................. 7.70 Bleyer v Google Inc [2014] NSWSC 897 ................................................................... 8.190, 8.210 Bob Kay Real Estate Pty Ltd v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 505 ................................................................................................................... 13.60 Boehringer Ingelheim Ltd v Vetplus Ltd [2007] FSR 29 ..................................................... 18.230 Bognor Regis Urban District Council v Campion [1972] 2 QB 169 ...................................... 5.120 Bolton, Re; Ex parte Beane (1987) 162 CLR 514 .................................................................. 2.90 Bond v Barry (2008) 173 FCR 106; [2008] FCAFC 115 ................................. 18.130, 18.140 Bonette v Woolworths Ltd (1937) 37 SR(NSW) 142 ........................................................... 11.40 Bonighton v Nationwide News Pty Ltd [2006] ACTSC 7 ....................................................... 7.20 Bonnard v Perryman [1891] 2 Ch 269 ............................................... 16.30, 16.40, 16.50, 16.80 Bonnick v Morris [2003] 1 AC 300; [2002] UKPC 31 .................................................... 11.120 Bonsor v Musicians’ Union [1954] Ch 479 ............................................................................. 2.30 Born Brands Pty Ltd v Nine Network Australia Pty Ltd [2014] NSWCA 369 ..... 5.110, 9.170 Botiuk v Toronto Free Press Publications Ltd [1995] 3 SCR 3 .............................................. 6.280 Bottomley v Brougham [1908] 1 KB 584 ............................................................................... 10.20 Bottomley v FW Woolworth & Co Ltd (1932) 48 TLR 521 ............................................... 14.30 Bourke v Warren (1826) 2 Car & P 307; 172 ER 138 ............................................... 7.40, 7.50 Bowler v Pognoski (No 2) [1967] 1 NSWR 249 .................................................................. 12.40 Boxsius v Golbet Freres [1894] 1 QB 842 ................................................................... 8.90, 11.20 Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 449 ....................................................... 6.230 Brabourne v Hough [1981] FSR 79 .................................................................................... 18.230 Bracks v Smyth-Kirk (2009) 263 ALR 522; [2009] NSWCA 401 ................................. 17.100 Bradley v Wingnut Films Ltd [1993] 1 NZLR 415 ........................................................... 18.210 Brander v Ryan (2000) 78 SASR 234; [2000] SASC 446 ................................................ 11.110 Branson v Bower [2002] QB 737 ................................ 2.110, 13.10, 13.50, 13.70, 13.80, 13.90 Branzburg v Hayes 408 US 665; 92 S Ct 2646 (1972) ...................................................... 2.100 Breavington v Godleman (1988) 169 CLR 41 ....................................................................... 8.150 Bremridge v Latimer (1864) 10 LT 816; 12 WR 878 ............................................................ 9.90 Brent Walker Group Plc v Time Out Ltd [1991] 2 QB 33 .................................................. 13.50 Bretherton v Kaye [1971] VR 111 .............................................................................. 10.20, 10.30 Bride v KMG Hungerfords (1991) 109 FLR 256 ................................................................. 18.50 Bride v Peat Marwick Mitchell [1989] WAR 383 ................................................................... 5.70 xv

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Table of Cases

Briggs v Jordan [2013] EWHC 3205 .................................................................................... 8.210 Brighten Pty Ltd v Nine Network Australia Pty Ltd [2009] NSWSC 319 ....................... 18.230 Briscoe v Readers’ Digest Association 483 P 2d 34 (1971) ................................................. 18.210 Bristow v Adams [2012] NSWCA 166 .................................................................... 8.210, 15.30 British Railway Traffic and Electric Co v CRC Co [1922] 2 KB 260 ....................... 18.20, 18.30 Broadbent v Small (1876) 2 VLR(L) 121 ............................................................................. 13.70 Broadway Approvals Ltd v Odhams Press Ltd [1965] 1 WLR 805 ................................... 11.100 Broderick Motors Pty Ltd v Rothe (1986) Aust Torts Reports 80-059 ........................... 18.230 Brook v Flinders University of South Australia (1988) 47 SASR 119 ................................. 15.90 Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 (2014) 313 ALR 408; 88 ALJR 911; [2014] HCA 36 ................................................................. 18.160 Brooks v Blanshard (1833) 1 C & M 779; 149 ER 613 ..................................................... 11.70 Broome v Agar (1928) 44 TLR 339 ....................................................................................... 6.70 Broome v Cassell & Co Ltd [1972] AC 1027 ............. 2.20, 15.10, 15.40, 15.50, 15.60, 15.70, 15.100, 15.110, 15.170, 15.210, 15.230, 15.240, 15.260, 18.190 Browne v Associated Newspapers Ltd [2007] EMLR 19; [2007] EWHC 202 ................. 18.230 Browne v Thomson & Co 1912 SC 359 .................................................................................. 7.90 Bruce v Odhams Press Ltd [1936] 1 KB 697 ................................................................ 7.10, 7.40 Bryanston Finance Ltd v de Vries [1975] QB 703 .................................... 16.40, 16.110, 16.140 Bryant v Nationwide News Pty Ltd [1999] NSWSC 360 ...................................................... 7.90 Buchanan v Jennings [2005] 1 AC 115; [2004] UKPC 36 ............... 10.10, 10.20, 10.30, 10.40 Buckeridge v Walter [2007] WASCA 19 ............................................................................... 9.120 Buckley v Herald & Weekly Times Ltd (2009) 24 VR 129; [2009] VSCA 118 ............. 15.140 Buckley v Herald & Weekly Times Pty Ltd (No 2) [2008] VSC 475 .................................. 8.170 Budu v British Broadcasting Corporation [2010] EWHC 616 .............................................. 8.210 Bunt v Tilley [2007] 1 WLR 1243; [2006] EWHC 407 .......................................... 8.20, 8.190 Burchett v Kane [1980] 2 NSWLR 266n ............................................................................. 12.30 Burnett & Hallamshire Fuel Ltd v Sheffield Telegraph & Star Ltd [1960] 1 WLR 502 .......................................................................... 10.30, 12.10, 12.20, 12.30, 12.40 Burns v Collins [1968] VR 667 ............................................................................................... 5.20 Burr v Smith [1909] 2 KB 306 ............................................................................................ 10.30 Burrows v Knightley (1987) 10 NSWLR 651 ............................................................... 1.30, 6.40 Burstein v Times Newspapers Ltd [2001] 1 WLR 579 ......................................... 15.170, 15.210 Burton v Board [1929] 1 KB 301 ............................................................................. 13.10, 13.30 Burton v Crowell Publishing Co 82 F 2d 154 ........................................................................ 6.260 Bushara v Nobananbas Pty Ltd [2012] NSWSC 63 ............................................................ 17.50 Bushell’s Case (1670) 1 Freeman 2; 89 ER 2 ..................................................................... 10.30 Butler v Egg and Egg Pulp Marketing Board (1966) 114 CLR 185 .................................... 15.50 Byrne v Deane [1937] 1 KB 818 .............................................................. 6.80, 8.20, 8.50, 8.190 Byrnes v Barry [2003] ACTSC 54 .......................................................................................... 4.10 Byrnes v Barry (2004) 150 A Crim R 471; [2004] ACTCA 24 .......................................... 4.10

C C v Holland [2012] 3 NZLR 672; [2012] NZHC 2155 ................................................ 18.210 Cabassi v Vila (1940) 64 CLR 130 ......................................................................... 10.20, 10.30 Caccavo v Daft [2006] TASSC 36 ........................................................................................ 9.180 Cairns v John Fairfax & Sons Ltd [1983] 2 NSWLR 708 ................................................. 6.300 Cairns v Modi [2013] 1 WLR 1015; [2012] EWCA Civ 1382 ........................................ 8.180 Calwell v Ipec Australia Ltd (1975) 135 CLR 321 ................................................ 11.80, 11.100 Campbell v Associated Newspapers Ltd (1948) 48 SR(NSW) 301 .................................... 12.100 Campbell v MGN Ltd [2004] 2 AC 457; [2004] UKHL 22 ................... 9.60, 18.200, 18.210 Campbell v Spottiswoode (1863) 3 B & S 174; 122 ER 288 .................................... 13.10, 13.70 xvi

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Table of Cases

Campomar Sociedad Limitada v Nike International Ltd (2000) 202 CLR 45; [2000] HCA 12 ............................................................................................................... 18.90 Cantwell v Sinclair [2011] NSWSC 1244 ............................................................................ 15.60 Capital and Counties Bank Ltd v Henty (1882) 7 App Cas 741 ................... 6.120, 6.250, 8.20 Carey v Australian Broadcasting Corporation (2012) 84 NSWLR 90; [2012] NSWCA 176 ......................................................................................................... 5.40, 8.170 Carleton v Freedom Publishing Co Pty Ltd (1982) 45 ACTR 1 ............................................ 8.150 Carr v Hood (1808) 1 Camp 355n; 170 ER 983 ................................................... 13.10, 13.80 Carrie v Tolkien [2009] EMLR 9; [2009] EWHC 29 .......................................................... 8.80 Carrier v Bonham [2002] 1 Qd R 474; [2001] QCA 234 .................................................. 6.240 Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 .......... 1.70, 2.20, 5.150, 15.20, 15.40, 15.50, 15.70, 15.110, 15.210, 15.230, 15.260 Casley v Australian Broadcasting Corporation (2013) 39 VR 526; [2013] VSCA 182 ......................................................................................................................... 5.40 Cassar v Network Ten Pty Ltd [2012] NSWSC 680 ............................................................. 5.40 Cassidy v Daily Mirror Newspapers Ltd [1929] 2 KB 331 ..................... 6.90, 6.120, 7.30, 7.40 Cattanach v Melchior (2003) 215 CLR 1; [2003] HCA 38 ................................................ 8.110 Cawley v Australian Consolidated Press Ltd [1981] 1 NSWLR 225 .......................... 3.70, 13.10 Cerutti v Crestside Pty Ltd [2014] QCA 33 ........ 15.30, 15.50, 15.210, 15.230, 15.260, 17.10 Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 ............. 1.30, 2.10, 5.20, 6.20, 6.30, 6.70, 6.80, 6.150, 9.100, 9.110, 9.120, 12.10, 12.20, 12.30, 12.40, 12.70, 15.40, 17.130 Chalmers v Payne (1835) 2 CM & R 156; 150 ER 67 ............................................ 6.150, 6.170 Champan v Australian Broadcasting Corporation (2000) 77 SASR 181 ................................ 6.30 Chandler v Thompson (1811) 3 Camp 80; 170 ER 1312 ................................................. 18.200 Channel Seven Adelaide Pty Ltd v Draper (2004) 234 LSJS 15; [2004] SASC 144 .................................................................................................................................... 16.60 Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245; [2007] HCA 60 ...................................................... 1.20, 9.120, 13.10, 13.40, 13.50, 13.60, 13.80, 13.90 Channel Seven Sydney Pty Ltd v Fierravanti-Wells (2011) 81 NSWLR 315; [2011] NSWCA 246 ...................................................................................................... 5.160 Channel Seven Sydney Pty Ltd v Mahommed (2010) 278 ALR 232; [2010] NSWCA 335 ............................................................... 2.40, 9.140, 15.190, 15.210, 15.220 Channel Seven Sydney Pty Ltd v Mahommed (No 2) (2011) 80 NSWLR 210; [2011] NSWCA 6 ............................................................................................................. 1.10 Channel Seven Sydney Pty Ltd v Parras (2002) Aust Torts Reports 81-675; [2002] NSWCA 202 ............................................................................................... 7.40, 7.50 Chaplain v Shepherd (1315) 101 Selden Society 46 ............................................................. 3.60 Chaplinsky v New Hampshire 315 US 568; 62 S Ct 766 (1942) ......................................... 2.90 Chapman v Australian Broadcasting Corporation (2000) 77 SASR 181 ............ 6.20, 6.30, 6.60, 6.70, 6.80, 6.120, 6.150 Chapman v Lord Ellesmere [1932] 2 KB 431 .................................................................... 14.110 Chappell v Mirror Newspapers Ltd (1984) Aust Torts Reports 80-691 ............... 14.70, 14.80, 14.90, 15.170 Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153 ....... 2.140, 9.50, 9.60, 16.10, 16.40, 16.90 Charleston v News Group Newspapers Ltd [1995] 2 AC 65 ......................... 6.110, 6.140, 6.150 Chase v News Group Newspapers Ltd [2002] EWHC 2209 (QB) ..................................... 7.100 Chase v News Group Newspapers Ltd [2003] EMLR 11; [2002] EWCA Civ 1772 ................................................................................................................................. 6.190 Chatterton v Secretary of State for India [1895] 2 QB 189 .................................................. 10.80 Chauvy v France (2005) 41 EHRR 29 ............................................................ 2.70, 2.100, 2.150 Chen v Evans [2014] VSC 230 ............................................................................................... 5.40 xvii

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Chenard & Co v Arisol [1949] AC 127 ............................................................................... 10.40 Cheng v Tse Wai Chun (2000) 3 HKLRD 418 ...... 13.10, 13.40, 13.50, 13.70, 13.90, 13.100 Cherneskey v Armadale Publishers Ltd [1979] 1 SCR 1067 ................................................ 13.90 Chetwynd v Armidale Dumaresq Council [2010] NSWSC 690 ......................................... 11.180 Chicago, City of v Tribune Co 139 NE 86 (1923) ............................................................... 2.110 Chomley v Watson [1907] VLR 502 ....................................................................................... 7.90 Christiansen v Fairfax Media Publications Pty Ltd [2012] NSWSC 1258 ............................. 7.90 Church of Scientology of California Inc v Reader’s Digest Services Pty Ltd [1980] 1 NSWLR 344 ............................................... 16.10, 16.40, 16.90, 16.110, 16.120, 18.230 Clark v Ainsworth (1996) 40 NSWLR 463 .......................................................... 15.70, 15.230 Clark v Freeman (1848) 11 Beav 111; 50 ER 759 ............................................................. 16.20 Clark v Ibrahim [2014] VSC 30 ............................................................................................. 5.40 Clark v Molyneux (1877) LR 3 QBD 237 ................................................ 11.80, 11.90, 11.100 Clarke v Meigher (1917) 17 SR(NSW) 617 ......................................................................... 18.30 Clarke v Norton [1910] VLR 494 ........................................................................................ 13.40 Clarke v Taylor (1836) 2 Bing (NC) 654; 132 ER 252 ....................................................... 9.70 Clover Bond Pty Ltd v Carroll [2004] WASC 216 ................................................................. 5.20 Clutterbuck v Chaffers (1816) 1 Stark 471; 171 ER 533 ............................................ 4.30, 8.90 Cockayne v Hodgkisson (1833) 5 Car & P 543; 172 ER 1091 .......................................... 11.40 Coco v The Queen (1994) 179 CLR 427; [2004] HCA 39 ................................................... 2.90 Cohen v Daily Telegraph Ltd [1968] 1 WLR 916 ................................................................. 13.50 Cohen v Mirror Newspapers Ltd [1971] 1 NSWLR 623 ....................................................... 9.60 Cole v Operative Plasterers Federation of Australia (NSW Branch) (1927) 28 SR(NSW) 62 ................................................................................................................... 13.70 Coleman v John Fairfax Publications Pty Ltd [2003] NSWSC 564 ...................................... 6.210 Coleman v Power (2004) 220 CLR 1; [2004] HCA 39 ................................. 2.90, 2.120, 2.140 Collard v Marshall [1892] 1 Ch 571 .................................................................................... 16.20 Collerton v McLean [1962] NZLR 1045 ................................................................................ 8.30 Collins v Henry Whiteway & Co Ltd [1927] 2 KB 378 ...................................................... 10.30 Commonwealth Bank of Australia v Rigg [2001] FCA 590 ................................................ 5.160 Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 ................ 18.80, 18.110 Consolidated Trust Co Ltd v Browne (1948) 49 SR(NSW) 86 ...... 3.20, 7.20, 7.40, 8.20, 8.210 Cook v Alexander [1974] QB 279 ............................................................................ 12.70, 13.50 Cook v Batchellor (1802) 3 Bos & Pul 150; 127 ER 83 ...................................................... 5.90 Cooke v Hughes (1824) Ry & M 112; 171 ER 961 .................................................. 6.40, 15.10 Copartnership Farms v Harvey-Smith [1918] 2 KB 405 ....................................................... 10.30 Corby v Channel Seven Sydney Pty Ltd (unreported, NSW SC, 20 February 2008) ................................................................................................................................ 9.170 Cornwall v Rowan (2004) 90 SASR 269; [2004] SASC 384 ........................................... 11.110 Costello v Random House Australia Pty Ltd (1999) 137 ACTR 1 ...................................... 15.40 Cother v John Fairfax & Sons Pty Ltd (1947) 64 WN(NSW) 154 .................................... 5.140 Cotting v Ward (1418) 101 Selden Society 12 ...................................................................... 3.20 Coull v Nationwide News Pty Ltd (2008) 23 NTLR 147; 155 NTR 1; [2008] NTCA 10 ...................................................................................................................... 15.260 Cox v Feeney (1863) 4 F & F 13; 176 ER 445 ................................................................... 12.30 Cox v Journeaux (No 2) (1935) 52 CLR 713 ........................................................................ 5.70 Coxhead v Richards (1846) 2 CB 569; 135 ER 1069 ................................. 11.20, 11.40, 11.80 Coyne v Citizen Finance Ltd (1991) 172 CLR 211 ......... 5.150, 15.20, 15.40, 15.100, 15.110, 15.230, 15.260 Craftsman Homes Australia Pty Ltd v TCN Channel Nine Pty Ltd [2006] NSWSC 519 ...................................................................................................................... 9.30 Crampton v Nugawela (1996) 41 NSWLR 176 ........................... 15.10, 15.20, 15.150, 15.240 Creek v Cairns Post Pty Ltd (2001) 112 FCR 352; [2001] FCA 1007 ........................... 17.110 xviii

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Table of Cases

Crest Homes Ltd v Ascott [1980] FSR 396 ............................................................ 16.40, 16.110 Cripps v Vakras [2014] VSC 279 ......................... 5.110, 8.190, 13.100, 15.20, 15.60, 15.130 Crittal v Horner (1618) Hob 219; 80 ER 366 ...................................................................... 3.30 Crofts v Brown (1616) 3 Bulst 167; 81 ER 141 .................................................................... 3.30 Cromwells Auctions and Appraisers Pty Ltd v John Fairfax Publications Pty Ltd [2002] NSWSC 948 ....................................................................................................... 16.60 Crookes v Newton [2011] 3 SCR 269; [2011] SCC 47 ............................................. 2.10, 8.200 Cropp v Tilney (1693) 3 Salk 225; 90 ER 1132 ................................................................. 6.260 Crosby v Kelly (2012) 203 FCR 451; [2012] FCAFC 96 .................................................. 8.180 Crosby v Kelly [2013] FCA 1343 .......................................................................................... 8.180 Cross v Denley (1952) 52 SR(NSW) 112 ............................................. 6.300, 7.20, 7.40, 7.100 Cross v Queensland Newspapers Pty Ltd [2008] NSWCA 80 ................................................ 9.30 Crowley v Glissan (No 2) (1905) 2 CLR 744 ......................................................................... 9.60 Cruise v Southdown Press Pty Ltd (1993) 26 IPR 125 ....................................................... 18.200 Cullen v White [2003] WASC 153 ......................................................................... 8.160, 15.240 Cumpana v Romania (2005) 41 EHRR 14 .................................................... 2.70, 2.110, 2.150 Cunliffe v Commonwealth (1994) 182 CLR 272 ..................................................................... 2.90 Cunliffe v Woods [2012] VSC 254 ............................................................................ 10.30, 14.80 Curry v Walter (1796) 1 Bos & Pul 525; 126 ER 1046 .................................................... 12.20 Curtis Publishing Co v Butts 388 US 130; 87 S Ct 1975 (1967) ................ 2.100, 2.120, 2.140 Cush v Dillon (2011) 243 CLR 298; [2011] HCA 30 ................................ 8.210, 11.20, 11.80 Cutler v McPhail [1962] 2 QB 292 ........................................................................................ 8.70

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D D & L Caterers Ltd v D’Ajou [1945] 1 KB 364 ............................................................... 5.100 D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 ................... 10.30 Daily Examiner Pty Ltd v Mundine [2012] NSWCA 195 ...................... 5.160, 11.120, 11.150 Dakhyl v Labouchere [1908] 2 KB 325 ................................................................................ 13.70 Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543; [2002] HCA 49 .................................... 5.110 Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288 ..................................................................................................................... 8.40 Dank v Whittaker (No 1) [2013] NSWSC 1062 .................................................................. 8.40 Dank v Whittaker [No 4] [2014] NSWSC 732 ............................................................... 15.140 Darby v Ouseley (1856) 25 LJ (Exch) 227 ........................................................................ 15.230 Darbyshir v Daily Examiner Pty Ltd (unreported, NSW SC, Levine J, 29 August 1997) .................................................................................................................. 6.210 David v Abdishou [2012] NSWCA 109 ................................................................................ 8.30 David Syme & Co v Canavan (1918) 25 CLR 234 ............................................ 7.10, 7.80, 7.90 David Syme & Co Ltd v Grey (1992) 38 FCR 303 ............................................................ 8.170 David Syme & Co Ltd v Hore-Lacy (2000) 1 VR 667; [2000] VSCA 24 .... 9.20, 9.80, 9.120, 9.180 David Syme & Co Ltd v Lloyd [1984] 3 NSWLR 346 ........................................................ 7.90 David Syme & Co Ltd v Mather [1977] VR 516 ..................................... 15.70, 15.230, 15.260 Davis v Nationwide News Pty Ltd (2008) 71 NSWLR 606; [2008] NSWSC 699 .................................................................................................................... 11.150, 11.180 Davis v Nationwide News Pty Ltd [2008] NSWSC 693 ........... 5.160, 15.120, 15.140, 15.230, 18.200 Davis & Sons Ltd v Shepstone (1886) 11 App Cas 187 ......................................... 13.10, 13.70 Davison v Duncan (1857) 7 El & Bl 229; 119 ER 1233 ....................................... 12.20, 12.50 Davison v Habeeb [2011] EWHC 3031 ............................................................................... 8.190 Dawkins v Lord Rokeby (1873) LR 8 QB 255 ............................................ 10.10, 10.20, 10.30 xix

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Dawkins v Prince Edward of Saxe-Weimar (1876) 1 QBD 499 ......................................... 10.30 Dawson Bloodstock Agency Pty Ltd v Mirror Newspapers Ltd [1979] 1 NSWLR 16 .............................................................................................................................. 6.30, 7.40 Dawson Bloodstock Agency Pty Ltd v Mirror Newspapers Ltd [1979] 2 NSWLR 733 ...................................................................................................................................... 7.40 Day v Bream (1837) 2 Mood & R 54; 174 ER 212 ............................................................ 8.30 De Beers Abrasive Products Ltd v International General Electric Co of New York Ltd [1975] 1 WLR 972 .................................................................................................. 18.30 De Crespigny v Wellesley (1829) 5 Bing 392; 130 ER 1112 ................................................. 2.80 De Libellis Famosis (1605) 5 Co Rep 125a; 77 ER 250 ................................... 2.80, 3.40, 4.30 Delacroix v Thevenot (1817) 2 Stark 63; 171 ER 573 .......................................................... 8.90 Delegal v Highley (1837) 3 Bing NC 950; 132 ER 677 ..................................................... 12.20 Derbyshire County Council v Times Newspapers Ltd [1993] AC 534 ........................ 2.110, 5.120 Desmond v Thorne [1983] 1 WLR 163 ................................................................................... 4.30 Dickeson v Hilliard (1874) LR 9 Exch 79 ........................................................................... 11.70 Digby v Financial News Ltd [1907] 1 KB 502 ......................................................... 13.10, 13.50 Dingle v Associated Newspapers Ltd [1961] 2 QB 162 .......................................................... 2.40 Dingle v Associated Newspapers Ltd [1964] AC 371 .................... 15.10, 15.20, 15.170, 15.210 Dixon v Holden (1869) LR 7 Eq 488 ........................................................................ 2.30, 16.20 Doe v Australian Broadcasting Corporation [2007] VCC 281 .............................. 18.170, 18.200 Doe v Yahoo! 7 Pty Ltd [2013] QDC 181 ......................................................................... 18.200 Dojas v TCN Channel Nine Pty Ltd [2001] NSWCA 398 .................................................. 7.50 Donoghue v Hayes (1831) IR Ex Ch 265 ............................................................................. 6.210 Dougherty v Chandler (1946) 46 SR(NSW) 370 ............................................................... 11.100 Dougherty v Nationwide News Pty Ltd (1967) 86 WN (Pt 1) (NSW) 181 ...................... 11.100 Dougherty v Nationwide News Pty Ltd [1969] 1 NSWR 189 ................................................ 6.30 Douglas v Hello! Ltd [2001] QB 967 ....................................................................... 2.90, 18.210 Douglas v Hello! Ltd (No 2) [2006] QB 125; [2005] EWCA Civ 595 ............. 18.200, 18.210 Douglas v Hello! Ltd (No 3) [2003] 3 All ER 996; [2003] EWHC 786 ........................ 18.210 Dow Jones & Co Inc v Gutnick [2001] VSCA 249 .............................................................. 8.170 Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 ......... 2.10, 2.20, 3.30, 8.20, 8.30, 8.130, 8.140, 8.170, 8.180 Dowding v Ockerby [1962] WAR 110 ......................................................................... 6.300, 7.80 Draper v Official Trustee in Bankruptcy (2006) 156 FCR 53 .............................................. 5.160 Drummond-Jackson v British Medical Association [1970] 1 WLR 688 .......... 6.60, 6.220, 6.280, 18.60 Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 ............................................................................................................ 1.20, 6.30 Du Bost v Beresford (1810) 2 Camp 511; (1810) 170 ER 1235 .......................................... 7.50 Duffy v Google Inc [2011] SADC 178 .................................................................................. 8.190 Dugan v Mirror Newspapers Ltd (1978) 142 CLR 583 ......................................................... 5.60 Duke of Brunswick v Harmer (1849) 14 QB 185; 117 ER 75 .............................. 8.130, 8.210 Duke of Schomberg v Murrey (1700) Holt KB 640; 90 ER 1254 ....................................... 3.50 Duke of York v Oates (1684) 10 State Trials 125 ................................................................ 3.50 Duke of York v Pilkington (1682) Skinner 71; 90 ER 34 .................................................... 3.50 Duncan v Allen & Unwin [2004] NSWSC 1069 ............................................................... 16.60 Dunlop Pneumatic Tyre Co Ltd v Talbot (1904) 20 TLR 579 ............................................. 18.30 Dwek v Macmillan Publishers Ltd [2000] EMLR 284 ..................................... 6.300, 7.20, 7.50 Dye v Commonwealth Securities Ltd [2012] FCA 242 .......................................................... 18.60

E E Hulton & Co v Jones [1910] AC 20 ................................................................ 6.90, 7.30, 7.70 xx

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Table of Cases

Earl of Leicester v Mandy (1657) Sid 21; 82 ER 1234 ......................................................... 3.50 Earl of Lincoln v Roughton (1608) Cro Jac 196; 79 ER 171 ............................................... 3.50 Earl of Peterborough v Mordant (1669) 1 Ven 160; 86 ER 42 ............................................. 3.50 Earl of Sandwich v Miller (1773) Lofft 210; 98 ER 614 ..................................................... 3.50 Earl of Shaftesbury v Lord Digby (1676) 3 Keble 631; 84 ER 920 .................................... 3.50 Eastwood v Holmes (1858) 1 F & F 347; 175 ER 758 ......................................................... 7.80 Eatock v Bolt (2011) 197 FCR 261; [2011] FCA 1103 .................................... 17.110, 18.180 Eatock v Bolt (No 2) (2011) 284 ALR 114; [2011] FCA 1180 ...................................... 17.110 Edelsten v Australian Broadcasting Corporation (1984) Aust Torts Reports 80-672 ............................................................................................................................ 18.230 Edelsten v John Fairfax & Sons Ltd [1978] 1 NSWLR 685 ............................................... 16.40 Edith Cowan University Student Guild v Edith Cowan University [2004] WASC 83 ...................................................................................................................................... 16.60 Edmondson v Birch & Co Ltd [1907] 1 KB 371 ............................................................... 11.100 Edwards v Bell (1824) Bing 403; 130 ER 162 ..................................................................... 9.30 Egger v Viscount Chelmsford [1965] 1 QB 248 .................................................... 11.100, 13.100 Electrical, Electronic, Telecommunication and Plumbing Union v Times Newspapers Ltd [1980] 1 QB 585 ....................................................................... 5.50, 5.90, 5.130, 5.140 Ell v Milne (No 8) [2014] NSWSC 175 .................................................................. 8.180, 15.30 Elliott v Tomkins (No 3) [2014] NSWDC 68 ....................................................................... 1.10 Elliott v West Australian Newspapers Ltd [2009] HCATrans 153 ..................................... 9.120 Emmens v Pottle (1885) 16 QBD 354 .......................................................... 14.20, 14.30, 14.40 Enders v Erbas & Associates Pty Ltd [2014] NSWCA 70 ....................... 8.180, 14.70, 14.100 Enders v Erbas & Associates Pty Ltd (No 2) [2013] NSWDC 44 .................................... 14.70 Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 .......................................................................................................................... 5.110 Ettingshausen v Australian Consolidated Press Ltd (1991) 23 NSWLR 443 .......... 6.240, 6.260 Ettingshausen v Australian Consolidated Press Ltd (1993) A Def R 51-065; (unreported, NSW CA, Hunt CJ at CL, 11 March 1993) ..................................... 14.110 Eyres v Sedgewicke (1620) Cro Jac 601; 79 ER 513 ........................................................... 10.30

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F Fairfax Media Publications Pty Ltd v Cummings (2013) 280 FLR 238; [2013] ACTCA 37 .................................................................................................................... 15.140 Fairfax Media Publications Pty Ltd v Kermode (2011) 81 NSWLR 157; [2011] NSWCA 174 ............................................................................................... 6.20, 6.30, 9.170 Falcke v Herald & Weekly Times Ltd [1925] VLR 56 ............................ 13.90, 13.100, 15.260 Falkenberg v Nationwide News Pty Ltd (unreported, NSW SC, Levine J, 16 December 1994) .............................................................................................................. 7.50 Farmer v Hyde [1937] 1 KB 728 .......................................................................................... 12.20 Farquhar v Bottom [1980] 2 NSWLR 380 .................................... 3.30, 6.60, 6.70, 6.80, 6.170 Faulkner v Bluett (1981) 52 FLR 115 .................................................................................... 5.70 Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186; [2005] HCA 52 ....................................................................................................... 1.20, 6.80, 6.150, 6.190 Fawcett v John Fairfax Publications Pty Ltd [2008] NSWSC 139 ........................................ 9.120 Featherston v Tully (No 2) (2002) 83 SASR 347; [2002] SASC 328 ............................... 11.110 Feo v Pioneer Concrete (Vic) Pty Ltd [1999] 3 VR 417 .......................................................... 5.20 Field v Nationwide News Pty Ltd [2009] NSWSC 1285 ................................................... 11.180 Fielding v Variety Inc [1967] 2 QB 841 ................................................... 15.230, 15.260, 18.50 Findley v Morand [2014] QSC 297 ........................................................................................ 5.40 Finlay v Chirney (1888) 20 QBD 494 ................................................................................... 5.80 Fisher v Channel Seven Sydney Pty Ltd [2014] NSWSC 1616 ............................................ 5.160 xxi

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Table of Cases

Fisher v Channel Seven Sydney Pty Ltd (No 3) [2014] NSWSC 1619 ................................ 9.170 Fleetwood v Curley (1619) Hob 267; 80 ER 413 ................................................................ 8.120 Fleming v Advertiser-News Weekend Publishing Co Pty Ltd [2012] SASC 58 .......... 9.120, 9.150 Fleming v Securities Commission [1995] 2 NZLR 514 ....................................................... 18.170 Flood v Times Newspapers Ltd [2012] 2 AC 273; [2012] UKSC 11 ............................... 11.120 Foaminol Laboratories Ltd v British Artid Plastics Ltd [1941] 2 All ER 393 ..................... 18.10 Fontans v Clover (1507) 101 Selden Society 20 .................................................................... 3.20 Forrest v Askew [2007] WASC 161 ................................................................................... 15.230 Forrest v Chlanda [2012] NTSC 14 ..................................................................................... 13.10 Forrester v Tyrrell (1893) 9 TLR 257 ......................................................................... 8.30, 11.80 Forsdike v Stone (1868) LR 3 CP 607 ...................................................... 15.10, 15.100, 15.210 Forse v Whytton (1518) 101 Selden Society 25 .................................................................... 3.20 Forster v Lawson (1826) 3 Bing 452; 130 ER 587 ............................................................... 5.90 Foxcroft v Lacy (1614) Hobart 89; 80 ER 239 .................................................................... 7.90 Fraser v Evans [1969] 1 QB 349 .................................................. 16.40, 16.80, 16.110, 18.230 Fraser v Holmes (2009) 253 ALR 538; [2009] NSWCA 36 ............................................. 11.30 Freeburn v Cake Decorators Association of NSW Inc (No 2) [2014] NSWDC 173 .................................................................................................................................... 8.210 French v Herald & Weekly Times Pty Ltd (2010) 27 VR 140; [2010] VSC 127 .................................................................................................................................... 5.160 French v Triple M Melbourne Pty Ltd (Ruling No 5) [2008] VSC 553 ............................. 13.100 Frew v John Fairfax Publications Pty Ltd [2004] VSC 311 ................................................ 14.110 Fullam v Newcastle Chronicle and Journal Ltd [1977] 1 WLR 651 ....................................... 8.80

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G GS v News Ltd (1998) Aust Torts Reports 81-466 ......................................... 18.170, 18.200 Gabriel v Lobban [1976] VR 689 ....................................................................................... 16.110 Gacic v John Fairfax Publications Pty Ltd [2011] NSWCA 362 .................. 13.10, 13.60, 13.80 Galea v Amalgamated Television Services Pty Ltd (unreported, NSW SC, Levine J, 20 February 1998) ......................................................................................... 6.270 Gambrill v Schooley 93 Md 48 (1901) .................................................................................... 8.20 Garbett v Hazell, Watson & Viney Ltd [1943] 2 All ER 359 ................................ 6.150, 15.70 Gardiner v John Fairfax & Sons Pty Ltd (1942) 42 SR(NSW) 171 ............ 3.20, 6.250, 13.20, 13.30, 13.40, 13.50, 13.80, 13.90 Gardner v Wallace (1995) 184 CLR 95 ................................................................................ 8.150 Gargan v Commonwealth Bank of Australia [2004] FCA 641 ............................................ 5.160 Gee v Pritchard (1818) 2 Swans 403; 36 ER 670 ............................................................... 16.20 Gertz v Robert Welch Inc 418 US 323; 94 S Ct 2997 (1974) ............ 2.70, 2.100, 2.110, 2.140 Ghosh v NBN Ltd [2014] QCA 53 ....................................................................................... 1.10 Ghosh v TCN Channel Nine Pty Ltd (No 4) [2014] NSWDC 151 ................................... 8.210 Gibbons v Duffell (1932) 47 CLR 520 .............................................. 10.20, 10.30, 10.40, 10.80 Gibson v Evans (1889) 23 QBD 384 .................................................................................... 7.30 Giller v Procopets (2008) 24 VR 1; [2008] VSCA 236 ..................................................... 18.200 Gilpin v Fowler (1854) 9 Ex 625; 156 ER 263 ................................................................ 11.100 Gipps v McElhone (1881) 2 LR(NSW) 18 .......................................................................... 10.40 Gleaves v Deakin [1980] AC 477 ............................................................... 1.50, 4.10, 4.30, 4.40 Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82 ............. 2.90, 18.90, 18.100, 18.120, 18.130 Gobbart v West Australian Newspapers [1968] WAR 113 ....................................... 12.30, 12.80 Godfrey v Demon Internet Ltd [2001] QB 201 ..................................................................... 8.190 Godhard v James Inglis & Co Ltd (1905) 2 CLR 78 ............................................................. 7.40 Goldie v Commonwealth (No 2) (2004) 81 ALD 422; [2004] FCA 156 ......................... 18.190 xxii

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Table of Cases

Goldsbrough v John Fairfax & Sons Ltd (1934) 34 SR(NSW) 524 ........... 13.40, 13.50, 15.70, 15.210 Goldsmith v Pressdram Ltd [1977] QB 83 .............................................................................. 4.30 Goldsmith v Sperrings Ltd [1977] 1 WLR 478 ............................ 4.10, 4.30, 8.30, 14.30, 17.10 Goldsworthy v Radio 2UE Sydney Pty Ltd [1999] NSWSC 547 ......................................... 13.70 Gomersall v Davies (1898) 14 TLR 430 ..................................................................... 8.90, 8.100 Goody v Odhams Press Ltd [1967] 1 QB 333 ...................................................... 15.160, 15.180 Gordon v Amalgamated Television Services Pty Ltd [1980] 2 NSWLR 410 ............... 6.40, 6.160 Gorton v Australian Broadcasting Commission (1973) 1 ACTR 6; 22 FLR 181 ...... 3.70, 6.160, 8.130, 8.140, 8.150 Goslin v Corry (1844) 7 Man & G 342; 135 ER 143 ....................................................... 15.70 Goyan v Motyka (2008) Aust Torts Reports 81-939; [2008] NSWCA 28 ..................... 11.30 Graham v Powell (No 3) [2014] NSWSC 185 ....................................................................... 1.10 Graham v Powell (No 4) [2014] NSWSC 1319 ................................................................ 16.140 Grant v Torstar Corporation [2009] 3 SCR 640 ................................................................. 11.120 Grappelli v Derek Block (Holdings) Ltd [1981] 1 WLR 822 ............................................... 7.100 Grassby v The Queen (1992) 62 A Crim R 351 ..................................................................... 4.10 Gray v Archdeacon of Buckingham (1290) 101 Selden Society 1 ......................................... 3.20 Gray v Motor Accident Commission (1998) 196 CLR 1 ......................... 15.230, 15.240, 15.250 Grech v Odhams Press Ltd [1958] 2 QB 275 ........................................................... 12.30, 13.50 Greek Herald Pty Ltd v Nikolopoulos (2002) 54 NSWLR 165; [2002] NSWCA 41 ........................................................................................................... 6.30, 6.150 Green v Schneller (2000) Aust Torts Reports 81-568; [2000] NSWSC 548 ........... 9.50, 9.60, 11.160 Greene v Associated Newspapers Ltd [2005] QB 972; [2004] EWCA Civ 1462 ............. 16.20, 16.40, 16.70, 16.80, 16.100, 16.110, 16.120, 18.230 Greers Ltd v Pearman and Corder Ltd (1922) 39 RPC 406 ................................................ 18.30 Greig v WIN Television NSW Pty Ltd [2009] NSWSC 632 ................................ 5.160, 15.230 Greig v WIN Television NSW Pty Ltd [2009] NSWSC 876 .............................................. 5.160 Grewes v Brodehouse (1416) 101 Selden Society 11 ............................................................. 3.20 Griffith v Australian Broadcasting Corporation [2010] NSWCA 257 ............................... 11.180 Griffiths v Benn (1911) 27 TLR 346 .................................................................................... 18.30 Groom v Crocker [1939] 1 KB 194 .................................................................................... 15.110 Grosse v Purvis (2003) Aust Torts Reports 81-706; [2003] QDC 151 ........................ 18.200 Grubb v Bristol United Press Ltd [1963] 1 QB 309 ......................................... 1.20, 6.30, 6.120 Guardian News and Media, Re [2010] 2 AC 697; [2010] UKSC 1 ..................................... 2.70 Guise v Kouvelis (1947) 74 CLR 102 ................................................ 11.20, 11.30, 11.40, 11.70 Gulf Oil (Great Britain) Ltd v Page [1987] Ch 327 ................................................ 8.50, 18.230 Gunston v Davies Brothers Pty Ltd [2010] TASSC 65 ......................................................... 5.160 Gutnick v Dow Jones & Co Inc [2001] VSC 305 ................................................................. 8.170

H Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 ................................................... 8.60 Haddon v Forsyth [2011] NSWSC 123 ...................................................... 6.160, 8.180, 11.180 Hadzel v De Waldorf (1970) 16 FLR 174 .............................................. 6.150, 9.30, 9.80, 9.90 Haertsch v Andrews [1999] NSWSC 359 ............................................................................ 6.280 Haertsch v Channel Nine Pty Ltd [2010] NSWSC 182 ......................................... 6.280, 15.150 Haines v Australian Broadcasting Corporation (unreported, NSW SC, Levine J, 9 May 1995) ................................................................................................................. 6.260 Hall v Haydon (1556) 101 Selden Society 29 ...................................................................... 3.20 Hall v TCN Channel Nine Pty Ltd [2014] NSWSC 1604 ................................................. 9.170 Hall-Gibbs Mercantile Agency Ltd v Dun (1910) 12 CLR 84 ........................ 6.30, 18.40, 18.60 xxiii

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Table of Cases

Hallam v Ross (No 2) [2012] QSC 407 ............................................................................ 16.140 Halley, The (1868) LR 2 PC 193 ......................................................................................... 8.150 Hambly v Trott (1776) 1 Cowp 371; 98 ER 1136 ............................................................... 5.80 Han v Australian Kung Fu (Wu Shu) Federation Inc [2011] VSC 498 .................................. 5.40 Hanson-Young v Bauer Media Ltd [2013] NSWSC 1306 ................................................... 6.260 Hanson-Young v Bauer Media Ltd (No 2) [2013] NSWSC 2029 ....................................... 6.260 Harakas v Baltic Mercantile and Shipping Exchange Ltd [1982] 1 WLR 958 .................. 16.110 Harbour Radio Pty Ltd v Trad (2012) 247 CLR 31; [2012] HCA 44 ...... 11.20, 11.30, 11.60, 11.80 Harding v Bodman (1617) Hutton 11; 123 ER 1064 ........................................................ 10.30 Hargreaves v Bretherton [1959] 1 QB 45 .............................................................................. 10.30 Harrigan v Jones [2001] NSWSC 623 ............................................................................... 15.110 Harris v Warre (1878) 4 CPD 125 ........................................................................................ 6.20 Harrison v Bevington (1838) 7 Car & P 708; 173 ER 683 ....................................... 5.90, 15.10 Harrison v Bush (1855) 5 E & B 344; 119 ER 509 .......................................................... 11.50 Harrison v Galuszko (unreported, WA SC, Adams AM, 8 November 1991) .............. 6.300 Harrison v Smith (1869) 22 LT 713 ...................................................................................... 7.70 Harry Seidler & Associates Pty Ltd v John Fairfax & Sons Ltd (1986) Aust Torts Reports 80-002 ............................................................................. 6.150, 13.10, 13.70 Hart v Wrenn (1995) 5 NTLR 17 ............................................................... 9.100, 9.130, 9.180 Hartley v Venn (1967) 10 FLR 151 .................................................................................... 8.150 Hawkyns v Holeherst (1507) 101 Selden Society 19 ............................................................ 3.20 Haythorn v Lawson (1827) 3 C & P 195; 172 ER 384 ........................................................ 5.90 Hayward v Thompson [1982] QB 47 ................................................................. 7.40, 7.50, 7.100 Healy v Askin [1974] 1 NSWLR 436 ......................................................... 7.90, 16.10, 16.120 Hearn v O’Rourke (2003) 129 FCR 64; [2003] FCAFC 78 ........................................... 18.110 Heartcheck Australia Pty Ltd v Channel 7 Sydney Pty Ltd [2007] NSWSC 555 ................ 16.60 Heath v Tang [1993] 1 WLR 1421; 4 All ER 694 ............................................................... 5.70 Hebditch v MacIlwaine [1894] 2 QB 54 .......................................................... 8.20, 11.30, 11.80 Hedley v Barlow (1865) 4 F & F 224; 176 ER 541 ............................................................ 13.70 Helsham v Blackwood (1851) 11 CB 111; 138 ER 412 ........................................................ 9.30 Hemmes v Seven Network Ltd [2000] NSWSC 246 ............................................................ 16.60 Henderson v Broomhead (1859) 157 ER 964; 4 H & N 569 .............................................. 10.30 Henry v Henry (1996) 185 CLR 571 ................................................................................... 8.170 Henwood v Harrison (1872) LR 7 CP 606 .......................................................................... 13.10 Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682 ............................... 1.20, 6.290 Hepburn v TCN Channel Nine Pty Ltd [1984] 1 NSWLR 386 ................. 5.150, 9.140, 9.170 Herald & Weekly Times v Buckley (2009) 21 VR 661; [2009] VSCA 75 ......................... 13.40 Herald & Weekly Times Ltd v McGregor (1928) 41 CLR 254 ........................... 15.100, 15.230 Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1; [2003] VSCA 161 ..... 9.30, 9.70, 9.80, 9.120, 11.110, 15.230 Herbage v Pressdram Ltd [1984] 1 WLR 1160; 2 All ER 769 ..... 16.40, 16.70, 16.80, 16.110 Hercules v Phease [1994] 2 VR 411 ............................................................... 10.10, 10.20, 10.30 Herd v Weardale Steel, Coal and Coke Co Ltd [1915] AC 67 ............................................ 18.190 Hext v Yeomans (1585) 4 Co Rep 15b; 76 ER 893 ............................................................. 3.30 Heytesbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440 ................................. 5.100 Hibbins v Lee (1864) 4 F & F 243; 176 ER 549 ............................................................... 13.70 Higgins v Sinclair [2011] NSWSC 163 .................................................................... 6.160, 15.60 Hill v Church of Scientology of Toronto [1995] 2 SCR 1130; (1995) 126 DLR (4th) 129 ......................................................................................................... 2.70, 2.80, 3.10 Hird v Wood (1894) 28 Sol Jo 234 ........................................................................................ 8.50 Hobbs v Tinling (CT) & Co Ltd [1929] 2 KB 1 ................................... 15.170, 15.190, 15.210 Hodgson v Sidney (1866) LR 1 Ex 313 .................................................................................. 5.70 xxiv

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Hodson v Pare [1899] 1 QB 455 .......................................................................................... 10.30 Holley v Smyth [1998] QB 726 .............................. 16.10, 16.20, 16.40, 16.80, 16.100, 16.110 Holt v Astgrigg (1607) Cro Jac 184; 79 ER 161 .................................................................. 3.30 Holt v TCN Channel Nine Pty Ltd (2014) 86 NSWLR 96; [2014] NSWCA 90 ............................................................................................................ 5.160, 9.170, 15.170 Hook v Cunard Steamship Co [1953] 1 WLR 682 ............................................................ 18.190 Hope v Sir WC Leng & Co (Sheffield Telegraph) Ltd (1907) 23 TLR 243 ............. 12.20, 12.40 Hore-Lacy v Cleary (2007) 18 VR 562; [2007] VSCA 314 ............................................... 9.120 Horner v Goulburn City Council (unreported, NSW SC, Levine J, 5 December 1997) ............................................................................................................ 6.300 Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216 .......................................................... 18.80, 18.90, 18.120 Horrocks v Lowe [1975] AC 135 .................................................... 11.20, 11.80, 11.90, 11.100 Hosking v Runting [2005] 1 NZLR 1 ................................................................................ 18.210 Houda v New South Wales (2005) Aust Torts Reports 81-816; [2005] NSWSC 1053 ............................................................................................................... 18.190 Houda v New South Wales [2012] NSWSC 1036 ................................................................. 5.40 Hough v London Express Newspaper Ltd [1940] 2 KB 507 ...................................... 6.110, 7.40 House v The King (1936) 55 CLR 499 ................................................................................... 5.40 Howard v Crowther (1841) 8 M & W 602; 151 ER 1179 .................................................... 5.70 Howard v Howard (1885) 2 WN(NSW) 5 .......................................................................... 8.110 Howden v “Truth” and “Sportsman” Ltd (1937) 58 CLR 416 .......................... 2.40, 9.30, 9.50 Howden v “Truth” and “Sportsman” Ltd (1938) 38 SR(NSW) 287 ..................................... 9.70 Howe & McColough v Lees (1910) 11 CLR 361 .............................. 11.20, 11.40, 11.50, 11.80 Howes v ACP Magazines Ltd [2013] NSWSC 88 .............................................................. 5.160 Howie v Smyth (1513) 101 Selden Society 23 ...................................................................... 3.20 Howlett v Saggers (Unreported, NSW SC, Donovan AJ, 24 April 1998) ........................ 2.80 Hubbard v Vosper [1972] 2 QB 84 ...................................................................................... 16.40 Hubbuck & Sons Ltd v Wilkinson, Heywood & Clark Ltd [1899] 1 QB 86 .................... 18.30 Hughes v Mirror Newspapers Ltd (1985) 3 NSWLR 504 ................................................... 15.70 Hughes v West Australian Newspapers (1940) 43 WALR 12 .................................... 8.60, 12.20 Hughes, Ex parte; Re Delalande (1923) 40 WN(NSW) 4 .................................................... 4.10 Hunt v North (1537) 101 Selden Society 27 ....................................................................... 3.20 Hunt v Star Newspaper Co Ltd [1908] 2 KB 309 ........................................ 13.40, 13.50, 13.70 Hunt Australia Pty Ltd v Davidson’s Arnhemland Safaris (2000) 179 ALR 738; [2000] FCA 1690 ................................................................................................... 5.100 Hutchison v Robinson (1900) 21 NSWR(L) 130 ..................................................... 12.20, 12.30 Huth v Huth [1915] 3 KB 32 ................................................................................................ 8.90 Hyams v Peterson [1991] 3 NZLR 648 ........................................................................ 7.80, 7.90 Hyndes v Nationwide News Pty Ltd [2012] NSWCA 349 .................................................. 5.160

I ING (Australia) Ltd v Muscat [2003] NSWSC 1133 ........................................................ 16.60 Ibrahim v Wadworth [2009] WASC 317 ................................................................................ 5.40 Ingram v Knowles (1593) 101 Selden Society 10 .................................................................. 3.20 Ingram v Lawson (1840) 6 Bing (NC) 212; 133 ER 84 .................................................... 15.80

J Jackson v John Fairfax & Sons Ltd [1981] 1 NSWLR 36 ............... 9.130, 9.140, 9.150, 9.160 Jackson v Magrath (1947) 75 CLR 293 .................................................................... 10.20, 10.80 Jackson v TCN Channel 9 Pty Ltd [2002] NSWSC 1229 ................................................ 15.110 xxv

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Table of Cases

Jackson v TCN Channel Nine Pty Ltd [2001] NSWCA 108 ................................................ 7.90 Jakudo Pty Ltd v South Australian Telecasters Ltd (1997) 69 SASR 440 ............... 16.40, 16.80 Jameel v Dow Jones & Co Inc [2005] QB 946; [2005] EWCA Civ 75 ............ 1.30, 7.20, 7.60, 8.130, 8.210, 15.30, 17.100 Jameel v Wall Street Journal Europe Sprl [2007] 1 AC 359; [2006] UKHL 44 .... 5.100, 5.110, 11.120 James v Faddoul [2007] NSWSC 821 ................................................................................... 18.50 James v Harmon (1514) 101 Selden Society 24 .................................................................... 3.20 James v Rutlech (1599) 4 Co Rep 17a; 76 ER 900 ............................................................... 3.30 Jamieson v Chiropractic Board of Australia [2011] QCA 56 .................................................. 5.40 Jamoo v Nationwide News Pty Ltd [2004] NSWSC 126 ................................................... 15.110 Jarratt v John Fairfax Publications Pty Ltd [2001] NSWSC 739 ....................................... 15.110 Jeffrey v Giles [2013] VSC 268 ............................................................................................. 15.60 Jeffries v Duncombe (1809) 2 Camp 3 ..................................................................................... 8.50 Jennings v Buchanan [2005] 1 AC 155; [2004] UKPC 36 .................................................. 2.100 Jenoure v Delmege [1891] AC 73 ................................................................................ 11.80, 11.90 Jensen v Clark [1982] 2 NZLR 268 ......................................................................... 14.30, 14.40 Jersild v Denmark (1994) 19 EHRR 1 ..................................................................... 2.100, 2.150 Jneid v West Australian Newspapers Ltd [2015] WASC 68 ....................................... 6.40, 6.190 John v Guardian News & Media Ltd [2008] EWHC 3066 ................................................ 6.210 John v MGN Ltd [1997] QB 586 ............................................................................ 5.150, 15.20 John Fairfax & Sons Ltd v Foord (1988) 12 NSWLR 706 ................................................. 7.100 John Fairfax & Sons Ltd v Hook (1983) 47 ALR 477 ........................................... 12.10, 12.50 John Fairfax & Sons Ltd v Kelly (1987) 8 NSWLR 131 .................................................... 15.40 John Fairfax & Sons Ltd v Vilo (2001) 52 NSWLR 373; [2001] NSWCA 290 ................................................................................................................................. 11.120 John Fairfax Publications Pty Ltd v Blake (2001) 53 NSWLR 541; [2001] NSWCA 434 ................................................................................................................... 9.140 John Fairfax Publications Pty Ltd v Gacic (2007) 230 CLR 291; [2007] HCA 28 ...................................................................................................................................... 5.150 John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484; [2007] NSWCA 364 ............................................ 9.50, 9.60, 9.120, 9.140, 11.120, 13.70, 18.200 John Fairfax Publications Pty Ltd v Jones [2004] NSWCA 205 ........................................... 9.140 John Fairfax Publications Pty Ltd v O’Shane (2005) Aust Torts Reports 81-789; [2005] NSWCA 164 ........................... 11.110, 13.10, 13.20, 13.40, 13.50, 13.90 John Fairfax Publications Pty Ltd v Obeid (2005) 64 NSWLR 485; [2005] NSWCA 60 ....................................................................................................................... 8.60 John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77; (2003) 77 ALJR 1657; [2003] HCA 50 ............................................................................. 5.150, 6.300 John Fairfax Publications Pty Ltd v Zunter [2006] NSWCA 227 ............ 9.120, 11.160, 11.180 John Holland Group Pty Ltd v John Fairfax Publications Pty Ltd (2006) 204 FLR 290; [2006] ACTSC 108 ....................................................................................... 9.120 John Jones & Sons Ltd v Financial Times Ltd (1909) 25 TLR 677 .................................... 12.30 John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; [2000] HCA 36 ................ 8.150, 8.170 Johnson v Evans (1799) 3 Esp 32; 170 ER 528 .................................................................. 10.30 Johnson v Roper (1531) 101 Selden Society 26 ..................................................................... 3.20 Johnson v Wyatt (1863) 2 De G J & S 18; 46 ER 281 .................................................... 18.200 Jones v Amalgamated Television Services Pty Ltd (1991) 23 NSWLR 364 ............................. 8.90 Jones v Davers (1595) Cro Eliz 496; 78 ER 747 ................................................................ 8.120 Jones v E Hulton & Co [1909] 2 KB 444 .......................................................... 7.20, 7.40, 7.70 Jones v John Fairfax Publications Pty Ltd (2005) 67 NSWLR 434; [2005] NSWSC 1133 ................................................................................ 9.80, 9.100, 9.130, 9.140 Jones v Pollard [1997] EMLR 233 ........................................................................ 15.170, 15.200 xxvi

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Table of Cases

Jones v Skelton [1964] NSWR 485 ................................................ 3.30, 6.50, 6.60, 6.70, 6.110 Jones v Stevens (1822) 11 Price 234; 147 ER 458 ............................................................ 15.170 Jones v Sutton (2004) 61 NSWLR 614; [2004] NSWCA 439 ................. 14.80, 14.90, 14.100 Jorgensen v New Zealand Newspapers Ltd [1974] 2 NZLR 45 ............................ 15.170, 15.200 Joseph v Spiller [2011] 1 AC 852; [2010] UKSC 53 ..................... 13.10, 13.20, 13.90, 13.100 Joyce v Sengupta [1993] 1 WLR 337 .............................................................. 18.30, 18.50, 18.60 Joynt v Cycle Trade Publishing Co [1904] 2 KB 292 ................................................. 13.50, 13.70 Jozwiak v Sader [1954] 1 WLR 275 ........................................................................... 7.70, 7.100 Justin v Associated Newspapers Ltd [1967] 1 NSWR 61 ..................................................... 11.20

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K Kalaba v Commonwealth [2004] FCA 763 ......................................................................... 18.200 Kalaba v Commonwealth [2004] FCAFC 326 .................................................................... 18.200 Kaplan v Go Daddy Group [2005] NSWSC 636 ............................................................... 18.230 Karako v Hungary (2011) 52 EHRR 36 ............................................................................... 2.70 Kaschke v Gray [2010] EWHC 1907 .................................................................................. 8.210 Kasic v Australian Broadcasting Commission [1964] VR 702 ................................................. 5.20 Kaye v Robertson (1990) 19 IPR 147; [1991] FSR 62 ...................................................... 18.210 Kelly v Fairfax Media Publications Pty Ltd (No 2) [2014] NSWSC 166 ............................ 9.170 Kelly v Graham & Hobson [2007] QSC 172 ....................................................................... 16.60 Kelly v John Fairfax Publications Pty Ltd [2003] NSWSC 586 ............................................ 6.300 Kelly v Nationwide News Pty Ltd (1998) 147 FLR 410 ...................................................... 9.120 Kelly v Sherlock (1866) LR 1 QB 686 ................................................................................. 13.70 Kelly v Special Broadcasting Service [1990] VR 69 ................................................................ 9.100 Kemsley v Foot [1952] AC 345 ...................................................................... 13.50, 13.70, 13.80 Kennett v Farmer [1988] VR 991 ..................................................................... 9.20, 9.100, 11.60 Kenny v Australian Broadcasting Corporation [2014] NSWSC 190 ..................................... 6.260 Kermode v John Fairfax Publications [2010] NSWSC 852 ................................................... 9.170 Kerr v Kennedy [1942] 1 KB 409 ......................................................................................... 6.300 Khalid v Channel Seven Sydney Pty Ltd [2014] NSWSC 9 ................................................ 18.230 Khashoggi v IPC Magazines Ltd [1986] 3 All ER 577; 1 WLR 1412 ...... 9.100, 16.40, 16.110 Khodaparast v Shad [2000] 1 All ER 545; [2000] 1 WLR 618 ......................................... 18.50 Kiam II v MGN Ltd [2003] QB 281; [2002] EWCA Civ 43 .......................................... 15.20 Kimber v Press Association Ltd [1893] 1 QB 65 ........................................... 12.20, 12.30, 12.40 King v Fairfax Media Publications Pty Ltd (No 2) [2014] NSWSC 1244 ..... 6.30, 9.130, 9.140 King v Lake (1670) Hardres 470; 145 ER 552 .................................................................... 3.30 King and Mergen Holdings Pty Ltd v McKenzie (1991) 24 NSWLR 305 ................ 14.80, 14.90 Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd [No 2] [2014] WASC 408 ...................................................................................................................... 5.160 Kingwell v Taylor (1559) 101 Selden Society 8 ..................................................................... 3.20 Knox v Gye (1872) LR 5 HL 656 ........................................................................................ 15.60 Knupffer v London Express Newspaper Ltd [1944] AC 116 ...................... 7.10, 7.40, 7.80, 7.90 Kolsky v Mayne Nickless Ltd [1970] 3 NSWR 511 ............................................................ 8.150 Kornhauser v John Fairfax & Sons Pty Ltd [1964-5] NSWR 199 .................................... 15.260 Krahe v TCN Channel Nine Pty Ltd (1986) 4 NSWLR 536 .................................... 5.80, 6.270 Kroch v Rossell [1937] 1 All ER 725 .................................................................................... 8.210 Kruse v Lindner (1978) 19 ALR 85 ....................................................................................... 7.10 Kunoth-Monks v Healy [2013] NTSC 74 ............................................................................. 13.10

L Lakaev v Denny [2010] NSWSC 1480 .................................................................................. 5.40 xxvii

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Table of Cases

Lam v Nationwide News Pty Ltd [2000] NSWSC 792 ..................................................... 15.110 Lamb v Cotogno (1987) 164 CLR 1 ....................................................... 15.230, 15.240, 15.250 Lambert v Roberts Drug Stores Ltd [1933] 4 DLR 193 ...................................................... 14.30 Lamont v Dwyer [2008] ACTSC 125 ....................................................................... 5.70, 11.110 Lang v Willis (1934) 52 CLR 637 ........................................................................... 14.70, 14.80 Lange v Atkinson [1997] 2 NZLR 22 ................................................................................... 2.70 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 .......... 2.120, 11.10, 11.110 Laughton v Bishop of Sodor and Man (1872) LR 4 PC 495 ............................................. 11.100 Laurance v Katter [2000] 1 Qd R 147 ................................................................................. 10.40 Law v Llewellyn [1906] 1 KB 487 ....................................................................................... 10.30 Lawrence v Newberry (1891) 64 LT 797; 7 TLR 588 ........................................................... 8.60 Lawrie v Northern Territory News Services Pty Ltd (1985) 82 FLR 70 ................. 8.130, 15.230 Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188 ...................................... 8.80, 8.150 Le Fanu v Malcomson (1848) 1 HLC 637 .................................................................... 5.90, 7.40 Lee v Kim (2006) 68 NSWLR 433; [2006] NSWCA 384 ................................................ 8.170 Lee v Wilson & Mackinnon (1934) 51 CLR 276 ............................................... 7.60, 8.20, 8.30 Leetham v Rank (1912) 57 Sol Jo 111 ................................................................................ 18.30 Lemaire v Smith’s Newspapers Ltd (1927) 28 SR(NSW) 161 .... 15.10, 15.70, 15.100, 15.210, 15.260 Lennox v Krantz (1978) 19 SASR 272 .................................................................... 16.20, 16.40 Leslie v Mirror Newspapers Ltd (1971) 125 CLR 332 ............................................ 12.20, 12.30 Levi v Milne (1827) 4 Bing 195; 130 ER 743 ...................................................................... 7.50 Levy v Victoria (1997) 189 CLR 579 .................................................................................. 2.120 Lewis v Daily Telegraph Ltd [1964] AC 234 ......... 5.100, 6.30, 6.60, 6.70, 6.80, 6.100, 6.110, 6.120, 6.190, 8.60, 15.70 Lewis v Levy (1858) EB & E 537; 120 ER 610 ......................................... 12.20, 12.50, 15.10 Ley v Hamilton (1935) 153 LT 384 ..................................................................................... 15.60 Li v Herald & Weekly Times Pty Ltd (2007) Aust Torts Reports 81-887; [2007] VSC 109 .................................................................................................... 9.40, 9.120 Lincoln v Daniels [1962] 1 QB 237 .......................................................................... 10.20, 10.30 Lindholdt v Hyer (2008) 251 ALR 514; [2008] NSWCA 264 ...... 11.20, 11.40, 11.80, 11.90 Lindon v France (2008) 46 EHRR 35 ...................................................................... 2.100, 2.150 Lingens v Austria (1986) 8 EHRR 407 ................................................................... 2.100, 2.150 Linotype Co Ltd v British Empire Type-Setting Machine Co Ltd (1899) 81 LT 331 .................................................................................................................................... 18.30 Lion Laboratories v Evans [1985] QB 526 ............................................................................. 9.60 Liverpool Household Stores Association v Smith (1887) 37 Ch D 170 .............................. 16.100 Lloyd v David Syme & Co Ltd (1985) 3 NSWLR 728 ......................... 3.70, 6.60, 7.90, 13.60 London Artists Ltd v Littler [1969] 2 QB 375 ......................... 9.50, 9.60, 13.40, 13.50, 13.70 London Association for Protection of Trade v Greenlands Ltd [1916] 2 AC 15 ....... 11.20, 11.30, 11.80 London Ferro-Concrete Co Ltd v Justicz (1951) 68 RPC 65 ................................................. 18.30 Lord Peterborough v Williams (1687) 2 Show 505; 89 ER 1068 ......................................... 3.50 Loukas v Young [1968] 3 NSWR 549 ................................................................................. 6.300 Loutchansky v Times Newspapers Ltd (Nos 2-5) [2002] QB 783; [2001] EWCA Civ 1805 ..................................................................................... 8.50, 8.130, 11.120 Loveday v Sun Newspapers Ltd (1938) 59 CLR 503 ...................... 11.30, 11.60, 11.80, 11.100 Lovell v Lewandowski [1987] WAR 81 ................................................................................. 16.40 Lowe v Associated Newspapers Ltd [2007] QB 580; [2006] EWHC 320 .......................... 13.40 Lower Murray Urban and Rural Water Corporation v Di Masi [2014] VSCA 104 ......................................... 5.160, 11.130, 11.180, 12.100, 15.10, 15.50, 15.60, 15.230 Lucas-Box v News Group Newspapers Ltd [1986] 1 All ER 517; [1986] 1 WLR 147 ............................................................................................................. 9.100, 9.120 xxviii

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Table of Cases

Lucire v Parmegiani [2012] NSWCA 86 .................................................................. 10.30, 10.50 Luetich v Walton [1960] WAR 109 ...................................................................................... 11.80 Lumyner v Wylde (1285) 101 Selden Society 33 .................................................................. 3.60 Lyne v Nicholls (1906) 23 TLR 86 ....................................................................................... 18.30

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M M Isaacs & Sons Ltd v Cook [1925] 2 KB 391 ...................................................... 8.150, 10.80 M’Elroy v M’Allister [1949] SC 110; SLT 139 .................................................................. 8.150 M’Pherson v Daniels (1829) 10 B & C 263; 109 ER 448 ....................... 2.30, 2.40, 8.60, 9.30 Macdougall v Knight (1886) 17 QBD 636 ................................................................ 12.20, 12.30 Macdougall v Knight (1889) 14 App Cas 194 ...................................................................... 12.20 Macdougall v Knight (1890) 25 QBD 1 ................................................................................ 12.20 Machado v Fontes [1897] 2 QB 231 ..................................................................................... 8.150 Macintosh v Dun [1908] AC 390 .................................................................. 11.20, 11.30, 11.70 Macquarie Bank Ltd v Berg (1999) A Def R 53-035; [1999] NSWSC 526 .................... 8.160 Madden v Seafolly Pty Ltd (2014) 313 ALR 1; [2014] FCAFC 30 ....... 18.90, 18.110, 18.150 Mahommed v Channel Seven Pty Ltd [2006] NSWCA 213 ................................................. 6.280 Mahon v Mach 1 Financial Services Pty Ltd (2012) 96 IPR 547; [2012] NSWSC 651 ........................................................................................................ 18.30, 18.50 Mahon v Rahn (No 2) [2000] 1 WLR 2150 ........................................................................ 10.30 Makim v John Fairfax & Sons Ltd (1990) 5 BR 196 ......................................................... 15.20 Makudi v Baron Triesman of Tottenham [2014] QB 839; [2014] EWCA Civ 179 ........................................................................................................................ 10.10, 10.40 Mallon v WH Smith & Son (1893) 9 TLR 621 ................................................................. 14.30 Manefield v Child Care NSW [2010] NSWSC 1420 .......................................................... 8.210 Mangena v Wright [1909] 2 KB 958 ...................................................................... 13.50, 15.170 Manitoba Press v Nagy (1907) 39 SCR 340 ........................................................................ 18.40 Mann v Medicine Group Pty Ltd (1992) 38 FCR 400 .................................... 7.80, 7.90, 17.100 Mann v O’Neill (1997) 191 CLR 204 ..................................................................... 10.20, 10.30 Maple v David Syme & Co Ltd [1975] 1 NSWLR 97 .................. 8.130, 8.150, 8.170, 15.140 Mardas v New York Times Co [2009] EMLR 8; [2008] EWHC 3135 ............................. 8.210 Markisic v Middletons Lawyers [2005] NSWSC 258 ........................................................... 8.110 Markovic v White [2004] NSWSC 37 ............................................ 6.280, 8.160, 8.180, 15.110 Marley’s Transport Pty Ltd v West Australian Newspapers Ltd [2001] WASC 31 ........................................................................................................................................ 7.50 Marrinan v Vibart [1963] 1 QB 528 ................................................................................... 10.30 Marshall v Watson (1972) 124 CLR 621 ........................................................................... 18.190 Martin v Trustees of the British Museum (1894) 10 TLR 338 ............................................. 14.30 Martin v Trustrum [2003] TASSC 22 ................................................................................ 15.240 Mather v Smith (No 1) [2014] QCA 65 .............................................................................. 5.160 May v TCN Channel Nine Pty Ltd [2007] NSWSC 760 ................................................. 13.100 Mayor, Aldermen and Citizens of Manchester v Williams [1891] 1 QB 94 ......................... 5.120 McAlpine v Bercow [2013] EWHC 1342 ............................................................................. 8.180 McCarey v Associated Newspapers Ltd (No 2) [1965] 2 QB 86 .... 15.40, 15.50, 15.70, 15.110, 15.150, 15.230, 15.240 McCartan Turkington Breen v Times Newspapers Ltd [2001] 2 AC 277 ............................. 2.150 McClure v Australian Electoral Commission (1999) 163 ALR 734; 73 ALJR 1086 ................................................................................................................................. 2.120 McCormick v John Fairfax & Sons Ltd (1989) 16 NSWLR 485 ......................................... 7.90 McDonald v Coles Myer Ltd (1995) Aust Torts Reports 81-361 .................................... 18.190 McDonald v North Queensland Newspaper Co Ltd [1997] 1 Qd R 62 ................................ 6.260 xxix

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McDonald’s Corp v Steel (unreported, High Court of Justice of England and Wales, Queen’s Bench Division, No 1990-M-NO 5724, Bell J, 19 June 1997) ....................................................................................................................... 5.110 McGaw v Channel Seven Sydney Pty Ltd [2006] NSWSC 1147 .......................................... 15.20 McGrane v BTQ Channel 7 [2011] QSC 290 ..................................................................... 9.170 McGuinness v Attorney-General (Vic) (1940) 63 CLR 73 ................................................... 2.150 McJannett v Daley [2012] WASC 217 .................................................................................. 16.60 McJannett v Daley [No 2] [2012] WASC 386 ...................................................................... 10.30 McKain v RW Miller & Co Pty Ltd (1991) 174 CLR 1 .................................................... 8.150 McKennitt v Ash [2008] QB 73; [2006] EWCA Civ 1714 ................. 18.200, 18.220, 18.230 McLean v David Syme & Co Ltd (1970) 72 SR(NSW) 513 .................................. 8.130, 8.170 McMahon v John Fairfax Publications Pty Ltd (No 6) [2012] NSWSC 224 ....................... 9.170 McMahon v John Fairfax Publications Pty Ltd (No 7) (2013) 277 FLR 418; [2013] NSWSC 933 .................................................................................. 5.70, 5.160, 15.20 McManus v Beckham [2002] 1 WLR 2932; [2002] EWCA Civ 939 .................................. 8.70 McPhersons Ltd v Hickie (1995) Aust Torts Reports 81-348 ............................... 14.20, 14.40 McQuire v Western Morning News Co [1903] 2 KB 100 ................. 13.10, 13.30, 13.80, 13.90 McSweeney v Berryman [1980] 2 NZLR 168 ....................................................................... 16.40 McWilliam’s Wines Pty Ltd v McDonald’s System of Australia Pty Ltd (1980) 33 ALR 394 ......................................................................................................... 18.80, 18.90 Meckiff v Simpson [1968] VR 62 ......................................................................................... 8.170 Meldrum v Australian Broadcasting Co Ltd [1932] VLR 425 ................................................ 5.20 Melvin v Reid 297 P 91 (1931) ........................................................................................... 18.210 Menulog Pty Ltd v TCN Channel Nine Pty Ltd [2012] NSWSC 247 ....... 5.110, 18.30, 18.50, 18.60 Menulog Pty Ltd v TCN Channel Nine Pty Ltd (No 3) [2012] NSWSC 908 .................... 18.50 Meriton Apartments Pty Ltd v SBS Corporation [2002] NSWSC 915 ................................ 16.60 Merivale v Carson (1887) 20 QBD 275 ....................................................... 13.10, 13.80, 13.90 Merricks v Nott-Bower [1965] 1 QB 57 ............................................................................... 10.20 Metropolitan International Schools Ltd (t/as Skillstrain and/or Train2Game) v Designtechnica Corpn (t/as Digital Trends) [2011] 1 WLR 1743; [2009] EWHC 1765 ....................................................................................................... 8.180, 8.190 Metropolitan Saloon Omnibus Co v Hawkins (1859) 4 H & N 87; 157 ER 769 ............... 5.100 Mickelberg v 6PR Southern Cross Radio Pty Ltd (2001) 24 WAR 187 ................................. 5.20 Mickle v Farley [2013] NSWDC 295 .................................................................................. 8.180 Microdata Information Services Ltd v Rivendale Ltd [1991] FSR 681 ................................ 18.230 Middendorp Electric Co Pty Ltd v Sonnenveld [2001] VSC 312 ............................................. 5.20 Milkovich v Lorain Journal Co 497 US 1; 110 SC 2695 (1990) ............................... 2.80, 2.140 Minter v Priest [1930] AC 558 ............................................................................................. 10.10 Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643 ............................... 15.230, 17.10 Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 ................................................... 6.190 Mirror Newspapers Ltd v Jools (1985) 5 FCR 507 .............................................................. 15.90 Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 .......... 6.30, 6.110, 6.180, 6.230, 7.20, 8.80, 15.150, 18.30 Mizikovsky v Queensland Television Ltd [2011] QSC 205 ................................................... 5.160 Mizikovsky v Queensland Television Ltd [2014] 1 Qd R 197; [2013] QCA 68 ..... 5.160, 9.170 Moberlay v Morpath (1509-10) 101 Selden Society 5 .......................................................... 3.20 Moit v Bristow [2005] NSWCA 322 .................................................................................... 11.40 Monis v The Queen (2013) 249 CLR 92; [2013] HCA 4 ................................ 2.90, 2.120, 4.40 Monitor Patriot Co v Roy 401 US 265; 91 S Ct 621 (1971) ............................................... 2.140 Monson v Tussauds Ltd [1894] 1 QB 671 ............................... 5.20, 8.50, 14.110, 16.20, 16.40 Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663 ........................................... 6.30, 6.110 Moore v News of the World [1972] 1 QB 441 ................................................................... 14.110 xxx

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Moran v Schwartz Publishing Pty Ltd [No 2] [2015] WASC 35 ......................................... 6.190 More v Weaver [1928] 2 KB 520 .............................................................................. 10.20, 10.30 Morgan v John Fairfax & Sons Ltd [No 2] (1991) 23 NSWLR 374 ............................... 11.180 Morgan v Lingen (1863) 8 LT 800 ....................................................................................... 6.270 Morgan v Odhams Press Ltd [1971] 1 WLR 1239 ....................................................... 7.30, 7.40 Morosi v Broadcasting Station 2GB Pty Ltd [1980] 2 NSWLR 418n ................................. 6.170 Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 ......... 11.20, 11.130, 11.140, 11.180, 14.70, 14.80, 14.90, 15.200 Mosley v News Group Newspapers Ltd [2008] EWHC 1777 ............................................ 18.200 Moss v Eaglestone (2011) 83 NSWLR 476; [2011] NSWCA 404 ...................................... 5.70 Mowen v Morning Bulletin/APN [2013] QCA 36 ................................................................ 5.40 Mowlds v Fergusson (1940) 64 CLR 206 .................................................................. 11.40, 11.60 Mularczyk v John Fairfax Publications Pty Ltd [2001] NSWCA 467 ................................. 6.280 Mulholland v Australian Electoral Commission (2004) 220 CLR 181; [2004] HCA 41 ................................................................................................................. 2.90, 2.120 Mulkern v Ward (1872) LR 13 Eq 619 .............................................................................. 16.20 Multigroup Bulgaria Holding AD v Oxford Analytica Ltd [2001] EMLR 28 ....................... 7.20 Mundey v Askin [1982] 2 NSWLR 369 ............................................................................. 6.200 Munsie v Dowling [2014] NSWSC 458 ............................................................................. 18.230 Munster v Lamb (1883) 11 QBD 588 ..................................................................... 10.10, 10.30 Murray v Wishart [2014] NZCA 461 ............................................................ 8.50, 8.180, 8.200 Mutch v Sleeman (1928) 29 SR(NSW) 125 ........................................................................... 9.50 Myer Stores Ltd v Soo [1991] 2 VR 597 ............................................................................ 18.190 Myerson v Smith’s Weekly (1924) 24 SR(NSW) 20 ............................................................. 13.70

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N Nail v Jones [2004] EMLR 20; [2004] EWHC 647 .......................................................... 17.10 Nalpantidis v Stark (No 2) (1995) 65 SASR 454 ............................................................... 8.150 Narme, Ex parte; Re Leong Wen Joe (1928) 45 WN(NSW) 78 ........................................... 4.10 National Auto Glass Supplies (Australia) Pty Ltd v Nielsen & Moller Autoglass (NSW) Pty Ltd (2006) 156 FCR 148; [2006] FCA 1386 .......................................... 8.180 National Auto Glass Supplies (Australia) Pty Ltd v Nielsen & Moller Autoglass (NSW) Pty Ltd (No 8) [2007] FCA 1625 .................................................................... 8.160 National Mutual Life Association of Australasia Ltd v GTV Corporation Pty Ltd [1989] VR 747 .................................................................... 9.100, 16.10, 16.40, 16.110 National Union of General & Municipal Workers v Gillian [1946] KB 81 ........................ 5.130 Nationwide News Pty Ltd v Furber (1984) 3 FCR 19 ......................................................... 16.40 Nationwide News Pty Ltd v Moodie (2003) 28 WAR 314; [2003] WASCA 273 .................................................................................................................................... 9.120 Nationwide News Pty Ltd v Sleeman [2005] NSWCA 349 ................................... 6.280, 15.260 Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 ........................ 1.50, 2.90, 2.120, 11.110 Neilson v Overseas Project Corporation of Victoria (2005) 223 CLR 331; [2005] HCA 54 ............................................................................................................... 8.150 Neron v Chambredes notaires de Quebec (2004) 241 DLR (4th) 577 .................................... 2.70 Nevill v Fine Art and General Insurance Co Ltd [1897] AC 68 ........................ 6.50, 6.80, 6.240 New South Wales Aboriginal Land Council v Jones (1998) 43 NSWLR 300 .......... 5.100, 5.120 New York Times Co v Sullivan 376 US 254; 84 S Ct 710 (1964) ....... 2.110, 2.140, 5.50, 9.40 New Zealand Mortgage Guarantee Co Ltd v Wellington Newspapers Ltd [1989] 1 NZLR 4 ........................................................................................................................... 16.40 Newnham v Davis (No 2) [2010] VSC 94 ........................................................................... 9.150 Newstead v London Express Newspapers Ltd [1940] 1 KB 377 .............. 7.30, 7.40, 7.60, 7.70, 15.10 xxxi

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Table of Cases

Niemetz v Germany (1992) 16 EHRR 97 .............................................................................. 2.70 Nixon v Slater & Gordon (2000) Aust Torts Reports 81-565; [2000] FCA 531 ........................................................................................................................ 7.50, 18.120 Noonan v MacLennan [2010] 2 Qd R 537; [2010] QCA 50 ............................................... 5.40 North Coast Children’s Home Inc t/as Child and Adolescent Specialist Programs & Accommodation (CASPA) v Martin [2014] NSWDC 125 ...................................... 8.180 Norton v Hoare [No 1] (1913) 17 CLR 310 ....................................................................... 11.60

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O OBG Ltd v Allan [2008] 1 AC 1; [2007] UKHL 21 ...................................................... 18.210 O’Brien v Marquis of Salisbury (1889) 6 TLR 133 ............................................................. 13.40 O’Connor v Waldron [1935] AC 76 ...................................................................................... 10.30 O’Connor, Ex parte; Re Wright (1930) 47 WN(NSW) 193 ................................................. 4.10 O’Hagan v Nationwide News Pty Ltd (2001) 53 NSWLR 89; [2001] NSWCA 302 ..................................................................................... 15.170, 15.190, 15.200 O’Hara v Sims [2009] QCA 186 ........................................................................... 5.160, 11.180 O’Neill v Australian Broadcasting Corporation (2005) 15 Tas R 114; [2005] TASSC 75 .......................................................................................................................... 5.60 O’Neill v Jones [1999] NSWSC 270 .................................................................................... 6.280 O’Shaughnessy v Mirror Newspapers Ltd (1970) 125 CLR 166 .............................. 13.40, 13.80 O’Shea v MGN Ltd [2001] EMLR 40; [2001] EWHC 425 ............... 7.40, 7.60, 8.10, 17.10 Obeid v John Fairfax Publications Pty Ltd (2006) 68 NSWLR 150; [2006] NSWSC 1059 ................................................................................................. 11.110, 11.180 Obermann v ACP Publishing Pty Ltd [2001] NSWSC 1022 .................................. 6.260, 6.300 Oberschlick v Austria (1991) 19 EHRR 389 ........................................................... 2.100, 2.150 Observer and The Guardian, The v United Kingdom (1991) 14 EHRR 153 ............ 2.100, 2.150 Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 ............................... 8.170 Oriental Press Group Ltd v Fevaworks Solutions Ltd (2013) HKCFAR 366; [2013] HKCFA 47 ........................................................................................................... 8.50 Orion Pet Products Pty Ltd v Royal Society for the Prevention of Cruelty to Animals (Vic) Inc (2002) 120 FCR 191; [2002] FCA 860 ............... 18.20, 18.60, 18.100, 18.110 Orr v Isles [1965] NSWR 677 ......................... 4.30, 13.10, 13.20, 13.40, 13.50, 13.70, 13.80 Osborn v Thomas Boulter & Son [1930] 2 KB 226 ............................................................... 8.90

P P v D [2000] 2 NZLR 591 ............................................................................................... 18.210 Packer v Australian Broadcasting Corporation (1993) 116 FLR 306 ................................... 15.30 Packer v Mirror Newspapers Ltd (1969) 90 WN (Pt 1) (NSW) 308 ................................... 6.30 Palace Films Pty Ltd v Fairfax Media Publications Pty Ltd [2012] NSWSC 1136 ................................................................................................................................. 5.100 Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264 ................................................. 9.170 Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; [2001] HCA 69 ....................................................................................... 15.60, 18.20, 18.30, 18.50, 18.60 Pambula District Hospital v Herriman (1988) 14 NSWLR 387 ......................................... 5.150 Pamplin v Express Newspapers Ltd [1988] 1 WLR 116 ............ 15.10, 15.170, 15.200, 15.210 Papaconstuntinos v Holmes a Court [2009] NSWSC 903 ................................................... 15.130 Papaconstuntinos v Holmes a Court (2012) 249 CLR 534; [2012] HCA 53 ......... 11.20, 11.50, 11.70 Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 .............. 18.70, 18.80, 18.90 xxxii

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Parker v Falkiner (1889) 10 LR (NSW) 7 ........................................................................... 14.90 Parkes v Prescott (1869) LR 4 Ex 169 ................................................................................... 8.70 Parmiter v Coupland (1840) 6 M & W 105; 151 ER 340 ...................................... 6.240, 13.70 Paschalidis v Yellow Corporation [2005] SASC 151 ................................................................ 7.50 Patrick v Wise (1441) 101 Selden Society 14 ....................................................................... 3.20 Peck v Tribune Co 214 US 185 ............................................................................................. 6.290 Pedavoli v Fairfax Media Publications Pty Ltd [2014] NSWSC 1674 ....... 7.100, 15.20, 15.230, 17.20, 17.30, 17.80, 17.100 Pedersen v Denmark (2006) 42 EHRR 24 ............................................................... 2.100, 2.150 Penton v Calwell (1945) 70 CLR 219 ....................................................................... 11.30, 11.60 Perera v Peiris [1949] AC 1 ........................................................................... 12.20, 12.50, 12.70 Perre v Apand Pty Ltd (1999) 198 CLR 180 ...................................................... 18.160, 18.170 Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309 ....... 13.40, 13.50, 13.100 Peter Walker & Son Ltd v Hodgson [1909] 1 KB 239 ..................... 13.10, 13.30, 13.50, 13.70 Petritsis v Hellenic Herald Pty Ltd [1978] 2 NSWLR 174 ............................. 6.30, 13.40, 13.60 Petrov v Do [2012] NSWSC 1382 ....................................................................................... 15.20 Pfeifer v Austria (2009) 48 EHRR 8 .......................................................................... 2.70, 2.150 Phelps v Nationwide News Pty Ltd [2001] NSWSC 130 ....................................................... 6.40 Phelps v Nationwide News Pty Ltd [2003] NSWSC 614 ..................................................... 6.280 Phillips v Eyre (1870) LR 6 QB 1 ....................................................................................... 8.150 Pickens v State (1884) 61 Miss 563 ........................................................................................ 2.40 Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 ..... 1.60, 2.110, 5.40, 17.10, 17.20, 17.50, 17.90, 17.110, 17.120 Pinniger v John Fairfax & Sons Ltd (1979) 26 ALR 55 ................................................... 11.100 Pioneer International Ltd v Knox (1991) 22 NSWLR 266 .................................................. 9.140 Plato Films Ltd v Speidel [1961] AC 1090 ........ 1.30, 2.20, 2.40, 9.70, 15.10, 15.170, 15.200, 15.210 Polias v Ryall [2013] NSWSC 1267 ........................................................................... 1.10, 8.180 Polias v Ryall [2014] NSWSC 1692 ........................................................................ 8.180, 15.60 Polly Peck plc v Trelford [1986] QB 1000 ............... 1.30, 9.20, 9.80, 9.90, 9.100, 9.110, 9.180 Popham v Pickburn (1862) 7 H & N 891; 158 ER 730 .................................................... 13.70 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 ............................... 8.170 Potter v Minahan (1908) 7 CLR 277 ...................................................................................... 2.90 Potts v Moran (1976) 16 SASR 284 ............................................................... 6.250, 9.30, 9.130 Powell v Gelston [1916] 2 KB 615 ................................................................................ 8.20, 8.90 Pozniak v Smith (1982) 151 CLR 38 .................................................................................. 8.150 Praed v Graham (1889) 24 QBD 53 ..................................................... 15.100, 15.230, 15.260 Prefumo v Bradley [2011] WASC 251 ......................................................................... 1.10, 6.160 Prefumo v Bradley [No 4] [2014] WASC 94 .......................................................................... 1.10 Pressler v Lethbridge (1997) 153 DLR (4th) 537 .................................................................. 2.80 Price v Jenkings (1600) Cro Eliz 865; 78 ER 1091 ............................................................ 8.120 Prichard v Krantz (1984) 37 SASR 379 ................................................................................. 6.30 Pro Teeth Whitening (Aust) Pty Ltd v Commonwealth [2014] QSC 107 ................................ 5.40 Prud’homme v Prud’homme (2002) 221 DLR (4th) 115 ........................................................ 2.70 Pryke v Advertiser Newspapers Ltd (1984) 37 SASR 175 .................. 7.90, 13.10, 13.40, 13.50 Pullman v Walter Hill & Co Ltd [1891] 1 QB 524 ..... 8.20, 8.90, 8.100, 10.10, 11.20, 11.50 Purcell v Cruising Yacht Club of Australia Pty Ltd [2002] NSWSC 557 ........................... 9.140

Q Quartz Hill Consolidated Gold Mining Company v Beall (1882) 20 Ch D 501 .................. 16.20 xxxiii

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R R v Abingdon (1794) 1 Esp 226; 170 ER 337 ................................................................... 10.40 R v Adams (1888) 22 QBD 66 ............................................................................................. 4.30 R v Broadcasting Standards Commission; Ex parte British Broadcasting Corporation [2001] QB 885 ............................................................................................ 5.110 R v Carden (1879) 5 QBD 1 .................................................................................................. 4.30 R v Cecil (1865) 4 SCR(NSW) 323 ....................................................................................... 4.30 R v Creevey (1813) 1 M & S 273; 105 ER 102 .................................................................. 10.40 R v Ensor (1887) 3 TLR 366 ................................................................................................. 4.30 R v Gathercole (1838) 2 Lew CC 237; 168 ER 1140 .......................................................... 4.30 R v Grassby (1988) 15 NSWLR 109 ................................................................. 4.10, 4.30, 4.40 R v Hardy [1951] VLR 454 ................................................................................................... 4.30 R v Hepburn (1889) 15 VLR 84 ............................................................................................ 4.30 R v Holbrook (1878) 4 QBD 42 .................................................................................. 4.10, 4.30 R v Howe [No 1] (1828) Dowling’s Select Cases 291 ........................................................ 4.10 R v Labouchere (1884) 12 QBD 320 ..................................................................................... 4.30 R v Langley (1704) 2 Ld Raym 1029; 92 ER 184 ............................................................... 4.30 R v Lucas (1998) 157 DLR (4th) 423 ......................................................................... 2.70, 2.80 R v Monis (2013) 249 CLR 92; [2013] HCA 4 ................................................................... 2.90 R v Munslow [1895] 1 QB 758 .............................................................................................. 4.30 R v Murphy (1986) 5 NSWLR 18 ....................................................................................... 10.60 R v Ogawa [2011] 2 Qd R 350; [2009] QCA 307 ............................................................... 4.40 R v Orme and Nutt (1699) 1 Ld Raym 486; 91 ER 1224 .................................................. 4.30 R v Osborn (1732) 94 ER 425; 2 Barn KB 166 .................................................................. 4.30 R v Paine (1696) 5 Mod R 163; 87 ER 584 ............................................................. 8.60, 8.100 R v Penny (1967) 1 Ld Raym 153; (1696) 91 ER 999 ........................................................ 4.30 R v Perry (1883) 15 Cox CC 169 .......................................................................................... 4.30 R v Ratcliff (2007) 250 LSJS 297; [2007] SASC 297 .......................................................... 4.10 R v Rule [1937] 2 KB 375 ..................................................................................................... 4.30 R v Secretary of State for the Home Department; Ex parte Simms [2000] 2 AC 115 .......................................................................................................................... 2.90, 2.100 R v Shayler [2003] 1 AC 247; [2002] UKHL 11 ..................................................... 2.90, 2.100 R v Skinner (1772) Lofft 54; 98 ER 529 ........................................................................... 10.30 R v Topham (1791) 4 TR 130; 100 ER 931 ......................................................................... 4.30 R v Wicks [1936] 1 All ER 384 ............................................................................................ 4.30 R v Williams (1822) 106 ER 1308; 5 B & Ald 595 ............................................................ 4.30 R v Wright (1799) 8 TR 293; 101 ER 1396 ........................................................... 12.20, 12.70 R (on the application of Miranda) v Secretary of State for the Home Department [2014] 3 All ER 447; [2014] EWHC 255 ................................................................... 2.100 RST v UVW [2010] EMLR 13; [2009] EWHC 2448 .................................................. 18.230 Ra v Nationwide News Pty Ltd (2009) 182 FCR 148; [2009] FCA 1308 ........................ 5.160 Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460; [2009] HCA 16 .......................................................... 2.30, 3.20, 6.80, 6.220, 6.250, 6.280, 6.290, 18.60 Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448 ........................................... 5.150 Radio France v France (2005) 40 EHRR 29 ................................................... 2.70, 2.100, 2.150 Rametta v Deakin University [2010] FCA 1341 .................................................................... 5.40 Ramjan v Kroger (unreported, NSW SC, Nicholas J, 5 March 2013) ............................. 5.160 Rana v Google Australia Pty Ltd [2013] FCA 60 ................................................................ 8.190 Random House Australia Pty Ltd v Abbott (1999) 94 FCR 296 ..................... 1.20, 6.30, 6.260 Rann v Olsen (2000) 76 SASR 450 ..................................................................................... 10.40 Rantzen v Mirror Group Newspapers Ltd [1994] QB 670 .................................................. 15.70 Rastogi v Nolan [2010] NSWSC 735 ................................................................................ 16.140 xxxiv

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Table of Cases

Ratcliffe v Evans [1892] 2 QB 524 .............................. 5.20, 15.30, 18.20, 18.30, 18.40, 18.60 Raul Amon International Pty Ltd v Telstra Corporation Ltd [1998] 4 VR 798 ..................... 7.40 Rayney v Western Australia [No 3] [2010] WASC 83 ................................................. 5.30, 5.40 Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 ......... 5.150, 6.80, 6.110, 6.140, 6.220, 6.290 Reading v Australian Broadcasting Corporation [2003] NSWSC 716 ................................ 17.100 Redeemer Baptist School Ltd v Glossop [2006] NSWSC 1201 ............................................. 5.110 Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491; [2002] HCA 10 ........................................................................................................................... 8.150 Reis v Perry (1895) 64 LJQB 566 ........................................................................................ 12.30 Renouf v Federal Capital Press of Australia Pty Ltd (1977) 17 ACTR 35 ............. 1.10, 13.100 Revis v Smith (1856) 18 CB 126; 139 ER 1314 ................................................................ 10.30 Reynolds v Times Newspapers Ltd [2001] 2 AC 127 ............. 2.70, 2.100, 2.140, 2.150, 11.120 Ricardes v Rutter (1566) 101 Selden Society 30 ................................................................... 3.20 Richards v Naum [1967] 1 QB 620 ......................................................................... 10.20, 10.80 Riddick v Thames Board Mills Pty Ltd [1977] 1 QB 881 ...................................................... 8.90 Ridgway v Smith & Son (1890) 6 TLR 275 ........................................................................ 14.30 Riding v Smith (1876) 1 Ex D 91 ............................................................................ 18.30, 18.40 Rigby v Associated Newspapers Ltd (1963) 64 SR(NSW) 34 .............................................. 15.90 Rigby v Associated Newspapers Ltd [1969] 1 NSWR 729 ............ 15.50, 15.70, 15.210, 15.230 Risk Allah Bey v Whitehurst (1868) 18 LT 615 .......................................... 12.20, 12.30, 12.60 Riske v Oxley Insurance Brokers Pty Ltd (No 2) [2014] NSWSC 1611 ...................... 5.30, 5.40 Ritson v Burns [2014] NSWSC 272 .................................................................................... 8.210 Ritson v Gay & Lesbian Community Publishing Ltd [2012] NSWSC 483 ........................... 5.40 Rivkin v Amalgamated Television Services Pty Ltd [2001] NSWSC 432 ............................. 6.300 Rivkin v Amalgamated Television Services Pty Ltd [2002] NSWSC 496 ............................. 6.300 Roach v Garvan (St James’s Evening Post) (1742) 2 Atk 469; 26 ER 683 ............................ 7.50 Roberman v Australian Broadcasting Corporation [2002] WASC 56 ................................... 6.280 Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57 ........... 2.110, 2.120, 10.10, 11.20, 11.80, 11.90, 11.100, 11.110, 11.180 Roberts v Camden (1807) 9 East 93; 103 ER 508 ................................................................ 9.40 Roberts v Prendergast [2014] 1 Qd R 357; [2013] QCA 47 ....................... 5.160, 15.30, 15.60 Roberts-Smith v Crawshaw [2014] WASC 12 ....................................................................... 8.110 Robertson v Hollings (unreported, Qld SC, Dutney J, 6 April 2009) ................................. 5.40 Robertson v John Fairfax Publications Pty Ltd (2003) 58 NSWLR 246 .............................. 5.120 Robinson v Laws [2003] 1 Qd R 81; [2001] QCA 122 ................................ 9.20, 9.100, 9.120 Robinson v Quinlivan [2006] WASC 38 ................................................................................. 5.20 Robinson v Rayner (1424-25) 101 Selden Society 4 ............................................................. 3.20 Rocca v Manhire (1992) 57 SASR 224 ......................................................... 13.40, 13.70, 13.90 Rochfort v John Fairfax & Sons Ltd [1972] 1 NSWLR 16 ............................................... 15.220 Rofe v Smith’s Newspapers Ltd (1924) 25 SR(NSW) 4 ...................................... 2.40, 9.30, 9.50 Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327; [2003] HCA 52 ......... 2.30, 11.170, 11.180, 12.20, 12.30, 12.80, 15.10, 15.110, 15.150, 15.260 Rogers v Whitaker (1992) 175 CLR 479 ........................................................................... 14.110 Ron Hodgson (Trading) Pty Ltd v Belvedere Motors (Hurstville) Pty Ltd [1971] 1 NSWLR 472 ..................................................................................................................... 1.20 Ron West Motors Ltd v Broadcasting Corporation of New Zealand (No 2) [1989] 3 NZLR 520 ................................................................................................................... 16.40 Ronald v Harper (1910) 11 CLR 63 ...................................................................................... 8.60 Rook v Fairrie [1941] 1 KB 507 ........................................................................................ 15.260 Rookes v Barnard [1964] AC 1129 ............................................................. 15.10, 15.50, 15.240 Rosenblatt v Baer 383 US 75; 86 S Ct 669 (1966) .................................................... 2.70, 2.140 xxxv

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Table of Cases

Ross McConnel Kitchen & Co Pty Ltd v John Fairfax & Sons Ltd [1980] 2 NSWLR 845 ..................................................................................................................... 8.60 Roux v Australian Broadcasting Corporation [1992] 2 VR 577 ......................................... 15.210 Royal Aquarium and Summer and Winter Garden Society Ltd v Parkinson [1892] 1 QB 431 ...................................................................................... 10.10, 10.20, 10.30, 11.80 Royal Automobile Club of Victoria v Paterson [1968] VR 508 ............................................ 16.40 Royal Baking Powder Co v Wright, Crossley & Co (1900) 18 RPC 95 ............................... 18.30 Royal Bank of Scotland v Etridge [2002] 2 AC 773 ............................................................ 5.110 Royal Society for the Prevention of Cruelty to Animals (NSW) v 2KY Broadcasters Pty Ltd [1988] A Def R 50-030 ........................................................................ 5.100, 15.70 Royal Society for the Prevention of Cruelty to Animals New South Wales v Davies [2011] NSWSC 1445 ..................................................................................................... 5.110 Ryalls v Leader (1866) LR 1 Ex 296 ................................................................................... 12.20 Ryan v Premachandran [2009] NSWSC 1186 ..................................................................... 8.180

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S S & K Holdings Ltd v Throgmorton Publications Ltd [1972] 1 WLR 1036 .............. 6.30, 6.150 Sadgrove v Hole [1901] 2 KB 1 ..................................................................................... 7.10, 8.90 Saffron v John Fairfax Publications Pty Ltd [2004] NSWCA 254 ......................................... 2.80 Saint v John Fairfax Publications Pty Ltd [2002] NSWSC 312 ........................................... 6.280 Salomon v A Salomon & Co Ltd [1897] AC 22 .................................................................. 5.100 Sands v Channel Seven Adelaide Pty Ltd (2005) 91 SASR 466; [2005] SASC 182 .................................................................................................................................... 9.100 Sands v Channel Seven Adelaide Pty Ltd (2009) 104 SASR 452; [2009] SASC 215 ........................................................................................................................ 9.100, 9.120 Sands v Channel Seven Adelaide Pty Ltd (2010) 270 LSJS 340; [2010] SASC 202 ...................................................................................................................................... 8.60 Sands v South Australia [2015] SASCFC 36 ......................................................................... 5.70 Sattin v Nationwide News Pty Ltd (1996) 39 NSWLR 32 ................................... 15.90, 18.170 Saunders v Mills (1829) 6 Bing 213; 3 Moo & P 520; 130 ER 1262 .............. 15.170, 15.210 Savvas v TCN Channel Nine Pty Ltd (1987) A Def R 50,020 ........................................... 7.40 Schellenberg v British Broadcasting Corporation [2000] EMLR 296; [1999] EWHC 851 ..................................................................................................................... 8.210 Schindler Lifts Australia Pty Ltd v Debelak (1989) 89 ALR 275; 15 IPR 129 ................. 18.30 Scott v Sampson (1882) 8 QBD 491 ...................................................................... 6.230, 15.170 Scott v Stansfield (1868) LR 3 Ex 220 ................................................................................. 10.30 Seaga v Harper [2009] 1 AC 1; [2008] UKPC 9 ............................................................. 11.120 Seaman v Netherclift (1876) 2 CPD 53 ................................................................................ 10.30 Searles v Scarlett [1892] 2 QB 56 ......................................................................................... 12.30 Seary v Molomby (1999) Aust Torts Reports 81-536 ...................................................... 11.130 Sergi v Australian Broadcasting Commission [1983] 2 NSWLR 669 ................................... 6.190 Service Corp International plc v Channel Four Television Corp [1999] EMLR 83 .............. 18.230 Setka v Abbott [2014] VSCA 287 .................................................................. 9.80, 9.120, 9.180 Setka v Abbott (No 2) [2013] VSC 726 ................................................................................ 1.10 Shapiro v La Morta (1923) 40 TLR 201 ..................................................... 18.30, 18.40, 18.60 Shapowloff v John Fairfax & Sons Ltd [1966] 2 NSWR 244 ..................................... 4.10, 4.30 Shapowloff v John Fairfax & Sons Ltd [1980] 1 NSWLR 344n ........................................ 16.10 Sharples v Hanson [2006] FCA 387 .................................................................................. 17.100 Shaw v London Express Newspapers Ltd (1925) 41 TLR 475 .............................................. 7.60 Shea v News Ltd [2015] WASC 1 ........................................................................................ 6.190 Shepherd v Walsh [2001] QSC 358 ........................................................................ 6.260, 15.240 Shevill v Presse Alliance SA [1996] AC 959 ........................................................................ 15.30 xxxvi

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Table of Cases

Shiel v Transmedia Productions Pty Ltd [1987] 1 Qd R 199 ...................... 16.40, 16.80, 16.100 Shift2Neutral Pty Ltd v Fairfax Media Publications Pty Ltd [2014] NSWSC 86 ................. 9.40 Silkin v Beaverbrook Newspapers Ltd [1958] 1 WLR 743; 2 All ER 516 ..... 2.10, 2.90, 13.10, 13.50, 13.90 Sim v HJ Heinz Co Ltd [1959] 1 All ER 547; 1 WLR 313 ................................ 16.40, 18.230 Sim v Stretch [1936] 2 All ER 1237 ........... 3.20, 6.50, 6.60, 6.70, 6.220, 6.240, 6.250, 8.210 Sims v Jooste [No 2] [2014] WASC 373 ................................................................................. 9.40 Sims v Wran [1984] 1 NSWLR 317 .................................................. 8.70, 13.40, 13.50, 13.90 Singleton v Ffrench (1986) 5 NSWLR 425 ......................................... 9.40, 9.50, 15.70, 15.230 Singleton v John Fairfax & Sons Ltd [1982] 2 NSWLR 38 ................................................ 8.170 Singleton v John Fairfax & Sons Ltd [No 1] [1983] 2 NSWLR 722 .................................. 14.80 Skalkos v Assaf (2002) Aust Torts Reports 81-644; [2002] NSWCA 14 ....... 11.120, 14.90 Slatyer v Daily Telegraph Co Ltd (1908) 6 CLR 1 ............................................................... 6.250 Slim v Daily Telegraph Ltd [1968] 2 QB 157 .............. 1.30, 6.30, 6.140, 13.10, 13.90, 13.100 Slipper v British Broadcasting Corporation [1991] 283 ............................................................ 8.70 Smith v ADVFN Plc [2008] EWHC 1797 ....................................................................... 6.160 Smith v Harris [1996] 2 VR 335 .............................................................................. 12.20, 12.30 Smith v Lucht [2014] QDC 302 .......................................................................................... 8.210 Smith v Richardson (1737) Willes 20; 125 ER 1034 ........................................................ 15.210 Smith’s Newspapers Ltd v Becker (1932) 47 CLR 279 ........................................................ 13.40 Snedden v Nationwide News Pty Ltd [2011] NSWCA 262 ................................................. 9.120 Snel v Aylse (1325) 101 Selden Society 51 ........................................................................... 3.60 Sollers v Lawrence (1743) Willes 413; 125 ER 1242 ............................................................ 5.80 Soultanov v Age Co Ltd (2009) 23 VR 182; [2009] VSC 145 ........................................... 13.60 South Australia v Lampard-Trevorrow (2010) 106 SASR 331; [2010] SASC 56 .................................................................................................................................... 18.190 South Hetton Coal Co Ltd v North-Eastern News Association Ltd [1894] 1 QB 133 ........................................................................... 5.20, 5.100, 13.10, 13.70, 13.90, 18.60 South Pacific Manufacturing Co Ltd v New Zealand Security Consultants & Investigations Ltd [1992] 2 NZLR 282 ........................................................................ 18.170 Spautz v Williams [1983] 2 NSWLR 506 ............................................................................. 4.10 Speight v Gosnay (1891) 60 LJQB 231; 7 TLR 239 ............................................................. 8.70 Speight v Syme (1894) 20 VLR 393 ..................................................................................... 13.70 Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 ........................................... 8.170 Spill v Maule (1869) LR 4 Ex 232 ............................................................. 11.30, 11.80, 11.100 Spiller v Joseph [2011] 1 AC 852; [2010] UKSC 53 ........................................................ 13.100 Spring v Guardian Assurance plc [1995] 2 AC 296 ............................................................ 18.170 Star Hotel Holdings Pty Ltd v Newcastle Newspapers Pty Ltd [2001] NSWSC 53 ...................................................................................................................................... 16.60 State Bank of NSW Ltd v Currabubula Holdings Pty Ltd (2001) 51 NSWLR 399; (2001) Aust Torts Reports 81-618; [2001] NSWCA 47 ................. 1.30, 8.70, 8.90 Steel v McDonald’s Corp [1999] EWCA Civ 1144 ............................................................. 5.110 Steel v United Kingdom [2005] EMLR 15; (2005) 41 EHRR 22 ...................................... 5.110 Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 ................................. 2.10, 7.40, 15.230 Steiner Wilson and Webster Pty Ltd (t/as Abbey Bridal) v Amalgamated Television Services Pty Ltd (2000) Aust Torts Reports 81-537 .................................... 9.120 Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211 ....................... 11.20, 11.110 Stern v Piper [1997] QB 123 .................................................................................................. 8.60 Stiles v Noke (1806) 7 East 493; 103 ER 191 ................................................................... 12.30 Stocker v McElhinney (No 2) [1961] NSWR 1043 .......... 16.10, 16.40, 16.90, 16.110, 16.120 Stokes v John Fairfax Publications Pty Ltd [2003] NSWSC 678 ......................................... 6.280 Stuart v Bell [1891] 2 QB 341 .......................................................... 11.20, 11.30, 11.40, 11.90 Stubbs Ltd v Russell [1913] AC 386 ......................................................................... 6.140, 6.170 xxxvii

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Table of Cases

Sturt v Farran [2012] NSWSC 400 ....................................................................................... 2.30 Sullivan v Griffin [2012] NSWSC 687 ................................................................................ 8.170 Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59 ................................................ 18.170 Sun v Hojunara International Group (No 2) [2013] NSWSC 1050 ...................................... 5.40 Sun Earth Homes Pty Ltd v Australian Broadcasting Corporation (1991) ATPR 41-067 ............................................................................................................................ 18.140 Sun Earth Homes Pty Ltd v Australian Broadcasting Corporation (1993) 45 FCR 265 ........................................................................................................................ 18.140 Sun Life Assurance Co of Canada v WH Smith & Son Ltd (1933) 150 LT 211 .................................................................................................................................... 14.30 Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1 ..... 6.230, 18.40, 18.60 Sunkissed Bananas (Tweed) Ltd v Banana Growers’ Federation Co-operative Ltd (1935) 35 SR(NSW) 526 ............................................................................................... 15.10 Sutcliffe v Pressdram Ltd [1991] 1 QB 153 .............................................................. 15.20, 5.150 Sutherland v Stopes [1925] AC 47 ............................................ 9.30, 9.70, 13.20, 13.90, 13.100 Swan v Williams (Demolition) Pty Ltd (1987) 9 NSWLR 172 ............................................. 5.80 Sweeney v Patterson 128 F 2d 457 ........................................................................................... 2.90 Swimsure (Laboratories) Pty Ltd v McDonald [1979] 2 NSWLR 796 ........ 16.40, 18.30, 18.50, 18.60, 18.230 Szalatanay-Stacho v Fink [1947] 1 KB 1 ............................................................................. 10.20 Szanto v Melville [2011] VSC 574 ........................... 14.70, 14.90, 14.100, 17.20, 17.30, 17.80

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T TCN Channel Nine Pty Ltd v Ilvariy Pty Ltd (2008) 71 NSWLR 323; [2008] NSWCA 9 ............................................................................................. 9.30, 18.120, 18.140 TCN Channel Nine Pty Ltd v Mahony (1993) 32 NSWLR 397 ........................................ 5.150 TV3 Network Services Ltd v Fahey [1999] 2 NZLR 129 ................................................... 16.40 Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 ......................... 18.80, 18.90 Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35 ..................... 18.160, 18.170 Tamiz v Google Inc [2013] 1 WLR 2151; [2013] EWCA Civ 68 ..................................... 8.190 Tanner v Miles [1912] QWN 7 ............................................................................................ 8.110 Tapling v Jones (1865) 1 LHC 290 ..................................................................................... 18.200 Tassone v Kirkham [2014] SADC 134 ................................................................................. 6.300 Tate v Duncan-Strelec [2013] NSWSC 1446 ..................................................................... 18.230 Taylor v Director of the Serious Fraud Office [1999] 2 AC 177 ............................................ 10.30 Taylor v Network Ten (Perth) Pty Ltd [1999] WASC 264 ..................................................... 7.90 Taylor v Perkins (1606) Cro Jac 144; 79 ER 126 ................................................................. 3.30 Telegraph Newspaper Co Ltd v Bedford (1934) 50 CLR 632 ................................................ 11.30 Telnikoff v Matusevitch [1992] 2 AC 343 .......................................................................... 13.100 Templeton v Jones [1984] 1 NZLR 448 .................................................................... 9.100, 9.110 Terry v Persons Unknown [2010] EMLR 16; [2010] EWHC 119 .................... 18.220, 18.230 Theaker v Richardson [1962] 1 WLR 151 .............................................................................. 8.90 Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 .... 2.10, 2.90, 2.110, 2.120, 2.140, 8.110, 9.20, 11.80, 11.110 Thiess v TCN Channel Nine Pty Ltd (No 5) [1994] 2 Qd R 156 ........................................ 8.40 Thom v Associated Newspapers Ltd [1964-5] NSWR 396 ....................................... 12.30, 12.40 Thomas v Bradbury, Agnew & Co Ltd [1906] 2 KB 627 ................................................. 13.100 Thomas v Canadian Broadcasting Corporation [1981] 4 WWR 289 ...................................... 2.80 Thomas v Moore [1918] 1 KB 555 ....................................................................................... 11.70 Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 ............... 14.20, 14.30, 14.40, 14.50 xxxviii

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Table of Cases

Thompson v Australian Consolidated Press Ltd [1968] 3 NSWR 642 ..................... 12.60, 12.80 Thompson v Hill (1995) 38 NSWLR 714 ........................................................................... 8.150 Thompson v Truth and Sportsman Ltd (No 4) (1932) 34 SR(NSW) 21 ................. 12.40, 13.50 Thomson v Faram (1481) 101 Selden Society 17 ................................................................. 3.20 Thorley v Lord Kerry (1812) 4 Taunt 355; 128 ER 367 ................................. 5.20, 6.240, 8.90 Thornton v Telegraph Media Group Ltd [2012] EMLR 8; [2012] EWHC 1884 ............... 18.50 Time Inc v Hill 385 US 374; 87 S Ct 534 (1967) .............................................................. 2.100 Times Newspapers Ltd v United Kingdom [2009] EMLR 14 ............................................... 8.130 Tisdall v Hutton [1944] Tas SR 1 ........................................................................................... 9.60 Todd v Swan Television & Radio Pty Ltd (2001) 25 WAR 284 ................................ 5.90, 5.100 Todorovic v Waller (1981) 150 CLR 402 .................................................... 15.10, 15.40, 15.150 Tolley v JS Fry & Sons Ltd [1931] AC 331 .............................. 6.50, 6.120, 6.150, 6.300, 7.50 Tom & Bill Waterhouse Pty Ltd v Racing New South Wales (2008) 72 NSWLR 577; [2008] NSWSC 1013 ............................................................................................... 8.20 Toogood v Spyring (1834) 1 C M & R 181; 149 ER 1044 .......................... 11.20, 11.40, 11.80 Toomey v Mirror Newspapers Ltd (1985) 1 NSWLR 173 .................... 1.20, 8.70, 8.130, 8.170 Tournier v National Provincial and Union Bank of England [1924] 1 KB 461 .................. 6.240 Townsend v Hughes (1676) 2 Mod 150; 86 ER 994 ............................................................. 3.50 Trantum v McDowell [2007] NSWCA 138 ............................................................................ 8.30 Trapp v Mackie [1979] 1 WLR 377 ......................................................................... 10.20, 10.30 Traztand Pty Ltd v Government Insurance Office of New South Wales [1984] 2 NSWLR 598 ..................................................................................................................... 8.90 Triggell v Pheeney (1951) 82 CLR 497 ................................................................. 15.230, 15.260 Trkulja v Dobrijevic (No 2) [2014] VSC 594 ......................................................................... 5.40 Trkulja v Google Inc LLC (No 5) [2012] VSC 533 ................................................. 5.160, 8.190 Trkulja v Yahoo! Inc LLC [2012] VSC 88 ............................................................... 5.160, 8.190 Trotman v Dunn (1815) 4 Camp 211; 171 ER 67 ............................................................. 10.30 True Value Solar (SA) Pty Ltd v Seven Network Ltd [2011] SASC 91 .............................. 16.60 Truth (New Zealand) Ltd v Holloway [1961] NZLR 22 ........................................................ 8.60 Truth About Motorways v Macquarie (2000) 200 CLR 591; [2000] HCA 11 ................... 15.60 Tucker v News Media Ownership Ltd [1986] 2 NZLR 716 .............................................. 18.210 Turner v Bulletin Newspaper Co Pty Ltd (1974) 131 CLR 69 ............................................... 7.40 Turner v Metro-Goldwyn-Mayer Pictures Ltd [1950] 1 All ER 449 ............ 11.60, 13.40, 13.80, 13.90 Turner v News Group Newspapers Ltd [2006] 1 WLR 3469; [2006] EWCA Civ 540 ............................................................................................................ 15.170, 15.210 Turner v Spooner (1861) 30 LJ Ch 801 ............................................................................. 18.200

U Ultramares Corporation v Touche 174 NE 441 (1932) ...................................................... 18.170 Underwood v Parks (1743) 2 Stra 1200; 93 ER 1127 ...................................................... 15.210 Uner v Netherlands (2007) 45 EHRR 14 .............................................................................. 2.70 Uniflex (Australia) Pty Ltd v Hanneybel [2001] WASC 138 ................................................. 5.20 Unions NSW v New South Wales (2013) 204 ALR 266; 88 ALJR 227; [2013] HCA 58 ............................................................................................................... 2.120 Universal Communication Network Inc (t/as New Tang Dynasty) v Chinese Media Group (Aust) Pty Ltd (2008) Aust Torts Reports 81-932; [2008] NSWCA 1 ......................................................................................................................... 7.40 Universal Telecasters (Qld) Ltd v Ainsworth Consolidated Industries Ltd (1983) 78 FLR 16 ..................................................................................................................... 18.130 Universal Telecasters (Qld) Ltd v Guthrie (1978) 18 ALR 531 .......................................... 18.130 xxxix

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Table of Cases

Urbanchich v Drummoyne Municipal Council (1991) Aust Torts Reports 81-127 ................................................................................................................................ 8.50 Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 ........... 1.70, 2.20, 2.30, 2.40, 4.10, 11.90, 15.10, 15.50, 15.240, 15.250 Usain v Hales (1878) 3 CPD 319 ........................................................................................ 12.20

V Vale v Broke (1493) 16 Selden Society 39 ........................................................................... 3.40 Van Ingen v Mail & Express Publishing Co 156 New York Reports 376; 50 NE 979 (1898) ............................................................................................................... 7.100 Vane v Skinner (1441) 101 Selden Society 15 ..................................................................... 3.20 Versace v Monte (2002) 119 FCR 349; [2002] FCA 190 ......... 18.70, 18.110, 18.120, 18.140 Vessey v Pike (1829) 3 C & P 512; 172 ER 526 .................................................................. 9.70 Victoria v Nine Network (2007) 19 VR 476; [2007] VSC 431 ....................................... 18.220 Victoria Park Racing & Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479 ................................................................................................................................. 18.200 Vidal-Hall v Google Inc [2015] 3 WLR 409; [2015] EWCA Civ 311 ........................... 18.210 Villers v Monsley (1769) 2 Wils 403; 95 ER 886 ....................................... 6.260, 6.270, 15.10 Vine, Ex parte; In re Wilson (1878) 8 Ch D 364 ................................................................. 5.70 Viscount Saye and Sele v Stephens (1629) Cro Car 135; 79 ER 719 .................................... 3.50 Visscher v Maritime Union of Australia (No 6) [2014] NSWSC 350 .................... 8.180, 8.200 Vizetelly v Mudie’s Select Library Ltd [1900] 2 QB 170 ............................. 14.20, 14.30, 14.40 Vlasic v Federal Capital Press of Australia Pty Ltd (1976) 9 ACTR 1 ................................. 7.40 Von Hannover v Germany (2005) 40 EHRR 1 .............................................. 2.70, 2.100, 2.150 Von Hannover v Germany (No 2) (2012) 55 EHRR 15 ......................................... 2.100, 2.150 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 ................................................ 8.170

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W Wade v Victoria [1999] 1 VR 121 ..................................................................................... 18.170 Wainer v Rippon [1980] VR 129 ............................................................................................ 5.20 Wainwright v Home Office [2004] 2 AC 406; [2003] UKHL 53 ........................ 18.210, 18.220 Wake v John Fairfax & Sons Ltd [1973] 1 NSWLR 43 ............................... 8.60, 11.20, 12.50 Walker v WA Pickles Ltd [1980] 2 NSWLR 281 .............................................................. 8.150 Wallersteiner v Moir [1974] 1 WLR 991; 3 All ER 217 ....................................... 16.40, 16.110 Walter v Alltools Ltd (1944) 61 TLR 39 ........................................................................... 18.190 Ward v James [1966] 1 QB 273 ............................................................................................ 5.150 Ward v Weeks (1830) 7 Bing 211; 131 ER 81 ........................................................... 8.60, 8.70 Ware v Associated Newspapers Ltd (1969) 90 WN (Pt 1) (NSW) 180 .................... 7.40, 7.100 Warren v Coombes (1979) 142 CLR 531 ............................................................................... 5.40 Warren v Tweed Shire Council [2002] NSWSC 211 ............................................................ 6.280 Wason v Walter (1868) LR 4 QB 73 ................................................ 10.40, 11.20, 12.20, 12.70 Waterhouse v Age Co Ltd [2012] NSWSC 9 ....................................................................... 9.170 Waterhouse v Age Co Ltd [2012] NSWSC 1349 ................................................................. 5.160 Waterhouse v Australian Broadcasting Corporation (1989) 86 ACTR 1 ............................... 8.170 Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 .... 11.100, 12.30, 12.90, 15.230 Waterhouse v Gilmore (1988) 12 NSWLR 270 .................................................. 4.10, 4.30, 4.40 Waterhouse v Hickie (1995) Aust Torts Reports 81-347 ........................... 9.130, 9.140, 9.170 Watkin v Hall (1868) LR 3 QB 396 ........................................................................... 8.60, 9.90 Watson v M’Ewan [1905] AC 480 ....................................................................................... 10.30 Watson v Marshall (1961) 124 CLR 621 ........................................................................... 18.190 xl

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Table of Cases

Watt v General Television Corporation Pty Ltd [1998] 3 VR 501 ........................................ 9.100 Watt v Longsdon [1930] 1 KB 130 ................................................... 11.20, 11.30, 11.40, 11.50 Watt v Watt [1905] 2 AC 115 ............................................................................................ 15.210 Watts v Times Newspapers Ltd [1997] QB 650 ................................................................... 11.20 Webb v Bloch (1928) 41 CLR 331 .............................................................................. 8.20, 11.90 Webb v Times Publishing Co Ltd [1960] 2 QB 535 ...................................... 11.50, 12.20, 12.60 Weld-Blundell v Stephens [1920] AC 956 ................................................................................ 8.70 Weldon v Times Book Ltd (1912) 28 TLR 143 ................................................................... 14.30 Wen Yue He v Australian Chinese Newspapers Pty Ltd [2005] NSWSC 253 .......... 8.70, 8.110, 8.120 Wenman v Ash (1853) 13 CB 836; 138 ER 1432 ............................................................. 11.70 Wennhak v Morgan (1888) 20 QBD 635 ............................................................................ 8.110 West Australian Newspapers Ltd v Bridge (1979) 141 CLR 535 ................................. 3.70, 9.50 West Australian Newspapers Ltd v Elliott (2008) 37 WAR 387; [2008] WASCA 172 ................................................................................................................... 9.120 Westcott v Westcott [2009] QB 407; [2008] EWCA Civ 818 ............................................. 10.30 Western Counties Manure Co v Lawes Chemical Manure Co (1874) LR 9 Ex 218 .................................................................................................................................... 18.40 Western Front Ltd v Vestron Inc [1987] FSR 66 ................................................................ 18.230 Whelan v John Fairfax Publications Pty Ltd (2002) 56 NSWLR 89; [2002] NSWSC 1028 ..................................................................... 8.170, 9.70, 9.100, 9.120, 9.140 White v J and F Stone (Lighting and Radio) Ltd [1939] 2 KB 827 ....................................... 8.20 White v Mellin [1895] 1 AC 154 .............................................................................. 18.30, 18.50 White v Sweden (2007) 48 EHRR 175 .................................................................................. 2.70 White v Sweden (2008) 46 EHRR 3 .................................................................................... 2.150 Whiteley v Adams (1863) 15 CB(NS) 392; 143 ER 838 ................ 11.20, 11.40, 11.80, 13.70 Whitfield v De Lauret & Co (1920) 29 CLR 71 ............................................................... 15.240 Whitford v Clarke [1939] SASR 434 ................................................................................... 13.70 Whitney v Moignard (1890) 24 QBD 630 ................................................................. 8.70, 8.170 Wicks v State Rail Authority of New South Wales (2010) 241 CLR 60; [2010] HCA 22 ......................................................................................................................... 18.160 Wilkes v Wood (1763) Lofft 1; 98 ER 489 ...................................................................... 15.240 Wilkinson v Downton [1897] 2 QB 57 ................................................................ 18.200, 18.210 William Coulson & Sons v James Coulson & Co (1887) 3 TLR 846 .................................. 16.30 Williams v Katis [2014] VSC 405 .......................................................................... 13.10, 13.100 Williams v MGN Ltd [2009] EWHC 3150 ....................................................................... 8.210 Williams v Spowers (1882) 8 VLR(L) 82 ............................................................................. 13.70 Williamson v Freer (1874) LR 9 CP 393 ............................................................................... 8.90 Wilson v Mutual Store Ltd (1899) 25 VLR 262 .................................................................... 9.70 Wilson v Nattrass (1995) 21 MVR 41 ................................................................................. 8.150 Wilson v United Counties Bank Ltd [1920] AC 102 .............................................................. 5.70 Windschuttle v ACP Publishing Pty Ltd [2002] ACTSC 64 ................................................ 8.170 Wisdom v Brown (1885) 1 TLR 412 .................................................................................... 15.30 Wood v Channel Seven Sydney Pty Ltd [2014] NSWSC 1527 ............................................. 5.160 Wood v Cox (1888) 4 TLR 652 ............................................................................................. 4.30 Woodgate v Ridout (1865) 4 F & F 202; 176 ER 531 ............................................ 12.20, 13.70 Woodger v Federal Capital Press of Australia Pty Ltd (1992) 107 ACTR 1; (1992) 106 FLR 183 ....................................................................... 9.20, 9.70, 9.100, 9.180 Woodham v John Fairfax Publications Pty Ltd (2005) Aust Torts Reports 81-822; [2005] NSWSC 1204 ......................................................................................... 9.80 Woodward v Hutchins [1977] 2 All ER 751; 1 WLR 760 ................................................ 18.230 Wookey v Quigley [No 2] [2010] WASC 209 ......................................................................... 5.40 xli

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Table of Cases

Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515; [2004] HCA 16 ............................................................................................................. 18.160 Woolcott v Seeger [2010] WASC 19 .................................................................................... 16.140 Worme v Commissioner of Police of Grenada [2004] 2 AC 430 ............................................. 4.40 Wotton v Queensland (2012) 246 CLR 1 .............................................................................. 2.120 Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697 ............... 11.150, 11.160, 11.170, 11.180 Wright v Woodgate (1835) 2 Cr M & R 573; 150 ER 244 ................................................. 11.80 Wyatt v Gore (1816) Holt NP 299; 171 ER 250 .............................................................. 11.70

X XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448 ........................................................................................................................ 15.240

Y Y and Z v W (2007) 70 NSWLR 377; [2007] NSWCA 329 ............................ 6.240, 18.230 Yeung v Google Inc [2014] HKCFI 1404 ............................................................................. 8.190 Young v Bella (2006) 261 DLR (4th) 516 ......................................................................... 18.170 Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581 .......... 1.30, 5.20, 5.150, 6.70, 6.220, 6.230, 6.270, 7.20, 7.70, 15.10, 15.20, 15.100, 15.260 Yrissari v Clement (1826) 3 Bing 432; 130 ER 579 ........................................................... 6.150

Z

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Zacharia v Channel Seven Sydney [2006] NSWSC 663 ........................................................ 16.60 Zaia v Chibo [2005] NSWSC 917 ..................................................................................... 15.110 Zbyszko v New York American Inc 228 AD 277; 239 NYS 411 ....................................... 6.270 Zeccola v Fairfax Media Publications Pty Ltd [2014] NSWSC 227 ..................................... 9.170

xlii

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Table of Statutes Commonwealth Australian Consumer Law: 18.80, 18.140, 18.150 cl 18: 18.80 cl 19: 18.130 cl 19(1)(a): 18.140 cl 19(1)(b): 18.140 s 19(2): 18.140 s 19(3)(a): 18.140 cl 19(3)(b): 18.140 cl 19(3)(c): 18.140 cl 19(4)(a): 18.140 cl 19(4)(b): 18.140 cl 19(4)(c): 18.140 cl 19(5): 18.140 cl 19(6): 18.140 cl 232: 18.150 cl 236: 18.150 cl 237: 18.150 cl 246: 18.150

s 131(1): 18.80 Sch 2: 18.80

Corporations Act 2001: 12.90 Criminal Code s 474.17: 4.40

Fair Work (Registered Organisations) Act 2009 s 27(e): 5.130

Federal Court of Australia Act 1976: 5.160 s 21: 17.100 s 37M: 8.210 s 39: 5.160 s 40: 5.160

Jursidiction of Courts (Cross-Vesting) Act 1987 s 5: 8.170

Parliamentary Papers Act 1908: 10.60 s 2(1): 10.60 s 2(2): 10.60 s 3(2): 10.60 s 4(1): 10.60

Australian Human Rights Commission Act 1986 s 46PO(4)(b): 17.110

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Bankruptcy Act 1966 s 58(1): 5.70 s 60(3): 5.70 s 60(4): 5.70 s 116(1): 5.70 s 116(2)(g): 5.70

Parliamentary Privileges Act 1987: 10.60 s 16(1): 10.40 s 16(2)(a): 10.60 s 16(2)(b): 10.60 s 16(2)(c): 10.60 s 16(2)(d): 10.60 s 16(3)(a): 10.60 s 16(3)(b): 10.60 s 16(3)(c): 10.60

Broadcasting Services Act 1992: 18.140 s 206: 5.20 Sch 5, cl 3: 14.60 Sch 5, cl 8(1): 14.60 Sch 5, cl 91: 14.10, 14.60 Sch 5, cl 91(1)(a): 14.60 Sch 5, cl 91(1)(b): 14.60 Sch 5, cl 91(1)(c): 14.60 Sch 5, cl 91(1)(d): 14.60

Broadcasting Services (Digital Television and Datacasting) Amendment Act 2000: 5.20 Broadcasting and Television Act 1942 s 124: 5.20

Parliamentary Proceedings Broadcasting Act 1946: 10.60 s 15: 10.60

Racial Discrimination Act 1975 s 18C: 4.30, 17.110, 18.180 s 18C(1): 18.180 Pt IIA: 4.30, 7.80

Telecommunications Act 1997 s 16: 14.60

Trade Practices Act 1974: 18.80, 18.130

Commonwealth of Australia Constitution Act 1901: 1.50, 2.100, 3.70, 11.10, 11.110

s 6(3): 18.80 s 29: 18.80 s 52: 18.80, 18.120, 18.130 s 65A: 18.140 Pt V: 18.80

s 51(v): 18.80

Competition and Consumer Act 2010 xliii

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Table of Statutes

Australian Capital Territory

s 127(2)(d): 17.30 s 127(3): 17.30 s 127(4): 17.30 s 128(1): 17.60 s 128(2): 17.60 s 128(3): 17.60 s 128(4): 17.60 s 128(5): 17.60 s 129(1): 17.70 s 129(2)(a): 17.70 s 129(2)(b): 17.70 s 130(1)(a): 17.80 s 130(1)(a)(i): 17.80 s 130(1)(a)(ii): 17.80 s 130(1)(b): 17.80 s 130(1)(c): 17.80 s 130(2)(a): 17.80 s 130(2)(b): 17.80 s 131(1): 17.80 s 131(2)(a): 17.80 s 131(2)(b): 17.80 s 133: 8.170, 15.140 s 134(1): 9.10, 10.50, 12.80, 13.10, 13.110, 14.50, 14.110, 15.20 s 135: 4.20, 9.30 s 136: 9.130 s 136(a): 9.140, 9.170 s 136(b): 9.140 s 137: 10.50 s 137(2)(a): 10.50 s 137(2)(b): 10.50 s 137(2)(c): 10.50 s 137(2)(d): 10.50 s 138: 12.100 s 138(1)(a): 12.100 s 138(1)(b): 12.100 s 138(2)(a): 12.100 s 138(2)(b): 12.100 s 138(3): 12.100 s 138(4)(a): 12.100 s 138(4)(b): 12.100 s 138(4)(b)(i): 12.100 s 138(4)(b)(ii): 12.100 s 138(4)(c): 12.100 s 138(4)(d): 12.100 s 138(4)(e)(i): 12.100 s 138(4)(e)(ii): 12.100 s 138(4)(e)(iii): 12.100 s 138(4)(e)(iv): 12.100 s 138(4)(f): 12.100 s 139(1): 12.80 s 139(2): 12.80 s 139(3): 12.90 s 139(4)(a): 12.80 s 139(4)(b): 12.80 s 139(4)(c): 12.80 s 139(4)(d)(i): 12.80 s 139(4)(d)(ii): 12.80 s 139(4)(e): 12.80

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Civil Law (Wrongs) Act 2002: 3.70 s 14(1)(a): 17.110 s 14(1)(b): 17.110 s 14(2): 17.110 s 15(1): 5.80 s 15(2): 5.80 s 57: 5.20 s 115(a): 8.160, 12.90 s 115(d): 17.10, 17.110 s 116: 8.50, 10.50, 12.80, 12.100 s 119(1): 5.20 s 119(2): 5.20 s 121(1): 5.110 s 121(2): 5.110 s 121(2)(a): 5.110 s 121(2)(b): 5.110 s 121(5): 5.110 s 122(a): 5.80 s 122(b): 5.80 s 123: 8.130, 8.160 s 123(1): 8.160 s 123(2): 8.160 s 123(3)(a): 8.160 s 123(3)(b): 8.160 s 123(3)(c): 8.160 s 123(3)(d): 8.160 s 123(4): 8.160 s 123(5): 8.160 s 124(1): 17.30 s 124(2): 17.20 s 124(3): 17.20 s 125(1): 17.30 s 125(2)(a): 17.30 s 125(2)(b): 17.30 s 125(3): 17.30 s 125(4): 17.30 s 126(1)(a): 17.40 s 126(1)(b): 17.40 s 126(2)(a): 17.40 s 126(2)(b): 17.40 s 126(3): 17.40 s 126(4): 17.40 s 126(5): 17.40 s 127: 9.50 s 127(1)(a): 17.30 s 127(1)(b): 17.30 s 127(1)(c): 17.30 s 127(1)(d): 17.30 s 127(1)(e): 17.30 s 127(1)(f): 17.30 s 127(1)(g)(i): 17.30 s 127(1)(g)(ii): 17.30 s 127(1)(g)(iii): 17.30 s 127(2)(a): 17.30 s 127(2)(b): 17.30 s 127(2)(c): 17.30 xliv

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Table of Statutes

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Civil Law (Wrongs) Act 2002 — cont

s 139D: 14.70 s 139E: 15.120 s 139F(1): 15.120, 15.140 s 139F(2): 15.120, 15.230 s 139F(3) to (9): 15.120 s 139G: 15.210 s 139H: 15.240 s 139I(1)(a): 15.210, 17.110 s 139I(1)(b): 15.210 s 139I(1)(c): 15.210 s 139I(1)(d): 15.210 s 139I(1)(e): 15.210 s 139I(2): 15.210 s 139M(1): 15.180 s 139M(4): 15.180 Ch 9: 3.70 Pt 3.2: 18.170 Pt 9.2: 17.10 Pt 9.3: 17.10

s 139(4)(f): 12.80 s 139(4)(g): 12.80 s 139(4)(h) to (j): 12.90 s 139(4)(k): 12.90 s 139(4)(l): 12.90 s 139(4)(m): 12.90 s 139(4)(n): 12.90 s 139(4)(o): 12.90 s 139(5): 12.90 s 139A(1)(a): 11.140 s 139A(1)(b): 11.140, 11.170 s 139A(2): 11.140 s 139A(3): 11.140 s 139A(3)(a): 11.140 s 139A(3)(b): 11.140 s 139A(3)(c): 11.140 s 139A(3)(d): 11.140 s 139A(3)(e): 11.140 s 139A(3)(f): 11.140 s 139A(3)(g): 11.140 s 139A(3)(h): 11.140 s 139A(3)(i): 11.140 s 139A(3)(j): 11.140 s 139A(4): 11.140 s 139A(5): 11.140 s 139B: 13.110 s 139B(1)(a): 13.110 s 139B(1)(b): 13.110 s 139B(1)(c): 13.110 s 139B(2)(a): 13.110 s 139B(2)(b): 13.110 s 139B(2)(c): 13.110 s 139B(3)(a): 13.110 s 139B(3)(b): 13.110 s 139B(3)(c): 13.110 s 139B(4)(a): 13.110 s 139B(4)(b): 13.110 s 139B(4)(c): 13.110 s 139B(5)(a): 13.110 s 139B(5)(b): 13.110 s 139B(5)(c): 13.110 s 139B(6): 13.110 s 139C: 14.50 s 139C(1)(a): 14.50 s 139C(1)(b): 14.50 s 139C(1)(c): 14.50 s 139C(2)(a): 14.50 s 139C(2)(b): 14.50 s 139C(2)(c): 14.50 s 139C(3)(a): 14.50 s 139C(3)(b): 14.50 s 139C(3)(c): 14.50 s 139C(3)(d): 14.50 s 139C(3)(e): 14.50 s 139C(3)(f)(i): 14.50 s 139C(3)(f)(ii): 14.50 s 139C(3)(g): 14.50 s 139C(3)(h): 14.50

Court Procedures Rules 2006 r 21(1): 1.60 r 21: 8.210 r 2900: 17.100

Crimes Act 1900 s 439(1): 4.20 s 439(1)(a): 4.20 s 439(1)(b): 4.20 s 439(2): 4.20 s 439(3)(a): 4.20 s 439(3)(b): 4.20 s 439(3)(c): 4.20 s 439(4): 4.20 s 439(6): 4.20

Crimes (Sentencing) Act 2005 s 144: 5.60

Defamation Act 1901 s 3: 5.20

Defamation Act 2001 s 14: 5.20

Fair Trading Act 1992 s 12: 18.80 s 31: 18.130

Fair Trading (Australian Consumer Law) Act 1992 s 7: 18.80 s 11: 18.80

Human Rights Act 2004: 2.140 s 12(a): 2.70 s 12(b): 2.70 s 16: 2.140

Jurisdiction of Courts (Cross-Vesting) Act 1993 s 5: 8.170

Legislation Act 2001 s 88: 5.60 s 133: 4.20

Limitation Act 1985 xlv

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Table of Statutes Limitation Act 1985 — cont

Pt 2A: 17.10 Pt 3, Div 8: 17.10

s 11(1): 5.30 s 21B(1): 5.30 s 21B(2): 5.30

Defamation Act 2005: 3.70 s 1: 10.50 s 2: 3.70 s 3(a): 8.160, 12.90 s 3(d): 17.10, 17.110 s 4: 6.20, 8.50, 9.30, 10.50, 12.80, 12.100 s 7(1): 5.20 s 8: 6.20 s 8A: 5.30 s 9(1): 5.110 s 9(2): 5.110 s 9(2)(a): 5.110 s 9(2)(b): 5.110 s 9(5): 5.110 s 10(a): 5.80 s 10(b): 5.80 s 11: 8.130, 8.160 s 11(1): 8.160 s 11(2): 8.160 s 11(3)(a): 8.160 s 11(3)(b): 8.160 s 11(3)(c): 8.160 s 11(3)(d): 8.160 s 11(4): 8.160 s 11(5): 8.160 s 12(1): 17.30 s 12(2): 17.20 s 12(3): 17.20 s 13(1): 17.30 s 13(2)(a): 17.30 s 13(2)(b): 17.30 s 13(3): 17.30 s 13(4): 17.30 s 14(1)(a): 17.40 s 14(1)(b): 17.40 s 14(2)(a): 17.40 s 14(2)(b): 17.40 s 14(3): 17.40 s 14(4): 17.40 s 14(5): 17.40 s 15(1)(a): 17.30 s 15(1)(b): 17.30 s 15(1)(c): 17.30 s 15(1)(d): 17.30 s 15(1)(e): 17.30 s 15(1)(f): 17.30 s 15(1)(g)(i): 17.30 s 15(1)(g)(ii): 17.30 s 15(1)(g)(iii): 17.30 s 15(2)(a): 17.30 s 15(2)(b): 17.30 s 15(2)(c): 17.30 s 15(2)(d): 17.30 s 15(3): 17.30 s 16(1): 17.60 s 16(2): 17.60 s 16(3): 17.60

New South Wales Civil Liability Act 2002 s 16: 15.120 s 16(2): 15.120 s 17: 15.120 Pt 3: 18.170

Civil Procedure Act 2005: 8.210 s 56: 8.210 s 56(1): 1.60 ss 56 to 58: 8.210

Crimes Act 1900 s 529(1): 4.30 s 529(3): 4.20 s 529(3)(a): 4.20 s 529(3)(b): 4.20 s 529(4): 4.20 s 529(5): 4.20 s 529(6)(a): 4.20 s 529(6)(b): 4.20 s 529(6)(c): 4.20 s 529(7): 4.20 s 529(9): 4.20

Defamation Act 1901: 3.70 s 6: 9.50

Defamation Act 1912: 3.70 s 7: 9.50

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Defamation Act 1958: 3.70 s 5: 6.230 s 14(1)(d): 12.60, 12.80 s 16: 9.50

Defamation Act 1974: 3.70, 5.150, 6.230, 9.130, 9.140, 13.60, 14.110, 17.10 s 7A: 5.150, 5.160 s 7A(3): 5.150 s 7A(4): 5.150 s 7A(4)(a): 9.10 s 7A(4)(b): 15.20 s 8: 5.20 s 8A: 5.110 s 9: 6.20, 9.100, 14.110 s 9(2): 6.20, 6.30, 9.30 s 13: 14.70, 14.90 s 15: 9.50 s 16: 9.130, 9.140, 9.160, 9.170 s 16(2)(c): 9.140 s 22: 11.110, 11.130 s 24(3): 12.80 s 29: 9.10 s 46A: 15.110, 15.120 s 46A(1): 15.110 s 46A(2): 15.110 xlvi

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Table of Statutes

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Defamation Act 2005 — cont

s 29(4)(c): 12.80 s 29(4)(d)(i): 12.80 s 29(4)(d)(ii): 12.80 s 29(4)(e): 12.80 s 29(4)(f): 12.80 s 29(4)(g): 12.80 s 29(4)(h) to (j): 12.90 s 29(4)(k): 12.90 s 29(4)(l): 12.90 s 29(4)(m): 12.90 s 29(4)(n): 12.90 s 29(4)(o): 12.90 s 29(4)(p): 12.90 s 29(5): 12.90 s 30(1)(a): 11.140 s 30(1)(b): 11.140, 11.170 s 30(2): 11.140 s 30(3): 11.140 s 30(3)(a): 11.140 s 30(3)(b): 11.140 s 30(3)(c): 11.140 s 30(3)(d): 11.140 s 30(3)(e): 11.140 s 30(3)(f): 11.140 s 30(3)(g): 11.140 s 30(3)(h): 11.140 s 30(3)(i): 11.140 s 30(3)(j): 11.140 s 30(4): 11.140 s 30(5): 11.140 s 31: 13.110 s 31(1)(a): 13.110 s 31(1)(b): 13.110 s 31(1)(c): 13.110 s 31(2)(a): 13.110 s 31(2)(b): 13.110 s 31(2)(c): 13.110 s 31(3)(a): 13.110 s 31(3)(b): 13.110 s 31(3)(c): 13.110 s 31(4)(a): 13.110 s 31(4)(b): 13.110 s 31(4)(c): 13.110 s 31(5)(a): 13.110 s 31(5)(b): 13.110 s 31(5)(c): 13.110 s 31(6): 13.110 s 32: 14.50 s 32(1)(a): 14.50 s 32(1)(b): 14.50 s 32(1)(c): 14.50 s 32(2)(a): 14.50 s 32(2)(b): 14.50 s 32(2)(c): 14.50 s 32(3)(a): 14.40, 14.50 s 32(3)(b): 14.50 s 32(3)(c): 14.50 s 32(3)(d): 14.50 s 32(3)(e): 14.50

s 16(4): 17.60 s 16(5): 17.60 s 17(1): 17.70 s 17(2)(a): 17.70 s 17(2)(b): 17.70 s 18(1)(a): 17.80 s 18(1)(b): 17.80 s 18(1)(c): 17.80 s 18(2)(a): 17.80 s 18(2)(a)(i): 17.80 s 18(2)(a)(ii): 17.80 s 18(2)(b): 17.80 s 19(1): 17.80 s 19(2)(a): 17.80 s 19(2)(b): 17.80 s 20(1)(a): 17.110 s 20(1)(b): 17.110 s 20(2): 17.110 s 21(1): 1.60, 5.150 s 21(3): 5.160 s 22(2): 5.150, 9.10 s 22(3): 5.150, 15.20 s 22(5)(b): 5.150, 9.10 s 23: 8.170, 15.140 s 24(1): 9.10, 10.50, 12.80, 12.100, 13.10, 13.110, 14.50, 14.110, 15.20 s 25: 4.20, 9.30 s 26: 9.130, 9.170 s 26(a): 9.140, 9.170 s 26(b): 9.140 s 27: 10.50 s 27(2)(a): 10.50 s 27(2)(b): 10.50 s 27(2)(c): 10.50 s 27(2)(d): 10.50 s 28: 12.100 s 28(1)(a): 12.100 s 28(1)(b): 12.100 s 28(2)(a): 12.100 s 28(2)(b): 12.100 s 28(3): 12.100 s 28(4)(a): 12.100 s 28(4)(b): 12.100 s 28(4)(b)(i): 12.100 s 28(4)(b)(ii): 12.100 s 28(4)(c): 12.100 s 28(4)(d): 12.100 s 28(4)(e)(i): 12.100 s 28(4)(e)(ii): 12.100 s 28(4)(e)(iii): 12.100 s 28(4)(e)(iv): 12.100 s 28(4)(f): 12.100 s 28(4)(g): 12.100 s 29(1): 12.80 s 29(2): 12.80 s 29(3): 12.90 s 29(4)(a): 12.80 s 29(4)(b): 12.80 xlvii

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-19 00:52:22.

Table of Statutes Defamation Act 2005 — cont

s 32(3)(f)(i): 14.50 s 32(3)(f)(ii): 14.50 s 32(3)(g): 14.50 s 32(3)(h): 14.50 s 33: 14.70 s 34: 15.120 s 35(1): 15.120, 15.140 s 35(2): 15.120, 15.230 s 35(3) to (8): 15.120 s 36: 15.210 s 37: 15.240 s 38(1)(a): 15.210, 17.110 s 38(1)(b): 15.210 s 38(1)(c): 15.210 s 38(1)(d): 15.210 s 38(1)(e): 15.210 s 38(2): 15.210 s 42(1): 15.180 s 42(4): 15.180 Pt 3: 17.10 Sch 1: 10.50 Sch 1, cl 15: 10.50 Sch 2: 12.100 Sch 3: 12.90

s 4: 3.70

Supreme Court Act 1970 s 75: 17.100

Northern Territory Consumer Affairs and Fair Trading Act 1990 s 27: 18.80 s 31: 18.80 s 42: 18.80 s 60: 18.130

Criminal Code s 203: 4.20 s 204: 4.20 s 204(a): 4.20 s 204(b): 4.20 s 204(c): 4.20 s 204(d): 4.20 s 204(e): 4.20 s 204(f): 4.20 s 204(g): 4.20 s 205: 4.20 s 206: 4.20 s 207: 4.20 s 208: 4.20 s 435A: 5.60

Defamation Amendment Act 1994: 5.150, 15.110 Defamation Amendment Act 2002 s 3: 5.110 Sch 1, cl 5: 5.110

Fair Trading Act 1987

Defamation Act 1938: 3.70 s 2: 5.20

Defamation Act 2006: 3.70

s 28: 18.80 s 32: 18.80 s 42: 18.80 s 60: 18.130

s 2(a): 8.160, 12.90 s 2(d): 17.10, 17.110 s 3: 8.50, 10.50, 12.80, 12.100 s 6(1): 5.20 s 6(2): 5.20 s 8(1): 5.110 s 8(2): 5.110 s 8(2)(a): 5.110 s 8(2)(b): 5.110 s 8(5): 5.110 s 9(a): 5.80 s 9(b): 5.80 s 10: 8.130, 8.160 s 10(1): 8.160 s 10(2): 8.160 s 10(3)(a): 8.160 s 10(3)(b): 8.160 s 10(3)(c): 8.160 s 10(3)(d): 8.160 s 10(4): 8.160 s 10(5): 8.160 s 11(1): 17.30 s 11(2): 17.20 s 11(3): 17.20 s 12(1): 17.30 s 12(2)(a): 17.30 s 12(2)(b): 17.30

Copyright © 2015. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

Felons (Civil Proceedings) Act 1981 s 4: 5.60

Industrial Relations Act 1996: 5.120 s 222(e): 5.130

Injuries to Character Act 1847: 3.70 Jurisdiction of Courts (Cross-Vesting) Act 1987 s 5: 8.170

Jury Act 1977 s 20(1): 5.160 s 20(2): 5.160

Law Reform (Miscellaneous Provisions) Act 1944 s 2(1): 5.80 s 2(2): 5.80

Limitation Act 1969 s 14(1)(a): 5.30 s 14B: 5.30 s 56A: 5.30

Slander and Libel Act 1847: 3.70 s 1: 3.70 s 2: 3.70 xlviii

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-19 00:52:22.

Table of Statutes

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Defamation Act 2006 — cont

s 25(1)(a): 12.100 s 25(1)(b): 12.100 s 25(2)(a): 12.100 s 25(2)(b): 12.100 s 25(3): 12.100 s 25(4)(a): 12.100 s 25(4)(b): 12.100 s 25(4)(b)(i): 12.100 s 25(4)(b)(ii): 12.100 s 25(4)(c): 12.100 s 25(4)(d): 12.100 s 25(4)(e)(i): 12.100 s 25(4)(e)(ii): 12.100 s 25(4)(e)(iii): 12.100 s 25(4)(e)(iv): 12.100 s 25(4)(f): 12.100 s 25(4)(g): 12.100 s 26(1): 12.80 s 26(2): 12.80 s 26(3): 12.90 s 26(4)(a): 12.80 s 26(4)(b): 12.80 s 26(4)(c): 12.80 s 26(4)(d)(i): 12.80 s 26(4)(d)(ii): 12.80 s 26(4)(e): 12.80 s 26(4)(f): 12.80 s 26(4)(g): 12.80 s 26(4)(h) to (j): 12.90 s 26(4)(k): 12.90 s 26(4)(l): 12.90 s 26(4)(m): 12.90 s 26(4)(n): 12.90 s 26(4)(o): 12.90 s 26(4)(p): 12.90 s 26(5): 12.90 s 27(1)(a): 11.140 s 27(1)(b): 11.140, 11.170 s 27(2): 11.140 s 27(3): 11.140 s 27(3)(a): 11.140 s 27(3)(b): 11.140 s 27(3)(c): 11.140 s 27(3)(d): 11.140 s 27(3)(e): 11.140 s 27(3)(f): 11.140 s 27(3)(g): 11.140 s 27(3)(h): 11.140 s 27(3)(i): 11.140 s 27(3)(j): 11.140 s 27(4): 11.140 s 27(5): 11.140 s 28: 13.110 s 28(1)(a): 13.110 s 28(1)(b): 13.110 s 28(1)(c): 13.110 s 28(2)(a): 13.110 s 28(2)(b): 13.110 s 28(2)(c): 13.110

s 12(3): 17.30 s 12(4): 17.30 s 13(1)(a): 17.40 s 13(1)(b): 17.40 s 13(2)(a): 17.40 s 13(2)(b): 17.40 s 13(3): 17.40 s 13(4): 17.40 s 13(5): 17.40 s 14(1)(a): 17.30 s 14(1)(b): 17.30 s 14(1)(c): 17.30 s 14(1)(d): 17.30 s 14(1)(e): 17.30 s 14(1)(f): 17.30 s 14(1)(g)(i): 17.30 s 14(1)(g)(ii): 17.30 s 14(1)(g)(iii): 17.30 s 14(2)(a): 17.30 s 14(2)(b): 17.30 s 14(2)(c): 17.30 s 14(2)(d): 17.30 s 14(3): 17.30 s 14(4): 17.30 s 15(1): 17.60 s 15(2): 17.60 s 15(3): 17.60 s 15(4): 17.60 s 15(5): 17.60 s 16(1): 17.70 s 16(2)(a): 17.70 s 16(2)(b): 17.70 s 17(1)(a): 17.80 s 17(1)(a)(i): 17.80 s 17(1)(a)(ii): 17.80 s 17(1)(b): 17.80 s 17(1)(c): 17.80 s 17(2)(a): 17.80 s 17(2)(b): 17.80 s 18(1): 17.80 s 18(2)(a): 17.80 s 18(2)(b): 17.80 s 19(1)(a): 17.110 s 19(1)(b): 17.110 s 19(2): 17.110 s 20: 8.170, 15.140 s 21(1): 9.10, 10.50, 12.80, 13.10, 13.110, 14.50, 14.110, 15.20 s 22: 4.20, 9.30 s 23: 9.130 s 23(a): 9.140, 9.170 s 23(b): 9.140 s 24: 10.50 s 24(2)(a): 10.50 s 24(2)(b): 10.50 s 24(2)(c): 10.50 s 24(2)(d): 10.50 s 25: 12.100 xlix

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-19 00:52:22.

Table of Statutes

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Defamation Act 2006 — cont

Personal Injuries (Liabilities and Damages) Act 2003

s 28(3)(a): 13.110 s 28(3)(b): 13.110 s 28(3)(c): 13.110 s 28(4)(a): 13.110 s 28(4)(b): 13.110 s 28(4)(c): 13.110 s 28(5)(a): 13.110 s 28(5)(b): 13.110 s 28(5)(c): 13.110 s 28(6): 13.110 s 29: 14.50 s 29(1)(a): 14.50 s 29(1)(b): 14.50 s 29(1)(c): 14.50 s 29(2)(a): 14.50 s 29(2)(b): 14.50 s 29(2)(c): 14.50 s 29(3)(a): 14.50 s 29(3)(b): 14.50 s 29(3)(c): 14.50 s 29(3)(d): 14.50 s 29(3)(e): 14.50 s 29(3)(f)(i): 14.50 s 29(3)(f)(ii): 14.50 s 29(3)(g): 14.50 s 29(3)(h): 14.50 s 30: 14.70 s 31: 15.120 s 32(1): 15.120, 15.140 s 32(2): 15.120, 15.230 s 32(3) to (8): 15.120 s 33: 15.210 s 34: 15.240 s 35(1)(a): 15.210, 17.110 s 35(1)(b): 15.210 s 35(1)(c): 15.210 s 35(1)(d): 15.210 s 35(1)(e): 15.210 s 35(2): 15.210 s 39(1): 15.180 s 39(4): 15.180 Pt 3: 17.10 Sch 2: 12.100

s 27: 15.120 s 28: 15.120

Supreme Court Act 1979 s 18: 17.100

Supreme Court Rules 1987 r 1.10(1): 1.60 r 1.10: 8.210

Queensland Child Protection (Offender Prohibition Order) Act 2008 s 48(3): 10.70

Civil Liability Act 2003 s 61: 15.120 s 63: 15.120

Civil Proceedings Act 2011 s 10(2): 17.100

Criminal Code 1899: 3.70 s 365: 4.20 s 365(1): 4.20 s 365(1)(a): 4.20 s 365(1)(b): 4.20 s 365(2): 4.20 s 365(3): 4.20 s 365(4): 4.20 s 365(5): 4.20 s 365(6): 4.20 s 365(7): 4.20 s 365(8): 4.20

Criminal Code Act 1995: 3.70 Defamation Act 1889: 3.70, 9.10, 9.100, 9.120 s 4: 6.230 s 5: 5.20 s 5(2): 8.110 s 15: 9.50 s 16: 11.110 s 16(1): 11.130 s 46: 18.60

Defamation Act 2005: 3.70

Juries Act 1962

s 1: 10.70 s 2: 3.70 s 3(a): 8.160, 12.90 s 4: 8.50, 10.50 s 4(1): 12.100 s 7(1): 5.20 s 9(1): 5.110 s 9(2): 5.110 s 9(2)(a): 5.110 s 9(2)(b): 5.110 s 9(5): 5.110 s 10(a): 5.80 s 10(b): 5.80

s 6A: 5.150

Jurisdiction of Courts (Cross-Vesting) Act 1987 s 5: 8.170

Law Reform (Miscellaneous Provisions) Act 1956 s 5(1): 5.80 s 5(2): 5.80

Limitation Act 1981 s 12(1)(a): 5.30 s 12(1A): 5.30 s 44A: 5.30 l

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-19 00:52:22.

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Defamation Act 2005 — cont

s 28: 12.100 s 28(1)(a): 12.100 s 28(1)(b): 12.100 s 28(2)(a): 12.100 s 28(2)(b): 12.100 s 28(3): 12.100 s 28(4)(a): 12.100 s 28(4)(b): 12.100 s 28(4)(b)(i): 12.100 s 28(4)(b)(ii): 12.100 s 28(4)(c): 12.100 s 28(4)(d): 12.100 s 28(4)(e)(i): 12.100 s 28(4)(e)(ii): 12.100 s 28(4)(e)(iii): 12.100 s 28(4)(e)(iv): 12.100 s 28(4)(f): 12.100 s 28(4)(g): 12.100 s 29(1): 12.80 s 29(2): 12.80 s 29(3): 12.90 s 29(4)(a): 12.80 s 29(4)(b): 12.80 s 29(4)(c): 12.80 s 29(4)(d)(i): 12.80 s 29(4)(d)(ii): 12.80 s 29(4)(e): 12.80 s 29(4)(f): 12.80 s 29(4)(g): 12.80 s 29(4)(h) to (j): 12.90 s 29(4)(k): 12.90 s 29(4)(l): 12.90 s 29(4)(m): 12.90 s 29(4)(n): 12.90 s 29(4)(o): 12.90 s 29(4)(p): 12.90 s 29(5): 12.90 s 30(1)(a): 11.140 s 30(1)(b): 11.140, 11.170 s 30(2): 11.140 s 30(3): 11.140 s 30(3)(a): 11.140 s 30(3)(b): 11.140 s 30(3)(c): 11.140 s 30(3)(d): 11.140 s 30(3)(e): 11.140 s 30(3)(f): 11.140 s 30(3)(g): 11.140 s 30(3)(h): 11.140 s 30(3)(i): 11.140 s 30(3)(j): 11.140 s 30(4): 11.140 s 30(5): 11.140 s 31: 13.110 s 31(1)(a): 13.110 s 31(1)(b): 13.110 s 31(1)(c): 13.110 s 31(2)(a): 13.110 s 31(2)(b): 13.110

s 11: 8.130, 8.160 s 11(1): 8.160 s 11(2): 8.160 s 11(3)(a): 8.160 s 11(3)(b): 8.160 s 11(3)(c): 8.160 s 11(3)(d): 8.160 s 11(4): 8.160 s 11(5): 8.160 s 12(1): 17.30 s 12(2): 17.20 s 12(3): 17.20 s 13(1): 17.30 s 13(2)(a): 17.30 s 13(2)(b): 17.30 s 13(3): 17.30 s 13(4): 17.30 s 14(1)(a): 17.40 s 14(1)(b): 17.40 s 14(2)(a): 17.40 s 14(2)(b): 17.40 s 14(3): 17.40 s 14(4): 17.40 s 14(5): 17.40 s 15(1)(a): 17.30 s 15(1)(b): 17.30 s 15(1)(c): 17.30 s 15(1)(d): 17.30 s 15(1)(e): 17.30 s 15(1)(f): 17.30 s 15(1)(g)(i): 17.30 s 15(1)(g)(ii): 17.30 s 15(1)(g)(iii): 17.30 s 15(2)(a): 17.30 s 15(2)(b): 17.30 s 15(2)(c): 17.30 s 15(2)(d): 17.30 s 15(3): 17.30 s 15(4): 17.30 s 16(1): 17.60 s 16(2): 17.60 s 21(1): 1.60, 5.150 s 21(3): 5.160 s 22(2): 5.150, 9.10 s 22(3): 5.150, 15.20 s 22(5)(b): 5.150, 9.10 s 23: 8.170, 15.140 s 24(1): 9.10, 10.50, 12.80, 13.10, 13.110, 14.50, 14.110, 15.20 s 25: 4.20, 9.30 s 26: 9.130 s 26(a): 9.140, 9.170 s 26(b): 9.140 s 27: 10.50 s 27(2)(a): 10.50 s 27(2)(b): 10.50 s 27(2)(c): 10.50 s 27(2)(d): 10.50 li

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-19 00:52:28.

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Defamation Act 2005 — cont

s 116(2): 10.70 s 117(4): 10.70

s 31(2)(c): 13.110 s 31(3)(a): 13.110 s 31(3)(b): 13.110 s 31(3)(c): 13.110 s 31(4)(a): 13.110 s 31(4)(b): 13.110 s 31(4)(c): 13.110 s 31(5)(a): 13.110 s 31(5)(b): 13.110 s 31(5)(c): 13.110 s 31(6): 13.110 s 32: 14.50 s 32(1)(a): 14.50 s 32(1)(b): 14.50 s 32(1)(c): 14.50 s 32(2)(a): 14.50 s 32(2)(b): 14.50 s 32(2)(c): 14.50 s 32(3)(a): 14.50 s 32(3)(b): 14.50 s 32(3)(c): 14.50 s 32(3)(d): 14.50 s 32(3)(e): 14.50 s 32(3)(f)(i): 14.50 s 32(3)(f)(ii): 14.50 s 32(3)(g): 14.50 s 32(3)(h): 14.50 s 33: 14.70 s 34: 15.120 s 35(1): 15.120, 15.140 s 35(2): 15.120, 15.230 s 35(3) to (8): 15.120 s 36: 15.210 s 37: 15.240 s 38(1)(a): 15.210 s 38(1)(b): 15.210 s 38(1)(c): 15.210 s 38(1)(d): 15.210 s 38(1)(e): 15.210 s 38(2): 15.210 s 42(1): 15.180 s 42(4): 15.180 Pt 3: 17.10 Sch 5: 12.80, 12.100

Industrial Relations Act 1999 s 423(e): 5.130

Jurisdiction of Courts (Cross-Vesting) Act 1987 s 5: 8.170

Jury Act 1995 s 32: 5.160

Limitation of Actions Act 1974 s 10(1)(a): 5.30 s 10AA: 5.30 s 32A: 5.30

Public Guardian Act 2014 s 24(5): 10.70 s 92(4): 10.70

Public Interest Disclosure Act 2010 s 38: 10.70

Public Service Act 2008 s 88L(3): 10.70

Public Trustee Act 1978 s 90: 5.60 s 95: 5.60

Succession Act 1981 s 66(1): 5.80 s 66(2): 5.80

Transport (Rail Safety) Act 2010 s 267B(2): 10.70 s 273(3): 10.70

Uniform Civil Procedure Rules 1999 r 5(1): 1.60 r 5: 8.210

South Australia Civil Liability Act 1936 s 3: 18.170 s 33: 18.170 s 52: 15.120 s 53: 18.170

Criminal Law Consolidation Act 1935 s 257: 4.20 s 257(1): 4.20 s 257(1)(a): 4.20 s 257(1)(b): 4.20 s 257(2): 4.20 s 257(3)(a): 4.20 s 257(3)(b): 4.20 s 257(3)(c): 4.20 s 257(4): 4.20 s 329: 5.60

Fair Trading Act 1989 s 16: 18.80 s 20: 18.80 s 38: 18.80 s 51: 18.130

Family Responsibilities Commission Act 2008 s 95(4): 10.70

Health Ombudsman Act 2013 s 275(4): 10.70

Defamation Act 2005: 3.70

Hospital and Health Boards Act 2013

s 1: 10.50 s 2: 3.70 s 3(a): 8.160, 12.90

s 88(2): 10.70 s 89(4): 10.70 lii

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-19 00:52:28.

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Defamation Act 2005 — cont

s 18(1)(b): 17.80 s 18(1)(c): 17.80 s 18(2)(a): 17.80 s 18(2)(a)(i): 17.80 s 18(2)(a)(ii): 17.80 s 18(2)(b): 17.80 s 19(1): 17.80 s 19(2)(a): 17.80 s 19(2)(b): 17.80 s 20(1)(a): 17.110 s 20(1)(b): 17.110 s 20(2): 17.110 s 21: 8.170, 15.140 s 22(1): 9.10, 10.50, 12.80, 13.10, 13.110, 14.50, 14.110, 15.20 s 23: 4.20, 9.30 s 25: 10.50 s 25(2)(a): 10.50 s 25(2)(b): 10.50 s 25(2)(c): 10.50 s 25(2)(d): 10.50 s 26: 9.130, 12.100 s 26(1)(a): 9.140, 9.170, 12.100 s 26(1)(b): 9.140, 12.100 s 26(2)(a): 12.100 s 26(2)(b): 12.100 s 26(3): 12.100 s 26(4)(a): 12.100 s 26(4)(b): 12.100 s 26(4)(b)(i): 12.100 s 26(4)(b)(ii): 12.100 s 26(4)(c): 12.100 s 26(4)(d): 12.100 s 26(4)(e)(i): 12.100 s 26(4)(e)(ii): 12.100 s 26(4)(e)(iii): 12.100 s 26(4)(e)(iv): 12.100 s 26(4)(f): 12.100 s 27(1): 12.80 s 27(2): 12.80 s 27(3): 12.90 s 27(4): 12.90 s 27(4)(a): 12.80 s 27(4)(b): 12.80 s 27(4)(c): 12.80 s 27(4)(d)(i): 12.80 s 27(4)(d)(ii): 12.80 s 27(4)(e): 12.80 s 27(4)(f): 12.80 s 27(4)(g): 12.80 s 27(4)(h) to (j): 12.90 s 27(4)(k): 12.90 s 27(4)(l): 12.90 s 27(4)(m): 12.90 s 27(4)(n): 12.90 s 27(4)(o): 12.90 s 28(1)(a): 11.140 s 28(1)(b): 11.140, 11.170 s 28(2): 11.140

s 3(d): 17.10, 17.110 s 4: 8.50, 10.50, 12.80, 12.100 s 7(1): 5.20 s 9(1): 5.110 s 9(2): 5.110 s 9(2)(a): 5.110 s 9(2)(b): 5.110 s 9(5): 5.110 s 10(a): 5.80 s 10(b): 5.80 s 11: 8.130, 8.160 s 11(1): 8.160 s 11(2): 8.160 s 11(3)(a): 8.160 s 11(3)(b): 8.160 s 11(3)(c): 8.160 s 11(3)(d): 8.160 s 11(4): 8.160 s 11(5): 8.160 s 12(1): 17.30 s 12(2): 17.20 s 12(3): 17.20 s 13(1): 17.30 s 13(2)(a): 17.30 s 13(2)(b): 17.30 s 13(3): 17.30 s 13(4): 17.30 s 14(1)(a): 17.40 s 14(1)(b): 17.40 s 14(2)(a): 17.40 s 14(2)(b): 17.40 s 14(3): 17.40 s 14(4): 17.40 s 14(5): 17.40 s 15(1)(a): 17.30 s 15(1)(b): 17.30 s 15(1)(c): 17.30 s 15(1)(d): 17.30 s 15(1)(e): 17.30 s 15(1)(f): 17.30 s 15(1)(g)(i): 17.30 s 15(1)(g)(ii): 17.30 s 15(1)(g)(iii): 17.30 s 15(2)(a): 17.30 s 15(2)(b): 17.30 s 15(2)(c): 17.30 s 15(2)(d): 17.30 s 15(3): 17.30 s 15(4): 17.30 s 16(1): 17.60 s 16(2): 17.60 s 16(3): 17.60 s 16(4): 17.60 s 16(5): 17.60 s 17(1): 17.70 s 17(2)(a): 17.70 s 17(2)(b): 17.70 s 18(1)(a): 17.80 liii

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-19 00:52:28.

Table of Statutes

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Defamation Act 2005 — cont

s 36(2): 15.210 Pt 3: 17.10

s 28(3): 11.140 s 28(3)(a): 11.140 s 28(3)(b): 11.140 s 28(3)(c): 11.140 s 28(3)(d): 11.140 s 28(3)(e): 11.140 s 28(3)(f): 11.140 s 28(3)(g): 11.140 s 28(3)(h): 11.140 s 28(3)(i): 11.140 s 28(3)(j): 11.140 s 28(4): 11.140 s 28(5): 11.140 s 29: 13.110 s 29(1)(a): 13.110 s 29(1)(b): 13.110 s 29(1)(c): 13.110 s 29(2)(a): 13.110 s 29(2)(b): 13.110 s 29(2)(c): 13.110 s 29(3)(a): 13.110 s 29(3)(b): 13.110 s 29(3)(c): 13.110 s 29(4)(a): 13.110 s 29(4)(b): 13.110 s 29(4)(c): 13.110 s 29(5)(a): 13.110 s 29(5)(b): 13.110 s 29(5)(c): 13.110 s 29(6): 13.110 s 30: 14.50 s 30(1)(a): 14.50 s 30(1)(b): 14.50 s 30(1)(c): 14.50 s 30(2)(a): 14.50 s 30(2)(b): 14.50 s 30(2)(c): 14.50 s 30(3)(a): 14.50 s 30(3)(b): 14.50 s 30(3)(c): 14.50 s 30(3)(d): 14.50 s 30(3)(e): 14.50 s 30(3)(f)(i): 14.50 s 30(3)(f)(ii): 14.50 s 30(3)(g): 14.50 s 30(3)(h): 14.50 s 31: 14.70 s 32: 15.120 s 33(1): 15.120, 15.140 s 33(2): 15.120, 15.230 s 33(3) to (8): 15.120 s 34: 15.210 s 35: 15.240 s 36(1)(a): 15.210, 17.110 s 36(1)(b): 15.210 s 36(1)(c): 15.210 s 36(1)(d): 15.210 s 36(1)(e): 15.210

Fair Trading Act 1987 s 14: 18.80 s 18: 18.80 s 56: 18.80 s 74: 18.130

Fair Work Act 1994 s 123: 5.130

Jurisdiction of Courts (Cross-Vesting) Act 1987 s 5: 8.170

Legal Practitioners Act 1981 s 84B: 10.70

Limitation of Actions Act 1936 s 35(c): 5.30 s 37(1): 5.30 s 37(2): 5.30

Mining Act 1971 s 14F(2): 10.70

Petroleum and Geothermal Energy Act 2000 s 123(2): 10.70

Supreme Court Act 1935 s 31: 17.100

Supreme Court Civil Rules 2006 r 3: 1.60 r 3: 8.210

Survival of Causes of Action Act 1940 s 2(1): 5.80 s 2(2): 5.80

Tasmania Administration and Probate Act 1935 s 27(1): 5.80

Australian Consumer Law (Tasmania) Act 2010 s 6: 18.80 s 10: 18.80

Civil Liability Act 2002 s 27: 15.120 Pt 8: 18.170

Criminal Code 1924: 4.20 s 196(1)(a): 4.20 s 196(1)(b): 4.20 s 196(2): 4.20 s 196(3): 4.20 s 196(4): 4.20 s 196(5)(a): 4.20 s 196(5)(b): 4.20 s 196(5)(c): 4.20 s 196(6): 4.20 s 197: 4.20

Defamation Act 1895: 3.70 liv

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-19 00:52:28.

Table of Statutes

s 16(2): 17.60 s 16(3): 17.60 s 16(4): 17.60 s 16(5): 17.60 s 17(1): 17.70 s 17(2)(a): 17.70 s 17(2)(b): 17.70 s 18(1)(a): 17.80 s 18(1)(b): 17.80 s 18(1)(c): 17.80 s 18(2)(a): 17.80 s 18(2)(a)(i): 17.80 s 18(2)(a)(ii): 17.80 s 18(2)(b): 17.80 s 19(1): 17.80 s 19(2)(a): 17.80 s 19(2)(b): 17.80 s 20(1)(a): 17.110 s 20(1)(b): 17.110 s 20(2): 17.110 s 20A(1): 5.30 s 20A(2): 5.30 s 21(1): 1.60, 5.150 s 21(3): 5.160 s 22(2): 5.150, 9.10 s 22(3): 5.150, 15.20 s 22(5)(b): 5.150, 9.10 s 23: 8.170, 15.140 s 24(1): 9.10, 10.50, 12.80, 13.10, 13.110, 14.50, 14.110, 15.20 s 25: 4.20, 9.30 s 26: 9.130 s 26(a): 9.140, 9.170 s 26(b): 9.140 s 27: 10.50 s 27(2)(a): 10.50 s 27(2)(b): 10.50 s 27(2)(c): 10.50 s 27(2)(d): 10.50 s 28: 12.100 s 28(1)(a): 12.100 s 28(1)(b): 12.100 s 28(2)(a): 12.100 s 28(2)(b): 12.100 s 28(3): 12.100 s 28(4)(a): 12.100 s 28(4)(b): 12.100 s 28(4)(b)(i): 12.100 s 28(4)(b)(ii): 12.100 s 28(4)(c): 12.100 s 28(4)(d): 12.100 s 28(4)(e)(i): 12.100 s 28(4)(e)(ii): 12.100 s 28(4)(e)(iii): 12.100 s 28(4)(e)(iv): 12.100 s 28(4)(f): 12.100 s 28(4)(g): 12.100 s 29(1): 12.80 s 29(2): 12.80

Defamation Act 1957: 3.70, 6.230, 9.10 s 7: 8.110 s 9: 5.20 s 15: 9.50 s 16: 11.110 s 16(1): 11.130 s 17: 17.10 s 18: 9.130

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Defamation Act 2005: 3.70 s 2: 3.70 s 3(a): 8.160, 12.90 s 3(d): 17.10, 17.110 s 4: 8.50, 10.50, 12.80, 12.100 s 7(1): 5.20 s 9(1): 5.110 s 9(2): 5.110 s 9(2)(a): 5.110 s 9(2)(b): 5.110 s 9(5): 5.110 s 11: 8.130, 8.160 s 11(1): 8.160 s 11(2): 8.160 s 11(3)(a): 8.160 s 11(3)(b): 8.160 s 11(3)(c): 8.160 s 11(3)(d): 8.160 s 11(4): 8.160 s 11(5): 8.160 s 12(1): 17.30 s 12(2): 17.20 s 12(3): 17.20 s 13(1): 17.30 s 13(2)(a): 17.30 s 13(2)(b): 17.30 s 13(3): 17.30 s 13(4): 17.30 s 14(1)(a): 17.40 s 14(1)(b): 17.40 s 14(2)(a): 17.40 s 14(2)(b): 17.40 s 14(3): 17.40 s 14(4): 17.40 s 14(5): 17.40 s 15(1)(a): 17.30 s 15(1)(b): 17.30 s 15(1)(c): 17.30 s 15(1)(d): 17.30 s 15(1)(e): 17.30 s 15(1)(f): 17.30 s 15(1)(g)(i): 17.30 s 15(1)(g)(ii): 17.30 s 15(1)(g)(iii): 17.30 s 15(2)(a): 17.30 s 15(2)(b): 17.30 s 15(2)(c): 17.30 s 15(2)(d): 17.30 s 15(3): 17.30 s 15(4): 17.30 s 16(1): 17.60 lv

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-19 00:52:28.

Table of Statutes

Copyright © 2015. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

Defamation Act 2005 — cont

s 32(3)(b): 14.50 s 32(3)(c): 14.50 s 32(3)(d): 14.50 s 32(3)(e): 14.50 s 32(3)(f)(i): 14.50 s 32(3)(f)(ii): 14.50 s 32(3)(g): 14.50 s 32(3)(h): 14.50 s 33: 14.70 s 34: 15.120 s 35(1): 15.120, 15.140 s 35(2): 15.120, 15.230 s 35(3) to (8): 15.120 s 36: 15.210 s 37: 15.240 s 38(1)(a): 15.210, 17.110 s 38(1)(b): 15.210 s 38(1)(c): 15.210 s 38(1)(d): 15.210 s 38(1)(e): 15.210 s 38(2): 15.210 s 42(1): 15.180 s 42(4): 15.180 Pt 3: 17.10 Sch 2: 12.100

s 29(3): 12.90 s 29(4)(a): 12.80 s 29(4)(b): 12.80 s 29(4)(c): 12.80 s 29(4)(d)(i): 12.80 s 29(4)(d)(ii): 12.80 s 29(4)(e): 12.80 s 29(4)(f): 12.80 s 29(4)(g): 12.80 s 29(4)(h) to (j): 12.90 s 29(4)(k): 12.90 s 29(4)(l): 12.90 s 29(4)(m): 12.90 s 29(4)(n): 12.90 s 29(4)(o): 12.90 s 29(4)(p): 12.90 s 29(5): 12.90 s 30(1)(a): 11.140 s 30(1)(b): 11.140, 11.170 s 30(2): 11.140 s 30(3): 11.140 s 30(3)(a): 11.140 s 30(3)(b): 11.140 s 30(3)(c): 11.140 s 30(3)(d): 11.140 s 30(3)(e): 11.140 s 30(3)(f): 11.140 s 30(3)(g): 11.140 s 30(3)(h): 11.140 s 30(3)(i): 11.140 s 30(3)(j): 11.140 s 30(4): 11.140 s 30(5): 11.140 s 31: 13.110 s 31(1)(a): 13.110 s 31(1)(b): 13.110 s 31(1)(c): 13.110 s 31(2)(a): 13.110 s 31(2)(b): 13.110 s 31(2)(c): 13.110 s 31(3)(a): 13.110 s 31(3)(b): 13.110 s 31(3)(c): 13.110 s 31(4)(a): 13.110 s 31(4)(b): 13.110 s 31(4)(c): 13.110 s 31(5)(a): 13.110 s 31(5)(b): 13.110 s 31(5)(c): 13.110 s 31(6): 13.110 s 32: 14.50 s 32(1)(a): 14.50 s 32(1)(b): 14.50 s 32(1)(c): 14.50 s 32(2)(a): 14.50 s 32(2)(b): 14.50 s 32(2)(c): 14.50 s 32(3)(a): 14.50

Fair Trading Act 1990 s 12: 18.80 s 28: 18.130

Gas Pipelines Act 2000 s 77(2): 10.70

Juries Act 2003 s 25(1)(a): 5.160 s 25(1)(b): 5.160 s 26(1): 5.160

Jurisdiction of Courts (Cross-Vesting) Act 1987 s 5: 8.170

Limitation Act 1974 s 4(1)(a): 5.30

Prisoners (Removal of Civil Disabilities) Act 1991 s 4(2): 5.60

Supreme Court Rules 2000 r 103: 17.100 r 414A: 8.210

Victoria Administration and Probate Act 1958 s 29(1): 5.80 s 29(2): 5.80

Australian Consumer Law and Fair Trading Act 2012 s 8: 18.80 s 12: 18.80 lvi

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-19 00:52:28.

Table of Statutes

s 15(2)(b): 17.30 s 15(2)(c): 17.30 s 15(2)(d): 17.30 s 15(3): 17.30 s 15(4): 17.30 s 16(1): 17.60 s 16(2): 17.60 s 21(1): 1.60, 5.150 s 21(3): 5.160 s 22(2): 5.150, 9.10 s 22(3): 5.150, 15.20 s 22(5)(b): 5.150, 9.10 s 23: 8.170, 15.140 s 24(1): 9.10, 10.50, 12.80, 13.10, 13.110, 14.50, 14.110, 15.20 s 25: 9.30 s 26: 9.130 s 26(a): 9.140, 9.170 s 26(b): 9.140 s 27: 10.50 s 27(1): 10.30 s 27(2)(a): 10.50 s 27(2)(b): 10.50 s 27(2)(c): 10.50 s 27(2)(d): 10.50 s 28: 12.100 s 28(1)(a): 12.100 s 28(1)(b): 12.100 s 28(2)(a): 12.100 s 28(2)(b): 12.100 s 28(3): 12.100 s 28(4)(a): 12.100 s 28(4)(b): 12.100 s 28(4)(b)(i): 12.100 s 28(4)(b)(ii): 12.100 s 28(4)(c): 12.100 s 28(4)(d): 12.100 s 28(4)(e)(i): 12.100 s 28(4)(e)(ii): 12.100 s 28(4)(e)(iii): 12.100 s 28(4)(e)(iv): 12.100 s 28(4)(f): 12.100 s 28(4)(g): 12.100 s 29(1): 12.80 s 29(2): 12.80 s 29(3): 12.90 s 29(4)(a): 12.80 s 29(4)(b): 12.80 s 29(4)(c): 12.80 s 29(4)(d)(i): 12.80 s 29(4)(d)(ii): 12.80 s 29(4)(e): 12.80 s 29(4)(f): 12.80 s 29(4)(g): 12.80 s 29(4)(h) to (j): 12.90 s 29(4)(k): 12.90 s 29(4)(l): 12.90 s 29(4)(m): 12.90 s 29(4)(n): 12.90

Charter of Human Rights and Responsibilities Act 2006: 2.140 s 12: 2.140 s 13(a): 2.70 s 13(b): 2.70 s 15: 2.140 s 15(3): 2.140

Civil Procedure Act 2010 s 7(1): 1.60 s 10: 8.210

Crimes (Amendment) Act 1973 s 5(1): 5.60

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Defamation Act 2005: 3.70 s 2: 3.70 s 3(a): 8.160, 12.90 s 4: 8.50, 10.50, 12.80, 12.100 s 7(1): 5.20 s 9(1): 5.110 s 9(2): 5.110 s 9(2)(a): 5.110 s 9(2)(b): 5.110 s 9(5): 5.110 s 10(a): 5.80 s 10(b): 5.80 s 11: 8.130, 8.160 s 11(1): 8.160 s 11(2): 8.160 s 11(3)(a): 8.160 s 11(3)(b): 8.160 s 11(3)(c): 8.160 s 11(3)(d): 8.160 s 11(4): 8.160 s 11(5): 8.160 s 12(1): 17.30 s 12(2): 17.20 s 12(3): 17.20 s 13(1): 17.30 s 13(2)(a): 17.30 s 13(2)(b): 17.30 s 13(3): 17.30 s 13(4): 17.30 s 14(1)(a): 17.40 s 14(1)(b): 17.40 s 14(2)(a): 17.40 s 14(2)(b): 17.40 s 14(3): 17.40 s 14(4): 17.40 s 14(5): 17.40 s 15(1)(a): 17.30 s 15(1)(b): 17.30 s 15(1)(c): 17.30 s 15(1)(d): 17.30 s 15(1)(e): 17.30 s 15(1)(f): 17.30 s 15(1)(g)(i): 17.30 s 15(1)(g)(ii): 17.30 s 15(1)(g)(iii): 17.30 s 15(2)(a): 17.30 lvii

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-19 00:52:28.

Table of Statutes

Copyright © 2015. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

Defamation Act 2005 — cont

s 37: 15.240 s 38(1)(a): 15.210 s 38(1)(b): 15.210 s 38(1)(c): 15.210 s 38(1)(d): 15.210 s 38(1)(e): 15.210 s 38(2): 15.210 s 42(1): 15.180 s 42(4): 15.180 Pt 3: 17.10 Sch 2: 12.100

s 29(4)(o): 12.90 s 29(4)(p): 12.90 s 29(5): 12.90 s 30(1)(a): 11.140 s 30(1)(b): 11.140, 11.170 s 30(2): 11.140 s 30(3): 11.140 s 30(3)(a): 11.140 s 30(3)(b): 11.140 s 30(3)(c): 11.140 s 30(3)(d): 11.140 s 30(3)(e): 11.140 s 30(3)(f): 11.140 s 30(3)(g): 11.140 s 30(3)(h): 11.140 s 30(3)(i): 11.140 s 30(3)(j): 11.140 s 30(4): 11.140 s 30(5): 11.140 s 31: 13.110 s 31(1)(a): 13.110 s 31(1)(b): 13.110 s 31(1)(c): 13.110 s 31(2)(a): 13.110 s 31(2)(b): 13.110 s 31(2)(c): 13.110 s 31(3)(a): 13.110 s 31(3)(b): 13.110 s 31(3)(c): 13.110 s 31(4)(a): 13.110 s 31(4)(b): 13.110 s 31(4)(c): 13.110 s 31(5)(a): 13.110 s 31(5)(b): 13.110 s 31(5)(c): 13.110 s 31(6): 13.110 s 32: 14.50 s 32(1)(a): 14.50 s 32(1)(b): 14.50 s 32(1)(c): 14.50 s 32(2)(a): 14.50 s 32(2)(b): 14.50 s 32(2)(c): 14.50 s 32(3)(a): 14.50 s 32(3)(b): 14.50 s 32(3)(c): 14.50 s 32(3)(d): 14.50 s 32(3)(e): 14.50 s 32(3)(f)(i): 14.50 s 32(3)(f)(ii): 14.50 s 32(3)(g): 14.50 s 32(3)(h): 14.50 s 33: 14.70 s 34: 15.120 s 35(1): 15.120, 15.140 s 35(2): 15.120, 15.230 s 35(3) to (8): 15.120 s 36: 15.210

Fair Trading Act 1999 s 9: 18.80 s 32: 18.130

Judicial Proceedings Reports Act 1958 s 4(1A): 18.200, 18.170

Juries Act 2000 s 22(1): 5.160 s 23(b): 5.160

Jurisdiction of Courts (Cross-Vesting) Act 1987 s 5: 8.170

Limitation of Actions Act 1958 s 5(1)(a): 5.30 s 5(1AAA): 5.30 s 23B: 5.30

Protected Disclosure Act 2012 s 41: 10.70

Safe Drinking Act 2003 s 26F: 10.70

Supreme Court Act 1986 s 36: 17.100

Supreme Court (General Civil Procedure) Rules 1996 r 7.01(1)(i): 8.170 r 7.01(1)(j): 8.170

Wrongs Act 1958 s 9: 4.20 s 10(1): 4.20 s 10(2): 4.20 s 10(3): 4.20 s 11(1): 4.20 s 28G: 15.120 s 28H: 15.120 Pt I: 3.70 Pt XI: 18.170

Western Australia Civil Liability Act 2002 s 9: 15.120 s 10: 15.120 Pt 1B: 18.170

Criminal Code Act 1913: 3.70 s 345(1): 4.20 s 345(1)(a): 4.20 lviii

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-19 00:52:28.

Table of Statutes Criminal Code Act 1913 — cont

s 15(1)(g)(iii): 17.30 s 15(2)(a): 17.30 s 15(2)(b): 17.30 s 15(2)(c): 17.30 s 15(2)(d): 17.30 s 15(3): 17.30 s 15(4): 17.30 s 16(1): 17.60 s 16(2): 17.60 s 16(3): 17.60 s 16(4): 17.60 s 16(5): 17.60 s 17(1): 17.70 s 17(2)(a): 17.70 s 17(2)(b): 17.70 s 18(1)(a): 17.80 s 18(1)(b): 17.80 s 18(1)(c): 17.80 s 18(2)(a): 17.80 s 18(2)(a)(i): 17.80 s 18(2)(a)(ii): 17.80 s 18(2)(b): 17.80 s 19(1): 17.80 s 19(2)(a): 17.80 s 19(2)(b): 17.80 s 20(1)(a): 17.110 s 20(1)(b): 17.110 s 20(2): 17.110 s 21(1): 1.60, 5.150 s 21(3): 5.160 s 22(2): 5.150, 9.10 s 22(3): 5.150, 15.20 s 22(5)(b): 5.150, 9.10 s 23: 8.170, 15.140 s 24(1): 9.10, 10.50, 12.80, 13.10, 13.110, 14.50, 14.110, 15.20 s 25: 4.20, 9.30 s 26: 9.130 s 26(a): 9.140, 9.170 s 26(b): 9.140 s 27: 10.50 s 27(2)(a): 10.50 s 27(2)(b): 10.50 s 27(2)(c): 10.50 s 27(2)(d): 10.50 s 28: 12.100 s 28(1)(a): 12.100 s 28(1)(b): 12.100 s 28(2)(a): 12.100 s 28(2)(b): 12.100 s 28(3): 12.100 s 28(4)(a): 12.100 s 28(4)(b): 12.100 s 28(4)(b)(i): 12.100 s 28(4)(b)(ii): 12.100 s 28(4)(c): 12.100 s 28(4)(d): 12.100 s 28(4)(e)(i): 12.100 s 28(4)(e)(ii): 12.100

s 345(1)(b): 4.20 s 345(2): 4.20 s 345(3): 4.20 s 345(4): 4.20 s 345(5)(a): 4.20 s 345(5)(b): 4.20 s 345(5)(c): 4.20 s 345(6): 4.20 s 356: 9.50 s 730: 5.60

Criminal Code Act Compilation Act 1913 Sch 1: 3.70

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Defamation Act 2005: 3.70 s 2: 3.70 s 3(a): 8.160, 12.90 s 3(d): 17.10, 17.110 s 4: 8.50, 10.50, 12.80, 12.100 s 7(1): 5.20 s 9(1): 5.110 s 9(2): 5.110 s 9(2)(a): 5.110 s 9(2)(b): 5.110 s 9(5): 5.110 s 10(a): 5.80 s 10(b): 5.80 s 11: 8.130, 8.160 s 11(1): 8.160 s 11(2): 8.160 s 11(3)(a): 8.160 s 11(3)(b): 8.160 s 11(3)(c): 8.160 s 11(3)(d): 8.160 s 11(4): 8.160 s 11(5): 8.160 s 12(1): 17.30 s 12(2): 17.20 s 12(3): 17.20 s 13(1): 17.30 s 13(2)(a): 17.30 s 13(2)(b): 17.30 s 13(3): 17.30 s 13(4): 17.30 s 14(1)(a): 17.40 s 14(1)(b): 17.40 s 14(2)(a): 17.40 s 14(2)(b): 17.40 s 14(3): 17.40 s 14(4): 17.40 s 14(5): 17.40 s 15(1)(a): 17.30 s 15(1)(b): 17.30 s 15(1)(c): 17.30 s 15(1)(d): 17.30 s 15(1)(e): 17.30 s 15(1)(f): 17.30 s 15(1)(g)(i): 17.30 s 15(1)(g)(ii): 17.30 lix

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-19 00:52:28.

Table of Statutes

Copyright © 2015. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

Defamation Act 2005 — cont

s 32(1)(b): 14.50 s 32(1)(c): 14.50 s 32(2)(a): 14.50 s 32(2)(b): 14.50 s 32(2)(c): 14.50 s 32(3)(a): 14.50 s 32(3)(b): 14.50 s 32(3)(c): 14.50 s 32(3)(d): 14.50 s 32(3)(e): 14.50 s 32(3)(f)(i): 14.50 s 32(3)(f)(ii): 14.50 s 32(3)(g): 14.50 s 32(3)(h): 14.50 s 33: 14.70 s 34: 15.120 s 35(1): 15.120, 15.140 s 35(2): 15.120, 15.230 s 35(3) to (8): 15.120 s 36: 15.210 s 37: 15.240 s 38(1)(a): 15.210, 17.110 s 38(1)(b): 15.210 s 38(1)(c): 15.210 s 38(1)(d): 15.210 s 38(1)(e): 15.210 s 38(2): 15.210 s 42(1): 15.180 s 42(4): 15.180 Pt 3: 17.10 Sch 2: 12.100

s 28(4)(e)(iii): 12.100 s 28(4)(e)(iv): 12.100 s 28(4)(f): 12.100 s 28(4)(g): 12.100 s 29(1): 12.80 s 29(2): 12.80 s 29(3): 12.90 s 29(4)(a): 12.80 s 29(4)(b): 12.80 s 29(4)(c): 12.80 s 29(4)(d)(i): 12.80 s 29(4)(d)(ii): 12.80 s 29(4)(e): 12.80 s 29(4)(f): 12.80 s 29(4)(g): 12.80 s 29(4)(h) to (j): 12.90 s 29(4)(k): 12.90 s 29(4)(l): 12.90 s 29(4)(m): 12.90 s 29(4)(n): 12.90 s 29(4)(o): 12.90 s 29(4)(p): 12.90 s 29(5): 12.90 s 30(1)(a): 11.140 s 30(1)(b): 11.140, 11.170 s 30(2): 11.140 s 30(3): 11.140 s 30(3)(a): 11.140 s 30(3)(b): 11.140 s 30(3)(c): 11.140 s 30(3)(d): 11.140 s 30(3)(e): 11.140 s 30(3)(f): 11.140 s 30(3)(g): 11.140 s 30(3)(h): 11.140 s 30(3)(i): 11.140 s 30(3)(j): 11.140 s 30(4): 11.140 s 30(5): 11.140 s 31: 13.110 s 31(1)(a): 13.110 s 31(1)(b): 13.110 s 31(1)(c): 13.110 s 31(2)(a): 13.110 s 31(2)(b): 13.110 s 31(2)(c): 13.110 s 31(3)(a): 13.110 s 31(3)(b): 13.110 s 31(3)(c): 13.110 s 31(4)(a): 13.110 s 31(4)(b): 13.110 s 31(4)(c): 13.110 s 31(5)(a): 13.110 s 31(5)(b): 13.110 s 31(5)(c): 13.110 s 31(6): 13.110 s 32: 14.50 s 32(1)(a): 14.50

Fair Trading Act 1987 s 10: 18.80 s 63: 18.130

Fair Trading Act 2010 s 19: 18.80 s 24: 18.80

Industrial Relations Act 1979 s 60(2): 5.130

Juries Act 1957 s 19: 5.160 s 24: 5.160

Jurisdiction of Courts (Cross-Vesting) Act 1987 s 5: 8.170

Law Reform (Miscellaneous Provisions) Act 1941 s 4(1): 5.80 s 4(2): 5.80

Limitation Act 2005 s 13(1): 5.30 s 15: 5.30 s 40: 5.30

Newspaper Libel and Registration Act 1888 s 6: 12.80

Rules of the Supreme Court 1971 lx

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-19 00:52:28.

Table of Statutes Rules of the Supreme Court 1971 — cont

ss 2 to 4: 17.10 s 14: 12.80

r 4B: 8.210 r 4B(1): 1.60

Defamation Act 2013: 8.130

Supreme Court Act 1935

s 1(1): 8.210 s 1(2): 5.110 s 2(3): 9.130 s 4: 11.120 s 7: 12.80 s 8: 8.130 s 11: 1.60

s 25(6): 17.100

Imperial Australian Courts Act 1828: 3.70 New South Wales Act 1823: 3.70

Ecclesiastical Courts Act 1855: 3.20 Habeas Corpus Act 1640: 3.40 Human Rights Act 1998: 2.140, 8.210, 15.30, 16.40, 18.200, 18.210 Judicature Act 1873: 16.20 Law of Libel Amendment Act 1888

Canada Canadian Charter of Rights and Freedoms: 2.70, 2.140 s 2(b): 2.140

s 3: 12.80

Combines Investigation Act 1927: 10.30 Constitution Act 1982: 2.70

Libel Act 1843 s 6: 4.20, 4.30

Licensing Act 1662: 3.40 Licensing Act 1685

New Zealand

s 15: 3.40

Licensing Act 1692 Defamation Act 1992

s 14: 3.40

s 24: 17.100

Prohibition Act 1315: 3.20 Senior Courts Act 1981: 5.160 Statute Law Revision Act 1887: 3.50 Statute of Westminster I 1275: 3.50 Supreme Court of Judicature Act 1873: 2.30 Supreme Court of Judicature Act 1875: 2.30 Unemployment Insurance Act 1920: 10.30

New Zealand Bill of Rights Act 1990: 2.70, 2.140 s 14: 2.140

United States

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Constitution of the United States: 2.70, 2.80, 2.120, 2.140, 18.210

United Kingdom Treaties and Conventions Bill of Rights 1689 Art 9: 10.40

European Convention on Human Rights: 2.70, 2.130, 8.210, 9.60, 18.210

Canada Act 1982 Sch B: 2.70

Art 8: 2.70, 18.210 Art 10: 2.100, 8.130, 15.30 Art 10(1): 2.130

Circumspecte Agatis: 3.30 Civil Procedure Rules 1998: 8.210 r 1.1: 8.210

International Covenant on Civil and Political Rights

Common Law Procedure Act 1854: 16.20 Coroners and Justice Act 2009

Art 17: 2.70 Art 19(2): 2.130 Art 19(3): 2.130

s 73: 4.40

Universal Declaration of Human Rights

Defamation Act 1952 s 4: 17.10 s 5: 9.130 s 8: 12.80

Art 10(2): 2.70, 2.130 Art 12: 2.70, 2.130 Art 19: 2.130

Defamation Act 1996

lxi

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Copyright © 2015. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved. Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-19 00:52:28.

1

Introduction [1.10] Defamation law............................................................................................. 1 [1.20] Criticisms....................................................................................................... 2 [1.20] Technicality.......................................................................................... 2 [1.30] Artificiality........................................................................................... 3 [1.40] Complexity........................................................................................... 4 [1.50] Australian defamation law............................................................................ 4 [1.60] Freedom of speech...............................................................................5 [1.70] Other purposes of the law................................................................... 7 [1.80] Focus of this book.........................................................................................7

Defamation law [1.10] Defamation law has a reputation for being the most arcane area of

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private law. Its reputation is deserved. There are innumerable judicial and academic observations lamenting defamation law’s complexity, technicality and obscurity. Defamation law is not only forbidding for those not blessed or encumbered (depending upon one’s perspective) with a legal education, but also to trained lawyers who happen not to specialise in it.1 For example, in Renouf v Federal Capital Press of Australia Pty Ltd,2 Blackburn J confessed that: [a]s to publication in New South Wales, I am far from confident that I have succeeded in finding my way through the labyrinthine complexities of the defamation law of that State. It is an unpleasant feeling to know that one is lost; I am not sure that it is not equally unpleasant to be unsure whether one is lost or not.

Now that there are national, uniform defamation laws, this sense of discombobulation need not be limited to one particular jurisdiction, but might apply to Australian defamation law more generally. Perhaps the most evocative assessment of defamation law was provided by Ipp JA of the New South Wales Court of Appeal, writing extra-curially, who characterised defamation law as “the Galapagos Islands Division of the law of torts”. His Honour went on to observe that: [t]he tort of defamation has evolved all on its own and has created legal forms and practices unknown anywhere else. It has evolved its own dialect and adopted esoteric customs … Pleadings in defamation actions are as complex, as pedantic 1

2

See, eg, Prefumo v Bradley [2011] WASC 251 at [45] per Corboy J: “Defamation can be a difficult and perhaps, overly technical area of the law. It is generally regarded by lawyers as an area of specialist knowledge.” See also Ghosh v NBN Ltd [2014] QCA 53 at [12] per Muir JA: “Defamation proceedings are fraught with legal complexities which create difficulties for practitioners experienced in the area. It is singularly hazardous for lay persons to conduct their own defamation litigation, particularly if they lack the time, will and aptitude to undertake careful, time consuming research.” (1977) 17 ACTR 35 at 58.

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1: Introduction

[1.10]

and as technical as anything known to Dickens. Interlocutory disputes continue to beset plaintiffs and there are often massive delays in getting defamation cases to trial. Damages seem out of proportion to damages awards in other categories of cases.3

This is a fair summation of the major problems with Australian defamation law. These are not isolated criticisms.4

Criticisms Technicality [1.20] Defamation law has been justifiably criticised for its technicality. Perhaps more than any other area of law, defamation law is fixated upon pleadings. It will become apparent that the substance of defamation law is intimately connected with the form of the pleadings. This might be explained by the fact that defamation law seeks to impose liability for words by using still more words. Nevertheless, concerns about the prolixity of defamation pleadings have been regularly and understandably made.5 Prolix pleadings increase the number of interlocutory disputes and delay a trial on the underlying matter, thereby frustrating the timely vindication of a plaintiff’s damaged reputation or a defendant’s protected exercise of freedom of speech.6 The excessive refinement of pleadings seeks to strike a finely calibrated balance between the competing interests in a defamation claim at the interlocutory stage, when such a balance might be adequately protected at the trial of the substantive proceeding.7 In Favell v Queensland Newspapers Pty Ltd,8 Kirby J, with unfortunate accuracy, diagnosed that the procedural complexity of defamation law resulted in “trial by interlocutory ordeal”.9

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3 4

5

6

7

8 9

D Ipp, “Themes in the Law of Torts” (2007) 81 ALJ 609 at 615. For some recent examples, see Channel Seven Sydney Pty Ltd v Mahommed (No 2) (2011) 80 NSWLR 210; [2011] NSWCA 6 at 224 (NSWLR) per McClellan CJ at CL; Amanatidis v Darmos (No 2) [2011] VSC 216 at [41 per Sifris J; Bateman and Idameneo (No 123) Pty Ltd v Fairfax Media Publications Pty Ltd (2013) 8 ACTLR 13; [2013] ACTSC 72 at [11] per Refshauge J: “the regrettable but customary complexity of defamation proceedings”; Polias v Ryall [2013] NSWSC 1267 at [59] per McCallum J: “[d]efamation actions are notoriously blighted by the unnecessary complication of simple claims”; Setka v Abbott (No 2) [2013] VSC 726 at [31] per Beach JA; Prefumo v Bradley [No 4] [2014] WASC 94 at [4] per Martin CJ: “[t]he complexities of the substantive law and procedure relating to defamation made the task of self-representation difficult for both parties”; Graham v Powell (No 3) [2014] NSWSC 185 at [6] per Beech-Jones J: “[f]or reasons that are far beyond my control, the pleading of a cause of action in defamation and any defence is riddled with complexity”; Elliott v Tomkins (No 3) [2014] NSWDC 68 at [10] per Gibson DCJ. See, eg, Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245; [2007] HCA 60 at 293 (CLR) per Gummow, Hayne and Heydon JJ. As to the pleading of a defamation action, see [6.20]–[6.30]. Grubb v Bristol United Press Ltd [1963] 1 QB 309 at 329 per Holroyd Pearce LJ; Random House Australia Pty Ltd v Abbott (1999) 94 FCR 296 at 316 per Miles J; Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245; [2007] HCA 60 at 294 (CLR) per Kirby J. Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682 at 692 per Hutley JA; Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245; [2007] HCA 60 at 294 per Kirby J. (2005) 221 ALR 186; [2005] HCA 52. Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186; [2005] HCA 52 at 193 (ALR). See also Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 149 per Kirby J:

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[1.30]

Criticisms

Artificiality [1.30] Defamation law’s approach to pleading has been criticised for its

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artificiality. In Polly Peck Holdings plc v Trelford,10 O’Connor LJ described pleading in defamation cases as being as artificial as a minuet. In Burrows v Knightley, Hunt J went further, describing it as being as artificial as a quadrille.11 The allegation of artificiality levelled at defamation is not limited to its pleading practices. Defamation has been characterised more fundamentally as an artificial tort.12 There are a number of reasons for this. First, although defamation law imposes liability for words, it adopts a highly particular approach to language. A fundamental feature of liability for defamation is the “single meaning” rule. For the purpose of imposing liability for defamation, the tribunal of fact has to determine the “single meaning” to be ascribed to the matter published, notwithstanding the reality that the same words can reasonably mean different things to different people.13 As Diplock LJ noted in Slim v Daily Telegraph Ltd,14 this highly reductive approach to language, which is peculiar to defamation law and not shared by other areas of law,15 let alone ordinary people in their use of language,16 is a significant reason for the artificiality of defamation law.17 Another reason for the artificiality of defamation law is that it imposes liability, not for actual damage to reputation but for conduct which tends to cause damage to reputation. On one view, this is understandable, indeed justifiable. By basing liability for defamation upon the objective tendency of a publication to damage a plaintiff’s reputation, it seeks to protect a defendant against unfair exposure to liability, as well as ensuring that a plaintiff’s reputation is adequately protected. However, by focusing on the objective tendency to damage a reputation, rather than the actual damage, a defendant might be able to avoid liability for actual damage to a plaintiff’s reputation, or a plaintiff might be compensated in respect of a reputation which is not in fact With complexity comes delay and expense outweighing by (sic) the utility gained. A plaintiff who alleges that it has been defamed must run a gauntlet of interlocutory proceedings … The result may be satisfactory to most lawyers who specialise in the Defamation List. It cannot but be discouraging to a plaintiff with a legitimate complaint forced into a system of interlocutory hearings which may occasionally even be used to exhaust or discourage those on the receiving end of defamation.

10 11 12 13

14 15

16 17

See further, Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 341 per Callinan J; Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 52 at 152 (CLR) per Heydon J. In defence of the importance of pleadings in defamation actions, see, eg, Toomey v Mirror Newspapers Ltd (1985) 1 NSWLR 173 at 186 per Hunt J: “in defamation litigation … the pleadings play a more important part than in any other class of actions brought at common law”. See also Ron Hodgson (Trading) Pty Ltd v Belvedere Motors (Hurstville) Pty Ltd [1971] 1 NSWLR 472 at 476 per Asprey JA. [1986] QB 1000 at 1020. (1987) 10 NSWLR 651 at 654. Slim v Daily Telegraph Ltd [1968] 2 QB 157 at 171 per Diplock LJ: “the artificial and archaic character of the tort of libel”. Slim v Daily Telegraph Ltd [1968] 2 QB 157 at 171 per Diplock LJ; Ajinomoto Sweeteners Europe SAS v Asda Stores Ltd [2011] QB 497; [2010] EWCA Civ 609 at 502 (QB) per Sedley LJ. As to the “single meaning rule”, see further, [6.140]. [1968] 2 QB 157. See, eg, Ajinomoto Sweeteners Europe SAS v Asda Stores Ltd [2011] QB 497; [2010] EWCA Civ 609 at 508-9 (QB) per Sedley LJ (“single meaning rule” not applicable to claims for injurious falsehood). Slim v Daily Telegraph Ltd [1968] 2 QB 157 at 171 per Diplock LJ. Slim v Daily Telegraph Ltd [1968] 2 QB 157 at 172 per Diplock LJ.

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[1.30]

damaged.18 A disparity between the way in which defamation law protects reputations and the way in which reputations are actually experienced heightens the artificiality of defamation law and has a tendency to bring defamation law into disrepute. The less defamation law provides an effective remedy for actual damage to reputation, the less legitimate it will be.

Complexity [1.40] Intertwined with its technicality and its artificiality is the complexity of defamation. The diverse historical origins of defamation law are a major contributing factor to the current complexity of defamation law.19 Defamation law emerged in English law from multiple sources and, importantly, has never undergone thorough revision and integration, unlike other areas of private law. The history of defamation law is characterised more by the process of accretion, rather than rationalisation. Perhaps more than any other area of private law, defamation law still bears the impress of its historical origins. If one were devising de novo a rational system of law which sought to balance the protection of reputation and freedom of speech, one would not come up with Australian defamation law as it currently exists. Australian defamation law, in its present form, is the product of historical accident, piecemeal reform and comparative neglect.20 The hold of its history needs to be loosened in order for it to be modernised properly. There is no reason that defamation law has to be as complex as it is. Indeed, there are powerful reasons for making defamation law less complex. Every person has an interest in his or her own reputation. Every person has an interest in freedom of speech.21 Given the fundamental importance of these interests, the law regulating reputation and freedom of speech should not be so complex that ordinary people require specialist legal advice in order to understand it. Developments in defamation law which tend to promote complexity and technicality for their own sake should be avoided.

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Australian defamation law [1.50] A significant purpose of this book is to provide an accessible but rigorous exposition of Australian defamation law, thereby demystifying this complex cause of action.22 Whilst the book aims to provide a detailed analysis of Australian defamation law as it currently stands, it is informed by a number of critical perspectives. First, it is underpinned by the view that Australian defamation law is in need of fundamental rethinking, review and reform. Indeed, this is overdue. Such reform should be directed towards rationalising 18

19 20 21 22

As to this tension underlying defamation law, see Plato Films Ltd v Speidel [1961] AC 1090 at 1139 per Lord Denning; Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 574-5 per Kirby J. See also Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581 at 587 per Slesser LJ. In defence of the presumption of damage, see Jameel v Dow Jones & Co Inc [2005] QB 946; [2005] EWCA Civ 75 at 961-2 (QB) per curiam. For further criticism of the artificiality of defamation law, see State Bank of NSW Ltd v Currabubula Holdings Pty Ltd (2001) Aust Torts Reports 81-618; [2001] NSWCA 47 at 67,209 (Aust Torts) per Giles JA. As to the history of defamation law, see Ch 3. D Rolph, “A Critique of the National, Uniform Defamation Laws” (2008) 16 Torts Law Journal 207 at 247. As to the concepts of reputation and freedom of speech, see Ch 2. See House of Commons, Report of the Committee on Defamation (Cmnd 5909) (HMSO, London, 1975) p 5: “It is true that a mystique has come to be associated with this tort.”

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[1.60]

Australian defamation law

and simplifying defamation law. Although the commencement of the national, uniform defamation laws in early 2006 can be justifiably described as being the most significant event in the history of Australian defamation law, the law reform process which led to their introduction was directed more towards securing the laudable end of uniformity rather than systematic, comprehensive reform of the substantive law of defamation.23 As a consequence, whilst there were some important reforms made, the resulting national, uniform defamation laws are not radically different from defamation law as it existed before their introduction, particularly for New South Wales practitioners.24 The last large-scale review of Australian defamation law occurred in 1979, when the Australian Law Reform Commission (ALRC) released its report, Unfair Publication: Defamation and Privacy.25 In the intervening decades, the High Court of Australia has identified the implied freedom of political communication emerging from the text and structure of the Commonwealth Constitution26 and internet technologies have been developed, which have profoundly changed the ways in which people communicate, to name but two of the major challenges for defamation law. At a State level, there has also been some innovative thinking about defamation law reform, most notably in the New South Wales Law Reform Commission’s (NSWLRC) 1995 report on defamation.27 Defamation law reform in Australia is difficult, as the fitful attempts over several decades to secure national, uniform defamation laws demonstrate.28 This process is complicated by the fact that defamation law is primarily the province of State and Territory governments, making coordinated reform hard. In addition, there is rarely the political urgency or even the will to make defamation law reform a priority. Nevertheless, the major task of substantive defamation law reform lies ahead. It is hoped that providing a clear, comprehensive and critical account of Australian defamation law will contribute to that process. Thus far, as Lord Diplock suggested in Gleaves v Deakin,29 “the law of defamation, civil as well as criminal, has proved an intractable subject for radical reform”.

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[1.60] This book is also informed by a commitment to freedom of speech. Freedom of speech is central to defamation law. It is axiomatic that defamation law seeks to balance the protection of reputation and freedom of speech. There are many areas of common law and equity, not to mention statute, which impinge upon this fundamental common law freedom. Given the centrality of freedom of speech to defamation law and the fact that defamation law applies to all forms of communication, from the most widely disseminated to the most mundane and localised, defamation law can be fairly viewed as presenting the 23 24 25 26 27

28 29

D Rolph, “A Critique of the National, Uniform Defamation Laws” (2008) 16 Torts Law Journal 207 at 207-8. D Rolph, “A Critique of the National, Uniform Defamation Laws” (2008) 16 Torts Law Journal 207 at 245-6. ALRC, Report No 11 (June 1979). See, eg, Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; Australian Capital Television Pty Ltd v Commonwealth (No 2) (1992) 177 CLR 106. See further, [2.120]. NSWLRC, Defamation, Report No 75 (September 1995). See also Western Australian Defamation Law Reform Committee, Western Australian Defamation Law: Committee Report on Reform to the Law of Defamation in Western Australia (Perth, 2003). Andrew Kenyon, Defamation: Comparative Law and Practice, UCL Press, London, 2006, 361-64. [1980] AC 477 at 484.

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5

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6

1: Introduction

[1.60]

greatest challenge to freedom of speech. Law reform attempts directed at protecting or promoting freedom of speech, which overlook or marginalise defamation law, then fail to engage with the area of Australian law which most directly and most pervasively affects freedom of speech. It is still fair to say that the substance of Australian defamation law favours plaintiffs over defendants. In doing so, it privileges the protection of reputation over freedom of speech. In many cases, the plaintiff’s case is straightforward, with the only real issue he or she might have difficulty establishing being defamatory meaning. The plaintiff then has the advantages of the presumption of falsity and the presumption of damage to reputation. The onus then shifts to the defendant. Defences to defamation are important because they embody and protect the interest in freedom of speech.30 Yet they are, in most respects, highly technical and complex. Their technicality and complexity work against the effective protection of freedom of speech. The perspective on freedom of speech informing this book is not, however, an absolutist one. Defamation law should be reformed to reduce its impact on free speech, not abolished altogether. The reach of defamation law is more extensive than many people realise (until they are threatened with a defamation action). Defamation law applies to all communications, not merely mass media publications, although, of course, media outlets are not infrequently defendants in defamation claims. Private individuals can and do find themselves being sued successfully for defamation over low-level, everyday speech. There are a range of reasons why such cases are not brought before Australian courts more often, chief amongst them being: a lack of awareness of rights under defamation law; the prohibitive costs of litigation for most people; disinclination to sue, given the time and resources litigation will absorb; and an aversion to prolonging and reliving the pain inflicted by the initial publication through the protracted process of a court case. Those private individuals who are sued then are unfortunate. The application of defamation law in this way can look capricious and can have a deleterious effect on freedom of speech. Defamation law should not then be only of concern to media outlets. It can and does affect private individuals in their daily communications, whether they are aware of it or not. This provides a powerful reason for rationalising and simplifying defamation law. It also provides a powerful reason to ensure continued community involvement in defamation litigation. In the United Kingdom, there is now a presumption against trial by jury in defamation litigation,31 a reversal of a practice which is centuries old. In Australia, in the majority of jurisdictions, there is still a right to trial by jury upon election by either party.32 Although there might be a real attraction in abolishing the use of juries in the interests of promoting the overarching purpose of “just, quick and cheap resolution” of disputes,33 there are important reasons for retaining them. Requiring judges and advocates to explain the principles of defamation law to 30 31 32

33

See, eg, Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46 at 154-5 (CLR) per Heydon J. Defamation Act 2013 (UK) s 11. Defamation Act 2005 (NSW) s 21(1); Defamation Act 2005 (Qld) s 21(1); Defamation Act 2005 (Tas) s 21(1); Defamation Act 2005 (Vic) s 21(1); Defamation Act 2005 (WA) s 21(1). See further, [5.150]–[5.160]. Court Procedures Rules 2006 (ACT) r 21(1); Supreme Court Rules 1987 (NT) r 1.10(1); Civil Procedure Act 2005 (NSW) s 56(1); Uniform Civil Procedure Rules 1999 (Qld) r 5(1); Supreme Court Civil Rules 2006 (SA) r 3; Civil Procedure Act 2010 (Vic) s 7(1); Rules of the Supreme Court 1971 (WA) r 4B(1).

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[1.80]

Focus of this book

juries of lay persons should act as an effective check on allowing defamation law to become more complex and might act as an incentive for clarification and simplification of this area of law. Of course, defamation law is of particular relevance to media outlets in their daily operations. Defamation law’s reputation for having a “chilling effect” on freedom of speech is well-known34 and applies to private individuals and, more acutely, to media outlets. At the prepublication stage, the risk or threat of defamation litigation can inhibit media outlets from publishing legitimate stories on matters of public interest. If the requirements of defamation law are so onerous that they lead media outlets to self-censor such stories, this should be a cause of concern and an indication of the need for reform.

Other purposes of the law [1.70] Another difficulty presented by defamation law, highlighted in particular by its application to media outlets, is the multiplicity of purposes this area of law can serve. On one level, as a tort, defamation law serves to provide successful plaintiffs with compensation for their damaged reputations. Whether compensation is, or should be, the sole or primary purpose of tort law is itself a matter of considerable scholarly debate.35 However, even accepting that it is, this purpose is not straightforward when applied to defamation law, given the particular sense in which compensation in defamation is understood, comprehending the additional functions of vindication and consolation.36 In relation to media outlets, defamation law also serves an indirect regulatory function, implemented by private plaintiffs seeking to hold media outlets accountable for their publications.37 Another concern underpinning this book, therefore, is the efficacy of defamation law in achieving any or all of these diverse purposes.

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[1.80] The focus of this book is upon Australian defamation law. However, given its origins, there will unsurprisingly be substantial discussion of English case law. In addition, reference will be made, as relevant, to New Zealand, Canadian, United States and European Union case law. To varying degrees, all these bodies of law have had an influence upon Australian defamation law, either by dealing with issues in a like manner or as a point of difference. 34

35

36

37

See, eg, E Barendt, L Lustgarten, K Norrie and H Stephenson, Libel and the Media: The Chilling Effect (Clarendon Press, Oxford, 1997) pp 182-94; C Dent and AT Kenyon, “Defamation Law’s Chilling Effect: A Comparative Content Analysis of Australian and US Newspapers” (2004) 9 Media and Arts Law Review 89 at 111. However, see also U Cheer, “Myths and Realities about the Chilling Effect: The New Zealand Media’s Experience of Defamation Law” (2005) 13 Torts Law Journal 259 at 299-301. For judicial acceptance of the “chilling effect” of defamation law on freedom of speech, see, eg, Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 at [45] per Fraser JA. The literature on this issue is vast. For a useful introduction to this topic, see, eg, G Williams, “Aims of the Law of Torts” (1951) 4 Current Legal Problems 137; C Sappideen and P Vines (eds), Fleming’s The Law of Torts (10th ed, Lawbook Co., Pyrmont, 2011) pp 5-15; K Barker, P Cane, M Lunney and F Trindade, The Law of Torts in Australia (5th ed, Oxford University Press, South Melbourne, 2012) pp 695-7. Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 150 per Windeyer J; Carson v John Fairfax & Sons Pty Ltd (1993) 178 CLR 44 at 60-61 per Mason CJ, Deane, Dawson and Gaudron JJ. See further, [15.50]. See, eg, Ballina Shire Council v Ringland (1994) 33 NSWLR 680 at 722-5 per Mahoney JA.

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[1.80]

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Comparative approaches to defamation law are important, as each of these jurisdictions often struggles with the same issues. Indeed, they are likely to be of increasing significance, particularly as internet technologies facilitate the widespread dissemination of defamatory matter in a manner not respectful of territorial borders. The interrelated issues of the challenges posed to defamation law by rapid technological developments and different legal systems’ responses to them are also concerns informing this book.

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2

The Competing Interests in Defamation Law [2.10] [2.20] [2.50] [2.70] [2.80] [2.90] [2.100] [2.110] [2.120] [2.130] [2.140] [2.150]

Introduction....................................................................................................9 Reputation in the case law..........................................................................10 Reputation in the academic literature......................................................... 15 Reputation as a human right....................................................................... 19 The value of reputation............................................................................... 21 The common law’s approach to freedom of speech.................................. 24 The rationales for protecting free speech................................................. 26 The chilling effect of defamation law.......................................................29 The implied freedom of political communication....................................30 Freedom of speech as a human right....................................................... 34 Free speech in comparative perspective................................................... 35 Freedom of speech and freedom of the press.......................................... 36

Introduction

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[2.10] The principal interest protected by the tort of defamation is the

plaintiff’s reputation. Damage to reputation is the gist of the action.1 However, it is not the only interest implicated in this cause of action. Defamation law seeks to strike a balance between the protection of reputation and freedom of expression.2 What is meant by freedom of speech, why it is valued and its relationship to freedom of the press have been the subject of substantial legal and philosophical analysis. By contrast, what is meant by reputation and why it is valued have only recently become the subject of sustained academic analysis. The purpose of this chapter is to introduce the fundamental interests engaged in a cause of action for defamation: reputation and freedom of speech. Whether the principles of defamation law strike an appropriate balance between these competing interests is a matter about which reasonable minds differ.3 Even amongst Western liberal democracies, the way in which the balance between the protection of reputation and freedom of speech varies 1 2

3

However, damage to reputation is now presumed in all defamation cases in Australia. As to the presumption of damage, see [15.30]. Silkin v Beaverbrook Newspapers Ltd [1958] 1 WLR 743; 2 All ER 516 at 745-6 (WLR) per Diplock J; Ballina Shire Council v Ringland (1994) 33 NSWLR 680 at 690 per Gleeson CJ, at 699 per Kirby P; Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 576 per Kirby J. Ballina Shire Council v Ringland (1994) 33 NSWLR 680 at 690 per Gleeson CJ. For example, Mason CJ, Toohey and Gaudron JJ in Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 133 were of the view that Australian defamation law preferred the protection of reputation over freedom of speech, stating: In these circumstances, the common law defences which protect the reputation of persons who are the subject of defamatory publications do so at the price of significantly inhibiting free

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significantly.4 In particular, Australian courts have identified that such a balance differs markedly between Australian and United States law,5 with the latter being more protective of freedom of speech at the expense of reputation. An understanding of what is meant by reputation and what is meant by freedom of speech and, more importantly, why these interests are legally protected, is necessary to evaluate how efficaciously these interests are balanced under Australian defamation law and to compare and contrast Australian law with the approach under other legal systems.

Reputation in the case law [2.20] Given that reputation is the principal interest protected by defamation law, one might have expected that the concept of reputation would have been subject to more rigorous analysis. It is a paradox of defamation law that reputation has been highly protected for centuries, without a great deal of critical reflection upon it as a legal interest. The meaning and the parameters of reputation have been assumed. To the extent that it is possible, it is useful to attempt to draw out from the case law the common law’s conception of reputation for the purposes of defamation law. A useful working definition of “reputation” was provided by Lord Denning in Plato Films Ltd v Speidel,6 wherein his Lordship observed that “[a] man’s ‘character’, it is sometimes said, is what he in fact is, whereas his ‘reputation’ is what other people think he is.”

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Confusingly perhaps, “reputation” and “character” are sometimes used interchangeably or in conjunction with each other. Nevertheless, it remains true that the focus of defamation is the plaintiff’s reputation, properly understood. As Lord Denning suggested in Plato Films Ltd v Speidel,7 reputation is the plaintiff’s public self. Defamation then is concerned with harms to a plaintiff’s communication. To that extent, the balance is titled too far against free communication and the need to protect the efficacious working of representative democracy and government in favour of the protection of individual reputation.

By contrast, Callinan J in Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 at 651 (CLR) was clear that the balance struck between these two competing interests under Australian defamation law was the optimal one, stating: Quite deliberately, and in my opinion rightly so, Australian law places real value on reputation, and views with scepticism claims that it unduly restricts freedom of discourse. In my opinion the law with respect to privilege in this country, now and historically, provides an appropriate balance which does justice to both a publisher and the subject of a publication.

4 5

6

7

Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 at 599 (CLR) per Gleeson CJ, McHugh, Gummow and Hayne JJ, at 627 per Kirby J. Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 at 609 (CLR) per Gleeson CJ, McHugh, Gummow and Hayne JJ, at 614 per Kirby J, at 650 per Callinan J. According to Kirby J, “[p]ublishers in the United States are well aware that few, if any, other jurisdictions in the world observe the approach to the vindication of reputation adopted by the law in that country”: Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 at 639 (CLR). A similar claim has been made in relation to English and Canadian law, at least before the introduction of human rights instruments in those countries: see, eg, Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 at 363-4 per Hutley JA; Crookes v Newton [2011] 3 SCR 287 per Abella J. [1961] AC 1090 at 1138 per Lord Denning (emphasis in original). See also Plato Films Ltd v Speidel [1961] AC 1090 at 1128-9 per Lord Radcliffe (distinguishing between “public estimation”, which is equated to reputation, and “disposition”, which is not). [1961] AC 1090.

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[2.20]

Reputation in the case law

public self, not harms purely to a plaintiff’s private sense of self.8 Injury to a plaintiff’s feelings or pride, or self-esteem, unaccompanied by potential damage to his or her reputation, is not compensable in defamation law. As Gleeson CJ, McHugh, Gummow and Hayne JJ observed in Dow Jones & Co Inc v Gutnick,9 citing Frederick Pollock’s The Law of Torts,10 “[p]erhaps … the law ‘went wrong from the beginning in making the damage and not the insult the cause of action’ for slander [and libel] but it is now too late to deny that damage by publication is the focus of the law”. Thus, if a defendant offends or insults a plaintiff to his or her face alone, there is no cause of action in defamation because there is no possibility that the plaintiff’s reputation, in the sense of other people’s perceptions of the plaintiff, is capable of being affected. The defendant needs to communicate the defamatory matter to a person other than the plaintiff, and one person would be sufficient, in order for the plaintiff’s reputation to be capable of being damaged. This then is how the requirement of publication, an element of the plaintiff’s case as to liability, operates.11 It serves as a small but telling indication of how the concept of reputation informs the basic principles of defamation law. There is, of course, nothing natural or immutable about the common law’s focus on damage to reputation as the gist of action in defamation. This focus is, as Pollock observes, a product of the peculiar historical development of defamation law, specifically the result of particular choices made in the 16th century when the tort of defamation was in its infancy. Other legal systems, most notably Roman law and civil law systems derived from it, provide protections against insult or affront to the person directly without the requirement that there is a communication to a third party.12 It is useful to bear in mind that other legal systems deal with dignitary interests in a different way. However, given its long-standing history, the focus on damage to reputation is an essential part of the fabric of the common law, unlikely to be rent from it any time soon. The distinction between reputation and character is important but not absolute. There are necessary touching points between a plaintiff’s reputation and his or her character. How other people perceive a plaintiff will depend, to varying degrees, upon the aspects of the plaintiff’s intrinsic self he or she publicly discloses, consciously or otherwise. Although the primary focus of the tort is reputation, defamation law has long recognised that a plaintiff’s reputation is inextricably connected to his or her character. Thus, it is well established that, where a plaintiff is publicly defamed, he or she is entitled to damages not only for damage to reputation but also for injury to feelings.13 It is recognised that being publicly defamed will almost invariably affect a plaintiff’s 8 9 10 11 12

13

Plato Films Ltd v Speidel [1961] AC 1090 at 1138 per Lord Denning. See also Plato Films Ltd v Speidel [1961] AC 1090 at 1128-9 per Lord Radcliffe. (2002) 210 CLR 575; [2002] HCA 56 at [25]. F Pollock, The Law of Torts: A Treatise on the Principles of Obligations Arising from Civil Wrongs in the Common Law (4th ed, Stevens and Sons, London, 1895). As to the requirement of publication, see Ch 8. See, eg, Justinian, Institutes, IV.4 (Cornell University Press, Ithaca (NY), 1987); Gaius, Institutes, III.220-25 (Duckworth, London, 1988). See also B Nicholas, An Introduction to Roman Law (Clarendon Press, Oxford, 1962) pp 216-7; HF Jolowicz, Historical Introduction to the Study of Roman Law (3rd ed, Cambridge University Press, Cambridge, 1972) p 273; P Birks, The Roman Law of Obligations: The Collected Papers of Peter Birks (Oxford University Press, Oxford, 2014) p 229; P J du Plessis, Borkowski’s Textbook on Roman Law (5th ed, Oxford University Press, Oxford, 2015) pp 338-40. As to damages for damage to reputation and injury to feelings, see [15.40]-[15.50], [15.70]. Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 151 per Windeyer J.

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sense of self.14 This is yet another example of how the concept of reputation is implicit in the principles of defamation law.

[2.30] There are occasional references in the case law as to the nature of reputation as a legal interest. Older authorities sometimes treat reputation as a form of property or as closely analogous to it.15 For instance, in Dixon v Holden,16 Malins V-C stated that: [o]ne man has property in lands, another in goods, another in a business, another in skill, another in reputation; and whatever may have the effect of destroying property in any one of these things (even in a man’s good name) is, in my opinion, destroying property of a most valuable description.

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His Lordship went on to describe reputation as not only the plaintiff’s property but “more valuable than other property”.17 This proprietary conception of reputation is understandable in the context of mid-Victorian England. It is also understandable in its legal context – Dixon v Holden was decided before the introduction of the Judicature Acts,18 in circumstances where a court at common law had no power to grant an injunction and the power of a court of equity to restrain the publication of defamatory material was doubtful. By allowing the subject matter of the proceedings – professional reputation – to be construed as a form of property, a court of equity’s jurisdiction to intervene was clear. However, the treatment of reputation as property has not persisted in the case law. The preponderant judicial view now is that reputation is most decidedly not property. Thus, in Uren v John Fairfax & Sons Pty Ltd,19 Windeyer J stated that “[a] man’s reputation, his good name, the estimation in which he is held in the opinion of others, is not a possession of his as a chattel is.” In Rogers v Nationwide News Pty Ltd,20 Hayne J observed that “reputation is not a commodity having a market value”. A clear indication that the common law does not regard reputation as property is the longstanding treatment of a bankrupt’s cause of action in defamation as a remedy for a personal injury or wrong, for which the bankrupt retains the benefit, rather than as part of the bankrupt’s property, which would otherwise vest in the trustee in the bankruptcy.21

14 15 16 17

18 19 20

21

Broome v Cassell & Co Ltd [1972] AC 1027 at 1125 per Lord Diplock; Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 104-5 per McHugh J. See, eg, M’Pherson v Daniels (1829) 10 B&C 263; (1829) 10 ER 448 at 276 (B&C), at 453 (ER) per Parke J. (1869) LR 7 Eq 488 at 492. Dixon v Holden (1869) LR 7 Eq 488 at 492. His Lordship further stated (at 494) that “[p]rofessional reputation is the means of acquiring wealth, and is the same as wealth itself.”. Supreme Court of Judicature Act 1873 (UK) (36 & 37 Vict c 66) and the Supreme Court of Judicature Act 1875 (UK) (38 & 39 Vict c 77). (1966) 117 CLR 118 at 150. (2003) 216 CLR 327; [2003] HCA 52 at 349 (CLR). There are many other statements to similar effect. See, eg, Bonsor v Musicians’ Union [1954] Ch 479 at 510 per Denning LJ: “A libel is, of course, in its very nature, a wrong to the person, not a wrong to property.” See also Sturt v Farran [2012] NSWSC 400 at [149]-[156] per Sackar J. As to the right of a bankrupt to sue for defamation, see [5.70].

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[2.30]

Reputation in the case law

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What constitutes reputation for the purposes of defamation law has not been exhaustively explored in the case law.22 A broad approach has been taken. As Neill LJ suggested in Berkoff v Burchill,23 reputation should be understood “as comprehending all aspects of a person’s standing in the community”. This was endorsed by the joint judgment of French CJ, Gummow, Kiefel and Bell JJ in Radio 2UE Sydney Pty Ltd v Chesterton.24 Earlier in the same judgment, their Honours defined “reputation” as being “the esteem in which that person is held by the community”, with that reputation being injured when that esteem was “diminished in some respect”.25 In both Berkoff v Burchill and Radio 2UE Sydney Pty Ltd v Chesterton, the judges in the respective cases recognised that a plaintiff’s interest in his or her reputation could comprehend a variety of aspects, from purely personal to business or commercial. Given the breadth of the definition of “reputation” as a legal interest, it is unsurprising that so many diverse aspects can receive protection under defamation law. However, there are limits to defamation law’s protection of reputation. It is not possible for defamation law comprehensively to protect all forms of reputational interests, given their sheer diversity and number.26 Not every person or entity who in fact possesses a reputation has standing to sue for defamation to protect that reputation. At common law and under statute, certain persons or entities, or certain types of reputations are excluded from the purview of defamation law.27 Even for those persons and entities who can sue for defamation, not all aspects of their reputations are necessarily protected by defamation law. For instance, defamation law is disposed to protect aspects of character and personality rather than aspects of physical appearance or one’s “corporeal envelope”, as Phillips LJ evocatively described it in Berkoff v Burchill.28 A person might in fact have a reputation for being thin and beautiful but whether defamation law would ordinarily provide a remedy against disparagement of those aspects of appearance is open to doubt. Defamation law has not been particularly reflective or critical about what constitutes “reputation” but it should not be assumed that all types or all aspects of reputation are or should be protected by defamation law. Merely because a person or entity has a reputation does not mean that defamation law does or ought to intervene to protect it. Nevertheless, as will become apparent, defamation law has historically offered broad protection to reputation. 22

23 24 25 26

27 28

This may be attributable to “the resolutely antitheoretical stance of the common law”: see RC Post, “The Social Foundations of Defamation Law: Reputation and the Constitution” (1986) 74 California Law Review 691 at 720. Berkoff v Burchill [1996] 4 All ER 1008 at 1018 per Neill LJ. (2009) 238 CLR 460; [2009] HCA 16 at 477 (CLR). Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460; [2009] HCA 16 at 466 (CLR). See RC Post, “The Social Foundations of Defamation Law: Reputation and the Constitution” (1986) 74 California Law Review 691 at 719-20: “In a sense that is not simply metaphorical, a society can be said to inhere in the social apprehension by which its members know and regard each other. From this perspective, the field of reputation is vast and encompassing, virtually coextensive with society itself. It makes little sense in such a context to speak of defamation law as ‘protecting reputation’, for such a task would be at once too enormous and too diffuse. It is therefore necessary, if defamation law is to serve a coherent purpose, to define and articulate concepts of reputation that more narrowly define the specific forms of social apprehension to be legally protected.” As to the limitations on standing to sue for defamation for some persons and entities, see [5.60]-[5.80], [5.110]-[5.120]. [1996] 4 All ER 1008 at 1020.

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[2.40] The case law reveals that judges implicitly accept that a plaintiff’s reputation is, for certain purposes, not homogeneous and undifferentiated. A plaintiff’s reputation can have different sectors. For the purpose of assessing the impact of defamatory matter on a plaintiff’s reputation, the fundamental issue is how the imputations affected the relevant sector of the plaintiff’s reputation.29 As Lord Radcliffe memorably expressed it: Life not being a morality play or a Victorian melodrama, men do not enjoy reputations for being bad or good simpliciter: nor if they did, would the proof of such generalities throw any light upon the loss of reputation suffered from a particular libel. So far as the ordinary man enjoys a public reputation at all, it is a reputation, favourable or unfavourable, in respect of particular aspects or sectors of his life, and, of course, he is likely to have a good reputation in some aspects and a bad reputation in others.30

Not only does the case law recognise that a plaintiff does not possess a single, monolithic reputation, it also proceeds on the basis that a plaintiff can have different reputations in the eyes of different people and that not all of those reputations are of equal importance. Indeed, a plaintiff will have no reputation amongst those who do not know him or her. Again in Plato Films Ltd v Speidel,31 Lord Denning suggested that only some reputations matter for the purposes of defamation law: But a man’s “character”, so understood, may become known to others beyond his immediate circle. In so far as the estimate spreads outwards from those who know him and circulates among people generally in an increasing range, it becomes his “reputation”, which is entitled to the protection of the law just as much as his character. But here I speak only of a reputation which is built upon the estimate of those who know him. No other reputation is of any worth. The law can take no notice of a reputation which has no foundation except for the gossip and rumour of busybodies who do not know the man.

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Yet, the case law suggests that the reputation, as protected by defamation, is an essentially stable interest. Again, this notion of reputation informs the principles of defamation law. For instance, in Dingle v Associated Newspapers Ltd,32 Holroyd Pearce LJ stated that: [a] man’s reputation in the sense in which the word is used in civil or criminal courts does not alter daily as good or bad deeds are ascribed to him. It is the judgment of his fellows on his general life over a period of time.

For the purposes of assessing damages, the tribunal of fact needs to have some idea of the plaintiff’s “settled reputation” in order to determine the damage done to it by the plaintiff’s publication.33 In Howden v Truth and Sportsman Newspapers Ltd,34 Evatt J went further, describing a plaintiff’s “existing reputation” as being “as much an objective fact as bodily health or ill health”. The view that a plaintiff’s reputation is stable or settled, or even an objective 29

30 31 32 33 34

See, eg, Plato Films Ltd v Speidel [1961] AC 1090 at 1140 per Lord Denning. As to the impact of defamatory matter on the relevant sector of the plaintiff’s reputation in the assessment of damages, see [15.200]. Plato Films Ltd v Speidel [1961] AC 1090 at 1130. [1961] AC 1090 at 1138. See also Pickens v State 61 Miss 563 (1884) at 565 per Campbell CJ. [1961] 2 QB 162 at 181. As to the principles relating to good and bad reputation in the assessment of damages, see [15.170], [15.190]. (1937) 58 CLR 416 at 433.

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[2.50]

Reputation in the academic literature

fact might be understandable in order to impose liability for defamation. However, it does not necessarily accord with the lived experience of reputation outside a courtroom. As a person lives and acts, his or her reputation changes, to varying degrees and at varying rates. Reputation is fundamentally a dynamic, not a static, interest.35 This feature may make the effective legal protection of reputation problematic. A final and important aspect of reputation, revealed by the case law, is that defamation law is concerned to protect the reputation that the plaintiff deserves, not the reputation he or she actually possesses,36 to the extent that these reputations are different. This view of reputation informs the common law’s approach to the defence of justification (or truth).37 If a plaintiff has enjoyed a good reputation which is unwarranted and the defendant publishes the truth about the plaintiff, the defendant is not liable for defamation. This is because, as Littledale J stated in M’Pherson v Daniels,38 “the law will not permit a man to recover damages in respect of an injury to a character which he either does not, or ought not, to possess”. To similar effect, Street ACJ (as his Honour then was) in Rofe v Smith’s Newspaper Ltd,39 opined that: as the object of civil proceedings is to clear the character of the plaintiff, no wrong is done to him by telling the truth about him. The presumption is that, by telling the truth about a man, his reputation is not lowered beyond its proper level, but is merely brought down to it.

A significant purpose of defamation law then is to police reputations – to determine who deserves a good reputation, and thus has been injured by the defendant’s conduct, and to determine who no longer deserves the good reputation they have enjoyed heretofore. At common law, a plaintiff does not have a right to a good reputation, merely to the reputation he or she deserves to possess.

Reputation in the academic literature

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[2.50] The consideration of reputation in the case law has been largely incidental, with the consequence that assumptions about reputation have remained implicit in the principles of defamation law. It has only been comparatively recently that the concept of reputation in defamation law has become the subject of sustained academic analysis. Scholars have long recognised the problematic nature of reputation. For instance, Fricke described reputation as “hard to define”.40 Watterson cautioned against viewing reputation as “one of the few safe harbours of the law of defamation”.41 Despite identifying the problematic nature of reputation, scholars did not begin to undertake detailed reflection upon it until recently. The most significant contribution to the academic literature on reputation in defamation law and the impetus for the sustained attention now given to this topic is Robert Post’s landmark article, “The Social Foundations of Defamation Law: 35 36 37 38 39 40 41

See, eg, Channel Seven Sydney Pty Ltd v Mahommed (2010) 278 ALR 232; [2010] NSWCA 335 at 253-5 (ALR). Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 150 per Windeyer J. As to the defence of justification, see Ch 9. (1829) 10 B&C 263; (1829) 10 ER 448 at 272 (B&C), at 451 (ER). (1924) 25 SR(NSW) 4 at 21-2. GL Fricke, “The Criterion of Defamation” (1958) 32 ALJ 7. R Watterson, “What Is Defamatory Today?” (1993) 67 ALJ 811 at 812.

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Reputation and the Constitution”.42 In this article, Post argues that there is no single, unifying concept of reputation underlying defamation law. Instead, he identifies three competing conceptions of reputation inherent in defamation law: reputation as honour, reputation as property, and reputation as dignity.43 Each of these is underpinned by a notion of how people are connected to each other,44 reputation being a relational interest.45 Each of these reflects a different phase in the history of defamation law. Each of these is present and informs, to varying degrees, the principles of defamation law. Post defines “reputation as honour” as being: a form of reputation in which an individual personally identifies with the normative characteristics of a particular social role and in return personally receives from others the regard and estimation that society accords to that role.46

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It is underpinned by a hierarchical view of society47 – what Post characterises as a deference society.48 Social roles and statuses are fixed and a good reputation cannot be created, but can be lost.49 Unsurprisingly, Post finds that this conception of reputation has the greatest resonance with feudal and early modern England.50 Of course, reputation as honour did not exist in a pure form at that time and, even though it has been overshadowed by other conceptions of reputation, it still informs a number of key principles of defamation law, which are still applied.51 Viewing reputation as honour means that the function of defamation law is the enforcement of social roles and, for the defamed plaintiff particularly, the reinstatement to his or her rightful social position.52 Post notes that the concept of reputation as honour explains aspects of defamation law which are inexplicable if reputation were to be treated as a purely economic interest. For instance, the fact that the publication of false matter tending to cause damage is insufficient to give rise to liability, that a distinction is drawn between defamatory and non-defamatory communications, with disparagement of reputation ordinarily being an essential element of liability, cannot support a purely economic view of reputation.53 Similarly, Post points to the presumption 42 43 44 45 46 47 48 49 50 51 52 53

(1986) 74 California Law Review 691. RC Post, “The Social Foundations of Defamation Law: Reputation and the Constitution” (1986) 74 California Law Review 691 at 693. RC Post, “The Social Foundations of Defamation Law: Reputation and the Constitution” (1986) 74 California Law Review 691 at 693. RN Bellah, “The Meaning of Reputation in American Society” (1986) 74 California Law Review 743. RC Post, “The Social Foundations of Defamation Law: Reputation and the Constitution” (1986) 74 California Law Review 691 at 699-700. RC Post, “The Social Foundations of Defamation Law: Reputation and the Constitution” (1986) 74 California Law Review 691 at 700. RC Post, “The Social Foundations of Defamation Law: Reputation and the Constitution” (1986) 74 California Law Review 691 at 702. RC Post, “The Social Foundations of Defamation Law: Reputation and the Constitution” (1986) 74 California Law Review 691 at 700-1. RC Post, “The Social Foundations of Defamation Law: Reputation and the Constitution” (1986) 74 California Law Review 691 at 701-2. RC Post, “The Social Foundations of Defamation Law: Reputation and the Constitution” (1986) 74 California Law Review 691 at 706-7. RC Post, “The Social Foundations of Defamation Law: Reputation and the Constitution” (1986) 74 California Law Review 691 at 703-4. As to the tests for what qualifies as defamation, see [6.220]-[6.270]. As to the element of disparagement, see [6.230].

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[2.60]

Reputation in the academic literature

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of damage, which is a longstanding feature of defamation, and difficult to explain if reputation is a purely economic interest.54 Post also identifies reputation as an economic interest – reputation as property. For Post, this concept of reputation is perhaps the most readily identifiable one in contemporary defamation law. It treats reputation “as a form of intangible property akin to goodwill”.55 Adopting a Lockean view of property,56 reputation can be earned or acquired through an individual’s exertion of skill and labour.57 Thus, to defame a person is to injure his or her property and defamation law intervenes to protect reputations because the law is always solicitous towards the protection of property.58 Although the concept of reputation as property has an obvious application to business or professional relationships, Post contends that it can equally be applied to interpersonal relationships.59 Business, professional and personal reputations can all be the products of investment of time, energy and skill, and thus can be treated as a form of property.60 [2.60] The concept of reputation as property is premised on the notion that individuals are connected to each other through the mechanism of the marketplace. It is underpinned by a vision of an economic ordering of society – what Post characterises as a market society.61 Historically, the concept of reputation as property has the greatest resonance in the 19th century, as the case law and treatises endorsing this view of reputation suggest. For Post, the concept of reputation as property explains substantial parts of defamation law. For instance, it provides a rationale for allowing corporations to sue for defamation, which is permitted at common law.62 However, it does not explain other aspects of defamation law, which reputation as honour can.63 The final concept of reputation Post identifies as manifest in defamation law is reputation as dignity. For Post, this concept of reputation has the greatest resonance in contemporary defamation law. Post identifies the difficulty of attempting to link an individual’s reputation, which is an indelibly social and public aspect of an individual’s persona, with the essentially private dignity of the individual. Drawing upon the symbolic interactionist school of sociological thought, notably the work of Charles C Cooley, George Herbert Mead and 54 55 56 57 58 59 60 61 62

63

RC Post, “The Social Foundations of Defamation Law: Reputation and the Constitution” (1986) 74 California Law Review 691 at 706. As to the presumption of damage, see [15.30]. RC Post, “The Social Foundations of Defamation Law: Reputation and the Constitution” (1986) 74 California Law Review 691 at 693. J Locke, Two Treatises of Government (Cambridge University Press, Cambridge, 1994) II.40-45. J Locke, Two Treatises of Government (Cambridge University Press, Cambridge, 1994) II.40-45. RC Post, “The Social Foundations of Defamation Law: Reputation and the Constitution” (1986) 74 California Law Review 691 at 694. RC Post, “The Social Foundations of Defamation Law: Reputation and the Constitution” (1986) 74 California Law Review 691 at 694. RC Post, “The Social Foundations of Defamation Law: Reputation and the Constitution” (1986) 74 California Law Review 691 at 694-5. RC Post, “The Social Foundations of Defamation Law: Reputation and the Constitution” (1986) 74 California Law Review 691 at 695. RC Post, “The Social Foundations of Defamation Law: Reputation and the Constitution” (1986) 74 California Law Review 691 at 696. As to the standing of corporations to sue for defamation at common law, see [5.100]. And as to the limitations of corporations’ right to sue for defamation under Australian law, see [5.110]. RC Post, “The Social Foundations of Defamation Law: Reputation and the Constitution” (1986) 74 California Law Review 691 at 697-8.

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Erving Goffman, Post posits that defamation law contains an implicit theory of the relationship between the private and public aspects of an individual’s personality.64 He suggests that identity is continuously constituted through social interactions. These social interactions are regulated by rules of civility, being rules of deference and demeanour, whereby an individual’s dignity is respected and affirmed.65 Defamation occurs when there is a breach of the rules of civility, when an individual’s dignity is not respected and affirmed. The purpose then of defamation law is to uphold those rules of civility. The rules of civility serve not only to protect an individual’s dignity, by determining whether or not that individual deserves to be a member of the community, but also serves to reinforce the society’s own contours and identity.66 The defamation trial then is a forum in which the individual can rehabilitate his or her membership of the community and the community can reinforce its rules of civility.67 The historical period with which the concept of reputation as dignity has its greatest resonance is the period from the end of the Second World War until now, with the increasing recognition of reputation as a human right.68 For Post, it is underpinned by yet another distinctive vision of society, in this case a communitarian society.69 Again, for Post, the concept of reputation as dignity explains some aspects of defamation law, such as the presumption of damage, but not others, such as the right of corporations to sue for defamation.70 For Post, no single concept of reputation adequately accounts for the present state of defamation law. Different concepts of reputation inhere in, and manifest themselves in, defamation law, often in tension.71 The absence of a unified, coherent concept of reputation reflects, in part, the heterogeneous historical origins of defamation law, never fully rationalised.72 Post explicitly acknowledged that other forms of reputation may be identified from defamation law.73 Thus, the categories of reputational interests are not closed. Post’s analysis of reputational interests has been enormously influential, generating a new line of academic inquiry.74 Further work remains to be done on the

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64 65 66 67 68 69 70 71 72 73

74

RC Post, “The Social Foundations of Defamation Law: Reputation and the Constitution” (1986) 74 California Law Review 691 at 708-10. RC Post, “The Social Foundations of Defamation Law: Reputation and the Constitution” (1986) 74 California Law Review 691 at 709-10. RC Post, “The Social Foundations of Defamation Law: Reputation and the Constitution” (1986) 74 California Law Review 691 at 711. RC Post, “The Social Foundations of Defamation Law: Reputation and the Constitution” (1986) 74 California Law Review 691 at 712. As to reputation as a human right, see [2.70]. RC Post, “The Social Foundations of Defamation Law: Reputation and the Constitution” (1986) 74 California Law Review 691 at 716. RC Post, “The Social Foundations of Defamation Law: Reputation and the Constitution” (1986) 74 California Law Review 691 at 717. RC Post, “The Social Foundations of Defamation Law: Reputation and the Constitution” (1986) 74 California Law Review 691 at 720-1. As to the historical origins of defamation law, see Ch 3. RC Post, “The Social Foundations of Defamation Law: Reputation and the Constitution” (1986) 74 California Law Review 691 at 720. For an example of another type of reputation identified in the academic literature, namely reputation as celebrity – a media construct, rather than a social or an economic construct, see D Rolph, Reputation, Celebrity and Defamation Law (Ashgate, Aldershot, 2008) Ch 8. See, eg, D Rolph, “Dirty Pictures: Reputation, Defamation and Nudity” (2006) 10 Law Text Culture 101; L McNamara, Reputation and Defamation (Oxford University Press, Oxford, 2007); D Rolph, Reputation, Celebrity and Defamation Law (Ashgate, Aldershot, 2008);

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[2.70]

Reputation as a human right

concept of reputation. In order to assess whether defamation law effectively protects reputation, it is necessary to understand what reputation is, rather than assuming what it is.

Reputation as a human right [2.70] The extensive protection that the common law has provided to reputation for centuries demonstrates that the right to reputation is a well-established and highly valued common law right. More recently, reputation has been recognised as a human right, part of the innate dignity of the individual. Major international human rights instruments recognise reputation as a human right. Under Art 17 of the International Covenant on Civil and Political Rights (ICCPR):75 1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. 2. Everyone has the right to the protection of the law against such attacks.

In near identical terms, Art 12 of the Universal Declaration of Human Rights (UDHR)76 provides that:

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[n]o one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interferences or attacks.

As the preambles to the ICCPR and the UDHR make clear, the human rights protected therein are premised upon the innate dignity of each and every human being. All persons are equally entitled to enjoy and exercise those rights. What is interesting to note about both the ICCPR and the UDHR is that reputation is allied to the right to privacy. This reflects a different way of conceptualising the personality interests of reputation and privacy from the common law. For a long time, the common law has protected reputation directly and highly, but it has not provided direct, comprehensive protection of privacy. These human rights instruments treat reputation and privacy more holistically than the common law has done. Human rights jurisprudence is transforming the common law and its long-standing relationship between reputation and privacy, at least in the United Kingdom. The European Convention on Human Rights (ECHR)77 refers explicitly to the protection of reputation as a legitimate constraint on freedom of expression.78 It also protects an individual’s right to a private life.79 Unlike the ICCPR and the UDHR, the ECHR does not specifically identify the right to

75 76 77 78 79

KA Craik, Reputation: A Networked Interpretation (Oxford University Press, New York, 2008); DS Ardia, “Reputation in a Networked World: Revisiting the Social Foundations of Defamation Law” (2010) 45 Harvard Civil Rights-Civil Liberties Law Review 261; R Tarantino, “Chasing Reputations: The Argument for Differential Treatment of “Public Figures” in Canadian Defamation Law” (2010) 48 Osgoode Hall Law Journal 595; LA Heymann, “The Law of Reputation and the Interests of the Audience” (2011) 52 Boston College Law Review 1341. UN General Assembly, International Covenant on Civil and Political Rights (16 December 1966). UN General Assembly, Universal Declaration of Human Rights (10 December 1948). Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos 11 and 14 (4 November 1950). Article 10(2). ECHR, Art 8.

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reputation as an aspect of the right to a private life. However, the European Court of Human Rights has begun to recognise that the right to reputation is a part of the broader right to a private life.80 This is because the right to a private life protects personal identity and psychological integrity, which are of direct relevance to reputation.81 The European Court of Human Rights has interpreted the right to a private life to include a social dimension.82 Its jurisprudence on this issue indicates that its view on the relationship between reputation and privacy is complex and evolving. It is clear, though, that, in many instances, the right to reputation will be treated as part of the right to a private life. It has already begun to have an impact on the development of United Kingdom law. In Re Guardian News and Media,83 the United Kingdom Supreme Court accepted that reputation was an aspect of the right to a private life under Art 8 of the ECHR. The implications of this recognition for United Kingdom defamation law are likely to be profound, even revolutionary. Treating reputation as an incidental part of a larger right to a private life inverts the relationship between reputation and privacy which the common law had developed and maintained over centuries. At a national level, in those countries with a constitutional or statutory protection of rights, the right to reputation is not specifically protected as a human right. The United States Constitution famously protects freedom of speech under its First Amendment, but does not protect reputation directly. Nevertheless, the United States Supreme Court has recognised the importance of an individual’s right to reputation. In Rosenblatt v Baer,84 Stewart J stated that the right to reputation was based on “the essential dignity and worth of every human being – a concept at the root of any decent system of ordered liberty”.85 Similarly, the Canadian Charter of Rights and Freedoms86 does not explicitly protect the right to reputation. Yet the Supreme Court of Canada has endorsed the view that the right to reputation is important as part of the innate dignity of the individual87 and that defamation law assists in fostering the self-worth and self-image of the individual.88 Because the individual citizen is fundamentally important to representative democracy and their active participation in public life is premised on a good reputation, defamation law serves a vital function in a representative democracy, in Cory J’s view, by allowing citizens to protect their reputations.89 A similar position was reached by Elias J in relation to New Zealand law. The right to reputation is not 80

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See, eg, Radio France v France (2005) 40 EHRR 29 at 729; Chauvy v France (2005) 41 EHRR 29 at 630; Cumpana v Romania (2005) 41 EHRR 41 at 220; White v Sweden (2007) 48 EHRR 175; Pfeifer v Austria (2009) 48 EHRR 8 at 182-3; Axel Springer AG v Germany (2012) 55 EHRR 6 at 206. However, see also Karako v Hungary (2011) 52 EHRR 36 at 1045-6. Pfeifer v Austria (2009) 48 EHRR 8 at 183; Axel Springer AG v Germany (2012) 55 EHRR 6 at 206. Niemetz v Germany (1992) 16 EHRR 97 at 111-2; Von Hannover v Germany (2005) 40 EHRR 1 at 27; Uner v Netherlands (2007) 45 EHRR 14 at 436; Pfeifer v Austria (2009) 48 EHRR 8 at 182. [2010] 2 AC 697; [2010] UKSC 1 at 717-8 (AC) per Lord Rodger of Earlsferry JSC. 383 US 75; 86 S Ct 669 (1966). 383 US 75; 86 S Ct 669 (1966) at 92 (US). As to the subsequent endorsement of this view, see, Gertz v Robert Welch Inc 418 US 323; 94 S Ct 2997 (1974) at 341 (US). Constitution Act 1982, being Sch B to Canada Act 1982 (UK).

87 88 89

Hill v Church of Scientology of Toronto (1995) 126 DLR (4th) 129 at 160, 163 per Cory J. Hill v Church of Scientology of Toronto (1995) 126 DLR (4th) 129 at 162. Hill v Church of Scientology of Toronto (1995) 126 DLR (4th) 129 at 160. As to the

81 82

83 84 85

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[2.80]

The value of reputation

expressly protected under the New Zealand Bill of Rights Act 1990 (NZ) but, in Lange v Atkinson,90 Elias J stated that there was a public interest in the protection of reputation based on “[t]he protection of individual dignity”. Likewise, in Reynolds v Times Newspapers Ltd,91 Lord Nicholls of Birkenhead opined that “reputation is an integral and important part of the dignity of the individual” and that legal protection of reputation served not only the individual’s interest but also the public good. Even in the absence of express constitutional or statutory protection, many national legal systems have been willing to recognise the right to reputation as a fundamental human right. It is well known that Australia does not have constitutional or statutory protection of human rights in the way that most other Western legal systems do. For the purposes of treating reputation as a human right, the absence of such protection under Australian law may not be significant, given the substantial value attached to reputation by the common law. There are statutory protections of human rights in two Australian jurisdictions, Victoria and the Australian Capital Territory. In these jurisdictions, every individual has a human right not to have his or her reputation attacked unlawfully.92 Significantly, in both jurisdictions, the section conferring a human right to reputation at the same time confers a human right to privacy.93 Allying the human rights of privacy and reputation is consistent with the approach adopted in international and supra-national human rights instruments and different from the common law’s treatment of such rights. Thus far, it has not had a discernible impact on the development of defamation law in these jurisdictions.94

The value of reputation

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[2.80] The importance attached to reputation is common across cultures and throughout history. All major civilisations and their legal systems have provided protection for reputation. The Biblical tradition emphasised the importance of reputation, particularly in the wisdom literature of the Old Testament. According to Proverbs 22:1, “[a] good name is to be chosen rather than great riches”, whilst Ecclesiastes 7:1 suggests that “[a] good name is better than precious ointment”. The importance of reputation is often reinforced by the deployment of a Shakespearean quote. The most popular one is probably the following quotation from Act III, sc iii of Othello: Good name in man and woman, my dear lord, Is the immediate jewel of their souls. Who steals my purse steals trash; ’tis something, nothing;

90 91 92 93 94

subsequent endorsement of this view, see, eg, R v Lucas (1998) 157 DLR (4th) 423 at 444 per Cory J; Prud’homme v Prud’homme (2002) 221 DLR (4th) 115 at 137 per L’Heureux-Dube and LeBel JJ; Neron v Chambredes notaires de Quebec (2004) 241 DLR (4th) 577 at 603-4 per LeBel J. [1997] 2 NZLR 22 at 30. [2001] 2 AC 127 at 201. Human Rights Act 2004 (ACT) s 12(b); Charter of Human Rights and Responsibilities Act 2006 (Vic) s 13(b). Human Rights Act 2004 (ACT) s 12(a); Charter of Human Rights and Responsibilities Act 2006 (Vic) s 13(a). It has also not proven to be a stimulus for the development of some form of direct privacy protection in the Australian Capital Territory and Victoria. As to the relationship between defamation and privacy, see [18.200]-[18.230].

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’Twas mine, ’tis his, and has been slave to thousands. But he that filches from me my good name Robs me of that which not enriches him And makes me poor indeed.95

The other passage from Shakespeare, which may be deployed to give rhetorical heft to the importance of reputation, comes from Act I, sc i of Richard II, wherein Thomas Mowbray, the Duke of Norfolk, states in the opening scene: The purest treasure mortal times afford Is spotless reputation; that way, Men are but gilded loam, or painted clay … Mine honour is my life. Both grow in one.

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Take honour from me, and my life is done.96

Some care needs to be taken in citing Shakespeare in support of the importance of a good reputation. There are equally passages in Shakespeare’s plays which are sceptical or cynical about the need for a good reputation. There is no better illustration of this point than Othello. The quote taken from Othello is spoken by Iago in the Act III. As Donovan AJ noted in Howlett v Saggers,97 Shakespeare “puts these lines into the mouth of the most mendacious man in the panoply of people in his plays”. Yet, in the previous Act, responding to Cassio’s exclamation, “Reputation, reputation, reputation – O, I ha’ lost my reputation, I ha’ lost the immortal part of myself, and what remains is bestial!”,98 Iago states, “As I am an honest man, I thought you had received some bodily wound. There is more sense in that than in reputation.”99 Iago goes on to say that “[r]eputation is an idle and most false imposition, oft got without merit and lost without deserving”.100 Relying upon Iago, then, to demonstrate incontrovertibly the importance of good reputation, seems misguided. Historically, the common law has valued reputation highly. There have been many emphatic statements by jurists over the centuries as to the importance of a good reputation and the need for defamation law to provide a high level of protection of it. In De Libellis Famosis,101 Sir Edward Coke stated that a man’s “good name … ought to be more precious to him than his life”. In De Crespigny v Wellesley,102 Best CJ suggested that “if we reflect on the degree of suffering occasioned by loss of character, and compare it with that occasioned by loss of property, the amount of the former injury far exceeds that of the latter”. On a number of occasions, Cory J of the Supreme Court of Canada has emphasised the importance of reputation. In Hill v Church of Scientology of 95

96

97 98 99 100 101 102

For judicial citation of this quote, see, eg, Thomas v Canadian Broadcasting Corporation [1981] 4 WWR 289 at 339 per Disbery J; Milkovich v Lorain Journal Co 497 US 1; 110 SC 2695 at 2702 (1990) per Rehnquist CJ; Pressler v Lethbridge (1997) 153 DLR (4th) 537 at 554 per Owen-Flood J; R v Lucas (1998) 157 DLR (4th) 423 at 456-7 per Cory J. For judicial citation of this quote, see, eg, Australian Consolidated Press Ltd v Ettingshausen (unreported, NSW CA, Gleeson CJ, Kirby P and Clarke JA, 13 October 1993) at p 41 per Kirby P. (Unreported, NSW SC, Donovan AJ, 24 April 1998) at p 60. W Shakespeare, Othello, Act II, sc iii. W Shakespeare, Othello, Act II, sc iii. W Shakespeare, Othello, Act II, sc iii. See also Falstaff’s “catechism” on honour in Henry IV, Part I, Act V, sc i. (1605) 5 Co Rep 125a; 77 ER 250 at 251 (ER). (1829) 5 Bing 392; 130 ER 1112 at 1118 (ER).

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[2.80]

The value of reputation

Toronto,103 his Honour stated that, “to most people, their good reputation is to be cherished above all”. Returning to the issue in R v Lucas,104 he asserted that a good reputation “is the attribute which is most highly sought after, prized and cherished by most individuals. The enjoyment of a good reputation in the community is to be valued beyond riches”. These are not isolated comments. The common law tradition has consistently reinforced, over many centuries, the importance of a good reputation. Many tort scholars have also endorsed the notion that a good reputation is important and deserving of a high level of legal protection. Sir Frederick Pollock stated that “[r]eputation and honour are no less precious to good men than bodily safety and freedom. In some cases they may be dearer than life itself.”105 John Fleming suggested that reputation was “perhaps the most dearly prized attribute of civilized man”.106 There have been, however, more critical voices expressing scepticism as to the consistently high value defamation law has placed on reputation. Early in the 20th century, James C Courtney, in an article called “Absurdities in the Law of Slander and Libel”, expressed the view that: Those who resort to such suits nowadays are not persons of distinction or high standing, but are generally adventurers, having more cupidity than good character, and who, vulgarly speaking, are down in the heel and wish to make a raise without labor. The ancient presumption that every plaintiff bringing suit for slander or libel has a good character is far from the truth under present conditions. Nowadays seldom do persons of high standing resort to these actions to vindicate a good name.107

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More recently, David A Anderson has written: Many of our ideas about reputation are products of a simpler era. When most people spent their entire lives in one community, and the community value system was narrowly drawn and widely shared, good reputation was painstakingly earned, easily lost, and not readily rebuilt. Today most of us move from one community to another, not only geographically, but also socially and professionally. Whatever reputation we have in each of those communities may be recently acquired and shallowly based. In today’s pluralistic society, much is tolerated and little is universally condemned. A congressman can be the subject of a sex scandal one year and win an election the next. An entertainer can pursue drug abuse to the brink of death and return more popular than ever. Behavior that outrages adults can make a musician the idol of millions of teenagers. Even if one’s reputation is harmed, the victim is not condemned automatically to live out his life in disgrace. The mobility and anonymity of modern society make rehabilitation much easier.108

This critical perspective on the value of a good reputation is not only expressed in the United States, with its firm commitment to the broad protection of 103 104 105 106 107 108

(1995) 126 DLR (4th) 129 at 160. (1998) 157 DLR (4th) 423 at 456. F Pollock, The Law of Torts (13th ed, Stevens and Sons, London, 1929) p 242. J Fleming, The Law of Torts (9th ed, LBC Information Services, North Ryde, 1998) p 580. (1902) 36 American Law Review 552 at 554. DA Anderson, “Reputation, Compensation and Proof” (1984) 25 William and Mary Law Review 747 at 777-8.

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freedom of speech under the First Amendment.109 The Canadian defamation scholar, Raymond E Brown, has also been critical of the value ascribed to reputation, suggesting that: Reputation is a flawed value. It is only a snapshot of the plaintiff’s character, quite often doctored to portray something that has little or no basis in reality. A person may have a right to project an image of himself that does not exist; he does not have a right to prevent others from exposing what is merely an illusion.110

Finally, it should be observed that the New South Wales Court of Appeal has held that it was not unreasonable for a jury to find that it was not defamatory to say of a plaintiff that he had an unsavoury reputation.111 Perhaps, then, in some circumstances, the ordinary, reasonable reader will not tend to think less of a plaintiff for having a bad or at least a compromised reputation. In many cases, a good reputation will be important and the damage done to it will warrant the intervention of the law. However, reputations vary widely, as do the ways in which they may be harmed. It cannot hurt to test some of the more rhetorically appealing, universalising claims made for the necessity of a good reputation and the high level of protection thrown around that reputation by defamation law.

The common law’s approach to freedom of speech [2.90] In contrast to reputation, freedom of speech has been subject to

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considerable judicial and academic scrutiny.112 Freedom of speech is undoubtedly an important feature of Australian society113 and an important value underpinning Australian law. The common law has always attached great value to freedom of speech,114 at least at the level of principle.115 At common law, freedom of speech is recognised as a fundamental freedom.116 It is sometimes described as a common law right or as a human right.117 It is preferable, however, to view freedom of speech as a freedom rather than as a right. As Lord Goff of Chieveley described it, the common law “proceed[s] rather upon an assumption of free speech”. By contrast, legal systems which 109 110 111 112

113 114 115

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117

Constitution of the United States, Amendment 1. As to the First Amendment’s protection of freedom of speech in the United States, see [2.140]. RE Brown, The Law of Defamation in Canada (2nd ed, Carswell, Scarborough (Ont), 1984) p 8. Saffron v John Fairfax Publications Pty Ltd [2004] NSWCA 254 at [17]. The academic literature on freedom of speech is vast and long-standing. As a selection of relevant, contemporary scholarship, see, eg, E Barendt, Freedom of Speech (2nd ed, Oxford University Press, Oxford, 2005); M Chesterman, Freedom of Speech in Australia: A Delicate Plant (Ashgate, Aldershot, 2000); W Sadurski, Freedom of Speech and Its Limits (Kluwer Academic Publishers, Dordrecht, 1999); FF Schauer, Freedom of Speech: A Philosophical Inquiry (Cambridge University Press, New York, 1982). Ballina Shire Council v Ringland (1994) 33 NSWLR 680 at 698 per Kirby P. R v Monis (2013) 249 CLR 92; [2013] HCA 4 at 128 (CLR) per French CJ. Ballina Shire Council v Ringland (1994) 33 NSWLR 680 at 719-20 per Mahoney JA. For a critical approach to the value ascribed to freedom of speech, particularly whether changes in historical circumstances have altered the value of freedom of speech, see, eg, Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63 at 306 (CLR) per Callinan J. Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 34 per Mason CJ. See also Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82 at 86 per curiam; Monis v The Queen (2013) 249 CLR 92; [2013] HCA 4 at 128 (CLR) per French CJ. Cunliffe v Commonwealth (1994) 182 CLR 272 at 363 per Dawson J; Ballina Shire Council v Ringland (1994) 33 NSWLR 680 at 698 per Kirby P.

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[2.90]

The common law’s approach to freedom of speech

recognise freedom of speech as a constitutional, statutory or human right state the right positively, then establish exceptions to it.118 Even though it is a fundamental freedom, freedom of speech is nevertheless susceptible to legislative encroachment or abrogation.119 A court will only permit the encroachment upon, or abrogation of, freedom of speech where the legislature authorises this clearly and unambiguously, by express words or by necessary implication.120 A court will closely scrutinise the exercise of legislative power purporting to limit or abolish freedom of speech.121 It will construe such legislation starting from the presumption that the legislature cannot be taken to have intended to encroach upon or abrogate a fundamental freedom.122 However, it cannot find the exercise of legislative power merely because such exercise encroaches upon or abrogates a fundamental freedom like freedom of speech.123 This approach to statutory interpretation then affords some measure of protection to freedom of speech from indirect or unintentional legislative curtailment, but can afford no protection in the face of clear and unambiguous legislative intent. Freedom of speech under Australian law, then, is, as Chesterman characterised it, “a delicate plant”.124 It is liable to be trodden upon and requires tending. Freedom of speech is not, and has never been, absolute.125 It is not just the legislature that can encroach upon freedom of speech. Well-established causes of action at general law also limit freedom of speech. An important consequence of the common law’s freedom-based approach is that, in principle, an individual is free to say what he or she likes, so long as it does not infringe one of the many, well-recognised limitations on freedom of speech.126 Whilst freedom of speech is a fundamental freedom, it is “freedom under the law”.127 There are many ways in which the common law impinges upon freedom of speech, such as contempt of court, breach of confidence and 118

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119 120

121 122

123 124 125

126 127

Attorney-General v Guardian Newspapers (No 2) [1990] 1 AC 109 at 283 per Lord Goff of Chieveley. See also Douglas v Hello! Ltd [2001] QB 968 at 985 per Brooke LJ: “English law, as is well known, has been historically based on freedoms, not rights.” Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82 at 87 per curiam; Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 48 per Brennan J. Coco v The Queen (1994) 179 CLR 427 at 437-8 (CLR) per Mason CJ, Brennan, Gaudron and McHugh JJ, at 446 per Deane and Dawson JJ; Cunliffe v Commonwealth (1994) 182 CLR 272 at 363 (CLR) per Dawson J; Coleman v Power (2004) 220 CLR 1; [2004] HCA 39 at 75 per Gummow and Hayne JJ. Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 34 per Mason CJ. Potter v Minahan (1908) 7 CLR 277 at 304 per O’Connor J; Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 523 per Brennan J; Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 43 per Brennan J; Coco v The Queen (1994) 179 CLR 427 at 437 per Mason CJ, Brennan, Gaudron and McHugh JJ, at 446 per Deane and Dawson JJ. Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 43 per Brennan J. M Chesterman, Freedom of Speech: A Delicate Plant (Ashgate, Aldershot, 2000). Chaplinsky v New Hampshire 315 US 568; 62 S Ct 766 (1942) at 572 (US) per Murphy J; Cunliffe v Commonwealth (1994) 182 CLR 272 at 363 per Dawson J; Ballina Shire Council v Ringland (1994) 33 NSWLR 680 at 698 per Kirby P; R v Secretary of State for the Home Department; Ex parte Simms [2000] 2 AC 115 at 125 per Steyn LJ; R v Shayler [2003] 1 AC 247; [2002] UKHL 11 at 268 (AC) per Lord Bingham of Cornhill; Coleman v Power (2004) 220 CLR 1; [2004] HCA 39 at 75 (CLR) per Gummow and Hayne JJ. Attorney-General v Guardian Newspapers (No 2) [1990] 1 AC 109 at 256 per Lord Keith of Kinkel. Silkin v Beaverbrook Newspapers Ltd [1958] 2 All ER 516; 1 WLR 743 at 745 per Diplock LJ; Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82 at 86 per curiam.

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copyright.128 Properly understood, however, these limitations are significant encroachments on freedom of speech. Thus, the common law concept of freedom of speech is not as free as it might initially sound. Because it applies to all forms of communication, defamation is the principal cause of action impinging upon freedom of speech. As Edgerton J observed in Sweeney v Patterson,129 “[w]hatever is added to the field of libel is taken from the field of free debate”. Importantly, freedom of speech does not manifest itself in defamation law as a freestanding interest. Rather, the way in which the common law’s concern for freedom of speech has manifested itself is through the principles of defamation law, balancing, as they do, the protection of reputation and freedom of speech.130 Defamation defences are particularly significant because they are the principal way in which defamation law embodies protections for freedom of speech.131

The rationales for protecting free speech [2.100] Freedom of speech is clearly an important value and interest at

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common law. It is useful to examine the rationales most frequently advanced to support the importance of freedom of speech. In the context of defamation law, an understanding of these justifications for freedom of speech will assist in an assessment of the adequacy and efficacy of Australian defamation law in protecting and promoting freedom of speech. The justification for freedom of speech which has the greatest resonance in the Australian context is the necessity of free speech for the effective working of representative democracy. This is because there is an implied freedom of political communication arising from the text and structure of the Commonwealth Constitution. Discussion of government and political matters may be constitutionally protected in Australia. However, it is not only Australian constitutional law which attaches particular significance to political speech. There have been repeated statements by judges in many countries as to the importance of freedom of speech to representative democracy.132 Some of these statements have been quite emphatic about its importance to democratic government. For instance, in R v Secretary of State for the Home Department; Ex parte Simms,133 Lord Steyn stated that “[i]n a democracy, it is the primary right”. His Lordship went on to say that: freedom of speech is the lifeblood of democracy. The free flow of information and ideas informs political debate. It is a safety valve: people are more ready to accept decisions that go against them if they can in principle seek to influence them. It

128

129 130 131 132

133

Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82 at 86-7 per curiam; Mulholland v Australian Electoral Commission (2004) 220 CLR 181; [2004] HCA 41 at 200 (CLR) per Gleeson CJ. 128 F 2d 457 at 458 (1942). Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 131 per Mason CJ, Toohey and Gaudron JJ. Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46 at 154-5(CLR) per Heydon J. See, eg, Reynolds v Times Newspapers Ltd [2001] 2 AC 127 at 200 per Lord Nicholls of Birkenhead; R v Shayler [2003] 1 AC 247; [2002] UKHL 11 at 267 (AC) per Lord Bingham of Cornhill. [2000] 2 AC 115 at 125.

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-20 04:19:04.

[2.100]

The rationales for protecting free speech

acts as a brake on the abuse of power by public officials. It facilitates the exposure of errors in the government and administration of justice of the country.134

United States constitutional jurisprudence has emphasised the importance of freedom of speech to representative government,135 although, significantly, it has not rested its justification of freedom of speech solely on that ground.136 The European Court of Human Rights, in its jurisprudence on Art 10 of the ECHR, has consistently emphasised the importance of freedom of speech as an essential foundation of a democratic society. It has identified “pluralism, tolerance and broadmindedness” as conditions for a democratic society, with the consequence that freedom of speech should not only extend to information or ideas which “are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb”.137 The latitude extends not only to the substance of the information or ideas, but also to the form in which it is expressed.138 There are limitations on freedom of speech but they should be narrowly construed and their necessity needs to be established compellingly.139 Another justification for freedom of speech is its importance for the ascertainment of truth. This rationale is particularly associated with the work of English philosopher, John Stuart Mill, notably his second chapter of On Liberty, “Of the liberty of thought and discussion”.140 Mill places this reason at the forefront of his argument, claiming that: the peculiar evil of silencing the expression of an opinion is that it is robbing the human race, posterity as well as the existing generation – those who dissent from the opinion still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth; if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth produced by its collision with error.141

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Mill then observed that it is not possible to be certain that an opinion is a false one.142 To refuse an opinion a hearing assumes that the person silencing that opinion is infallible.143 He places great weight on the role of discussion in seeking the truth and argues that few facts are self-explanatory. 134 135 136

137

138 139

140 141 142 143

R v Secretary of State for the Home Department; Ex parte Simms [2000] 2 AC 115 at 126. See, eg, Branzburg v Hayes 408 US 665; 92 S Ct 2646 (1972) at 2656 per White J. See, eg, Time Inc v Hill 385 US 374; 87 S Ct 534 (1967) at 542 per Brennan J; Curtis Publishing Co v Butts 388 US 148; 87 S Ct 1975 (1967) at 1987 per Harlan J (speech in public interest, not limited to government or political interest, should be protected). See, eg, Lingens v Austria (1986) 8 EHRR 407 at 418; Oberschlick v Austria (1991) 19 EHRR 389 at 421; The Observer and The Guardian v United Kingdom (1991) 14 EHRR 153 at 191; Von Hannover v Germany (2005) 40 EHRR 1 at 25; Radio France v France (2005) 40 EHRR 29 at 729; Chauvy v France (2005) 41 EHRR 29 at 628; Pedersen v Denmark (2006) 42 EHRR 24 at 510; Lindon v France (2008) 46 EHRR 35 at 785; Axel Springer AG v Germany (2012) 55 EHRR 6 at 205; Von Hannover v Germany (No 2) (2012) 55 EHRR 15 at 417. See, eg, Oberschlick v Austria (1991) 19 EHRR 389 at 422; Jersild v Denmark (1994) 19 EHRR 1 at 26. See, eg, The Observer and The Guardian v United Kingdom (1992) 14 EHRR 153 at 191; Radio France v France (2005) 40 EHRR 29 at 730; Lindon v France (2008) 46 EHRR 35 at 785; Axel Springer AG v Germany (2012) 55 EHRR 6 at 205; Von Hannover v Germany (No 2) (2012) 55 EHRR 15 at 417. John Stuart Mill, On Liberty (Penguin Books, London, 1974) Ch 2. See also John Stuart Mill, “The Law of Libel and Liberty of the Press”, Westminster Review (1825). John Stuart Mill, On Liberty (Penguin Books, London, 1974) Ch 2, p 76. John Stuart Mill, On Liberty (Penguin Books, London, 1974) Ch 2, pp 76-7. John Stuart Mill, On Liberty (Penguin Books, London, 1974) Ch 2, p 77.

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As Barendt notes, a significant difficulty with Mill’s argument is “its implicit assumption that freedom of discussion necessarily leads to the discovery of the truth”.144 Allied to the importance of freedom of speech in the search for truth is the concept of the “marketplace of ideas”. This rationale is particularly associated with Holmes J’s dissenting judgment in Abrams v United States,145 wherein he stated that:

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when men have realized that time upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas – that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.146

This view has been particularly influential in the United States.147 A significant limitation on the “marketplace of ideas” theory is that it does not account for the fact that there are barriers to entry into the market for many people who may wish to convey their ideas or express their views. Many individuals struggle to compete in the “marketplace of ideas” because they cannot gain access to media outlets, which has historically been integral to such a market.148 The advent of internet technologies and social media platforms has made it easier than in the past for private individuals to disseminate their ideas and opinions to the world at large. Another justification for freedom of speech is that it facilitates the selfdevelopment and self-fulfilment of the individual. Although there has been some support for this view at common law,149 it is a view that has received greatest endorsement from rights-based jurisprudence. United States constitutional jurisprudence has emphasised the importance of individual development as another important rationale for free speech.150 Given that human rights instruments, which protect freedom of speech as a human right, are predicated on the innate dignity of the individual, the most developed exposition of this justification for freedom of speech occurs in human rights jurisprudence.151 The European Court of Human Rights, in its jurisprudence on Art 10 of the ECHR, has repeatedly emphasised the importance of freedom of expression to the self-fulfilment of the individual.152 Recently, in R (on the application of Miranda) v Secretary of State for the Home 144 145 146 147

148 149

150 151 152

E Barendt, Freedom of Speech (2nd ed, Oxford University Press, Oxford, 2005) p 9. 250 US 616; 40 S Ct 17 (1919). Abrams v United States 250 US 616; 40 S Ct 17 (1919) at 631 (US). See, eg, Gertz v Robert Welch Inc 418 US 341; 94 S Ct 2997 (1974) at 3007 per Powell J. See also R v Secretary of State for the Home Department; Ex parte Simms [2000] 2 AC 115 at 126 per Steyn LJ. See, eg, Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63 at 302 (CLR) per Callinan J. See, eg, R v Secretary of State for the Home Department; Ex parte Simms [2000] 2 AC 115 at 126 per Steyn LJ; Jennings v Buchanan [2005] 1 AC 155; [2004] UKPC 36 at 122 (AC): “a very high value is attached to freedom of speech as the necessary condition of good government, intellectual progress and personal fulfilment”. See, eg, Branzburg v Hayes 408 US 665; 92 S Ct 2646 (1972) at 2656 per White J. As to freedom of speech as a human right, see [2.130]. See, eg, Lingens v Austria (1986) 8 EHRR 407 at 418; Oberschlick v Austria (1991) 19 EHRR 389 at 421; Radio France v France (2005) 40 EHRR 29 at 729-30; Chauvy v France (2005) 41 EHRR 29 at 628; Lindon v France (2008) 46 EHRR 35 at 785; Axel Springer AG v Germany (2012) 55 EHRR 6 at 205; Von Hannover v Germany (No 2) (2012) 55 EHRR 15 at 417.

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[2.110]

The “chilling effect” of defamation law

Department,153 Laws LJ strongly supported the self-development and selffulfilment of the individual as the primary justification for freedom of speech. In doing so, his Lordship criticised the idea that the essential justification of freedom of speech was the promotion and improvement of democratic government. He noted that this view has “quite a pedigree in the literature”. Nevertheless, Laws LJ was critical of placing an undue emphasis on the political importance of free speech because it tended to devalue non-political speech, which could be equally important. His Lordship suggested that the principal rationale for freedom of speech is to facilitate the development of the individual. Laws LJ stated: Everyone, even democracy’s enemy, must surely be allowed his say provided he advocates no crime nor violates the rights of others. The reason is that free thought, which is a condition of every man’s flourishing, needs free expression; and this is every person’s birthright, in whatever polity he has to live. But free speech is not a creature of democracy; if anything, the converse. The critics of democracy may keep democracy on its toes.154

According to Laws LJ, the democratic justification for freedom of speech reduces the scope of the ideal of freedom of speech, whereas the justification that freedom of speech facilitates individual development enlarges it.155

The “chilling effect” of defamation law [2.110] The impact of defamation law on freedom of speech occurs not only

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from the direct imposition of liability. Because the principles of defamation law are well-established, they can have a powerful effect by causing potential publishers to self-censor. The desire to avoid defamation litigation can inhibit potential publishers from publishing what they otherwise would. This voluntary curtailment of freedom of speech in the face of potential liability for defamation is known as the “chilling effect”. The “chilling effect” of defamation law on freedom of speech has been noted by judges in many common law countries.156 In Derbyshire County Council v Times Newspapers Ltd,157 Lord Keith of Kinkel stated: What has been described as “the chilling effect” induced by the threat of civil actions for libel is very important. Quite often the facts which would justify a defamatory publication are known to be true, but admissible evidence capable of proving those facts is not available. 153 154 155 156

157

[2014] 3 All ER 447; [2014] EWHC 255 (Admin). R (on the application of Miranda) v Secretary of State for the Home Department [2014] 3 All ER 447; [2014] EWHC 255 (Admin) at 465 (All ER). R (on the application of Miranda) v Secretary of State for the Home Department [2014] 3 All ER 447; [2014] EWHC 255 (Admin) at 465 (All ER). City of Chicago v Tribune Co 139 NE 86 (1923) at 90 per Thompson CJ; Gertz v Robert Welch Inc 418 US 341; 94 S Ct 2997 (1974) at 3007 per Powell J; Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 131 per Mason CJ, Toohey and Gaudron JJ; Branson v Bower [2002] QB 737 at 746 per Eady J; Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 at [45] per Fraser JA. See also E Barendt, L Lustgarten, K Norrie and H Stephenson, Libel and the Media: The Chilling Effect (Clarendon Press, Oxford, 1997) pp 182-94; C Dent and AT Kenyon, “Defamation Law’s Chilling Effect: A Comparative Content Analysis of Australian and US Newspapers” (2004) 9 Media and Arts Law Review 89 at 111. [1993] AC 534 at 547-8.

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His Lordship also noted that “[t]he threat of a civil action for defamation must inevitably have an inhibiting effect on freedom of speech.”158 The “chilling effect” of defamation law has also been recognised by the European Court of Human Rights, which has reasoned that it is detrimental to society as a whole, inhibiting, as it does, freedom of speech and freedom of the press.159 The inhibiting effect of defamation law on the exercise of freedom of speech was a factor in the United States Supreme Court’s landmark decision in New York Times v Sullivan.160 As Brennan J evocatively expressed it: Whether or not a newspaper can survive a succession of such judgments, the pall of fear and timidity imposed upon those who would give voice to public criticism is an atmosphere in which the First Amendment freedoms cannot survive.

In Bennette v Cohen,161 Ipp JA observed that: [i]t is undoubtedly so that having a potential liability to pay damages for defamation inhibits freedom of speech. But our society has long recognised and valued the protection that the law of defamation provides to reputation. Defamation litigation is a fact of Australian life.

When considering the impact of defamation law on freedom of speech, it is not sufficient only to consider decided cases. The sheer volume of material published means that only a tiny fraction of defamatory matter is ever litigated. The impact of the “chilling effect” of defamation law on freedom of speech is real.162 Those concerned about promoting freedom of speech might consider how defamation law could be reformed to minimise its “chilling effect” and to enhance the area for the effective, less inhibited exercise of freedom of speech.

The implied freedom of political communication [2.120] A unique feature of Australian law in relation to the legal treatment of

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freedom of speech is the implied freedom of political communication, which has been derived from the text and structure of the Commonwealth Constitution.163 In a series of landmark cases in the early 1990s, the High

158 159 160 161 162

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Derbyshire County Council v Times Newspapers Ltd [1993] AC 534 at 547 per Lord Keith of Kinkel. See, eg, Cumpana v Romania (2005) 41 EHRR 14 at 225. 376 US 279; 84 S Ct 710 (1964) at 725. (2009) Aust Torts Reports 82-002; [2009] NSWCA 60 at 62,825 (Aust Torts Reports). Cf Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 154 per Brennan J (if speech is not “chilled” by defamation law, sanctions and remedies provided by defamation would be ineffective); Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57 at 102 (CLR) per Callinan J. See also U Cheer, “Myths and Realities about the Chilling Effect: The New Zealand Media’s Experience of Defamation Law” (2005) 13 Torts Law Journal 259 at 299-301. The academic literature on this issue is substantial. For a selection of contributions, see, eg, A Stone, “Freedom of Political Communication, the Constitution and the Common Law” (1998) 26 FL Rev 219; A Stone, “Rights, Personal Rights and Freedoms: The Nature of the Freedom of Political Communication” (2001) 25 MULR 374; D Meagher, “The Protection of Political Communication under the Australian Constitution” (2005) 28 UNSWLJ 30; A Stone, “‘Insult and Emotion, Calumny and Invective’: Twenty Years of Freedom of Political Communication” (2011) 30 UQLJ 79.

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[2.120]

The implied freedom of political communication

Court of Australia discerned this freedom. This development was not without criticism at the time164 and subsequently has not been immune from criticism.165 In Nationwide News Pty Ltd v Wills166 and Australian Capital Television Pty Ltd v Commonwealth,167 the High Court of Australia identified the implied freedom of political communication. It was well-established that it was permissible to draw implications from the text and structure of the Commonwealth Constitution.168 In these cases, the High Court of Australia identified that the Commonwealth Constitution was founded upon the doctrine of representative government.169 Representative government could only work effectively if there was freedom of public discussion about governmental or political matters.170 In Nationwide News Pty Ltd v Wills, Brennan J went further, suggesting that: it would be a parody of democracy to confer on the people a power to choose their Parliament but to deny the freedom of public discussion from which the people derive their political judgments.171

Consequently, given the constitutional entrenchment of representative government in the Commonwealth Constitution and that freedom of speech was essential to representative government, the Constitution, by implication, protected freedom of speech in relation to government or political matters.172 The implied freedom of political communication is not limited to discussion of government or political matters only at election time.173 It extends to all discussion of government or political matters generally, whenever occurring.

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The implied freedom of political communication applies not only to communication between the elected and the electors but also to communication amongst the electors themselves.174 As the implied freedom of political communication is grounded in the concept of representative democracy, which underpins the Commonwealth Constitution, and as representative democracy only works effectively when there is a free flow of information, ideas and 164 165

166 167 168 169 170 171 172 173

174

See, eg, Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 at 183-6 per Dawson J. Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63 per Callinan J; Roberts v Bass (2002) 212 CLR 1 at 101ff per Callinan J; Monis v The Queen (2013) 249 CLR 92; [2013] HCA 4 at 181-4 (CLR) per Heydon J. In the latter case, Heydon J suggested that the implied freedom of political communication may come to be viewed as “a noble and idealistic enterprise which has failed, is failing, and will go on failing”: at 184. (1992) 177 CLR 1. (1992) 177 CLR 106. Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 44 per Brennan J. Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 46-7 per Brennan J, at 70 per Deane and Toohey JJ. Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 47 per Brennan J. (1992) 177 CLR 1 at 47. Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 48-9 per Brennan J. Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 72 per Deane and Toohey JJ; Theophanous v Herald & Weekly Times Pty Ltd (1994) 182 CLR 104 at 121 per Mason CJ, Toohey and Gaudron JJ. Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 73-4 per Deane and Toohey JJ; Unions NSW v New South Wales (2013) 204 ALR 266; 88 ALJR 227; [2013] HCA 58 at 274-5 (ALR) per French CJ, Hayne, Crennan, Kiefel and Bell JJ.

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debate, the implied freedom of political communication must then apply to all members of the Australian community.175 Although the implied freedom of political communication arises from the text and structure of the Commonwealth Constitution, it is not limited only to communications about government or political matters as they relate to the public affairs of the Commonwealth. As Australia is a federation, with Commonwealth and State powers interrelating, with the various tiers of government constantly interacting and with political parties represented at all levels of government, the High Court of Australia has held that it would be artificial to attempt to limit the implied freedom of political communication only to communications about government or political matters affecting the Commonwealth.176 The implied freedom of political communication therefore applies to communications about all levels of government. It is not possible to provide a comprehensive definition of what constitutes discussion of a government or political matter for the purposes of the implied freedom of political communication. What constitutes discussion of a government or political matter will need to be determined as the case law continues to develop. In Theophanous v Herald & Weekly Times Pty Ltd,177 Mason CJ, Toohey and Gaudron JJ suggested that:

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“political discussion” includes discussion of the conduct, policies or fitness for office of government, political parties, public bodies, public offices and those seeking public office. The concept also includes discussion of the political views and public conduct of persons who are engaged in activities that have become the subject of political debate, eg, trade union leaders, Aboriginal political leaders, political and economic commentators.

Criticism of the views, performance or capacity of a parliamentarian, or the fitness for office of a parliamentarian or an aspirant for elected office, particularly during an election campaign, is clearly discussion of a government or political matter, which would be protected by the implied freedom of political communication.178 Whether a particular communication relates to a government or political matter may involve difficult questions of fact and degree.179 The implied freedom is limited to communications about government or political matters. It does not extend to freedom of expression generally.180 In this way, Australian constitutional law, and the protection afforded by it, diverges from other common law countries, which provide a constitutional or statutory protection of freedom of speech generally. 175

176

177 178 179

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Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 at 139 per Mason CJ, at 174 per Deane and Toohey JJ, at 212 per Gaudron J; Theophanous v Herald & Weekly Times Pty Ltd (1994) 182 CLR 104 at 122 per Mason CJ, Toohey and Gaudron JJ. Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 75 per Deane and Toohey JJ; Theophanous v Herald & Weekly Times Pty Ltd (1992) 182 CLR 104 at 122 per Mason CJ, Toohey and Gaudron JJ; Unions NSW v New South Wales (2013) 204 ALR 266; 88 ALJR 227; [2013] HCA 58 at 273-4 (ALR) per French CJ, Hayne, Crennan, Kiefel and Bell JJ. (1994) 182 CLR 104 at 124. Theophanous v Herald & Weekly Times Pty Ltd (1992) 182 CLR 104 at 123 per Mason CJ, Toohey and Gaudron JJ. See, eg, the discussion of the difference between entertainment and politics in Theophanous v Herald & Weekly Times Pty Ltd (1992) 182 CLR 104 at 123-4 per Mason CJ, Toohey and Gaudron JJ. Theophanous v Herald & Weekly Times Pty Ltd (1994) 182 CLR 104 at 121 per Mason CJ, Tookey and Gaudron JJ.

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[2.120]

The implied freedom of political communication

Importantly, the implied freedom of political communication is not a personal right.181 It does not confer a freestanding entitlement to communicate on government and political matters.182 Rather, it is properly understood as a limitation on legislative and executive power.183 This contrasts with the recognition of freedom of speech as a constitutional or a human right in other legal systems.184 In such systems, freedom of speech is regarded as a personal right.185 However, merely because legislation burdens or restricts the implied freedom of political communication does not mean that the legislation is thereby invalid.186 The test for whether the implied freedom of political communication has been infringed has now been authoritatively established.187 The exercise of legislative or executive power may burden the implied freedom of political communication so long as it is reasonably appropriate and adapted, or proportionate, to serve a legitimate end in a manner compatible with the maintenance of a system of representative government.188 Like the common law’s approach to freedom of speech, the implied freedom of political communication is not absolute.189 As McHugh J observed in Coleman v Power,190 “[f]reedom of communication under the Constitution does not mean free of all restrictions. The freedom is not absolute or equivalent to licence.” Historically, the view was that the common law and the legislature could provide sufficient protection of freedom of speech.191 Defamation laws were considered not to be inconsistent with the requirements of the Commonwealth Constitution. The identification of the implied freedom of political communication challenged this. Although defamation laws existed at the time the Constitution came into existence, that did not necessarily mean that they could not be found to infringe the implied freedom of political 181

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182 183

184 185 186 187

188

189

190 191

Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 at 150 per Brennan J; Unions NSW v New South Wales (2013) 204 ALR 266; 88 ALJR 227; [2013] HCA 58 at 276 (ALR) per French CJ, Hayne, Crennan, Kiefel and Bell JJ. Levy v Victoria (1997) 189 CLR 579 at 625 per McHugh J; Coleman v Power (2004) 220 CLR 1; [2004] HCA 39 at 88 (CLR) per Kirby J. Levy v Victoria (1997) 189 CLR 579 at 622 per McHugh J; McClure v Australian Electoral Commission (1999) 163 ALR 734; 73 ALJR 1086 at 740-1 (ALR) per Hayne J; Mulholland v Australian Electoral Commission (2004) 220 CLR 181; [2004] HCA 41 at 245 (CLR); Unions NSW v New South Wales (2013) 204 ALR 266; 88 ALJR 227; [2013] HCA 58 at 277 (ALR) per French CJ, Hayne, Crennan, Kiefel and Bell JJ. As to the treatment of freedom of speech in other legal systems, see [2.140]. See, eg, Curtis Publishing Co v Butts 388 US 151; 87 S Ct 1975 (1967) per Harlan J. Unions NSW v New South Wales (2013) 204 ALR 266; 88 ALJR 227; [2013] HCA 58 at 272-3 (ALR) per French CJ, Hayne, Crennan, Kiefel and Bell JJ. Wotton v Queensland (2012) 246 CLR 1 at 15 per French CJ, Gummow, Hayne, Crennan and Bell JJ; Monis v The Queen (2013) 249 CLR 92; [2013] HCA 4 at 129 (CLR) per French CJ. Unions NSW v New South Wales (2013) 204 ALR 266; 88 ALJR 227; [2013] HCA 58 at 278 (ALR) per French CJ, Hayne, Crennan, Kiefel and Bell JJ. For criticisms of the tests of “reasonably appropriate and adapted” and proportionality, see Coleman v Power (2004) 220 CLR 1; [2004] HCA 39 at 45 (CLR) per McHugh J; Mulholland v Australian Electoral Commission (2004) 220 CLR 181; [2004] HCA 41 at 197 (CLR) per Gleeson CJ. Coleman v Power (2004) 220 CLR 1; [2004] HCA 39 at 77 (CLR) per Gummow and Hayne JJ; Mulholland v Australian Electoral Commission (2004) 220 CLR 181; [2004] HCA 41 at 200 (CLR) per Gleeson CJ. (2004) 220 CLR 1; [2004] HCA 39 at 51 (CLR). Theophanous v Herald & Weekly Times Pty Ltd (1994) 182 CLR 104 at 128 per Mason CJ, Toohey and Gaudron JJ.

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communication.192 Defamation law in Australia consists of common law and statute. Whether the national, uniform defamation laws conform to the requirements of the implied freedom of political communication will fall to be assessed by the same test for judicial review used in all other cases testing legislative conformity with the implied freedom of political communication. The common law is subject to the Constitution,193 including any implications drawn from it. This means that the common law of defamation law must conform to the requirements of the implied freedom of political communication. The landmark case in this regard was the High Court of Australia’s unanimous decision in Lange v Australian Broadcasting Corporation,194 wherein the court held that the common law defence of qualified privilege needed to be extended and adapted to accommodate the requirements of the implied freedom of political communication.195 Whether this is the only accommodation required in order to ensure that Australian defamation law conforms to the requirements of the implied freedom of political communication is an open question.

Freedom of speech as a human right [2.130] Like reputation, freedom of speech is recognised as a human right under international human rights instruments. For example, Art 19(2) of the International Covenant on Civil and Political Rights provides that:

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Everyone shall have the right to freedom of expression; this right shall include the freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, or in print, in the form of art, or through any other media of his choice.

The ICCPR recognises that freedom of expression is not absolute. Indeed, it explicitly states that the exercise of this freedom “carries with it special duties and responsibilities”. It recognises that freedom of expression can be restricted so as to protect the reputations of others.196 Article 19 of the UDHR also recognises a right to freedom of expression. Like the ICCPR, freedom of expression under the UDHR is not absolute. The UDHR also provides protection against attacks upon honour or reputation.197 Both the ICCPR and the UDHR contemplate defamation law, in some form, as a legitimate restriction on freedom of expression, at the same time as recognising this freedom. Human rights instruments applying to particular regions of the world also recognise freedom of speech as a human right. The ECHR recognises this right under Art 10(1). Like the ICCPR, the ECHR states that freedom of expression is accompanied by special duties and responsibilities. Under the ECHR, the exercise of freedom of expression is expressly subjected to legal restrictions imposed for, inter alia, the protection of reputation.198 192 193 194 195 196 197 198

Theophanous v Herald & Weekly Times Pty Ltd (1994) 182 CLR 104 at 129, 132 per Mason CJ, Toohey and Gaudron JJ. Theophanous v Herald & Weekly Times Pty Ltd (1994) 182 CLR 104 at 126 per Mason CJ, Toohey and Gaudron JJ. (1997) 189 CLR 520. As to the defence of Lange qualified privilege, see [11.110]-[11.120]. ICCPR, Art 19(3). See further, [2.70]. UDHR, Art 12. See further, [2.70]. UDHR, Art 10(2). See further, [2.70].

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[2.140]

Free speech in comparative perspective

Free speech in comparative perspective

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[2.140] The ECHR has been enacted in the United Kingdom as part of its domestic law through its enactment of the Human Rights Act 1998. United Kingdom law then diverges from Australian law by having a statutory basis for freedom of expression. In Canada, freedom of speech is a constitutional right under the Canadian Charter of Rights and Freedoms.199 In New Zealand it is given a statutory basis under the New Zealand Bill of Rights Act 1990 (NZ).200 Giving constitutional or statutory force to freedom of expression has led to a recalibration of the balance between the protection of reputation and freedom of expression in defamation law in these jurisdictions in certain small but important ways.201 The broadest protection afforded to freedom of speech is provided by the First Amendment of the United States Constitution. The First Amendment has been consistently interpreted and applied so as to provide individuals with greater legal protection of their freedom of speech than any other Western country. The impact of the First Amendment on United States defamation law has been profound. The effect of the United States Supreme Court decision in New York Times v Sullivan202 was to constitutionalise that country’s defamation. Prior to that decision, defamation law in the United States was a State responsibility and the defamation laws in most States resembled those applying in other common law countries. The introduction of the requirement that public officials prove falsity and actual malice in New York Times v Sullivan radically transformed United States defamation law, rendering it unique amongst common law countries. The rapid extension of New York Times v Sullivan to candidates for public office,203 government employees204 and public figures more generally205 reinforced the particularity of United States defamation law. The “public figure” doctrine and its broad application has transformed United States defamation law. The constitutionalisation of United States defamation law has meant that that country’s law has diverged significantly from Australian defamation law. Australian courts have regularly noted the particularity of the United States’ approach to freedom of speech and the limited utility United States defamation law provides to resolving similar issues under Australian law as a consequence.206 Yet Australia is “peculiar and now virtually unique” amongst Western countries because it does not have a constitutional or statutory protection of 199 200 201 202 203 204 205

206

Section 2(b). Section 14. See, eg, Reynolds v Times Newspapers Ltd [2001] 2 AC 127. 376 US 254; 84 S Ct 710 (1964). Monitor Patriot Co v Roy 401 US 265; 91 S Ct 621 (1971) at 625 per Stewart J. Rosenblatt v Baer 383 US 75 (1966) at 85. Curtis Publishing Co v Butts 388 US 155; 87 S Ct 1975 (1967) at 1991 per Harlan J; Gertz v Robert Welch Inc 418 US 337; 94 S Ct 2997 (1974) at 3005, 3008 per Powell J; Milkovich v Lorain Journal Co 497 US 1 (1990). Although the United States Supreme Court confidently asserted in Gertz v Robert Welch Inc 418 US 337; 94 S Ct 2997 (1974) at 3009 that “the instances of truly involuntary public figures must be exceedingly rare”, the subsequent application of the involuntary or forced public figure doctrine by lower courts in the United States has proven this statement to be wrong. See, eg, Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153 at 165 per Hunt J; Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 at 159 per Brennan J; Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 129-38 per Mason CJ, Toohey and Gaudron JJ, at 157-62 per Brennan J, at 188-92 per Dawson J.

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[2.140]

freedom of speech.207 Statutory charters of rights have been introduced in Victoria and the Australian Capital Territory. Under the legislation in both jurisdictions, freedom of expression is protected as a human right.208 Again, this right is not absolute and has to be balanced against other competing rights, including the right to reputation.209 As yet, there has been no judicial consideration of the impact of these legislative protections on substantive defamation law in either jurisdiction.

Freedom of speech and freedom of the press [2.150] The expressions, “freedom of speech” and “freedom of the press”, are

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sometimes used interchangeably. Assumptions can be made that these concepts are substantially the same, in terms of content and rationale. For some purposes, this might be so. However, it is useful to bear in mind the distinction. This is because freedom of speech is properly understood as a human right. Freedom of the press, however, is not only, or not principally, supported as a human right. Media outlets are obviously operated by natural persons who enjoy freedom of speech as a human right. However, freedom of the press is important, not because of the importance of its constituent members’ freedom of speech, but because of the institutional, even quasi-constitutional, role the media plays in a representative democracy. Freedom of the press then is supported by reference to the public, rather than individual dignitary interests. Different legal traditions value freedom of the press in different ways. The common law tradition has generally refused historically to afford media outlets special rights or privileges, over and above those enjoyed by individuals.210 However, there have been occasions on which judges in common law countries have recognised the distinct role played by institutional media. For instance, in McCartan Turkington Breen v Times Newspapers Ltd,211 Lord Bingham of Cornhill observed: In a modern, developed society it is only a small minority of citizens who can participate directly in the discussions and decisions which shape the public life of that society. The majority can participate only indirectly, by exercising their rights as citizens to vote, express their opinions, make representations to the authorities, form pressure groups and so on. But the majority cannot participate in the public life of their society in these ways if they are not alerted to and informed about matters which call or may call for consideration and action. It is very largely through the media, including of course the press, that they will be so alerted and 207 208

209

210

211

Coleman v Power (2004) 220 CLR 1; [2004] HCA 39 at 81 (CLR) per Gummow and Hayne JJ. Human Rights Act 2004 (ACT) s 16; Charter of Human Rights and Responsibilities Act 2006 (Vic) s 15. The right to freedom of expression under the Charter of Human Rights and Responsibilities Act 2006 (Vic) s 15 is subject to “lawful restrictions reasonably necessary … to respect the rights and reputations of other persons”: s 15(3). This is in addition to the protection of the right to reputation as a human right under the Charter of Human Rights and Responsibilities Act 2006 (Vic) s 12. See [2.70]. As to the protection of the right to reputation as a human right under the Human Rights Act 2004 (ACT) and the Charter of Human Rights and Responsibilities Act 2006 (Vic), see [2.70]. See, eg, McGuinness v Attorney-General (Vic) (1940) 63 CLR 73 at 92 per Starke J: “Apart from statutory provisions, the press, in courts of law, has no greater and no less privilege than every subject of the King.”. [2001] 2 AC 277 at 290-1.

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[2.150]

Freedom of speech and freedom of the press

informed. The proper functioning of a modern participatory democracy requires that the media be free, active, professional and inquiring.

By contrast, the European Court of Human Rights’ jurisprudence has long recognised the special role played by the media in a representative democracy. The decided cases indicate that the media have the essential and special role or duty in imparting information and ideas, particularly about, but not limited to, political matters, and the public has a reciprocal interest in receiving such information and ideas.212 They suggest that the media provide the best forum for allowing individuals to form their own opinions about political issues and politicians themselves.213 They also suggest that the media serve an important function as a “public watchdog” on public institutions.214 The media are given latitude in performing their important functions. On a number of occasions, the European Court of Human Rights has observed that “[j]ournalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation.”215 Journalists owe a reciprocal obligation to act in good faith, to report accurately, reliably and precisely and to comply with the ethical requirements which bind them.216 The European Court of Human Rights’ jurisprudence, by its application in domestic law in the United Kingdom, has been applied in that country. Now increasingly in English case law, news is recognised as a perishable commodity, thereby justifying some allowance for error on the part of the press.217

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212

213 214

215

216

217

See, eg, Lingens v Austria (1986) 4 EHRR 407 at 418-9; Oberschlick v Austria (1991) 19 EHRR 389 at 422; The Observer and The Guardian v United Kingdom (1992) 14 EHRR 153 at 191; Jersild v Denmark (1995) 19 EHRR 1 at 25; Von Hannover v Germany (2005) 40 EHRR 1; Radio France v France (2005) 40 EHRR 29 at 730; Cumpana v Romania (2005) 41 EHRR 14 at 221; Chauvy v France (2005) 41 EHRR 29 at 629; Pedersen v Denmark (2006) 42 EHRR 24 at 510; White v Sweden (2008) 46 EHRR 3 at 31; Pfeifer v Austria (2009) 48 EHRR 8 at 184; Axel Springer AG v Germany (2012) 55 EHRR 6 at 205; Von Hannover v Germany (No 2) (2012) 55 EHRR 15 at 417. See, eg, Lingens v Austria (1986) 4 EHRR 407 at 418-9; Oberschlick v Austria (1991) 19 EHRR 389 at 422. See, eg, The Observer and The Guardian v United Kingdom (1992) 14 EHRR 153 at 191; Jersild v Denmark (1995) 19 EHRR 1 at 25-6; Radio France v France (2005) 40 EHRR 29 at 730; Cumpana v Romania (2005) 41 EHRR 14 at 221; Chauvy v France (2005) 41 EHRR 29 at 629; Pedersen v Denmark (2006) 42 EHRR 24 at 510; White v Sweden (2008) 46 EHRR 3 at 31; Von Hannover v Germany (No 2) (2012) 55 EHRR 15 at 417. Von Hannover v Germany (2005) 40 EHRR 1 at 25; Radio France v France (2005) 40 EHRR 29 at 732; Pedersen v Denmark (2006) 42 EHRR 24 at 510; White v Sweden (2008) 46 EHRR 3 at 31; Pfeifer v Austria (2009) 48 EHRR 8 at 184; Axel Springer AG v Germany (2012) 55 EHRR 6 at 206. Radio France v France (2005) 40 EHRR 29 at 732; Pedersen v Denmark (2006) 42 EHRR 24 at 513; White v Sweden (2008) 46 EHRR 3 at 31; Lindon v France (2008) 46 EHRR 35 at 793; Axel Springer AG v Germany (2012) 55 EHRR 6 at 206. Reynolds v Times Newspapers Ltd [2001] 2 AC 127 at 204-5 per Lord Nicholls of Birkenhead. For scepticism on this point in Australia, see, eg, Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63 at 305 (CLR) per Callinan J.

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37

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3

The History and Sources of Defamation Law [3.10] Introduction..................................................................................................39 [3.20] The sources of defamation law...................................................................40 [3.20] The ecclesiastical courts.................................................................... 40 [3.30] The royal courts................................................................................. 43 [3.40] The Star Chamber..............................................................................45 [3.50] Scandalum magnatum........................................................................48 [3.60] The local courts................................................................................. 51 [3.70] Overview of sources of Australian defamation law...................................52

Introduction [3.10] In order to appreciate fully the complexity of defamation law, it is

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necessary to understand the history of defamation law. A significant reason defamation law was and remains complex is that it developed in English law from multiple sources.1 Unlike other areas of private law, defamation law has not undergone substantial rationalisation and modernisation. As one commentator observed: Unfortunately the English law of defamation is not the deliberate product of any period. It is a mass which has grown by aggregation, with very little intervention from legislation, and special and peculiar circumstances have from time to time shaped its varying course. The result is that perhaps no other branch of the law is as open to criticism for its doubts and difficulties, its meaningless and grotesque anomalies.2

In Australia, the common law of defamation was received and then further complicated by the overlay of federalism, leading to an even more complex system of defamation law operating in this country. It is not possible, given the constraints of space, to undertake a full history of defamation law. The common law has a long, continuous history, covering over eight centuries.3 The purpose of this chapter is twofold. First, it introduces the 1

2 3

As to the connection between the history of defamation law and its current complexity, see W Holdsworth, “Defamation in the Sixteenth and Seventeenth Centuries: Part I” (1924) 40 LQR 302 at 303; RC Donnelly, “History of Defamation Law” [1949] Wisconsin Law Review 99 at 100; CR Lovell, “The “Reception” of Defamation Law by the Common Law” (1964) 15 Vanderbilt Law Review 1051 at 1051-2. VV Veeder, “The History and Theory of the Law of Defamation” (1903) 3 Columbia Law Review 546. The academic literature on the history of defamation law is substantial. For major contributions, see W Holdsworth, “Defamation in the Sixteenth and Seventeenth Centuries: Part I” (1924) 40 LQR 302; W Holdsworth, “Defamation in the Sixteenth and Seventeenth Centuries: Part II” (1924) 40 LQR 397; W Holdsworth, “Defamation in the Sixteenth and Seventeenth Centuries: Part III” (1925) 41 LQR 13; RC Donnelly, “History of Defamation Law” [1949] Wisconsin Law Review 99. See also D Rolph, “Sources of Defamation Law” in

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40

3: The History and Sources of Defamation Law

[3.10]

multiple sources of defamation law: the ecclesiastical courts; the royal courts; the Star Chamber; the statutory offence of “scandalum magnatum”; and the local courts. The focus is upon the development of the law from its origins up until the end of the 17th century. In terms of establishing the contours of liability for defamation, this period was crucial. Subsequent developments in relation to defences to defamation were accretions on the basic principles of liability already firmly established.4 Secondly, this chapter examines the history of Australian defamation law, following the reception of English law. In particular, it focuses on the diversity of defamation laws, both in form and substance, between the Australian States and Territories, the ongoing, unsuccessful attempts at uniformity and the final enactment, only a decade ago, of the national, uniform defamation laws.

The sources of defamation law The ecclesiastical courts [3.20] Prior to the 13th century, there is extant evidence, albeit piecemeal, of

various legal attempts in England to protect personal honour.5 However, none of these coalesced into a regular jurisdiction which had an impact on the development of English defamation law. Defamation law came into English law through the ecclesiastical jurisdiction. Prior to the 16th century, the common law did not treat defamation as an actionable wrong. Defamation was treated as a spiritual, rather than a temporal, wrong – a sin,6 the essence of which was telling lies about another person. The proper forum in which to adjudicate upon such immorality then was before the ecclesiastical courts.

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As a matter of ecclesiastical law and practice, defamation law was a peculiarly English concern.7 The jurisdiction of the ecclesiastical courts over defamation claims was underpinned by the Constitution Auctoritate dei Patris. This was passed by the Council of Oxford in 1222 and was subsequently adopted or emulated by other dioceses. It was in the following terms: We excommunicate all those who, for the sake of hatred, profit, or favour, or for whatever cause, maliciously impute a crime to any person who is not of ill fame

4

5

6

7

JT Gleeson, JA Watson and E Peden (eds), Historical Foundations of Australian Law (Federation Press, Leichhardt, 2013) Vol II pp 106-26. For the development of the history of defamation defences, the reader could do no better than to refer to P Mitchell, The Making of the Modern Law of Defamation (Hart Publishing, Oxford, 2005). W Holdsworth, “Defamation in the Sixteenth and Seventeenth Centuries: Part I” (1924) 40 LQR 302 at 303; W Holdsworth, A History of English Law (Methuen & Co, London, 1972) Vol VIII p 378; Hill v Church of Scientology of Toronto [1995] 2 SCR 1130; (1995) 126 DLR (4th) 129 at 162 per Cory J. As to the treatment of defamation in Teutonic, Anglo-Saxon and Norman law, see, eg, VV Veeder, “The History and Theory of the Law of Defamation” (1903) 3 Columbia Law Review 546 at 548-9; W Holdsworth, “Defamation in the Sixteenth and Seventeenth Centuries: Part I” (1924) 40 LQR 302 at 303; RC Donnelly, “History of Defamation” [1949] Wisconsin Law Review 99 at 100; CR Lovell, “The “Reception” of Defamation by the Common Law” (1962) 15 Vanderbilt Law Review 1051 at 1052-3. VV Veeder, “The History and Theory of the Law of Defamation” (1903) 3 Columbia Law Review 546 at 550; CR Lovell, “The “Reception” of Defamation by the Common Law” (1962) 15 Vanderbilt Law Review 1051 at 1054-5. RM Helmholz, The Oxford History of the Laws of England (OUP, Oxford, 2003-10), Vol I, pp 566-7.

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[3.20]

The sources of defamation law

among good and serious men, by means of which at least purgation is awarded to him or her is harmed in some other manner.8

The Constitution Auctoritate dei Patris was expressly or impliedly referred to in claims before the ecclesiastical courts, providing the elements of the claim.9 Under the terms of the Constitution Auctoritate dei Patris, liability for defamation was imposed for the imputation of a crime. This included purely or largely spiritual crimes, such as adultery, fornication and heresy.10 Ecclesiastical courts also dealt with defamation cases dealing with the imputation of crimes which were both temporal and spiritual, such as murder and theft.11 It was the purported exercise of jurisdiction by ecclesiastical courts over such claims that led to tension with the royal courts in the second half of the 15th century. Ecclesiastical courts took a liberal view of what constituted a crime.12 Yet even on the broadest approach, there were many imputations which the common law of defamation came to regard as actionable which could not reasonably be construed as imputations of crime. A number of enduring features of defamation law are evident from the ecclesiastical courts’ jurisprudence. The requirement of falsity is present. The central role of malice, which has been so important historically and so difficult doctrinally to the common law’s approach to defamation,13 is evident. The disparagement of the plaintiff’s fame in the view “among good and serious men” (apud bonos et graves) prefigures the common law’s later embodiment of “the ordinary, reasonable reader”14 as reflecting “right-thinking members of society generally”15 and “ordinary, decent folk in the community, taken in general”.16 The ecclesiastical courts did not differentiate between oral and written defamation.17 Unsurprisingly, though, given the extent of illiteracy during the

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8

9 10

11

12 13 14 15

16 17

This translation from the original Latin text is provided by RM Helmholz: see, eg, RM Helmholz, “Canonical Defamation in Medieval England” (1971) 15 American Journal of Legal History 255 at 256. See, eg, Gray v Archdeacon of Buckingham (1290) 101 Selden Society 1; Robinson v Rayner (1424-25) 101 Selden Society 4; Kingwell v Taylor (1559) 101 Selden Society 8. See, eg, Gray v Archdeacon of Buckingham (1290) 101 Selden Society 1; Bayly v Harris (1507) 101 Selden Society 21; Moberlay v Morpath (1509-10) 101 Selden Society 5; James v Harmon (1514) 101 Selden Society 24; Johnson v Roper (1531) 101 Selden Society 26; Hunt v North (1537) 101 Selden Society 27; Ricardes v Rutter (1566) 101 Selden Society 30; Ingram v Knowles (1593) 101 Selden Society 10. See, eg, Robinson v Rayner (1424-25) 101 Selden Society 4; Patrick v Wise (1441) 101 Selden Society 14; Fontans v Clover (1507) 101 Selden Society 20; Forse v Whytton (1518) 101 Selden Society 25. SFC Milsom, Historical Foundations of the Common Law (Oxford University Press, Oxford, 1981) p 380. As to malice for the purposes of qualified privilege, see [11.80]–[11.100]. As to malice for the purposes of fair comment, see [13.100]. As to the concept of the ordinary, reasonable reader, see [6.80]. Sim v Stretch [1936] 2 All ER 1237 at 1240 per Lord Atkin. See now also Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460; [2009] HCA 16 at 467-8 (CLR) per French CJ, Gummow, Kiefel and Bell JJ. Gardiner v John Fairfax & Sons Pty Ltd (1942) 42 SR(NSW) 171 at 172 per Jordan CJ; Consolidated Trust Co Ltd v Brown (1948) 49 SR(NSW) 86 at 88 per Jordan CJ. RC Donnelly, “History of Defamation” [1949] Wisconsin Law Review 99 at 105; CR Lovell, “The “Reception” of Defamation by the Common Law” (1962) 15 Vanderbilt Law Review 1051 at 1054.

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[3.20]

period, the overwhelming number of defamation cases determined by the ecclesiastical courts were for oral, rather than written, defamation.18 The stated penalty for defamation to be imposed by the ecclesiastical courts was the excommunication of the defamer. There are some reported instances where this was the penalty imposed.19 In practice, the ordinary penalty was the sinner’s performance of public penance in the presence of the priest and parish wardens, during which the sinner apologised to the defamed person and sought forgiveness. If the defendant proved contumacious, there was always the penalty of excommunication as a fallback.20 There were documented cases of defamers being suspended from receiving communion as a punishment for defamation.21 In the early 14th century, ecclesiastical courts were authorised to order corporal punishment in the form of whipping as a penalty, but were also empowered to commute this to a fine.22 Although there was the possibility of an appeal to the papal courts, this occurred very rarely. Consequently, an ecclesiastical court’s determination in a defamation claim was effectively final.23 By treating defamation as a spiritual wrong, the ecclesiastical courts were focused on the correction of the sinner, following penance and absolution, rather than on providing the defamed person with a temporal remedy.24 Indeed, one of the signal limitations of the ecclesiastical jurisdiction was its incapacity to award damages as a remedy. An ecclesiastical court could punish the defamer but, if the defamation caused the plaintiff damage, it could not compensate him or her. Once the royal courts began to take an interest in defamation claims in the 15th century and began to provide a remedy of their own in the 16th century, the ability of such courts to award damages became an attractive feature of that forum and led to the decline in the ecclesiastical courts’ jurisdiction over such claims.

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Following the outbreak of the English Civil War, the ecclesiastical jurisdiction became increasingly marginalised. After the Restoration, it was completely overtaken by the royal courts’ development of the common law. Nevertheless, the ecclesiastical jurisdiction over defamation claims persisted into the middle of the 19th century, when it was finally abolished.25

18 19 20

21

22

23 24 25

CR Lovell, “The “Reception” of Defamation by the Common Law” (1962) 15 Vanderbilt Law Review 1051 at 1054. See, eg, Robinson v Rayner (1424-25) 101 Selden Society 4; Kingswell v Taylor (1559) 101 Selden Society 8; Forse v Whytton (1518) 101 Selden Society 25. RC Donnelly, “History of Defamation” [1949] Wisconsin Law Review 99 at 104; CR Lovell, “The “Reception” of Defamation by the Common Law” (1962) 15 Vanderbilt Law Review 1051 at 1055. See, eg, Cotting v Ward (1418) 101 Selden Society 12; Patrick v Wise (1441) 101 Selden Society 14; Vane v Skinner (1441) 101 Selden Society 15; Hawkyns v Holeherst (1507) 101 Selden Society 19; Hunt v North (1537) 101 Selden Society 27. See, eg, Thomson v Faram (1481) 101 Selden Society 17; Howie v Smyth (1513) 101 Selden Society 23; James v Harmon (1514) 101 Selden Society 24; Hall v Haydon (1556) 101 Selden Society 29. Prohibition Act 1315 (UK) (9 Edw II c 4). See CR Lovell, “The “Reception” of Defamation by the Common Law” (1962) 15 Vanderbilt Law Review 1051 at 1058; see also, eg, Grewes v Brodehouse (1416) 101 Selden Society 11. CR Lovell, “The “Reception” of Defamation by the Common Law” (1962) 15 Vanderbilt Law Review 1051 at 1054. CR Lovell, “The “Reception” of Defamation by the Common Law” (1962) 15 Vanderbilt Law Review 1051 at 1055. Ecclesiastical Courts Act 1855 (UK) (18 & 19 Vic c 41).

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[3.30]

The sources of defamation law

The royal courts

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[3.30] Prior to the 15th century, the royal courts were content to leave defamation as a matter largely for the ecclesiastical courts. They were not concerned themselves with providing a remedy for defamation. Reflecting an anxiety manifest in other areas of the common law about imposing liability arising out of words, the royal courts dismissed claims for defamation as being based on “mere wind”.26 As late as the final decade of the 15th century, Fyneux CJ expressed the view that defamation was a “wholly spiritual offence, which may not be punished elsewhere”, other than the ecclesiastical courts.27 The statute, Circumspecte Agatis, passed in 1285, affirmed that defamation was part of the ecclesiastical courts’ jurisdiction, so long as no monetary remedy was demanded by the plaintiff and the proceedings were brought purely for the punishment of the defendant’s sin.28 The delineation between the respective jurisdictions of the ecclesiastical and the royal courts, then, was clear. The royal courts were unaffected by the fact that the local courts were awarding damages for defamation.29 During the second half of the 15th century, the royal courts began to take an interest in defamation. In part, this was a result of the wider jurisdictional tussle between the royal courts and the ecclesiastical courts. The royal courts increasingly issued writs of prohibition against the ecclesiastical courts. In the context of defamation claims, the royal courts issued writs of prohibition to prevent ecclesiastical courts dealing with allegations of crime which were both spiritual and temporal offences, such as murder and theft.30 The royal courts then assumed jurisdiction over such claims. One factor for the royal courts becoming interested in defamation was the lack of a monetary remedy for a person defamed when a claim was litigated before the ecclesiastical courts.31 The earliest pleadings of defamation claims had plaintiffs assert reputation apud bonos et graves, clearly indicating the conscious borrowing from the ecclesiastical jurisdiction, following the royal courts’ takeover of it.32 The first writ for defamation in the royal courts appears to date from 1507 and related to an imputation of theft.33 Allegations of crimes were amongst the earliest and most popular grounds for defamation claims before the royal courts in the 16th century. The types of crimes alleged were diverse and included imputations of murder, reason, perjury, forgery and witchcraft. Another category of case regularly sued upon before the royal courts from the first half of the 16th century related to imputations of professional incompetence 26

27 28 29

30 31 32 33

JH Baker, An Introduction to English Legal History (4th ed, Butterworths, London, 2002) pp 437-8; see also JH Baker and SFC Milsom, Sources of English Legal History (OUP, Oxford, 1986) pp 624-5. Anon (1497) Trin 12 Hen VII, fo 22, pl 2: see JH Baker and SFC Milsom, Sources of English Law (OUP, Oxford, 1986) pp 624-5. Circumspecte Agatis 1285 (UK) (13 Edw I c 1). See CR Lovell, “The “Reception” of Defamation by the Common Law” (1962) 15 Vanderbilt Law Review 1051 at 1056. CR Lovell, “The “Reception” of Defamation by the Common Law” (1962) 15 Vanderbilt Law Review 1051 at 1056. As to the local courts’ treatment of claims for defamation, see [3.60]. JH Baker (ed), Oxford History of the Laws of England (OUP, Oxford, 2003) Vol VI p 782. CR Lovell, “The “Reception” of Defamation by the Common Law” (1962) 15 Vanderbilt Law Review 1051 at 1063. J H Baker (ed), Oxford History of the Laws of England (OUP, Oxford, 2003) Vol VI p 784. J H Baker (ed), Oxford History of the Laws of England (OUP, Oxford, 2003) Vol VI p 783.

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or dishonesty. As these types of claims could not, on any reasonable construction, be treated as imputations of crimes, they were not able to be brought before the royal courts. When claims for defamation came to be litigated before the royal courts, the forms of action profoundly shaped litigation. Defamation was dealt with as an action on the case. Damage was the gist of the action. The gist of the action in defamation then was damage to reputation and needed to be proven before a remedy could be granted.34 As the eminent torts scholar, Sir Frederick Pollock, famously remarked: “[t]he law went wrong from the beginning in making the damage, and not the insult the cause of action.”35 Whatever the desirable state of the law is as a matter of principle, the current state of the law is shaped by this historical choice and is too entrenched to be lightly eradicated.36 The difficulty of proving damage to reputation was recognised from the outset of the royal courts’ exercise of jurisdiction over defamation claims. During the 16th and 17th centuries, the bulk of the defamation cases brought before the royal courts concerned slander.37 By the early 17th century, the common law had developed to the extent of recognising certain categories of slander as actionable per se, without the requirement to prove damage. Along with imputations of crime and imputations of unfitness or incompetence in a trade or a profession, imputations of contagious disease, particularly leprosy and syphilis (or “the French pox”, as it was referred to at the time)38 could be sued upon without the plaintiff having to prove that he or she suffered special damage as a result.39 These remained the exception to the rule. In every other case, a plaintiff was required to prove damage.40 The distinction between libel and slander was cemented in the common law following the Restoration in Hale CB’s judgment in King v Lake,41 in which his Lordship held that:

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although such general words spoken once, without writing or publishing them, would not be actionable; yet here they being writ and published, which contains more malice, than if they had but been once spoken, they are actionable.

34 35 36 37 38

39

40 41

CR Lovell, “The “Reception” of Defamation by the Common Law” (1962) 15 Vanderbilt Law Review 1051 at 1064. F Pollock, The Law of Torts (13th ed, Stevens & Sons, London, 1929) p 249. Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 at 600 (CLR) per Gleeson CJ, McHugh, Gummow and Hayne JJ. CR Lovell, “The “Reception” of Defamation by the Common Law” (1962) 15 Vanderbilt Law Review 1051 at 1064, 1066. See, eg, Crittal v Horner (1618) Hob 219; 80 ER 366 (French pox); Taylor v Perkins (1606) Cro Jac 144; 79 ER 126. The presumption of damage did not extend to allegations of smallpox: see, eg, James v Rutlech (1599) 4 Co Rep 17a; 76 ER 900. T Plucknett, A Concise History of the Common Law (5th ed, Butterworths, London, 1956) p 493; CR Lovell, “The “Reception” of Defamation by the Common Law” (1962) 15 Vanderbilt Law Review 1051 at 1065; SFC Milsom, Historical Foundations of the Common Law (OUP, Oxford, 1981) p 385; JH Baker, An Introduction to English Legal History (4th ed, Butterworths, London, 2002) pp 439-40. As to slander generally and these exceptions to the general rule particularly, see [5.20]. CR Lovell, “The “Reception” of Defamation by the Common Law” (1962) 15 Vanderbilt Law Review 1051 at 1066. (1670) Hardres 470; 145 ER 552 at 553 (ER).

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[3.40]

The sources of defamation law

The recognition of defamation as a tort by the royal courts led quickly to a burgeoning of claims.42 Judges commented adversely on the number of defamation claims being brought before the courts. For example, in Crofts v Brown,43 Coke CJ stated: We will not give more favour unto actions upon the case for words, than of necessity we ought to do, where the words are not apparently scandalous, these actions being now too frequent, but they were not so in former times.

The volume of defamation claims before the royal courts by the end of the 16th century led judges to develop doctrines and techniques designed to deter the number of cases being brought and to limit recovery for defamation. The most notorious means devised was the doctrine of mitior sensus.44 This doctrine required judges to attribute the mildest sense possible to the words published. This led to interpretations of words which would now be rejected as “strained, or forced, or utterly unreasonable”.45 The classic example was Holt v Astgrigg,46 in which an allegation that a person had struck his cook on the head with a cleaver and split the cook’s head in two, was not actionable as an imputation of murder because it could be understood in its mildest sense as alleging only a trespass to the person. If it were to be a battery, it would seem to be a battery of the gravest kind. This was not an isolated case.47 Judicial anxieties about the volume of defamation litigation is a recurrent theme of the history of defamation law, not limited to the 16th century. The royal courts ultimately became the principal forum in which defamation claims were litigated. In order for that to occur, the royal courts had to absorb the defamation jurisdiction developed by the Star Chamber.

The Star Chamber

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[3.40] One of the other major sources of English defamation law was the Star Chamber, the quasi-executive, quasi-judicial body with an unflattering reputation. The precise origins of the Star Chamber remain unclear.48 Whilst it was recognised by statute in 1486,49 the Star Chamber existed before that time.50 The Star Chamber had diverse functions. Stuckey identifies one of those functions as “criminal supervision and innovation”.51 The Star Chamber’s 42

43 44 45

46 47 48 49 50 51

AK Kiralfy, The Action on the Case (Sweet & Maxwell, London, 1951) App A; T Plucknett, A Concise History of the Common Law (5th ed, Butterworths, London, 1956) p 493; SFC Milson, Historical Foundations of the Common Law (OUP, Oxford, 1981) p 386; JH Baker, An Introduction to English Legal History (4th ed, Butterworths, 2002) pp 440-1. (1616) 3 Bulst 167; 81 ER 141. CR Lovell, “The “Reception” of Defamation by the Common Law” (1962) 15 Vanderbilt Law Review 1051 at 1064. See, eg, Jones v Skelton [1964] NSWR 485 (PC); Farquhar v Bottom [1980] 2 NSWLR 380 at 385-6 per Hunt J; Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 165 per Hunt CJ at CL. As to the test for defamatory capacity, see [6.60]. (1607) Cro Jac 184; 79 ER 161 at 161 (ER). See, eg, Hext v Yeomans (1585) 4 Co Rep 15b; 76 ER 893 at 893 (ER); James v Rutlech (1599) 4 Co Rep 17a; 76 ER 900 at 902 (ER). M Stuckey, The High Court of Star Chamber (Gaunt Publishing, Holmes Beach, 1998) pp 2-3. 3 Hen VII c 1. CR Lovell, “The “Reception” of Defamation by the Common Law” (1962) 15 Vanderbilt Law Review 1051 at 1060. M Stuckey, The High Court of Star Chamber (Gaunt Publishing, Holmes Beach, 1998) p 3.

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development of the law relating to seditious and criminal libel was an example of judicial innovation. Although it dealt with some cases of slander,52 the overwhelming focus of the Star Chamber’s defamation jurisdiction in the 15th and 16th centuries was upon libel.53 The landmark judgment in the Court of Star Chamber’s development of the law of criminal libel was the decision in De Libellis Famosis.54 As it developed, the defamation jurisprudence of the Star Chamber was closer to the Roman law of iniuria than the common law as developed by the royal courts.55 De Libellis Famosis demonstrates this.56 The crucial passage from the judgment is in the following terms: Every libel (which is called famosus libellus…) is made either against a private man or against a magistrate or public person. If it be against a private man it deserves a severe punishment, for although the libel be against one, yet it incites all those of the same family, kindred or society to revenge, and so tends per consequens to quarrels and breach of the peace, and may be the cause of shedding of blood, and of great inconvenience: if it be against a magistrate, or other public person, it is a greater offence, for it concerns not only the breach of the peace, but also the scandal of Government …

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It is not material whether the libel be true, or whether the party against whom it is made, be of a good or ill fame, for in a settled state of Government the party grieved ought to complain for every injury done to him in an ordinary course of law, and not by any means to revenge himself, either by the odious course of libelling, or otherwise.57

Another important function of the Star Chamber was the regulation of the printing press. The history of libel in English law is intimately connected with the introduction of the printing press in the early 15th century and the Crown’s swift response in controlling it.58 The Star Chamber had a regulatory function, promulgating press regulations aimed at suppressing political and religious pamphleteering.59 It also had a judicial function, punishing the authors and printers of unauthorised publications.60 The Star Chamber’s development of the law relating to seditious and criminal libel was an important adjunct of its function in regulating and controlling the press.61 The Court of Star Chamber assumed responsibility for dealing with cases of scandalum magnatum.62 The Star Chamber dealt not only with political libels but also with disputes between private persons. It discouraged duelling by 52 53 54 55 56 57 58 59 60 61

62

See, eg, Vale v Broke (1493) 16 Selden Society 39. CR Lovell, “The “Reception” of Defamation by the Common Law” (1962) 15 Vanderbilt Law Review 1051 at 1060-1. (1605) 5 Co Rep 125; 77 ER 250. CR Lovell, “The “Reception” of Defamation by the Common Law” (1962) 15 Vanderbilt Law Review 1051 at 1064. T Plucknett, A Concise History of the Common Law (5th ed, Butterworths, London, 1956) p 487. De Libellis Famosis (1605) 5 Co Rep 125; 77 ER 250 at 251 (ER). CR Lovell, “The “Reception” of Defamation by the Common Law” (1962) 15 Vanderbilt Law Review 1051 at 1062. CR Lovell, “The “Reception” of Defamation by the Common Law” (1962) 15 Vanderbilt Law Review 1051 at 1061-2. CR Lovell, “The “Reception” of Defamation by the Common Law” (1962) 15 Vanderbilt Law Review 1051 at 1062. RC Donnelly, “History of Defamation” [1949] Wisconsin Law Review 99 at 116-7; T Plucknett, A Concise History of the Common Law (5th ed, Butterworths, London, 1956) p 497. As to scandalum magnatum, see [3.50].

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[3.40]

The sources of defamation law

fining those who engaged in the practice. It ordered substantial damages to be paid by defamers to those they had defamed. By providing a remedy for a damaged reputation or a wounded sense of honour, the Star Chamber provided a disincentive to individuals resorting to the self-help of duelling. It minimised the threat of breaches of the peace, instead offering a legal alternative to vindicate reputation and assuage honour.63 A person accused of defamation before the Star Chamber had no effective defence unless he or she could establish that he or she did not in fact publish the defamatory matter.64 In particular, the Star Chamber refused to countenance that truth could be a defence to defamation.65 The availability of damages thus made the Star Chamber more attractive than the ecclesiastical courts. When the royal courts began to recognise defamation claims in the 16th century, the Star Chamber retained a further advantage over the royal courts, particularly for aristocratic families by allowing defamation claims to continue after the death of one of the parties, either on behalf of, or against, the party’s heirs and personal representatives, whereas the royal courts adopted the familiar common law position that the cause of action terminated with the death of one of the parties.66

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The punishments imposed by the Star Chamber for defamation were severe.67 For example, in 1632, Sir Richard Grenville accused the Earl of Suffolk of “baseness”. Dealing with the Earl of Suffolk’s claim, the Star Chamber ordered Grenville to pay a fine of £4,000 and damages of £4,000, as well as imprisonment for a period of time.68 In the same year, the Vicar of Shap, John Dalton, brought a claim against a couple who had accused him of adultery with two separate women, one of whom they claimed he had impregnated. The couple was imprisoned for three months and ordered to pay a fine of £40 to the Crown, as well as a fine of 100 mark and an award of £50 damages to Dalton. In addition, they were ordered to read a public retraction of the allegations.69 The Star Chamber was abolished by the Long Parliament in 164170 at the outbreak of the English Civil War. Its demise was unlamented. By the time of its abolition, the Star Chamber had acquired a reputation for being an instrument of oppression and a tool for the increasingly absolutist tendencies of the Tudors and particularly the early Stuart monarchs. Prior to the English Civil War, there were three concurrent jurisdictions developing defamation law largely independently of each other: the ecclesiastical 63

64 65 66

67 68 69 70

RC Donnelly, “History of Defamation” [1949] Wisconsin Law Review 99 at 113; T Plucknett, A Concise History of the Common Law (5th ed, Butterworths, London, 1956) p 490. CR Lovell, “The “Reception” of Defamation by the Common Law” (1962) 15 Vanderbilt Law Review 1051 at 1061. CR Lovell, “The “Reception” of Defamation by the Common Law” (1962) 15 Vanderbilt Law Review 1051 at 1062. As to truth as a defence to defamation, see Chapter 9. CR Lovell, “The “Reception” of Defamation by the Common Law” (1962) 15 Vanderbilt Law Review 1051 at 1061. See also De Libellis Famosis (1605) 5 Co Rep 125; 77 ER 250 at 251 (ER). T Plucknett, A Concise History of the Common Law (5th ed, Butterworths, London, 1956) p 495. SR Gardiner (ed), Reports of Cases in the Courts of Star Chamber and High Commission (Camden Society, London, 1896) pp 108ff. SR Gardiner (ed), Reports of Cases in the Courts of Star Chamber and High Commission (Camden Society, London, 1896) pp 70ff. Habeas Corpus Act 1640 (16 Charles I c 10)[(UK)].

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courts, the royal courts and the Star Chamber.71 It was only after the Restoration, when the royal courts assumed the jurisdiction of the Star Chamber and by which time the ecclesiastical courts’ jurisdiction over defamation claims had been largely eclipsed, that the royal courts assumed principal responsibility for developing the civil and criminal law of defamation.72 In assuming the Star Chamber’s former defamation jurisdiction, the royal courts then became not only interested in slander but also libel.73 During the latter half of the 17th century, the royal courts might have rationalised slander and libel into a single, coherent tort of defamation. They did not do so.74 There was also the outstanding issue of the regulation of the printing press, formerly undertaken by the Star Chamber. Following the Restoration, the regulation of the press was placed upon a statutory footing. Enacted in 1662,75 it expired in 1679. Political upheaval prevented its renewal until 1685,76 when it was enacted for a seven-year period. It was extended in 1692 for a further two-year period.77 When it expired in 1694, no further statutory authority was given to the Crown to license the press.78 Thus, the conditions were in place for the explosion of the printed word and the rise of the novel, the newspaper, the magazine and the pamphlet in 18th century England.

Scandalum magnatum [3.50] Alongside the jurisdiction of the ecclesiastical courts, the royal courts

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and the Star Chamber was yet another source of defamation law. This was the statutory offence of scandalum magnatum – literally, the “scandalising of magnates”. It was a criminal offence to publish words which disparaged the great men and women of the realm, such as peers, bishops and judges. The purpose of the offence was to preserve social stability and order, but it also conferred reputational protection to the highest echelon of English society, based purely on their status and rank.79 The rationale for scandalum magnatum was distilled thus by Blackstone in his Commentaries on the Laws of England (at a time by which the action itself had largely fallen into disuse): Words spoken in derogation of a peer, a judge, or other great officer of the realm, which are called scandalum magnatum, are held to be still more heinous; and

71 72 73 74 75 76 77 78

79

CR Lovell, “The “Reception” of Defamation by the Law Review 1051 at 1066. CR Lovell, “The “Reception” of Defamation by the Law Review 1051 at 1067. CR Lovell, “The “Reception” of Defamation by the Law Review 1051 at 1067-8. CR Lovell, “The “Reception” of Defamation by the Law Review 1051 at 1068. Licensing Act 1662 (UK) (13 & 14 Car 2 c 33). Licensing Act 1685 (UK) (1 Jac 2 c 17) s 15. Licensing Act 1692 (UK) (4 & 5 W & M, c 24) s 14.

Common Law” (1962) 15 Vanderbilt Common Law” (1962) 15 Vanderbilt Common Law” (1962) 15 Vanderbilt Common Law” (1962) 15 Vanderbilt

For an account of the political and legal history of press regulation in England, see CR Lovell, “The “Reception” of Defamation by the Common Law” (1962) 15 Vanderbilt Law Review 1051 at 1068-70. T Plucknett, A Concise History of the Common Law (5th ed, Butterworths, London, 1956) p 486; JH Baker, An Introduction to English Legal History (4th ed, Butterworths, London, 2002) p 437.

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[3.50]

The sources of defamation law

though they be such as would not be actionable in the case of a common person, yet when spoken in disgrace of such high and respectable characters, they amount to an atrocious injury.80

The offence of scandalum magnatum was first enacted in 1275.81 The impetus for its enactment was the political upheaval of the Barons’ Wars. It was enacted in the following terms: Forasmuch as there have been oftentimes found in the Country Devisors of Tales, whereby Discord, or Occasion of Discord, hath many times arisen between the King and his People, or great Men of this Realm; For the Damage that hath and may thereof ensue, it is commanded, That from henceforth none be so hardy to tell or publish any false News or Tales, whereby Discord or Occasion of Discord or Slander may grow between the King and his People, or the great Men of the Realm; and he that doth so, shall be taken and kept in Prison, until he hath brought him into Court, which was the first Author of the Tale.82

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The offence of scandalum magnatum was re-enacted on a number of occasions, most notably in 1378, three years before the Peasants’ Revolt of 1381.83 Previously, it was thought that scandalum magnatum was not much litigated in the medieval period. This was certainly the view in the 17th century. For instance, Atkyns J in Townsend v Hughes84 stated that there were no cases of scandalum magnatum in medieval times.85 However, the research of the plea rolls undertaken by the eminent legal historian, JH Baker, has uncovered more instances of scandalum magnatum in the 15th and into the 16th centuries than had been previously known.86 Nevertheless, the volume of litigation based on scandalum magnatum during that time appears small in comparison to the number of claims brought during the 17th century. Before the outbreak of the English Civil War, claims for scandalum magnatum were litigated in the Star Chamber. For instance, in Viscount Saye and Sele v Stephens,87 the peer was awarded £2,000 damages for an allegation of treachery. In Earl of Suffolk v Grenville,88 the peer was awarded £4,000 damages over the slur that he was “a base lord”. However, the litigation of claims of scandalum magnatum was not exclusive to the Star Chamber. Such cases could be, and were, brought before the Court of King’s Bench as well. 80 81 82 83

84 85

86

87 88

W Blackstone, Commentaries on the Laws of England (Clarendon Press, Oxford, 1765-69) Vol III (reprinted University of Chicago Press, Chicago, 1979), p 123. AK Kiralfy, The Action on the Case (Sweet & Maxwell, London, 1951) p 115; T Plucknett, A Concise History of the Common Law (5th ed, Butterworths, London, 1956) p 485. Statute of Westminster I 1275 (3 Edw I c 34)[(UK)]. The text is reproduced from RC Donnelly, “History of Defamation” [1949] Wisconsin Law Review 99 at 108. RC Donnelly, “History of Defamation” [1949] Wisconsin Law Review 99 at 108; T Plucknett, A Concise History of the Common Law (5th ed, Butterworths, London, 1956) p 486; JH Baker, An Introduction to English Legal History (4th ed, Butterworths, London, 2002) p 437. See further J Lassiter, “Defamation of Peers: The Rise and Decline of the Action for Scandalum Magnatum, 1497-1773” (1978) 22 American Journal of Legal History 216 at 217. (1676) 2 Mod 150; 86 ER 994. Townsend v Hughes (1676) 2 Mod 150; 86 ER 994 at 1001 (ER). See also CR Lovell, “The “Reception” of Defamation by the Common Law” (1962) 15 Vanderbilt Law Review 1051 at 1060. JH Baker, An Introduction to English Legal History (4th ed, Butterworths, London, 2002) p 437; JH Baker (ed), Oxford History of the Laws of England (OUP, Oxford, 2003) Vol VI at 781-2. (1629) Cro Car 135; 79 ER 719. SR Gardiner (ed), Reports of Cases in the Courts of Star Chamber and High Commission (Camden Society, London, 1896) pp 108ff.

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Thus, in Earl of Lincoln v Roughton,89 the peer successfully sued over the slur that he was “a base lord and paltry earl”. Claims for scandalum magnatum continued to be litigated after the outbreak of the English Civil War and during the Protectorate. For instance, in Earl of Leicester v Mandy,90 the peer successfully sued a clergyman for the slurs that he was wicked, cruel and “an enemy of the Reformation in England”. An advantage of a claim for scandalum magnatum over a claim for slander was that, in the former case, damage to reputation was presumed.91 In addition, the mitior sensus rule was held not to apply to claims for scandalum magnatum.92 The greatest incidence of claims for scandalum magnatum occurred, though, in the three decades following the Restoration. Lassiter has argued that the increase in such litigation at this time reflected the fact that the socio-political order was most threatened, particularly following the upheaval of the English Civil War.93 Always inherently political,94 claims for scandalum magnatum became the continuation of politics by other means. The emergence of party politics following the Restoration manifested itself in some claims for scandalum magnatum litigated before the royal courts, with Whig and Tory peers suing their political opponents.95 One of the most regular litigants was the Duke of York (later, James II). Between 1682 and 1684, Lassiter noted that the Duke of York brought at least 10 claims for scandalum magnatum against a range of defendants.96 The Duke of York’s vigorous, politicised use of scandalum magnatum did much to undermine the legitimacy of this cause of action.97 Claims for scandalum magnatum rapidly declined after the Glorious Revolution. Judges were not receptive to such claims as continued to be brought.98 They did not always award costs to successful claimants.99 In addition, the House of Commons indicated that it was willing to pass bills of reversal, setting aside judgments given by courts in favour of peers.100 Most importantly, the development of the law relating to civil and criminal defamation by the royal courts meant that the need for recourse to scandalum magnatum by the narrow class of persons entitled to pursue such a cause of action considerably lessened. The last reported case of scandalum magnatum, 89 90 91

92 93 94 95 96

97 98

99 100

(1608) Cro Jac 196; 79 ER 171. (1657) Sid 21; 82 ER 1234. RC Donnelly, “History of Defamation” [1949] Wisconsin Law Review 99 at 109; T Plucknett, A Concise History of the Common Law (5th ed, Butterworths, London, 1956) p 487. Earl of Peterborough v Mordant (1669) 1 Ven 160; 86 ER 42. J Lassiter, “Defamation of Peers: The Rise and Decline of the Action for Scandalum Magnatum, 1497-1773” (1978) 22 American Journal of Legal History 216 at 219-20. RC Donnelly, “History of Defamation” [1949] Wisconsin Law Review 99 at 108. See, eg, Earl of Shaftesbury v Lord Digby (1676) 3 Keble 631; 84 ER 920; Lord Peterborough v Williams (1687) 2 Show 505; 89 ER 1068. J Lassiter, “Defamation of Peers: The Rise and Decline of the Action for Scandalum Magnatum, 1497-1773” (1978) 22 American Journal of Legal History 216 at 229-30. See also, eg, Duke of York v Pilkington (1682) Skinner 71; 90 ER 34; Duke of York v Oates (1684) 10 State Trials 125. J Lassiter, “Defamation of Peers: The Rise and Decline of the Action for Scandalum Magnatum, 1497-1773” (1978) 22 American Journal of Legal History 216 at 230. J Lassiter, “Defamation of Peers: The Rise and Decline of the Action for Scandalum Magnatum, 1497-1773” (1978) 22 American Journal of Legal History 216 at 231-2. See, eg, Duke of Schomberg v Murrey (1700) Holt KB 640; 90 ER 1254. See, eg, Lord Peterborough v Williams (1687) 2 Show 505; 89 ER 1068. J Lassiter, “Defamation of Peers: The Rise and Decline of the Action for Scandalum Magnatum, 1497-1773” (1978) 22 American Journal of Legal History 216 at 231.

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[3.60]

The sources of defamation law

decided in 1773, was Earl of Sandwich v Miller.101 The cause of action, though, was not abolished for over a century after that, ultimately being effected by the Statute Law Revision Act 1887.102

The local courts

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[3.60] The other forum in which defamation claims could be litigated was in the local courts. The cases brought before such courts did not form a source of modern defamation law. This was because the jurisdiction of these courts never regularised into a coherent and stable one, reflecting the diverse nature of these courts. Rather, the local courts tended to reflect broader features in the development of English defamation law in other fora. In particular, as time passed, they reflected the tension between the ecclesiastical courts’ approach to defamation and that of the royal courts. Actions for defamation were commonly brought before seignorial and manorial courts in the 13th and 14th centuries.103 These cases tended to reflect the way in which ecclesiastical courts were treating defamation claims around the same time.104 Such courts provided an alternative to duelling as a means of protecting honour. In the absence of any recognition at the time by the royal courts of defamation as an actionable wrong, the local courts provided many people with their only effective, temporal remedy. They also had the benefit of being familiar, cheap and located within the community in which the plaintiff’s harm had been suffered and in which the plaintiff wanted his or her reputation vindicated.105 Before the local courts, plaintiffs sought and received, in many cases, compensation.106 This was a significant difference from the ecclesiastical courts at the time.107 Plaintiffs often sued for defamation before the local courts on the basis of the insult alone.108 This differed from the jurisdiction over defamation which the royal courts began to develop from the early 16th century onwards, wherein damage was the gist of the action.109 However, even at the same time, there is evidence that there were local courts which were not receptive to defamation claims. In Lumyner v Wylde,110 the plaintiff’s claim failed because the plaintiff “was attacked with words and nothing else”. In Chaplain v Shepherd,111 the defendant successfully argued that “for wind no action should accrue”. In Snel v Aylse,112 the court found in favour of the defendant because the plaintiff should “recover nothing because he has lost nothing”. The cases indicate that some local courts were willing to 101 102 103

104

105 106 107 108 109 110 111 112

(1773) Lofft 210; 98 ER 614. (50 & 51 Vict c 59)[(UK)]. VV Veeder, “The History and Theory of the Law of Defamation” (1903) 3 Columbia Law Review 546 at 549; RC Donnelly, “History of Defamation” [1949] Wisconsin Law Review 99 at 100. SFC Milsom, Historical Foundations of the Common Law (OUP, Oxford, 1981) p 381; DJ Ibbetson, A Historical Introduction to the Law of Obligations (OUP, New York, 1999) p 113. VV Veeder, “The History and Theory of the Law of Defamation” (1903) 3 Columbia Law Review 546 at 549. RC Donnelly, “History of Defamation” [1949] Wisconsin Law Review 99 at 101. As to the ecclesiastical courts’ treatment of defamation, see [3.20]. RC Donnelly, “History of Defamation” [1949] Wisconsin Law Review 99 at 102. As to the development of the common law of defamation by the royal courts, see [3.30]. (1285) 101 Selden Society 33. (1315) 101 Selden Society 46. (1325) 101 Selden Society 51.

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-20 04:19:12.

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[3.60]

reflect the sceptical stances prevailing in the royal courts in the 13th and 14th centuries that defamation was an ephemeral act not deserving of legal sanction. That was a view which was not ultimately to persist in the royal courts.

Overview of sources of Australian defamation law

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[3.70] English defamation law, at the time it was received in Australia, was already complicated, deriving as it did from multiple sources, without a great deal of rationalisation. A further layer of complexity was introduced by the development of different defamation laws in the Australian colonies. A persistent feature of Australian life is the recourse many people have to defamation law. This began from the earliest years of the colony of New South Wales and continues across Australia (but particularly New South Wales) to the present day. Cases of civil and criminal defamation were heard and determined within the first few years of European settlement.113 Following the establishment of the Supreme Court of New South Wales in 1823,114 parties in cases for civil defamation could request a jury, thus beginning the long, complicated involvement of juries in the defamation litigation of that State.115 In 1828, legislation was passed stating that all laws and statutes in force in England at that time should apply in New South Wales, as far as possible,116 thereby confirming the common law of defamation applied in New South Wales. In less than two decades, however, New South Wales began to develop its own distinctive defamation law. Within five years of attaining self-government, the colony of New South Wales passed its own defamation legislation. The Slander and Libel Act 1847 (NSW) (sometimes known as the Injuries to Character Act 1847 (NSW)) was proposed by Richard Windeyer.117 This Act introduced many longstanding and distinctive features to New South Wales defamation law. It abolished the distinction between libel and slander, with all cases of defamation being actionable without proof of special damage.118 This reform, whilst adopted in some Australian jurisdictions, would not be adopted nationally for over another 150 years, with the introduction of the national, uniform defamation laws.119 The Slander and Libel Act 1847 (NSW) also introduced the first form of a defence of unlikelihood of harm, in cases of slander only.120 Again, this defence, now called “triviality”, has been exported across Australia as part of the national, uniform defamation laws.121 The Slander and Libel Act 1847 (NSW) also provided that truth alone was not a complete defence to defamation and that a defendant would need to prove an additional element of public benefit.122 This approach to the defence of 113 114 115 116 117

See Bruce Kercher, Debt, Seduction and Other Disasters: The Birth of Civil Law in Convict New South Wales (Federation Press, Sydney, 1996), pp 96-107. New South Wales Act 1823 (4 Geo IV c 96) (Imp).

118 119 120

As to the role of juries in defamation cases, see [5.150]–[5.160]. Australian Courts Act 1828 (9 Geo 4 c 83) (Imp). As to the historical background to this legislation, see P Mitchell, “The Foundations of Australian Defamation Law” (2006) 28 Syd LR 477. Slander and Libel Act 1847 (NSW) s 1. As to the distinction between libel and slander, see [5.20]. Slander and Libel Act 1847 (NSW) s 2.

121 122

As to the defence of triviality, see [14.70]–[14.100]. Slander and Libel Act 1847 (NSW) s 4.

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-20 04:19:12.

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[3.70]

Overview of sources of Australian defamation law

justification was subsequently adopted in other Australian jurisdictions, namely Queensland, Tasmania and the Australian Capital Territory, although, in New South Wales, under the Defamation Act 1974 (NSW), the element of public benefit was replaced with the less rigorous element of public interest.123 This innovation in the Slander and Libel Act 1847 (NSW) introduced a sharp distinction between the Australian States and Territories, which persisted until the introduction of the national, uniform defamation laws and which proved for many decades to be an obstacle to achieving uniformity. Since 1847, the common law of defamation has been continuously modified, to varying degrees, by statute. The Slander and Libel Act 1847 (NSW) was the first of many statutory modifications of defamation law in New South Wales, being modified with two subsequent consolidations.124 There was an attempt at codification under the Defamation Act 1958 (NSW), which was not successful.125 The Defamation Act 1974 (NSW) dispensed with codification, reverting back to the statutory modification of the common law. It was not without its problems as well.126 The other significant and influential legislative intervention in Australian defamation law was the codification of defamation law in Queensland. Sir Samuel Griffith was responsible for its drafting. The provisions of the Defamation Act 1889 (Qld) were subsequently placed in the Criminal Code Act 1899 (Qld)127 but reverted to the Defamation Act 1889 (Qld) after the introduction of the Criminal Code Act 1995 (Qld). Griffith’s codified law of defamation was swiftly adopted in Tasmania.128 It was also the model for New South Wales’ 16-year experiment with codification, under the Defamation Act 1958 (NSW).129 Although intended to be substantially declaratory of the common law, the codification of defamation law in Queensland and its adoption in other jurisdictions, made a number of specific, substantive changes to the common law. Thus, prior to the introduction of the national, uniform defamation laws, Queensland and Tasmania had defamation codes.130 The position in relation to Western Australia was more complex. That State codified its criminal law by copying almost verbatim the Criminal Code 1899 (Qld). However, some, but not all, of the defences to criminal defamation contained in the Criminal Code (WA),131 applied to claims for civil defamation, as the High Court of Australia found in West Australian Newspapers Ltd v Bridge.132 In the Australian Capital Territory, following Federation, the Defamation Act 1901 (NSW) applied, until replaced by the Civil Law (Wrongs) Act 2002 123 124 125

As to public benefit and public interest in the defence of justification, see [9.50]–[9.60]. As to the consolidations, see Defamation Act 1901 (NSW); Defamation Act 1912 (NSW). In Cawley v Australian Consolidated Press Ltd [1981] 1 NSWLR 225 at 232, Hunt J referred to “the sixteen turbulent years of life” of the Defamation Act 1958 (NSW).

126

As the Privy Council observed in Lloyd v David Syme & Co Ltd (1985) 3 NSWLR 728 at 732, “[t]he Defamation Act [1974 (NSW)] breaks new ground; it does not merely tinker with the topic of defamation as it had developed at common law”. P Brett, “Civil and Criminal Defamation in Western Australia” (1951) 2 UWALR 43 at 44. Defamation Act 1895 (Tas); Defamation Act 1957 (Tas). Gorton v Australian Broadcasting Commission (1973) 22 FLR 181; 6 ACTR 1 at 191 (FLR) per Fox J. Cawley v Australian Consolidated Press Ltd [1981] 1 NSWLR 225 at 231 per Hunt J. Criminal Code Act Compilation Act 1913 (WA), Sch. (1979) 141 CLR 535 at 540-1 per Barwick CJ, at 542 per Stephen J, at 543-5 per Jacobs J.

127 128 129 130 131 132

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(ACT). Thus, like New South Wales, the common law applied in the Australian Capital Territory, but with important statutory modifications. Similarly, in the Northern Territory, there was a statute affecting some aspects of the common law of defamation but, as Hunt J observed, the Defamation Act 1938 (NT) was “in no sense a code”.133 The common law largely applied in South Australia and Victoria, with even more marginal impact by statute.134 By the second half of the 20th century then, there were eight substantively different defamation laws in Australia. By this time, national newspaper, radio and television broadcasts were a pervasive part of everyday life. Given the size of the Australian population, it was undesirable, if not indefensible, to have eight different defamation laws potentially applying to the publication of the same matter. The advent of internet technologies, with their ready ability to transcend geographical borders, only made the problem more acute. Defamation law therefore became the subject of interest to law reform bodies, in particular the harmonisation of Australia’s defamation laws. There were periodic attempts over several decades to introduce national, uniform defamation laws. In its 1979 report, Unfair Publication: Defamation and Privacy, the Australian Law Reform Commission (ALRC) recommended the introduction of a national, uniform defamation law.135 The ALRC’s recommendation led to defamation being placed on the agenda of the Standing Committee of Attorneys-General (SCAG) in July 1980. In 1983, the Commonwealth released an exposure draft defamation Bill, but ultimately did not seek to enact it. The Constitutional Commission, established by the Hawke Labor Government in 1985, recommended that the Commonwealth Constitution should be amended to confer the power to legislate with respect to defamation on the Commonwealth Parliament.136 Given the historical lack of success of referenda seeking to effect constitutional change, it is unsurprising that this reform was not pursued. In 1990, the Attorneys-General of New South Wales, Queensland and Victoria again took up the cause of national, uniform defamation laws, releasing two discussion papers over two years. Defamation Bills were presented to the Parliament in each of those jurisdictions, but lapsed.137 In New South Wales, defamation law was made the subject of a reference to the New South Wales Law Reform Commission, which reported in 1995.138 There were a number of impediments to achieving national, uniform defamation laws. A significant obstacle was the lack of a constitutional power on the part of the Commonwealth Parliament to legislate with respect to defamation. This meant that either the Commonwealth would have to rely upon an assortment of constitutional heads of power,139 which would have led to incomplete coverage of all publications and would have been susceptible to constitutional challenge, or the States and Territories would have to cooperate to legislate for national, uniform defamation laws. The difficulty of the latter 133 134 135 136 137 138 139

Cawley v Australian Consolidated Press Ltd [1981] 1 NSWLR 225 at 233. Wrongs Act 1958 (Vic) Pt I. ALRC, Unfair Publication: Defamation and Privacy, Report No 11 (June 1979), [303]. Commonwealth of Australia, Constitutional Commission, Final report of the Constitutional Commission (AGPS, Canberra, 1988). A Kenyon, Defamation: Comparative Law and Practice (UCL Press, London, 2006) p 362. New South Wales Law Reform Commission, Defamation, Report No 75 (September 1995). As to the potential constitutional basis for the Commonwealth Parliament to legislate with respect to defamation, see ALRC, Unfair Publication: Defamation and Privacy, Report No 11 (June 1979), [303]-[339].

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[3.70]

Overview of sources of Australian defamation law

course became evident over several decades of fruitless attempts at securing uniformity. There were substantive difficulties which became evident during that time and which impeded progress towards national, uniform defamation laws. The most significant was the formulation of the proper approach to the defence of justification, whether proof of substantial truth alone would be sufficient or whether an additional element of public benefit or public interest should be required. The only reason that securing national, uniform defamation laws took so long is that they were rarely seen as a pressing political or policy priority. (There are always other, more important issues than defamation law reform.) Thus, the political will and momentum was often absent. It was only in 2004, when the then Commonwealth Attorney-General, Philip Ruddock, proposed to introduce a national, uniform defamation law, covering as much of the publication of matter as constitutionally possible, that there was real impetus for defamation law reform.140 Ruddock’s proposal contained elements which SCAG found unacceptable. This prompted SCAG to devise and release its own version of a national, uniform defamation law.141 It was this version, after consultation and slight modification, which was enacted by the State and Territory legislatures in 2005 and early 2006,142 coming into effect in every State on 1 January 2006, with the Territories following shortly thereafter.143 The legislation ultimately enacted was substantially uniform, to the extent that such a characterisation is not an oxymoron.144 There remain some substantive differences between the Australian States and Territories. However, the extent of uniformity is high. Achieving substantial uniformity was a landmark achievement in the history of Australian defamation law. However, it should not be thought that the project of defamation law reform is complete. The law reform process which led to the introduction of the national, uniform defamation laws was characterised by haste and compromise. The substance of the national, uniform defamation laws largely reflects, with some changes, the law prevailing in New South Wales prior to 1 January 2006. Because the law reform process was hasty, there was not detailed consideration as to the adequacy of the substance of the defamation laws. Thus, problems with New South Wales defamation law have been, in some instances, exported nationally. The goal of uniformity, whilst important, was not an end in itself. The task of further substantive defamation law reform still lies ahead.

140 141 142

143

144

Australian Government, Attorney-General’s Department, Revised Outline of a Possible National Defamation Law (July 2004). SCAG Working Group of State and Territory Officers, Proposal for Uniform Defamation Laws (July 2004). Civil Law (Wrongs) Act 2002 (ACT) Ch 9; Defamation Act 2006 (NT); Defamation Act 2005 (NSW); Defamation Act 2005 (Qld); Defamation Act 2005 (SA); Defamation Act 2005 (Tas); Defamation Act 2005 (Vic); Defamation Act 2005 (WA). Defamation Act 2005 (NSW) s 2; Defamation Act 2005 (Qld) s 2; Defamation Act 2005 (SA) s 2; Defamation Act 2005 (Tas) s 2 (on a date to be proclaimed, ultimately being 1 January 2006); Defamation Act 2005 (Vic) s 2; Defamation Act 2005 (WA) s 2. The Civil Law (Wrongs) Act 2002 (ACT) Ch 9 commenced on 22 February 2006; the Defamation Act 2006 (NT) commenced on 26 April 2006. D Rolph, “A Critique of the National, Uniform Defamation Laws” (2008) 16 Torts Law Journal 207 at 247-8.

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4

Criminal Defamation [4.10]

Introduction..................................................................................................57

[4.20]

Statutory offence of criminal defamation................................................... 59

[4.30]

Common law offence of defamatory libel..................................................62

[4.40]

The case for the abolition of criminal defamation.....................................64

Introduction [4.10] Defamation can be treated as both a tort and a crime.1 Indeed, defamation was first recognised in English law as a crime punishable by the ecclesiastical courts, only later emerging as a tort.2 Historically, the various forms of criminal defamation were important. Its initial purpose was “the prevention of disorder”.3 Criminal defamation now has been largely superseded by civil defamation. As Lord Diplock explained in Gleaves v Deakin:4

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The reason for creating the offence was to provide the victim with the means of securing the punishment of his defamer by peaceful process of the law instead of resorting to personal violence to obtain revenge. But risk of provoking breaches of the peace has ceased to be an essential element in the criminal offence of defamatory libel; and the civil action for damages for libel and an injunction provides protection for the reputation of the private citizen without any necessity for any interference by public authority with the alleged defamer’s right to freedom of expression.

To similar effect, in Shapowloff v John Fairfax & Sons Ltd,5 Taylor J suggested that the rationale for the role that criminal defamation played in previous centuries might have disappeared in light not only of developments in defamation law, but in the policing and prosecution of criminal activity more generally: This was an age when society had little or no effective means of maintaining law and order. Redress for wrongs, real or fancied, was in the hands of the person wronged or his relatives, and any acts or words which might provoke quarrels or retaliation might have the most serious consequences as destructive of peace and hence inimical to the public welfare. Society had not reached that degree of organized civilization where there was any effective arm of the State to protect the property and person of the citizen and to punish the wrongdoer. 1 2

3 4

5

R v Holbrook (1878) 4 QBD 42 at 46 per Lush J. As to the history of defamation law, see Chapter 3. For a recent, useful review of the history of the criminal offence of defamatory libel, see GS McBain, “Abolishing Criminal Libel” (2010) 84 ALJ 439 at 465-93. Gleaves v Deakin [1980] AC 477 at 482 per Lord Diplock. His Lordship describes the common law offence of defamatory libel as a product of “a more primitive age”: at 482. [1980] AC 477 at 482. As to the adequacy of damages in a civil action for defamation as a principal reason for dismissing an application to prosecute criminal defamation, see Ex parte Hughes; Re Delalande (1923) 40 WN(NSW) 4 at 6 per James J. [1966] 2 NSWR 244 at 248.

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4: Criminal Defamation

[4.10]

Nevertheless, the purposes of civil and criminal defamation are different. As the New South Wales Court of Criminal Appeal observed in R v Grassby:6 “The purpose of the former is to vindicate and to protect the reputation of the person defamed, whereas the purpose of the latter is to punish the defamer and to protect the community.” In order to prosecute for criminal defamation, there is no requirement that civil remedies are inadequate.7 Civil and criminal defamation, therefore, are not mutually exclusive.8 Unusually amongst criminal offences, prosecutions for criminal defamation have often been instigated by private citizens as well as by the prosecuting authorities of the State. In the early legal history of the Australian colonies, prosecutions for criminal defamation were not infrequent.9 However, over the course of the 20th century such prosecutions became extremely rare.10 A significant reason for that was no doubt a growing awareness that the criminal law is a poor mechanism for regulating speech and the harms it can cause. As Windeyer J observed in Uren v John Fairfax & Sons Pty Ltd:11 One lesson of eighteenth century events may be that libels, especially those arising out of private feuds and partisan political controversy, ought not, except in very gross cases, to be made the subject of criminal prosecutions.

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The last successful prosecution for criminal defamation in Australia was in the Kadina Magistrates Court in South Australia in 2009.12 Prior to that, there had been only sporadic attempts at prosecutions for criminal defamation.13 This area of defamation law is now largely of historical, rather than practical, significance. The dwindling importance of criminal defamation raises the question of whether this offence should be abolished altogether – a step already taken in some overseas jurisdictions. Given the marginal importance of criminal defamation, the balance of this book will concern itself with defamation as a tort. The purpose of this chapter is to outline briefly the requirements of the criminal offence of defamatory libel at common law and to analyse the current statutory offence of criminal defamation. As the offence is now largely statutory, the legislative treatment of criminal defamation will be examined first. 6 7 8 9 10

11 12

13

R v Grassby (1988) 15 NSWLR 109 at 128-9 per curiam. See also Spautz v Williams [1983] 2 NSWLR 506 at 544-5 per Hunt J. Gleaves v Deakin [1980] AC 477 at 486 per Viscount Dilhorne. Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 150 per Windeyer J. See, eg, R v Howe [No 1] (1828) Dowling’s Select Cases 291. Goldsmith v Sperrings Ltd [1977] 1 WLR 478 at 485 per Lord Denning MR; Gleaves v Deakin [1980] AC 477 at 483 per Lord Diplock; Spautz v Williams [1983] 2 NSWLR 506 at 528 per Hunt J; Waterhouse v Gilmore (1988) 12 NSWLR 270 at 288 per Hunt J; Grassby v The Queen (1992) 62 A Crim R 351 at 355 per Gleeson CJ. As to the rare instances, see, eg, Ex parte Narme; Re Leong Wen Joe (1928) 45 WN(NSW) 78 at 80 per Davidson J; Ex parte O’Connor; Re Wright (1930) 47 WN(NSW) 193 at 194 per Halse Rogers J. (1966) 117 CLR 118 at 150. N Hunt, “Teen Guilty of Facebook Slur”, Sunday Mail (Adelaide, 22 November 2009) (Adelaide teenager convicted of criminal defamation arising out of material posted on Facebook about a country police officer). See, eg, Byrnes v Barry [2003] ACTSC 54; Byrnes v Barry (2004) 150 A Crim R 471; [2004] ACTCA 24 (dealing with the issue of costs in a prosecution for criminal defamation); R v Ratcliff (2007) 250 LSJS 297; [2007] SASC 297.

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[4.20]

Statutory offence of criminal defamation

Statutory offence of criminal defamation [4.20] Criminal defamation was one aspect that was not fully harmonised by the national, uniform defamation laws. The Commonwealth Attorney-General’s report specifically limited its reform proposal to civil defamation, leaving criminal defamation as a matter for the States and Territories.14 The Standing Committee of Attorneys-General, in its report, produced a model provision for criminal defamation.15 All jurisdictions, except for the Northern Territory and Victoria, amended their criminal laws to enact a substantially similar version of the model provision. In these jurisdictions, it is an offence to publish, without lawful excuse, defamatory matter of another living person knowing the matter to be false, or being recklessly indifferent as to its truth or falsity,16 and with the intent to cause serious harm to the victim or any other person, or being reckless as to whether such harm is caused.17 A defendant has a lawful excuse to a prosecution for criminal defamation only if he or she would have had a defence had the victim brought civil proceedings for defamation.18 The prosecution has the onus of negativing a defendant’s lawful excuse but the defendant must first discharge an evidential burden in relation to the matter.19 At the trial, the judge must determine whether the matter is capable of bearing a defamatory meaning and the jury must determine whether the matter in fact bears a defamatory meaning.20 The jury may give a general verdict of guilty or not guilty on the issues in the trial.21 A prosecution cannot be commenced without the written consent of the Director of Public Prosecutions of the relevant State or

14

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15 16

17

18

19

20

21

Attorney-General’s Department (Cth), Revised Outline of a Possible National Defamation Law (July, 2004) p 39: http://www.pandora.nla.gov.au/pan/64344/20061012-0000/ 0+0+defamationV5+19+August.pdf (accessed 23 August 2015). Standing Committee of Attorneys-General, Model Defamation Provisions (2005) Sch 4.2: http://www.pcc.gov.au/uniform/pcc-279-94-d10.pdf (accessed 23 August 2015). Criminal Code 1899 (Qld) s 365(1)(a); Criminal Law Consolidation Act 1935 (SA) s 257(1)(a); Criminal Code 1924 (Tas) s 196(1)(a); Criminal Code Act 1913 (WA) s 345(1)(a). In the Australian Capital Territory and New South Wales, there is no express provision for reckless indifference as to truth or falsity: see Crimes Act 1900 (ACT) s 439(1)(a); Crimes Act 1900 (NSW) s 529(3)(a). Crimes Act 1900 (ACT) s 439(1)(b); Crimes Act 1900 (NSW) s 529(3)(b); Criminal Code 1899 (Qld) s 365(1)(b); Criminal Law Consolidation Act 1935 (SA) s 257(1)(b); Criminal Code 1924 (Tas) s 196(1)(b); Criminal Code Act 1913 (WA) s 345(1)(b). Crimes Act 1900 (ACT) s 439(2); Crimes Act 1900 (NSW) s 529(4); Criminal Code 1899 (Qld) s 365(2), (3); Criminal Law Consolidation Act 1935 (SA) s 257(2); Criminal Code 1924 (Tas) s 196(2), (3); Criminal Code Act 1913 (WA) s 345(2), (3). Crimes Act 1900 (ACT) s 439(2); Crimes Act 1900 (NSW) s 529(5); Criminal Code 1899 (Qld) s 365(4); Criminal Code 1924 (Tas) s 196(4); Criminal Code Act 1913 (WA) s 345(4). There is no equivalent subsection in the Criminal Law Consolidation Act 1935 (SA) s 257. Crimes Act 1900 (ACT) s 439(3)(a), (b); Crimes Act 1900 (NSW) s 529(6)(a), (b); Criminal Code 1899 (Qld) s 365(5), (6); Criminal Law Consolidation Act 1935 (SA) s 257(3)(a), (b); Criminal Code 1924 (Tas) s 196(5)(a), (b); Criminal Code Act 1913 (WA) s 345(5)(a), (b). Crimes Act 1900 (ACT) s 439(3)(c); Crimes Act 1900 (NSW) s 529(6)(c); Criminal Law Consolidation Act 1935 (SA) s 257(3)(c); Criminal Code 1924 (Tas) s 196(5)(c); Criminal Code Act 1913 (WA) s 345(5)(c). There is no equivalent subsection in the Criminal Code 1899 (Qld) s 365.

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59

60

4: Criminal Defamation

[4.20]

Territory.22 A prosecution for criminal defamation is not a bar to the commencement or determination of civil proceedings for defamation against the same defendant.23 Although these jurisdictions treat criminal defamation in a substantially similar way, there are some important substantive differences. In most jurisdictions, the full range of defences to defamation in civil proceedings are made available in prosecutions for criminal defamation. However, in Queensland, the statutory defence of justification is excluded in cases of criminal defamation, and has been replaced with a “modified statutory defence of justification”.24 Whereas proof of substantial truth alone is now a complete defence to civil defamation across Australia,25 a defendant in a prosecution for criminal defamation in Queensland must prove that, in addition to this, the publication was made for the public benefit.26 The codified offence in Queensland also excludes a defence based upon a failure to accept a reasonable offer of amends.27 It also specifically includes general law defences to defamation.28 There are also divergences on penalty. In most jurisdictions, the maximum penalty for criminal defamation is three years’ imprisonment.29 However, in the Australian Capital Territory, a defendant can be punished by a term of imprisonment or a fine of up to 300 penalty units, or both.30 In Western Australia, it is possible to deal with criminal defamation summarily, in which case the maximum penalties are 12 months’ imprisonment and a fine of $12,000.31 In Victoria, there are two summary offences32 of defamatory libel: malicious publication of defamatory libel knowing it to be false33 and mere malicious publication of defamatory libel.34 The former offence is punishable by 22

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23 24 25

26

27 28 29

Crimes Act 1900 (ACT) s 439(4); Crimes Act 1900 (NSW) s 529(7); Criminal Code 1899 (Qld) s 365(7); Criminal Law Consolidation Act 1935 (SA) s 257(4); Criminal Code 1924 (Tas) s 196(6); Criminal Code Act 1913 (WA) s 345(6). This is explicitly provided for only in the Crimes Act 1900 (ACT) s 439(6), Crimes Act 1900 (NSW) s 529(9) and Criminal Code 1924 (Tas) s 197. Criminal Code 1899 (Qld) s 365(8). See Civil Law (Wrongs) Act 2002 (ACT) s 135; Defamation Act 2006 (NT) s 22; Defamation Act 2005 (NSW) s 25; Defamation Act 2005 (Qld) s 25; Defamation Act 2005 (SA) s 23; Defamation Act 2005 (Tas) s 25; Defamation Act 2005 (WA) s 25. See further, [9.30]. Criminal Code 1899 (Qld) s 365(8). This is similar to the position which pertained in relation to the defence of justification in civil proceedings in certain Australian jurisdictions, including Queensland, prior to the introduction of the national, uniform defamation laws: see [9.50]. This is also similar to the position under English law following the introduction of the Libel Act 1843 (6 & 7 Vict, c 96) s 6. Criminal Code 1899 (Qld) s 365(8). As to a failure to accept a reasonable offer of amends, see [7.80].

30

Criminal Code 1899 (Qld) s 365(8). Crimes Act 1900 (ACT) s 439(1); Crimes Act 1900 (NSW) s 529(3); Criminal Code 1899 (Qld) s 365(1); Criminal Law Consolidation Act 1935 (SA) s 257(1); Criminal Code Act 1913 (WA) s 345(1). There is no specific penalty in the Criminal Code 1924 (Tas). Crimes Act 1900 (ACT) s 439(1); cf Legislation Act 2001 (ACT) s 133.

31 32 33 34

Criminal Code Act 1913 (WA) s 345(1). Wrongs Act 1958 (Vic) s 10(3). Wrongs Act 1958 (Vic) s 10(1). Wrongs Act 1958 (Vic) s 10(2).

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[4.20]

Statutory offence of criminal defamation

imprisonment for no more than two years and a fine,35 whereas the latter offence is punishable by imprisonment for no more than one year and a fine.36 Truth alone is not a defence to defamatory libel in Victoria. There is the additional requirement of public benefit.37 In the Northern Territory, it is unlawful to publish defamatory matter with intent to cause or that is likely to cause, or in fact causes, a breach of the peace;38 with intent to cause loss;39 with intent to interfere with the free and informed exercise of a political right;40 with intent to prevent or deter a person from performing a duty imposed by law;41 with intent to prevent or deter a person from doing an act he or she is lawfully entitled to do, or to compel him or her to do an act he or she is lawfully entitled to abstain from doing;42 with intent to prevent any lawful investigation or inquiry;43 or with intent to interfere with or to influence any judicial proceeding.44 The offence is punishable by imprisonment for up to three years.45 A publication is unlawful if it would not be justified, privileged or otherwise defensible under the civil law of defamation at the time of publication.46 Proceedings for criminal defamation in the Northern Territory can only be commenced at the direction of the Crown Law Officer.47 The burden of proof on all issues is placed upon the prosecution.48 Whether an issue is one of law or fact for the purposes of defamation law will be determined by the civil law of defamation at the time of publication.49

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In the Northern Territory and Victoria, there is an additional offence, punishable by imprisonment for up to three years, for publishing, directly or indirectly threatening to publish, directly or indirectly proposing to abstain from publishing or directly or indirectly offering to prevent publication of defamatory matter about another person. This offence is committed if the conduct is done with the intent to extort property, to induce a person to give, confer or obtain, or to attempt to obtain property or a benefit.50 In Victoria, the offence specifically includes seeking to obtain security for money and the conferral or procurement of an appointment or office of profit or trust.51 35 36

Wrongs Act 1958 (Vic) s 10(1). Wrongs Act 1958 (Vic) s 10(2).

37 38

39 40

Wrongs Act 1958 (Vic) s 11(1). Criminal Code Act (NT) s 204(a). The terms, “defamatory matter” and “publishes”, have the same meaning under this legislative provision as they do under the civil law of defamation: [Criminal Code Act (NT) ]s 203. Criminal Code Act (NT) s 204(b). Criminal Code Act (NT) s 204(c).

41 42 43

Criminal Code Act (NT) s 204(d). Criminal Code Act (NT) s 204(e). Criminal Code Act (NT) s 204(f).

44 45 46 47

Criminal Code Act (NT) s 204(g). Criminal Code Act (NT) s 204. Criminal Code Act (NT) s 203 (definition of “unlawfully”). Criminal Code Act (NT) s 208.

48 49 50 51

Criminal Code Act (NT) s 207. Criminal Code Act (NT) s 206. Criminal Code Act (NT) s 205; Wrongs Act 1958 (Vic) s 9. Wrongs Act 1958 (Vic) s 9.

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61

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[4.20]

Common law offence of defamatory libel [4.30] At common law, defamatory libel is a misdemeanour. It is one of four types of criminal libel recognised at common law, the other three being blasphemous libel, obscene libel and seditious libel.52 The common law offence of defamatory libel has a circumscribed operation in Australia. In New South Wales, it has been abolished.53 In the Northern Territory, Queensland, Tasmania and Western Australia, criminal defamation is part of the codified criminal law in each of those jurisdictions, thereby excluding the common law offence of defamatory libel. There is a statutory offence of criminal defamation in each of the remaining Australian jurisdictions, co-existing with the common law offence of defamatory libel. The statutory offences are seldom prosecuted, the common law offence even less so. Historically, the tendency of a publication to provoke a breach of the peace was considered to be an essential element of the criminal offence of defamatory libel.54 However, the current prevailing judicial view is that this is no longer so.55 Previously, there had been indications in the case law that defamatory libel should be reserved for cases where the victim was a person occupying a public position, such as a magistrate or a Cabinet minister.56 In this way, the common law offence of defamatory libel would operate as a form of “scandalum magnatum”.57 Instead, it is sufficient that the publication is serious enough to warrant the intervention of the State, because, for instance, it has a tendency to disturb the peace or to affect the victim’s reputation gravely.58 The wrongful conduct has to be sufficiently public in nature59 or concerns the public welfare,60 such that a prosecution for criminal defamation is only justified 52

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53 54

55 56 57 58

59 60

Blasphemous libel, obscene libel and seditious libel are outside the scope of this book and will not be further discussed. Crimes Act 1900 (NSW) s 529(1). See, eg, De Libellis Famosis (1605) 5 Co Rep 125a; 77 ER 250 at 251 (ER); W Blackstone, Commentaries on the Laws of England (ed Wayne Morrison) (Cavendish Publishing, London, 2001) Vol 4 p 119: “in a criminal prosecution, the tendency which all libels have to create animosities, and to disturb the public peace, is the whole that the law considers”. See further, R v Holbrook (1878) 4 QBD 42 at 46 per Lush J: “It is ranked amongst criminal offences because of its supposed tendency to arouse angry passion, provoke revenge, and thus endanger the public peace”; R v Adams (1888) 22 QBD 66 at 69 per Lord Coleridge CJ. R v Hardy [1951] VLR 454 at 456 per Martin J; Goldsmith v Pressdram Ltd [1977] QB 83 at 86 per Wien J; Gleaves v Deakin [1980] AC 477 at 490 per Lord Edmund-Davies. R v Labouchere (1884) 12 QBD 320 at 327 per Lord Coleridge CJ). As to “scandalum magnatum”, see [3.50]. R v Wicks [1936] 1 All ER 384 at 386 per du Parcq J; Goldsmith v Pressdram Ltd [1977] QB 83 at 86-7 per Wien J; Goldsmith v Sperrings Ltd [1977] 1 WLR 478 at 485 per Lord Denning MR; Gleaves v Deakin [1980] AC 477 at 486-7 per Viscount Dilhorne, at 490 per Lord Edmund-Davies, at 494-5 per Lord Scarman; Desmond v Thorne [1983] 1 WLR 163 at 167 per Taylor J. Gleaves v Deakin [1980] AC 477 at 491 per Lord Edmund-Davies. Shapowloff v John Fairfax & Sons Ltd [1966] 2 NSWR 244 at 249-50 per Taylor J, where it was said that in Australia, the requirement of public welfare has been considered by courts to include circumstances where: the language is of a vile, intemperate nature …; or where it is unfounded and intemperate abuse published and repeated by one who is a man of straw, hence civil proceedings would be ineffective …[; and] where the libel defames public men such as magistrates, Ministers of State, or high officers in the Public Service, in their offices, since it can tend to destroy confidence and respect for those responsible for government and good order.

See also R v Cecil (1865) 4 SCR(NSW) 323.

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[4.30]

Common law offence of defamatory libel

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where the subject of the prosecution is able to affect the community.61 The purposes of criminal defamation, then, are to punish the defendant and to protect the community.62 However, this does not mean that, in order for a prosecution for criminal defamation to be brought, the publication had to be made to the community as a whole.63 A mere “squabble between individuals” is clearly an insufficient basis for a prosecution for criminal defamation.64 As a tendency of a publication to provoke a breach of the peace is no longer considered an essential element of a prosecution for defamatory libel, it is no defence to such a charge that the publication lacked the requisite tendency.65 There are some significant differences between the common law offence of defamatory libel and the tort of defamation. In relation to the criminal offence of defamatory libel, there is no requirement that the defamatory matter be communicated to a person other than the victim. Publication to the victim alone was sufficient for the purposes of criminal defamation.66 This is a significant difference between civil and criminal defamation, given that, for the purposes of civil liability for defamation, publication to a person other than the plaintiff is essential.67 Criminal liability could only arise for libel; there is no offence of defamatory slander,68 unlike the tort of defamation, which imposes liability for both libel and slander.69 Another significant difference between civil and criminal defamation is that truth alone is not a complete defence to the criminal offence of defamatory libel,70 whereas it is for the tort of defamation.71 The rationale for this position was that the essence of the crime was the tendency to breach the peace.72 There are a number of aspects of defamatory libel which remain unclear or unresolved. For instance, unlike civil defamation, under which there can be no defamation of the dead,73 it is unclear for the purposes of criminal defamation whether a prosecution can be brought in respect of a publication of a deceased person. There are authorities which state that such a prosecution may be brought, although these tend to be older cases, decided at a time when the tendency of a publication to cause a breach of the peace was the rationale, if not an element, of criminal defamation.74 There are marginally more recent 61 62 63 64 65 66

67 68 69 70

71 72 73 74

Waterhouse v Gilmore (1988) 12 NSWLR 270 at 287 per Hunt J. Wood v Cox (1888) 4 TLR 652 at 654 per Lord Coleridge CJ. R v Grassby (1988) 15 NSWLR 109 at 114 per curiam. Waterhouse v Gilmore (1988) 12 NSWLR 270 at 288 per Hunt J. R v Hardy [1951] VLR 454 at 457 per Martin J. Clutterbuck v Chaffers (1816) 1 Stark 471; 171 ER 533 at 533 (ER) per Lord Ellenborough; R v Adams (1888) 22 QBD 66 at 69 per Lord Coleridge CJ; Waterhouse v Gilmore (1988) 12 NSWLR 270 at 291 per Hunt J; R v Grassby (1988) 15 NSWLR 109 at 114 per curiam. R v Grassby (1988) 15 NSWLR 109 at 114 per curiam. As to the requirement for publication in civil defamation, see [8.20]. R v Penny (1967) 1 Ld Raym 153; (1696) 91 ER 999; R v Langley (1704) 2 Ld Raym 1029; 92 ER 184 at 185 (ER) per Holt CJ; R v Hepburn (1889) 15 VLR 84 at 85-6 per curiam. As to the distinction between libel and slander, see [5.20]. De Libellis Famosis (1605) 5 Co Rep 125a; 77 ER 250 at 251 (ER); R v Carden (1879) 5 QBD 1 at 6 per Cockburn CJ. Under the Libel Act 1843 (UK) s 6, proof of truth alone was insufficient. There was an additional requirement of “public benefit”. This is reflected in the current approach to truth as a defence to criminal defamation in Queensland: see [4.20]. As to the defence of justification at common law and now under statute, see [9.30]. Orr v Isles [1965] NSWR 677 at 700 per Taylor J. As to defamation of the dead, see [5.80]. De Libellis Famosis (1605) 5 Co Rep 125a; 77 ER 250 at 251 (ER); R v Topham (1791) 4 TR 130; 100 ER 931 at 932-3 per Lord Kenyon CJ.

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[4.30]

authorities which are against criminal defamation in respect of a deceased person.75 There seems scant justification for adopting a different approach in criminal defamation to that pertaining in civil defamation on this issue. It is also unclear whether the victim needs to be identified in, or identifiable from, the publication for the purposes of criminal defamation. Of course, identification is a well-established element of the plaintiff’s case for the tort of defamation.76 In R v Osborn,77 the court found that a prosecution could be brought in respect of a publication against the whole community of Jews in England. In R v Williams,78 the court allowed a prosecution arising from a publication against all the clergy in the diocese of Durham. However, there are dicta suggesting that, in order for a prosecution for defamatory libel to be maintained, an individual needed to be either identified in, or identifiable from, the publication.79 Although the position in relation to the defence of truth was settled, the status of other defences to defamation in a criminal prosecution was less clear. Judges have appeared to assume that the defences of absolute and qualified privilege are available in a prosecution for defamatory libel.80 There are dicta to varying effect as to the availability of a defence of fair comment in such a prosecution.81 Given that the offence is so seldom prosecuted, it is to be expected that there remain unresolved issues about basic aspects of this crime.

The case for the abolition of criminal defamation [4.40] In light of the dwindling importance of criminal defamation,

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unsurprisingly there has been increased consideration of the abolition of criminal defamation entirely. Judges, law reform bodies and academics have expressed divergent views upon this issue, broadly either supporting abolition or suggesting that there might be a residual role for criminal defamation.82 No one has seriously countenanced a resurgence in prosecutions for criminal defamation. A recent, robust defence of the ongoing relevance of criminal defamation was provided by the Privy Council in Worme v Commissioner of Police of Grenada,83 in which it observed: 75 76 77

78 79 80 81 82

83

See, eg, R v Labouchere (1884) 12 QBD 320 at 322 per Lord Coleridge CJ; R v Ensor (1887) 3 TLR 366 at 367 per Stephen J. As to identification, see Chapter 7. (1732) 94 ER 425; 2 Barn KB 166. This decision, particularly what it suggests about the potential role of the common law offence of defamatory libel in dealing with publications concerning race, is interesting in light of the recent debate in Australia about the Racial Discrimination Act 1975 (Cth) Pt IIA. As to the Racial Discrimination Act 1975 (Cth) s 18C and the extent to which it protects reputation, see [18.180]. (1822) 106 ER 1308; 5 B & Ald 595. R v Orme and Nutt (1699) 1 Ld Raym 486; 91 ER 1224; R v Gathercole (1838) 2 Lew CC 237; 168 ER 1140. R v Perry (1883) 15 Cox CC 169; R v Munslow [1895] 1 QB 758 at 761-2; R v Wicks [1936] 1 All ER 384; R v Rule [1937] 2 KB 375. R v Carden (1879) 5 QBD 1 at 8; R v Ensor (1887) 3 TLR 366 at 367 per Stephen J; cf Goldsmith v Pressdram Ltd [1977] QB 83 at 90 per Wien J. See, eg, Report of the Committee on Defamation (Faulks Committee), Cmnd 5909 (HMSO, London, 1975) at [444]-[448]; Australian Law Reform Commission, Unfair Publication: Defamation and Privacy, Report No 11 (1979) at [203]-[205]. See further, Gleaves v Deakin [1980] 477 at 482-4 per Lord Diplock, at 493 per Lord Edmund-Davies. See also, GS McBain, “Abolishing Criminal Libel” (2010) 84 ALJ 439 at 498-501. [2004] 2 AC 430 at 455.

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[4.40]

The case for the abolition of criminal defamation

Of course, the tort of libel provides a civil remedy for damages against those who make such attacks, but this no more shows that a crime of intentional libel is unnecessary than the existence of the tort of conversion shows that a crime of theft is unnecessary. Similarly, the fact that the law of criminal libel has not been invoked in recent years does not show that it is not needed. After all, prosecutions are in one sense a sign not of the success of a criminal law, but of its failure to prevent the conduct in question.

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The Privy Council went on to state in the same case that it was not convinced “that such a crime is not reasonably justifiable in a democratic society”.84 In the absence of exemplary damages being available for the tort of defamation, it might be faintly argued that there is still a legitimate role for criminal defamation to play.85 This presupposes, though, the desirability of having a broad-based criminal offence for the publication of defamatory words. Some jurisdictions have already taken the step of abolishing defamatory libel. Notably, the common law offence of defamatory libel has been abolished in England, Wales and Northern Ireland.86 The law reform process which led to the introduction of the national, uniform defamation laws did not seriously consider whether criminal defamation should be abolished.87 It is worth revisiting this issue. The minuscule number of attempted prosecutions for criminal defamation suggests that this offence has little effective work to do. Remedies for civil defamation are sufficient to deal with reputational harm. Although, the real challenges posed to protecting reputations on social media have led some commentators to support the retention of criminal defamation,88 these should be dealt with by targeted offences. Indeed, some already exist.89 This approach is preferable to a broad-based offence criminalising speech. There is a real threat to freedom of speech by permitting private prosecutions for criminal defamation.90 Thus, there is scope for further law reform in relation to criminal defamation. Abolishing criminal defamation will remove an offence that will not be missed.

84 85 86 87

88

89

90

Worme v Commissioner of Police of Grenada [2004] 2 AC 430 at 456. R v Grassby (1988) 15 NSWLR 109 at 129 per curiam. As to exemplary damages for defamation, see [15.240]. Coroners and Justice Act 2009 (UK) s 73. This section also abolished the common law offences of sedition, seditious libel and obscene libel. Attorney-General’s Department (Cth), Revised Outline of a Possible National Defamation Law (2004) p 39: http://www.pandora.nla.gov.au/pan/64344/20061012-0000/ 0+0+defamationV5+19+August.pdf (accessed 23 August 2015). N Selvadurai and MR Islam, “The Application of Criminal Defamation to Inflammatory Comments made on Social Networking Sites: A New Role for an Old Law?” (2012) 36 CrimLJ 38 at 47. See, eg, Criminal Code (Cth) s 474.17 (using carriage service to menace, harass or cause offence). See further R v Ogawa [2011] 2 Qd R 350; [2009] QCA 307; Monis v R (2013) 249 CLR 92; [2013] HCA 4. Waterhouse v Gilmore (1988) 12 NSWLR 270 at 288 per Hunt J.

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5

Preliminary Matters

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[5.10] Introduction..................................................................................................67 [5.20] Libel and slander......................................................................................... 67 [5.20] The distinction between libel and slander........................................ 67 [5.30] Limitation periods for defamation claims.................................................. 70 [5.30] Limitation periods – the national, uniform defamation laws...........70 [5.40] Application of the limitation period..................................................71 [5.50] Standing to sue for defamation...................................................................75 [5.50] Natural persons.................................................................................. 75 [5.60] Prisoners............................................................................................. 75 [5.70] Bankrupts........................................................................................... 76 [5.80] Defamation of the dead..................................................................... 77 [5.90] Partnerships........................................................................................ 78 [5.100] Corporations – common law........................................................... 78 [5.110] Corporations – national, uniform defamation laws........................ 80 [5.120] Governmental bodies....................................................................... 83 [5.130] Trade unions.....................................................................................86 [5.140] Unincorporated associations............................................................ 86 [5.150] The role of judge and jury in a defamation trial..................................... 86 [5.150] The respective roles of judge and jury........................................... 86 [5.160] Recent developments in the use of juries in defamation proceedings................................................................................................. 88

Introduction [5.10] In Australia, defamation is now overwhelmingly litigated as a tort. The balance of this book, therefore, focuses on civil liability for defamation. Before turning to the elements of the plaintiff’s case for defamation, there are a number of preliminary matters to be addressed.

Libel and slander The distinction between libel and slander [5.20] For most of the history of defamation law, the distinction between libel and slander was vitally important. The origins and rationale for the distinction between libel and slander are somewhat obscure and are the subject of academic controversy. It is yet another example of the murky history of defamation law,1 which fails to yield an entirely satisfactory, rational principle. 1

As to the history of defamation law, see Chapter 3.

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[5.20]

The distinction between libel and slander had been the subject of criticism by judges and law reform bodies over a long period of time.2 Nevertheless, it remained an entrenched part of the defamation law of many Australian jurisdictions until recently. Broadly, slander is the publication of defamatory matter orally or otherwise in transient form, whereas libel is the publication of defamatory matter in writing or in some other permanent form.3 According to O’Bryan J in Wainer v Rippon,4 “a critical distinguishing feature of actionable libel is the permanence of the offending material”. Damage to reputation was presumed for libel, but damage had to be proven for slander.5 The damage needed to be proven for slander was usually discussed in terms of special damage. It included actual pecuniary losses sustained as a result of the slander, including the loss of employment opportunities or a general loss of business.6 The presumption of damage in libel was deemed necessary because libel was treated as more serious than slander, as it was in a permanent form and therefore more readily transmissible.7 The damage done by a libel could be more extensive and lasting than that done by a slander. The distinction between libel and slander, however, was not absolute. There were certain categories of imputations which, if conveyed by slander, were long recognised as being sufficiently damaging to reputation that they should be actionable per se. The exceptions included imputations of crimes, contagious or

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2

3

4 5

6

7

See, eg, Thorley v Kerry (1812) 4 Taunt 355; 128 ER 367 at 371 (ER) per Mansfield CJ; Meldrum v Australian Broadcasting Co Ltd [1932] VLR 425 at 435 per Mann J. See also Report of the Committee on Defamation (Faulks Committee) (HMSO, London, 1975) at [80]-[82], [86]-[91]; Western Australian Defamation Law Committee, Committee Report on Reform to the Law of Defamation in Western Australia (September 2003) at [27], Recommendation 8. Thorley v Lord Kerry (1812) 4 Taunt 355; 128 ER 367 at 371 (ER) per Mansfield CJ; Meldrum v Australian Broadcasting Co Ltd [1932] VLR 425 at 435 per Mann J; Wainer v Rippon [1980] VR 129 at 131 per O’Bryan J; Mickelberg v 6PR Southern Cross Radio Pty Ltd (2001) 24 WAR 187 per Hasluck J. See Monson v Tussauds Ltd [1894] 1 QB 671 at 692 per Lopes LJ: “Libels are generally in writing or printing, but this is not necessary; the defamatory matter may be conveyed in some other permanent form. For instance, a statue, a caricature, an effigy, chalk marks on a wall, signs or pictures may constitute a libel.” [1980] VR 129 at 134. Ratcliffe v Evans [1891] 2 QB 524 at 530-1 per Bowen LJ; Youssoupoff v Metro-GoldwynMayer Pictures Ltd (1934) 50 TLR 581 at 584 per Scrutton LJ; Mickelberg v 6PR Southern Cross Radio Pty Ltd (2001) 24 WAR 187 per Hasluck J. Ratcliffe v Evans [1891] 2 QB 524 at 533 per Bowen LJ (general loss of business); Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581 at 584 per Scrutton LJ (special damage); Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 559 per Gaudron and Gummow JJ (special damage more generally). There was a lack of clarity about whether a plaintiff was limited to recovering the actual pecuniary losses disclosed by the evidence or whether he or she could recover general damages. The fact that a general loss of business might satisfy the requirement of damage for the purposes of a claim in slander suggests that actual damage, rather than special damage, was the element that the plaintiff pleading such a cause of action needed to establish: see Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 559 per Gaudron and Gummow JJ. Ratcliffe v Evans [1891] 2 QB 524 at 530 per Bowen LJ.

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[5.20]

Libel and slander

infectious diseases, adultery or “unchastity” in women8 and incompetence or unfitness in one’s office, profession, business or trade.9 As new technologies emerged, difficult issues of principle had to be resolved about the proper classification of publications using them.10 Thus, radio broadcasts were found to be actionable as slander, as they were in transient form. A similar view was reached, at common law, in relation to television broadcasts.11 A different position was reached in relation to films because a film existed in a permanent form.12 The advent of tape and video recording might have caused courts to revise the common law approach to radio and television broadcasts. However, the Commonwealth Parliament overcame the common law position by introducing a deeming provision which treats radio and television broadcasts as publications in permanent form.13 The effect is that radio and television broadcasts are to be treated as libels, rather than as slanders, whatever the common law position might be.14 The advent of internet technologies presented further problems. Thus, in Mickelberg v 6PR Southern Cross Radio Pty Ltd,15 Hasluck J held that the live streaming of radio via the internet was a slander, not a libel. To clarify the legal position in relation to internet-based publications, there was a further legislative reform, with the Commonwealth Parliament deeming that a datacast was to be treated as a libel, rather than a slander.16 In Australia, the distinction between libel and slander is now of historical interest only. Prior to the introduction of the national, uniform defamation laws, several jurisdictions had already abolished the distinction between libel and slander,17 removing the requirement that a plaintiff prove special damage in all cases of slander. In the remaining jurisdictions, cases of slander continued to be brought up until the introduction of the national, uniform defamation

8

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9

10 11 12 13

14

15 16 17

See Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581 at 584 per Scrutton LJ (an exception “amplified by the Slander of Women Act, 1891”). Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 558 per Gaudron and Gummow JJ; Mickelberg v 6PR Southern Cross Radio Pty Ltd (2001) 24 WAR 187 per Hasluck J. See also South Hetton Coal Co Ltd v North-Eastern News Association Ltd [1894] 1 QB 133 at 143 per Lopes LJ. Wainer v Rippon [1980] VR 129 at 131 per O’Bryan J. Wainer v Rippon [1980] VR 129 at 132 per O’Bryan J. Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581 at 586 per Slesser LJ. Broadcasting Services Act 1992 (Cth) s 206. The predecessor provision was the Broadcasting and Television Act 1942 (Cth) s 124. For earlier consideration of the effect of this section on whether radio and television broadcasts were actionable as libel or slander, see Kasic v Australian Broadcasting Commission [1964] VR 702 at 704 per Gowans J; Burns v Collins [1968] VR 667 at 670 per Menhennitt J. Wainer v Rippon [1980] VR 129 at 134 per O’Bryan J: “[w]hen the legislature uses the word ‘deemed’ in legislation, it requires acceptance of a fictional state of affairs that would be otherwise if one were not so required by the legislation” (at 135). (2001) 24 WAR 187. Broadcasting Services Act 1992 (Cth) s 206, as amended by the Broadcasting Services (Digital Television and Datacasting) Amendment Act 2000 (Cth). Defamation Act 1901 (ACT) s 3 (repealed); Defamation Act 2001 (ACT) s 14 (repealed); Civil Law (Wrongs) Act 2002 (ACT) s 57 (repealed); Defamation Act 1938 (NT) s 2 (repealed); Defamation Act 1974 (NSW) s 8 (repealed); Defamation Act 1889 (Qld) s 5 (repealed); Defamation Act 1957 (Tas) s 9 (repealed).

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[5.20]

laws.18 Under the uniform legislation, however, the distinction between libel and slander has been abolished.19 The requirement of proving special damage was removed for all cases of slander. Damage is now presumed in all cases of defamation.20 The abolition of the distinction between libel and slander has therefore removed the difficulty of classifying new forms of publication as they develop.

Limitation periods for defamation claims Limitation periods – the national, uniform defamation laws [5.30] A claim for defamation ordinarily has to be brought within one year of

the publication of the defamatory matter.21 There is the possibility of a court-ordered extension of the limitation period for up to three years if the court is satisfied that it was not reasonable for the plaintiff to have commenced defamation proceedings within the one-year limitation period.22 The introduction of a standard one-year limitation period for defamation cases, which occurred as part of the enactment of the national, uniform defamation laws,23 represented a significant reduction in the limitation period which had previously applied to such claims. Previously, the general limitation period for claims in tort applied to defamation cases. This was six years in the Australian Capital Territory, New South Wales, Queensland, South Australia, Tasmania, Victoria and Western Australia, and three years in the Northern Territory.24 18

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19

20

See, eg, Feo v Pioneer Concrete (Vic) Pty Ltd [1999] 3 VR 417; Uniflex (Australia) Pty Ltd v Hanneybel [2001] WASC 138; Middendorp Electric Co Pty Ltd v Sonnenveld [2001] VSC 312; Clover Bond Pty Ltd v Carroll [2004] WASC 216; Robinson v Quinlivan [2006] WASC 38 at [36]-[37] per Newnes M. Civil Law (Wrongs) Act 2002 (ACT) s 119(1); Defamation Act 2006 (NT) s 6(1); Defamation Act 2005 (NSW) s 7(1); Defamation Act 2005 (Qld) s 7(1); Defamation Act 2005 (SA) s 7(1); Defamation Act 2005 (Tas) s 7(1); Defamation Act 2005 (Vic) s 7(1); Defamation Act 2005 (WA) s 7(1). Civil Law (Wrongs) Act 2002 (ACT) s 119(2); Defamation Act 2006 (NT) s 6(2); Defamation Act 2005 (NSW) s 7(1); Defamation Act 2005 (Qld) s 7(1); Defamation Act 2005 (SA) s 7(1); Defamation Act 2005 (Tas) s 7(1); Defamation Act 2005 (Vic) s 7(1); Defamation Act 2005 (WA) s 7(1).

21

Limitation Act 1985 (ACT) s 21B(1); Limitation Act 1981 (NT) s 12(1A); Limitation Act 1969 (NSW) s 14B; Limitation of Actions Act 1974 (Qld) s 10AA; Limitation of Actions Act 1936 (SA) s 37(1); Defamation Act 2005 (Tas) s 20A(1); Limitation of Actions Act 1958 (Vic) s 5(1AAA); Limitation Act 2005 (WA) s 15.

22

Limitation Act 1985 (ACT) s 21B(2); Limitation Act 1981 (NT) s 44A; Limitation Act 1969 (NSW) s 56A; Limitation of Actions Act 1974 (Qld) s 32A; Limitation of Actions Act 1936 (SA) s 37(2); Defamation Act 2005 (Tas) s 20A(2); Limitation of Actions Act 1958 (Vic) s 23B; Limitation Act 2005 (WA) s 40.

23

Again, as Martin CJ noted in Rayney v Western Australia [No 3] [2010] WASC 83 at [44]-[46], the wording in the relevant legislation in Western Australia and the Northern Territory is not identical to that in the remaining Australian jurisdictions, indicating yet again another way in which the national, uniform defamation laws are not wholly uniform. Limitation Act 1985 (ACT) s 11(1); Limitation Act 1969 (NSW) s 14(1)(a); Limitation of Actions Act 1974 (Qld) s 10(1)(a); Limitation of Actions Act 1936 (SA) s 35(c); Limitation Act 1974 (Tas) s 4(1)(a); Limitation of Actions Act 1958 (Vic) s 5(1)(a); Limitation Act 2005 (WA) s 13(1). As to the position in the Northern Territory, see Limitation Act 1981 (NT) s 12(1)(a).

24

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-20 04:19:18.

[5.40]

Limitation periods for defamation claims

The reduction of the limitation period to one year for defamation was canvassed by the New South Wales Law Reform Commission in its 1995 report on defamation.25 It was not enacted in New South Wales until after it was endorsed by the Attorney-General’s Taskforce on Defamation Law Reform in 2002.26 Subsequently, this reform has been exported nationwide. However, the terms in which the provision under the national, uniform defamation laws is cast represent a “radical departure” from the terms of the earlier provision that applied in New South Wales – the Defamation Act 2005 (NSW) s 8A.27 There are a number of reasons given in support of the curtailment of the limitation period for defamation claims. First, the tort of defamation is complete upon publication and the damage done to the plaintiff’s reputation occurs at that time, in a way which is ordinarily known to the plaintiff.28 Damage for the purposes of other causes of action in tort, involving personal injuries or property damage, may take longer to crystallise, thereby necessitating a longer limitation period. Secondly, a shorter limitation period would not prejudice plaintiffs in defamation claims. Many plaintiffs commence their proceedings promptly. Indeed, plaintiffs who are genuinely concerned about the damage done to their reputations would be likely to commence their defamation proceedings promptly, rather than requiring the six-year limitation period which previously applied.

Application of the limitation period [5.40] Since the introduction of the reduced limitation period for defamation

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claims nationally, there has been a substantial body of case law considering its application. The legislation proceeds on the assumption that it will only be in relatively unusual circumstances that a court will be satisfied that it was not reasonable for the plaintiff to seek to vindicate his or her rights within the limitation period prescribed by law.29 As Fraser JA observed in Pingel v Toowoomba Newspapers Pty Ltd:30 The legislature has evidently identified a public interest in the prompt commencement of proceedings for defamation. That is evidenced also by the relative shortness of the limitation period and the relatively unusual strictness of the test.

The onus of proof rests on the plaintiff to prove that the circumstances were such that it was not reasonable for him or her to commence defamation proceedings within the one-year limitation period.31 The relevant test is not 25 26 27 28 29 30 31

New South Wales Law Reform Commission, Defamation, Report No 75 (1995) Recommendation 37. Attorney-General’s Taskforce on Defamation Law Reform, Defamation Law: Proposals for Reform in NSW (September 2002) Recommendation 10. Riske v Oxley Insurance Brokers Pty Ltd (No 2) [2014] NSWSC 1611 at [28] per McCallum J. As to the tort of defamation being complete upon publication, see [8.20]. Noonan v MacLennan [2010] 2 Qd R 537; [2010] QCA 50 at 541-2 (Qd R) per Keane JA, at 547-8 per Chesterman JA. [2010] QCA 175 at [42]. Noonan v MacLennan [2010] 2 Qd R 537; [2010] QCA 50 at 542 (Qd R) per Keane JA; Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676 at [28] per Simpson J; Lakaev v Denny [2010] NSWSC 1480 at [15] per Fullerton J; Rayney v Western Australia [No 3] [2010] WASC 83 at [41] per Martin CJ; Wookey v Quigley [No 2] [2010] WASC 209 at [27] per Kenneth Martin J.

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-20 04:19:18.

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whether the court is satisfied that it was reasonable for the plaintiff to commence defamation proceedings only after the one-year limitation period had expired, but whether it was not reasonable for the plaintiff to commence them within that time.32 Rather than permitting an extension where it was reasonable in prescribed circumstances, the legislation requires the plaintiff to “demonstrate affirmatively that he would have acted unreasonably suing within time”.33 It is not possible to state exhaustively the circumstances in which a plaintiff might establish that it was not reasonable for him or her to commence defamation proceedings within the one-year limitation period.34 The focus must be on the particular circumstances of the case.35 Some examples suggested by the decided cases include the plaintiff’s invocation of the offer of amends regime as an alternative means of resolving the dispute36 where the plaintiff is unable to ascertain the extent of the defamatory publication; where the plaintiff is unable to establish the necessary evidence to commence proceedings;37 where the plaintiff is unable to identify the publisher;38 and where the plaintiff is unaware of the publication.39 The test to be applied is an objective one.40 It does not, however, import general notions of justice and fairness; the test is one 32

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33 34 35

36

37 38 39

40

Noonan v MacLennan [2010] 2 Qd R 537; [2010] QCA 50 at 539 (Qd R) per Keane JA, citing Robertson v Hollings (unreported, Qld SC, Dutney J, 6 April 2009) at pp 1-7; Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676 at [39] per Simpson J. “That test is, not whether it was reasonable for the plaintiff to have commenced in the time specified, but whether it would not have been reasonable for the plaintiff to have commenced in the time specified”; Wookey v Quigley [No 2] [2010] WASC 209 at [27] per Kenneth Martin J (described test as “a somewhat jarring double negative combination, not only in concept, but also in practical application”); Carey v Australian Broadcasting Corporation (2012) 84 NSWLR 90; [2012] NSWCA 176 at 100-1 (NSWLR) per Beazley JA; Ritson v Gay & Lesbian Publishing Ltd [2012] NSWSC 483 at [12] per Beech-Jones J. Quaere whether consideration of the reasonableness of the plaintiff’s conduct is limited to conduct within the one-year limitation period: Wookey v Quigley [No 2] [2010] WASC 209 at [27] per Kenneth Martin J. Noonan v MacLennan [2010] 2 Qd R 537; [2010] QCA 50 at 547 (Qd R) per Chesterman JA. Noonan v MacLennan [2010] 2 Qd R 537; [2010] QCA 50 at 542 (Qd R) per Keane JA, at 548 per Chesterman JA. Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 at [42] per Fraser JA; Casley v Australian Broadcasting Corporation (2013) 39 VR 526; [2013] VSCA 182 at 537 (VR) per Hansen JA. Noonan v MacLennan [2010] 2 Qd R 537; [2010] QCA 50 at 542 (Qd R) per Keane JA; Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676 at [52] per Simpson J. However, merely because the plaintiff pursues a form of alternative dispute resolution does not mean that it will not be reasonable for him or her not to have commenced defamation proceedings within the one-year limitation period: see Casley v Australian Broadcasting Corporation (2013) 39 VR 526; [2013] VSCA 182 at 540 (VR) per Hansen JA. The fact that an offer of amends was made or responded to on a particular date is admissible for the purpose of explaining the plaintiff’s delay in commencing defamation proceedings: Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 at [25], [28] per Fraser JA. Noonan v MacLennan [2010] 2 Qd R 537; [2010] QCA 50 at 542 (Qd R) per Keane JA. Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676 at [52] per Simpson J. Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676 at [52] per Simpson J; Rayney v Western Australia [No 3] [2010] WASC 83 at [41] per Martin CJ; Carey v Australian Broadcasting Corporation (2012) 84 NSWLR 90; [2012] NSWCA 176 at 102 (NSWLR) per Beazley JA. Quaere whether the plaintiff’s impecuniosity could constitute a relevant circumstance. Noonan v MacLennan [2010] 2 Qd R 537; [2010] QCA 542 at 543 (Qd R) per Keane JA, at 550 per Chesterman JA.

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[5.40]

Limitation periods for defamation claims

of reasonableness.41 When assessing whether it was not reasonable for the plaintiff to commence defamation proceedings within the one-year limitation period, it is necessary not only to consider whether the plaintiff was aware of the existence of the elements of the cause of action, but also the likely defences.42 The test involves an evaluative process.43 The starting point for the consideration of the reasonableness of the plaintiff’s conduct is the recognition that the relevant legislative provision prescribes strict time limits for the commencement of defamation actions.44 Any departure from these strict time limits can only be sanctioned by reference to the concept of reasonableness.45 The plaintiff does not have to “account for every day or week within the limitation year” but does have to point to the circumstances which made it unreasonable for him or her to commence defamation proceedings within time.46 The plaintiff’s subjective understanding is not determinative and will be irrelevant if it is unreasonable.47 Ignorance of the strict time limits for commencing defamation proceedings will not be a sufficient basis for allowing an extension of the limitation period.48 The test then is unusual.49 It imposes a high bar on a plaintiff seeking an extension of the limitation period.50 It is unusual because, once the precondition 41 42 43 44 45 46 47

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48 49

50

Lakaev v Denny [2010] NSWSC 1480 at [15] per Fullerton J. Houda v New South Wales [2012] NSWSC 1036 at [29] per McCallum J. Carey v Australian Broadcasting Corporation (2012) 84 NSWLR 90; [2012] NSWCA 176 at 102 (NSWLR) per Beazley JA. Noonan v MacLennan [2010] 2 Qd R 537; [2010] QCA 542 at 543 (Qd R) per Keane JA. However, see also Houda v New South Wales [2012] NSWSC 1036 at [14] per McCallum J. Noonan v MacLennan [2010] 2 Qd R 537; [2010] QCA 542 at 543 (Qd R) per Keane JA. Noonan v MacLennan [2010] 2 Qd R 537; [2010] QCA 542 at 547 (Qd R) per Chesterman JA. Noonan v MacLennan [2010] 2 Qd R 537; [2010] QCA 542 at 542 (Qd R) per Keane JA, at 550 per Chesterman JA; Carey v Australian Broadcasting Corporation (2012) 84 NSWLR 90; [2012] NSWCA 176 at 101 (NSWLR) per Beazley JA. Noonan v MacLennan [2010] 2 Qd R 537; [2010] QCA 542 at 543 (Qd R) per Keane JA. Noonan v MacLennan [2010] 2 Qd R 537; [2010] QCA 50 at 544 (Qd R) per Holmes JA, at 547 per Chesterman JA; Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676 at [27] per Simpson J. Noonan v MacLennan [2010] 2 Qd R 537; [2010] QCA 50 at 544 (Qd R) per Holmes JA; Ritson v Gay & Lesbian Community Publishing Ltd [2012] NSWSC 483 at [12] per Beech-Jones J. For examples of cases in which the limitation period was extended, see, eg, Jamieson v Chiropractic Board of Australia [2011] QCA 56 at [41]-[42], [44] per White JA; Han v Australian Kung Fu (Wu Shu) Federation Inc [2011] VSC 498 at [28] per Mukhtar AJ; Houda v New South Wales [2012] NSWSC 1036 at [42] per McCallum J; Bidstrup v Cullen [2013] SASC 136 at [52]-[53], [57] per Anderson J; Sun v Hojunara International Group (No 2) [2013] NSWSC 1050 at [29] per Campbell J; Argus Probity Auditors & Advisors Pty Ltd v Queensland Rail Ltd [2014] QSC 161 at [32] per Flanagan J; Chen v Evans [2014] VSC 230 at [14] per Dixon J; Findley v Morand [2014] QSC 297 at [19] per Alan Wilson J; Riske v Oxley Insurance Brokers Pty Ltd (No 2) [2014] NSWSC 1611 at [48] per McCallum J. For examples of cases in which the limitation period was not extended, see, eg, Ibrahim v Wadworth [2009] WASC 317 at [18] per Le Miere J; Noonan v MacLennan [2010] 2 Qd R 537; [2010] QCA 50 at 543-4 (Qd R) per Keane JA, at 550 per Chesterman JA; Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 at [48] per Fraser JA; Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676 at [55]-[56] per Simpson J; Lakaev v Denny [2010] NSWSC 1480 at [56]-[57] per Fullerton J; Rametta v Deakin University [2010] FCA 1341 at [48], [52] per Marshall J; Rayney v Western Australia (No 3) [2010] WASC 83 at [43] per Martin CJ; Wookey v Quigley (No 2) [2010] WASC 209 at [83] per Kenneth Martin J; Carey v Australian Broadcasting Corporation (2012) 84 NSWLR 90; [2007] NSWCA 176 at 102 (NSWLR) per Beazley JA, at 107 per McColl JA, at 107 per Sackville AJA; Cassar v Network Ten Pty Ltd [2012] NSWSC 680 at [23] per Hislop J;

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has been satisfied, the court is obliged to extend the limitation period. The court has no discretion to refuse to grant the extension.51 It does, however, have a discretion as to the length of the extension.52 That “discretion” is not limited, though, only to the period of time, up to three years, during which it was not reasonable for the plaintiff to have commenced defamation proceedings.53 Because an extension of the limitation period is not discretionary but instead turns upon a finding as to the reasonableness of the plaintiff’s conduct, an appellate court is in as good a position as the trial judge in drawing inferences from the facts and forming its own view, whilst giving proper deference to the view of the trial judge.54 However, the evaluative character of the trial judge’s decision should be borne in mind on appeal.55 The test for appellate intervention with the exercise of a trial judge’s discretion, articulated in House v The King,56 does not apply to appellate review of a decision relating to the grant or refusal of an extension of a limitation period in a defamation proceeding.57

51

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52

Ritson v Gay & Lesbian Publishing Ltd [2012] NSWSC 483 at [67] per Beech-Jones J; Casley v Australian Broadcasting Corporation (2013) 39 VR 526; [2013] VSCA 182 at 541-2 (VR) per Hansen JA, at 542 per Robson AJA; Mowen v Morning Bulletin/APN [2013] QCA 36 at [11] per Dalton J; Clark v Ibrahim [2014] VSC 30 at [75] per Dixon AJ; Pro Teeth Whitening (Aust) Pty Ltd v Commonwealth [2014] QSC 107 at [23] per Mullins J; Trkulja v Dobrijevic (No 2) [2014] VSC 594 at [20] per Dixon J. Noonan v MacLennan [2010] 2 Qd R 537; [2010] QCA 50 at 547, 550 (Qd R) per Chesterman JA; Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676 at [27]-[28] per Simpson J: “Extension, in those circumstances, is mandatory”; Rayney v Western Australia [No 3] [2010] WASC 83 at [50] per Martin CJ; Wookey v Quigley [No 2] [2010] WASC 209 at [27] per Kenneth Martin J. Noonan v MacLennan [2010] 2 Qd R 537; [2010] QCA 50 at 547, 550 (Qd R) per Chesterman JA; Casley v Australian Broadcasting Corporation (2013) 39 VR 526; [2013] VSCA 182 at 541-2 (VR) per Hansen JA. However, see also Ritson v Gay & Lesbian Publishing Ltd [2012] NSWSC 483 at [25] per Beech-Jones J: The language of [the Limitation Act 1969 (NSW)] s 56A(2) does not readily lend itself to being described as a discretion in any respect. However, it may be that the discussion in the above cases used the phrase discretionary in the sense of involving a normative judgment as to the period of extension. Chesterman JA in Noonan at [66] stated that the extension allowed could not extend beyond the period in which it was unreasonable for the plaintiff to commence proceedings. If this aspect of the function conferred by s 56B(2) was discretionary that would constitute the outer limit of the period that could be fixed. On that approach a shorter period might be selected if, say, the prospective defendant could demonstrate the occasioning of prejudice in the interim. However, if this aspect of s 56B(2) only involves a normative judgment then the period identified by Chesterman JA in Noonan is not the outer limit but the particular point to which the period of extension “must” be granted. In that event a question might arise as to whether any particular prejudice to the prospective defendant arising from the extension is one of the “circumstances” that must be considered in determining when it ceased to be “not reasonable” to commence.

53 54 55 56 57

See also Riske v Oxley Insurance Brokers Pty Ltd (No 2) [2014] NSWSC 1611 at [30]-[31] per McCallum J. Riske v Oxley Insurance Brokers Pty Ltd (No 2) [2014] NSWSC 1611 at [36]-[38] per McCallum J. Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 at [33]-[34] per Fraser JA, citing Warren v Coombes (1979) 142 CLR 531. Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 at [36] per Fraser JA. (1936) 55 CLR 499. Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 at [32] per Fraser JA.

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[5.60]

Standing to sue for defamation

Standing to sue for defamation Natural persons [5.50] All natural persons have standing to sue for defamation at common

law,58 subject to a few exceptions and qualifications. This reflects the fact that the right to reputation has long been highly protected by the common law, as well as being more recently recognised as a human right and, as such, as part of the innate dignity of the individual.59 Australian defamation law has firmly resisted the incorporation of a “public figure” doctrine, which is an important feature of United States defamation law and has the effect of severely curtailing the right of public figures within its ambit to sue to protect their reputations.60 High-profile public figures can, and do, not infrequently, seek recourse to defamation law to protect their reputations.

Prisoners [5.60] At common law, a prisoner convicted of a capital offence was deprived

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of his or her civil rights under the doctrine of attainder. Such a prisoner could not sue in tort. In Dugan v Mirror Newspapers Ltd,61 the High Court of Australia affirmed that the common law position prevented a prisoner convicted of a capital offence, whose sentence had been commuted to life imprisonment, from suing for defamation. From the 1970s onwards, reforms were introduced across Australia to allow prisoners to bring civil proceedings. However, the legislation is not uniform. In some jurisdictions, prisoners have had their legal disability wholly removed;62 in other jurisdictions, prisoners can bring civil proceedings if the court grants leave.63 In O’Neill v Australian Broadcasting Corporation,64 the plaintiff was a prisoner who obtained an interlocutory injunction against the national broadcaster, preventing it from broadcasting a documentary he claimed was defamatory of him.65 Under Tasmanian law, a prisoner had to obtain leave of the court in order to bring civil proceedings. O’Neill had not done this. On application by O’Neill, Tennent J granted leave retrospectively.66 58 59 60

61 62

63 64 65

66

Electrical, Electronic, Telecommunication and Plumbing Union v Times Newspapers Ltd [1980] 1 QB 585 at 595 per O’Connor J. As to reputation as a human right, see [2.70]. The “public figure doctrine” developed from the constitutionalisation of United States defamation law, following the United States Supreme Court’s landmark decision in New York Times Co v Sullivan 376 US 254; 84 S Ct 710 (1964). For a detailed consideration of whether a “public figure doctrine” should be introduced into Australian law, see New South Wales Law Reform Commission, Defamation, Report No 75 (1995) Ch 5. (1978) 142 CLR 583 at 586-7 per Barwick CJ, at 588-9 per Gibbs J, at 592 per Stephen J, at 602-6 per Jacobs J. Crimes (Sentencing) Act 2005 (ACT) s 144 (read together with Legislation Act 2001 (ACT) s 88); Criminal Code (NT) s 435A; Criminal Law Consolidation Act 1935 (SA) s 329; Crimes (Amendment) Act 1973 (Vic) s 5(1); Criminal Code (WA) s 730. Felons (Civil Proceedings) Act 1981 (NSW) s 4; Public Trustee Act 1978 (Qld) ss 90, 95; Prisoners (Removal of Civil Disabilities) Act 1991 (Tas) s 4(2). (2005) 15 Tas R 114; [2005] TASSC 75. As to interlocutory injunctions in defamation cases generally, and the central importance of Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46, see [16.50]. O’Neill v Australian Broadcasting Corporation (2005) 15 Tas R 114; [2005] TASSC 75 at 123, 126 (Tas R).

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-20 04:19:18.

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Bankrupts [5.70] When a person becomes a bankrupt, his or her property vests in the

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trustee in bankruptcy.67 The trustee in bankruptcy can elect to continue or discontinue any legal proceedings commenced by the undischarged bankrupt.68 An exception to this general rule is that a bankrupt is entitled to continue in his or her own name any action commenced before he or she entered into bankruptcy in relation to any personal injury or wrong done to the bankrupt, his or her spouse or de facto partner, or any member of his or her family.69 A cause of action in defamation has been treated as a personal wrong to the bankrupt, with the consequence that the bankrupt can continue his or her defamation proceedings, notwithstanding his or her entry into bankruptcy.70 It has been described as “a paradigm example of a cause of action which does not pass to the bankruptcy trustee”.71 Another consequence of becoming a bankrupt is that the property vested in the trustee in bankruptcy is available to be divided among the bankrupt’s creditors.72 The right of a bankrupt to recover damages or compensation for a personal injury or wrong done to him or her, his or her spouse or de facto partner, or a member of his or her family, and any damages or compensation in fact recovered, whether before or after the commencement of the bankruptcy, are excluded from the property available to creditors.73 Thus, a bankrupt can retain an award of damages for defamation personally and is not obliged to make such funds available to the trustee in bankruptcy for distribution to creditors.74 This includes both damages for economic loss, as well as non-economic loss, recovered in a claim for defamation. It is not possible to divide these heads of damages and to treat the former as property and the latter as purely personal to the bankrupt.75 This is because, even though different heads of damages are recoverable, the cause of action in defamation is a single, indivisible one.76 However, where the principal interest protected by a cause of action is not one for personal injury or wrong to reputation and the bankrupt’s loss of reputation is only a consequential harm, 67 68 69

70

71 72 73 74

75 76

Bankruptcy Act 1966 (Cth) s 58(1). Bankruptcy Act 1966 (Cth) s 60(3). Bankruptcy Act 1966 (Cth) s 60(4). As to the historical background to this provision and its predecessors, see Faulkner v Bluett (1981) 52 FLR 115 at 118-20 per Lockhart J; Moss v Eaglestone (2011) 83 NSWLR 476; [2011] NSWCA 404 at 486-94 (NSWLR) per Allsop P. Beckham v Drake (1849) 2 HL Cas 579; 9 ER 1213 at 1222 (ER) per Erle J, at 1227 per Wrightman J, at 1228 per Maule J, at 1230 per Parke B, at 1235 per Lord Brougham; Howard v Crowther (1841) 8 M & W 602; 151 ER 1179 at 1180 (ER) per Lord Abinger CB, at 1180 per Alderson B; Wilson v United Counties Bank Ltd [1920] AC 102 at 128 per Lord Atkinson; Cox v Journeaux (No 2) (1935) 52 CLR 713 at 721 per Dixon J; Bride v Peat Marwick Mitchell [1989] WAR 383 at 391 per Malcolm CJ; McMahon v John Fairfax Publications Pty Ltd (No 7) (2013) 277 FLR 418; [2013] NSWSC 933 at 421-2, 426-7 (FLR) per McCallum J. Sands v South Australia [2015] SASCFC 36 at [97] per curiam. See also Heath v Tang [1993] 1 WLR 1421; 4 All ER 694 at 697 (All ER) per Hoffmann LJ. Bankruptcy Act 1966 (Cth) s 116(1). Bankruptcy Act 1966 (Cth) s 116(2)(g). Benson v Flower (1629) Cro Car 166; 79 ER 745; Ex parte Vine; In re Wilson (1878) 8 Ch D 364 at 365-6 per James LJ; Moss v Eaglestone (2011) 83 NSWLR 476; [2011] NSWCA 404 at 480 (NSWLR) per Allsop P. McMahon v John Fairfax Publications Pty Ltd (No 7) (2013) 277 FLR 418; [2013] NSWSC 933 at 421-2 (FLR) per McCallum J. Sands v South Australia [2005] SASCFC 36 at [87], [137] per curiam. See also Hodgson v Sidney (1866) LR 1 Ex 313 at 316 per Bramwell B.

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[5.80]

Standing to sue for defamation

the whole of the cause of action vests in the trustee in bankruptcy, again as a corollary that the cause of action is single and indivisible.77 The fact that a defendant is bankrupt does not itself prevent defamation proceedings being brought or being maintained against that defendant, even though the enforcement of any judgment may prove difficult or fruitless.78

Defamation of the dead [5.80] The proposition that all natural persons have standing to sue for defamation needs to be qualified. Only living natural persons can sue for defamation. There can be no defamation of the dead. The common law rule is “actio personalis moritur cum persona” (a personal action dies with the plaintiff or the defendant).79 Thus, a cause of action in defamation cannot be brought by, or on behalf of, or maintained against, a deceased person.80 The common law position has been abrogated by legislation, which now generally provides for the survival of causes of action in tort.81 However, defamation has been expressly excluded from this legislation in all Australian jurisdictions except for Tasmania.82 Consequently, in most Australian jurisdictions, the common law rule continues to apply with the effect that the cause of action in defamation expires with the death of the plaintiff or the defendant. The exclusion of defamation from legislation providing for the survival of causes of action in tort is one of the few examples of the common law rule still in application. The national, uniform defamation laws reinforce the common law position by providing that a person, including a personal representative of a deceased person, cannot assert, continue or enforce a cause of action in defamation in relation to the publication of defamatory matter about a deceased person, whether the matter was published before or after his or her death,83 or the publication of defamatory matter by a person who has died since publishing the matter.84 The prospect that there may be a claim brought for the defamation of the dead in a Tasmanian court has not yet been realised.

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77 78 79

80 81

82

83

84

Faulkner v Bluett (1981) 52 FLR 115 at 119 per Lockhart J; Sands v South Australia [2015] SASCFC 36 at [111] per curiam. Lamont v Dwyer [2008] ACTSC 125 at [3] per Higgins CJ. Sollers v Lawrence (1743) Willes 413; 125 ER 1242 at 421 (Willes), 1247 (ER) per Willes CJ; Hambly v Trott (1776) 1 Cowp 371; 98 ER 1136 at 374-6 (Cowp), at 1138 (ER) per Lord Mansfield; Finlay v Chirney (1888) 20 QBD 494 at 502-4 per Bowen LJ; Swan v Williams (Demolition) Pty Ltd (1987) 9 NSWLR 172 at 178 per Samuels JA. See, eg, Krahe v TCN Channel Nine Pty Ltd (1986) 4 NSWLR 536 at 541 per Hunt J. Civil Law (Wrongs) Act 2002 (ACT) s 15(1); Law Reform (Miscellaneous Provisions) Act 1956 (NT) s 5(1); Law Reform (Miscellaneous Provisions) Act 1944 (NSW) s 2(1); Succession Act 1981 (Qld) s 66(1); Survival of Causes of Action Act 1940 (SA) s 2(1); Administration and Probate Act 1935 (Tas) s 27(1); Administration and Probate Act 1958 (Vic) s 29(1); Law Reform (Miscellaneous Provisions) Act 1941 (WA) s 4(1). Civil Law (Wrongs) Act 2002 (ACT) s 15(2); Law Reform (Miscellaneous Provisions) Act 1956 (NT) s 5(2); Law Reform (Miscellaneous Provisions) Act 1944 (NSW) s 2(2); Succession Act 1981 (Qld) s 66(2); Survival of Causes of Action Act 1940 (SA) s 2(2); Administration and Probate Act 1958 (Vic) s 29(2); Law Reform (Miscellaneous Provisions) Act 1941 (WA) s 4(2). Civil Law (Wrongs) Act 2002 (ACT) s 122(a); Defamation Act 2006 (NT) s 9(a); Defamation Act 2005 (NSW) s 10(a); Defamation Act 2005 (Qld) s 10(a); Defamation Act 2005 (SA) s 10(a); Defamation Act 2005 (Vic) s 10(a); Defamation Act 2005 (WA) s 10(a). There is no equivalent provision in Tasmania. Civil Law (Wrongs) Act 2002 (ACT) s 122(b); Defamation Act 2006 (NT) s 9(b);

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If an aspersion cast against a deceased person reflects adversely upon the reputation of a living person, that living person is still entitled to sue for defamation.85

Partnerships [5.90] Historically, defamation law has not been limited to protecting the reputations of natural persons. It has long been recognised that collective entities can have reputations separate and distinct from the individual reputations of the natural persons who comprise them. As a means of conducting business, the partnership has a long history. Defamation law has, for several centuries, recognised that a partnership can have a reputation separate and distinct from the personal and business reputations of its constituent partners and, accordingly, has provided protection for that reputation.86 As a partnership only has a business or trading reputation, an aspersion against a partnership has to reflect adversely upon its business or trading reputation.87 Thus, a publication that falsely claimed that the one partner murdered the other, then attempted suicide, thereby causing damage to the partnership, was actionable by the partner falsely accused of murder but not by the partnership itself, notwithstanding that the partnership sustained actual damage. Nothing that was published disparaged the reputation of the partnership as opposed to the reputation of one of the individual partners.88 As a partnership is an artificial entity, whilst it has a reputation, it has no feelings, thus cannot recover damages for injury to feelings.89 A partnership does not need to establish that it suffered special damage in order to recover damages for defamation.90 If an aspersion reflects not only upon the individual reputations of the partners as well as on the reputation of the partnership, the partners may also be able to sue for the damage done to their reputations.91

Corporations – common law

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[5.100] When the limited liability company emerged as the major vehicle for economic growth in the late 19th century, important issues as to its legal rights and liabilities arose for determination. As is well known, the separate legal personality of the company, distinct from its corporators, was firmly established in Salomon’s Case.92 Around the same time, the issue of whether a corporation Defamation Act 2005 (NSW) s 10(b); Defamation Act 2005 (Qld) s 10(b); Defamation Act 2005 (SA) s 10(b); Defamation Act 2005 (Vic) s 10(b); Defamation Act 2005 (WA) s 10(b). There is no equivalent provision in Tasmania. 85 86

87 88 89 90 91 92

Krahe v TCN Channel Nine Pty Ltd (1986) 4 NSWLR 536 at 541 per Hunt J. See, eg, Cook v Batchellor (1802) 3 Bos & Pul 150; 127 ER 83; Forster v Lawson (1826) 3 Bing 452; 130 ER 587 at 457 (Bing) per Park J; Le Fanu v Malcomson (1848) 1 HLC 637 at 666-7 per Lord Cottenham LC, at 669-70 per Lord Campbell; Electrical, Electronic, Telecommunication and Plumbing Union v Times Newspapers Ltd [1980] 1 QB 585 at 595 per O’Connor J; Todd v Swan Television & Radio Pty Ltd (2001) 25 WAR 284 at 298 per Steytler J. Todd v Swan Television & Radio Pty Ltd (2001) 25 WAR 284 at 298 per Steytler J. Todd v Swan Television & Radio Pty Ltd (2001) 25 WAR 284 at 302 per Steytler J. Haythorn v Lawson (1827) 3 C & P 195; 172 ER 384 at 197 (C & P) per Gaselee J. Forster v Lawson (1826) 3 Bing 452; 130 ER 587 at 457 (Bing) per Park J, at 458 per Burrough J. Forster v Lawson (1826) 3 Bing 452; 130 ER 587 at 458 (Bing) per Park J. See also Harrison v Bevington (1838) 7 Car & P 708; 173 ER 683. Salomon v A Salomon & Co Ltd [1897] AC 22.

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[5.100]

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could sue for defamation to protect a reputation which was separate and distinct from its corporators needed to be decided. It was decided that a corporation could sue for defamation because it possessed a reputation that was separate and distinct from the natural persons who constituted it.93 As Lord Esher MR stated in South Hetton Coal Co Ltd v North-Eastern News Ltd,94 “the law of libel is one and the same as to all plaintiffs”.95 However, his Lordship went on to note that how defamation law applied to each different type of plaintiff depended upon the reputation in question.96 As a corporation is an artificial person, possessing only a business or trading reputation, the imputation must reflect upon its reputation in business, trade or commerce.97 There are a range of imputations which cannot reflect adversely upon a corporation’s reputation, such as imputations of murder, incest, adultery,98 assault,99 forgery100 or bad manners.101 A corporation, as distinct from its officers, cannot engage in nepotism because it “does not have family relationships, friends or proteges”.102 It is not possible to state comprehensively what will or will not be defamatory of a corporation103 but courts have not taken a narrow view of the types of imputations which can be defamatory of a corporation’s reputation.104 Given that the nature of a corporation’s reputation is ordinarily a business, trading or commercial one, the injury to a corporation’s reputation is necessarily economic. As Lord Reid famously observed in Lewis v Daily Telegraph Ltd,105 a corporation can only be injured “in its pocket”. However, there is no requirement that a corporation must plead and prove special damage.106 A corporation is entitled to the presumption of damage.107 However, it is in a corporation’s interest, if it seeks more than nominal damages, to

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93

94 95

96 97

98 99 100 101 102 103 104

105 106

Metropolitan Saloon Omnibus Co v Hawkins (1859) 4 H & N 87; 157 ER 769 at 90 (H & N) per Pollock CB, at 91-2 per Martin B, at 93-4 per Watson B; South Hetton Coal Co Ltd v North-Eastern News Association Ltd [1894] 1 QB 133 at 141 per Lopes LJ; Barnes & Co Ltd v Sharpe (1910) 11 CLR 462 at 478-9 per O’Connor J; Heytesbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440 at 448 per Steytler J; Jameel v Wall Street Journal Europe SprL [2007] 1 AC 359; [2006] UKHL 44 at 372 (AC) per Lord Bingham of Cornhill. [1894] 1 QB 133. South Hetton Coal Co Ltd v North-Eastern News Ltd [1894] 1 QB 133 at 138. The extent to which this statement continues to be true in light of subsequent legal developments needs to be considered. South Hetton Coal Co Ltd v North-Eastern News Ltd [1894] 1 QB 133 at 138. South Hetton Coal Co Ltd v North-Eastern News Ltd [1894] 1 QB 133 at 138 per Lord Esher MR; D & L Caterers Ltd v D’Ajou [1945] 1 KB 364 at 366 per Lord Goddard, at 367 per Lord du Parcq. Metropolitan Saloon Omnibus Co v Hawkins (1859) 4 H & N 87; 157 ER 769 at 90 (H & N), at 770 (ER) per Pollock CB. South Hetton Coal Co Ltd v North-Eastern News Ltd [1894] 1 QB 133 at 141 per Lopes LJ. D & L Caterers Ltd v D’Ajou [1945] 1 KB 364 at 366 per Lord Goddard. South Hetton Coal Co Ltd v North-Eastern News Ltd [1894] 1 QB 133 at 138 per Lord Esher MR. Australian Medical Association (WA) Inc v McEvoy [2012] WASC 50 at [8] per Le Miere J. South Hetton Coal Co Ltd v North-Eastern News Ltd [1894] 1 QB 133 at 139 per Lord Esher MR. New South Wales Aboriginal Land Council v Jones (1998) 43 NSWLR 300 at 306 per Handley JA; Todd v Swan Television & Radio Pty Ltd (2001) 25 WAR 284 at 298-9 per Steytler J. [1964] AC 234 at 262. South Hetton Coal Co Ltd v North-Eastern News Ltd [1894] 1 QB 133 at 139 per Lord Esher MR, at 141 per Lopes LJ, at 148 per Kay LJ.

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-20 04:19:18.

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adduce evidence to prove that the publication of the defamatory matter tended to have an adverse economic effect on its reputation.108 A non-trading corporation may sue for defamation if the matter tends to affect its property or financial position.109 However, where a company is no more than a shelf company with no business, it cannot sue for defamation.110 An important consequence of a corporation being an artificial person, for the purposes of defamation law, is that it does not have any feelings to be protected. Ordinarily, a plaintiff in a successful defamation claim will receive damages for non-economic loss, comprising damage to reputation and injury to feelings.111 Such damages for non-economic loss are frequently the only damages sought and awarded in a defamation claim and the component for injury to feelings is often substantial.112 As corporations do not possess feelings, they can only recover damages for damage to their reputation.113 Given that their reputations are necessarily business or trading reputations, they cannot recover damages for “reputation as such”, to the extent that this means a reputation other than a business or trading reputation.114 If the defamatory matter is capable of reflecting upon the reputation of a natural person involved with the corporation, he or she may sue for damage to his or her reputation, subject to any issue of identification,115 in which event, that person would be entitled to recover damages not only for damage to his or her reputation, but also injury to his or her feelings.116 An aspersion against an individual involved in a corporation may also reflect adversely upon the corporation’s reputation, depending upon the circumstances.117

Corporations – national, uniform defamation laws [5.110] One of the most significant changes to Australian defamation law

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brought about by the national, uniform defamation laws is the removal of the right of corporations to sue for defamation. Corporations are now

107

108 109 110 111 112 113 114

115 116 117

South Hetton Coal Co Ltd v North-Eastern News Association Ltd [1894] 1 QB 133 at 139 per Lord Esher MR, at 143 per Lopes LJ, at 148 per Kay LJ; Jameel v Wall Street Journal Europe SprL [2007] 1 AC 359; [2006] UKHL 44 at 393-4 (AC) per Lord Hope of Craighead. South Hetton Coal Co Ltd v North-Eastern News Association Ltd [1894] 1 QB 133 at 148 per Kay LJ. Palace Films Pty Ltd v Fairfax Media Publications Pty Ltd [2012] NSWSC 1136 at [29] per McCallum J. Palace Films Pty Ltd v Fairfax Media Publications Pty Ltd [2012] NSWSC 1136 at [37] per McCallum J. As to damages for defamation generally, see Chapter 15. As to damages for injury to feelings, see [15.70]. Royal Society for the Prevention of Cruelty to Animals (NSW) v 2KY Broadcasters Pty Ltd (1988) A Def R 50-030 at 40,161 per Hunt J. Australian Broadcasting Corporation v Comalco Ltd (1986) 12 FCR 510 at 586 per Pincus J, cf Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 per Mahoney JA; Bargold Pty Ltd v Mirror Newspapers Ltd [1981] 1 NSWLR 9 at 10-11 per Hunt J. As to indirect identification, see [7.40]. Australian Broadcasting Corporation v Comalco Ltd (1986) 12 FCR 510 at 602 per Pincus J. See, eg, Hunt Australia Pty Ltd v Davidson’s Arnhemland Safaris (2000) 179 ALR 738; [2000] FCA 1690 at 748 (ALR) per Spender, Drummond and Kiefel JJ.

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[5.110]

Standing to sue for defamation

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presumptively not entitled to sue for defamation in Australia.118 It is only if a corporation qualifies as an “excluded corporation” that the corporation retains the right to sue for defamation. A corporation is classified as “excluded” if it is not-for-profit119 or if it employs fewer than 10 full-time employees.120 It must also not be a public body.121 The right of individuals associated with a corporation to sue for damage to their personal and professional reputations by the publication of defamatory matter also reflecting adversely on the reputation of the corporation is specifically preserved.122 The statutory provision is modelled on the Defamation Act 1974 (NSW) s 8A, which was introduced by legislative amendment in 2002.123 There were a number of factors supporting the initial introduction of this reform. First, it was asserted that reputation was a purely personal right, an incident of human dignity, such that defamation law should only be available to natural, not artificial, persons. Secondly, it was pointed out that corporations could have recourse to other causes of action, such as the tort of injurious falsehood and the statutory cause of action for misleading or deceptive conduct, to protect the harm inflicted by the publication of false statements. Although these causes of action were not as forensically advantageous to corporations as defamation, they nevertheless provided corporations with legal protection. Thirdly, there was a concern that corporations could use defamation law to silence protest against corporate conduct.124 118

Civil Law (Wrongs) Act 2002 (ACT) s 121(1); Defamation Act 2006 (NT) s 8(1); Defamation Act 2005 (NSW) s 9(1); Defamation Act 2005 (Qld) s 9(1); Defamation Act 2005 (SA) s 9(1); Defamation Act 2005 (Tas) s 9(1); Defamation Act 2005 (Vic) s 9(1); Defamation Act 2005 (WA) s 9(1).

119

Civil Law (Wrongs) Act 2002 (ACT) s 121(2)(a); Defamation Act 2006 (NT) s 8(2)(a); Defamation Act 2005 (NSW) s 9(2)(a); Defamation Act 2005 (Qld) s 9(2)(a); Defamation Act 2005 (SA) s 9(2)(a); Defamation Act 2005 (Tas) s 9(2)(a); Defamation Act 2005 (Vic) s 9(2)(a); Defamation Act 2005 (WA) s 9(2)(a).

120

Civil Law (Wrongs) Act 2002 (ACT) s 121(2)(b); Defamation Act 2006 (NT) s 8(2)(b); Defamation Act 2005 (NSW) s 9(2)(b); Defamation Act 2005 (Qld) s 9(2)(b); Defamation Act 2005 (SA) s 9(2)(b); Defamation Act 2005 (Tas) s 9(2)(b); Defamation Act 2005 (Vic) s 9(2)(b); Defamation Act 2005 (WA) s 9(2)(b). For the purposes of counting, the only relevant persons are employees: see Born Brands Pty Ltd v Nine Network Australia Pty Ltd [2014] NSWCA 369 at [104] per Basten JA; contra Redeemer Baptist School Ltd v Glossop [2006] NSWSC 1201 at [20]-[24] per Nicholas J (dealing with the proper construction of the predecessor provision in New South Wales, the Defamation Act 1974 (NSW) s 8A). Civil Law (Wrongs) Act 2002 (ACT) s 121(2); Defamation Act 2006 (NT) s 8(2); Defamation Act 2005 (NSW) s 9(2); Defamation Act 2005 (Qld) s 9(2); Defamation Act 2005 (SA) s 9(2); Defamation Act 2005 (Tas) s 9(2); Defamation Act 2005 (Vic) s 9(2); Defamation Act 2005 (WA) s 9(2). Civil Law (Wrongs) Act 2002 (ACT) s 121(5); Defamation Act 2006 (NT) s 8(5); Defamation Act 2005 (NSW) s 9(5); Defamation Act 2005 (Qld) s 9(5); Defamation Act 2005 (SA) s 9(5); Defamation Act 2005 (Tas) s 9(5); Defamation Act 2005 (Vic) s 9(5); Defamation Act 2005 (WA) s 9(5).

121

122

123 124

Defamation Amendment Act 2002 (NSW) s 3, Sch 1 cl 5. Attorney-General’s Taskforce on Defamation Law Reform, Defamation Law: Proposals for Reform in NSW (September 2002) Recommendation 8. The Standing Committee of Attorneys-General’s Working Group agreed with these reasons: see SCAG Working Group of State and Territory Officers, Proposal for Uniform Defamation Laws (July 2004) at [4.5]. In this context, the spectre of the McLibel litigation loomed large: see McDonald’s Corp v Steel (unreported, High Court of Justice of England and Wales, Queen’s Bench Division, No 1990-M-NO 5724, Bell J, 19 June 1997); Steel v McDonald’s Corp [1999] EWCA Civ 1144; Steel v United Kingdom [2005] EMLR 15; (2005) 41 EHRR 22.

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-20 04:19:18.

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The national, uniform defamation laws curtail the right of corporations to sue for defamation. However, corporations can, and still do, sue successfully for defamation. The successful plaintiffs in such cases are not-for-profit corporations125 and small corporations.126 It is always open to the legislature to curtail or to abrogate common law rights, such as the right of corporations to sue for defamation. Defamation law does not protect all reputations or all aspects of reputation.127 Merely because an entity has a reputation does not mean that defamation law must intervene to protect it. Corporations are artificial entities and, whilst they enjoy many of the rights natural persons do, they do not enjoy all of them. For instance, they do not enjoy a privilege against self-incrimination,128 a privilege against exposure to penalties129 or a right to privacy.130 Reasonable minds may differ over the policy to restrict significantly the right of corporations to sue for defamation.131 What is clear, though, is that the restriction, as legislated, is problematic and warrants review and reform. The criticism that the restriction operates arbitrarily, having selected the figure of 10 employees as the “bright line”, remains valid. The way in which the figure of 10 employees was arrived at seems unsound. It appears to have been imported to the national, uniform defamation laws from the earlier New South Wales provision, which in turn derived the figure from a footnote to a House of Lords decision.132 If the legislative intention was to distinguish between genuinely small and mediumsized corporations – in order to preserve their rights to sue for defamation, in circumstances where the corporation might be more readily identified with its principals – and large corporations, which are better resourced and able to use alternative legal and non-legal means to protect their reputations, and the number of employees was to be the determinant, then more recent Australian figures, sourced, for example, from the Australian Bureau of Statistics, should 125

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126

127 128 129

130

131

132

See, eg, Royal Society for the Prevention of Cruelty to Animals New South Wales v Davies [2011] NSWSC 1445. See, eg, Cripps v Vakras [2014] VSC 279 at [15] per Kyrou J (common ground that Redleg Museum Services Pty Ltd excluded corporation within meaning of Defamation Act 2005 (Vic) s 9(2)(b)). As to the concept of reputation in defamation law, see [2.20]–[2.80]. Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 507-8 per Mason CJ and Toohey J, at 512-7 per Brennan J, at 548-56 per McHugh J. Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543; [2002] HCA 49 at 559 (CLR) per Gleeson CJ, Gaudron, Gummow and Hayne JJ. Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; cf R v Broadcasting Standards Commission; Ex parte British Broadcasting Corporation [2001] QB 885 at 897 per Lord Woolf MR, at 899 per Hale LJ. For arguments in favour of allowing corporations to sue for defamation, see, eg, Jameel v Wall Street Journal Europe Sprl [2007] 1 AC 357; [2006] UKHL 44 at 376 (AC) per Lord Bingham of Cornhill (reputation valuable to trading corporations and damage for defamatory publications will not invariably be purely financial), at 392-4 (AC) per Lord Hope of Craighead (unprincipled to distinguish between trading corporations, on the one hand, and not-for-profit organisations and trade unions, on the other hand, and difficult for any plaintiff to prove special damage), at 398-400 (AC) per Lord Scott of Foscote (reputation valuable to trading corporations, difficult for any plaintiff to prove actual damage and unprincipled to distinguish between trading corporations and charitable corporations). Attorney-General’s Taskforce on Defamation Law Reform, Defamation Law: Proposals for Reform in NSW (September 2002) p 13, citing Royal Bank of Scotland v Etridge [2002] 2 AC 773 at [34] per Lord Nicholls of Birkenhead.

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[5.120]

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have been used.133 Of all the possible means of determining what constitutes a small, medium or large corporation, this reliance upon the number of employees seems the most problematic. It is interesting to note that the United Kingdom, in its most recent libel law reform process, looked at, but rejected, the Australian approach,134 instead preferring to impose a requirement that a corporation demonstrate that it has suffered “serious harm” before it can establish a cause of action in defamation.135 There is a further concern about the restriction on the right of corporations to sue for defamation, as legislated under the national, uniform defamation laws. The reform was motivated in part by a concern that large corporations could use the threat of defamation litigation to “chill” speech.136 Depriving corporations of a right to sue for defamation did not deprive them of all legal means to protect their reputations. Other causes of action, such as injurious falsehood or misleading or deceptive conduct, would still be available, albeit with more onerous requirements.137 One important feature of defamation law, however, is its restrictive approach to injunctive relief.138 This is not shared by these other causes of action.139 Compelling corporations to rely upon alternative causes of action to defamation, for which injunctive relief is more readily available, has had the unintended consequence of allowing corporations to stop speech entirely.140 No attention was given to this issue in the law reform process which led to the introduction of the national, uniform defamation laws. A reform designed to prevent corporations from “chilling” speech has perversely led to a situation where they can more readily stop it entirely. Any future law reform process might usefully revisit this difficult issue of practical importance.

Governmental bodies

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[5.120] One instance in which Anglo-Australian defamation law has refused to provide protection for reputation is in relation to government bodies. Such bodies might possess “governing reputations” through the exercise of their governmental and administrative functions, but the prevailing view is that such reputations cannot be protected and vindicated by defamation law. Although there were earlier authorities to the effect that governmental bodies did have standing to sue for defamation,141 the House of Lords in Derbyshire County Council v Times Newspapers Ltd142 held that a governmental body was different in kind from other trading and non-trading corporations which could 133 134 135 136 137 138 139 140

141 142

D Rolph, “Corporations’ Right to Sue for Defamation: An Australian Perspective” (2011) 22 Entertainment Law Review 195 at 196, n 26. House of Commons and House of Lords, Joint Committee on Draft Defamation Bill, First Report, 12 October 2011, [111]-[112]. Defamation Act 2013 (UK) s 1(2). As to the “chilling effect” of defamation law on freedom of speech, see [2.110]. As to injurious falsehood and misleading or deceptive conduct as alternative causes of action to defamation, see [18.20]–[18.150]. As to the restrictive approach to injunctive relief in defamation, see [16.50]–[16.60]. As to the approach to injunctive relief for claims in injurious falsehood and misleading or deceptive conduct, see [18.60]–[18.150]. See, eg, Beechwood Homes (NSW) Pty Ltd v Camenzuli [2010] NSWSC 521 at [14]-[15], [59] per Harrison J; Menulog Pty Ltd v TCN Channel Nine Pty Ltd [2012] NSWSC 247 at [34]-[35] per Davies J. See further, D Rolph, “Corporations’ Right to Sue for Defamation: An Australian Perspective” (2011) 22 Entertainment Law Review 195 at 199-200. Mayor, Aldermen and Citizens of Manchester v Williams [1891] 1 QB 94; Bognor Regis Urban District Council v Campion [1972] 2 QB 169 at 175 per Browne J. [1993] AC 534.

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-20 04:19:18.

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have recourse to defamation law. The fact that such a body was democratically elected143 and the public interest in “uninhibited public criticism” of such bodies144 were important reasons for reaching the conclusion that a local authority should not have standing to sue for defamation.145 In particular, Lord Keith of Kinkel, with whom the other Law Lords agreed, noted that party politics pervaded all levels of government, with the consequence that an attack on the “governing reputation” of a governmental body could be viewed as an attack on the reputation of the governing party and its members. Not only could individual politicians have standing to sue for defamation if the aspersions reflected upon their own personal and professional reputations, but it also might be more appropriate for the ruling party to defend its reputation through the political process, in its proceedings and in its public statements.146 Shortly after the House of Lords’ decision in Derbyshire County Council v Times Newspapers Ltd, the New South Wales Court of Appeal adopted and endorsed this approach to the issue of whether a local council should have standing to sue for defamation. According to Gleeson CJ in Ballina Shire Council v Ringland,147 the reason that a governmental body does not have standing to sue for defamation is because of the nature of its reputation.148 There is, in his Honour’s view, a fundamental inconsistency between defamation law and the nature and role of democratically-elected government bodies.149 A representative democracy depends upon citizens being able to criticise freely government bodies, even if those criticisms are misguided, in order to improve the quality of government and administration. Gleeson CJ further reasons that representative democracy operates on the theory that citizens govern themselves. To treat governmental bodies as having “governing reputations” which can be protected and vindicated by defamation law seems incongruous with their representative character.150 To the extent that governmental bodies have “governing reputations”, such reputations are best vindicated at the ballot box, not in the courtroom. Although a governmental body itself might not have standing to sue for defamation, the individual members involved in it will still have standing to sue for damage to their personal and professional reputations, subject to those

143 144 145 146 147 148

149 150

Derbyshire County Council v Times Newspapers Ltd [1993] AC 534 at 547 per Lord Keith of Kinkel. Derbyshire County Council v Times Newspapers Ltd [1993] AC 534 at 547, 549 per Lord Keith of Kinkel. Derbyshire County Council v Times Newspapers Ltd [1993] AC 534 at 550 per Lord Keith of Kinkel. Derbyshire County Council v Times Newspapers Ltd [1993] AC 534 at 550 per Lord Keith of Kinkel. (1994) 33 NSWLR 680. Ballina Shire Council v Ringland (1994) 33 NSWLR 680 at 691 per Gleeson CJ; see also at 710 per Kirby P. As to other means available to a local council to protect its reputation, see at 707 per Kirby P. Ballina Shire Council v Ringland (1994) 33 NSWLR 680 at 690 per Gleeson CJ. Ballina Shire Council v Ringland (1994) 33 NSWLR 680 at 691 per Gleeson CJ.

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[5.120]

Standing to sue for defamation

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individuals being identified in the defamatory matter.151 Also, a local authority has standing to sue for injurious falsehood.152 The precise extent of the principle in Ballina Shire Council v Ringland has not been thoroughly tested. In New South Wales Aboriginal Land Council v Jones,153 the New South Wales Court of Appeal held that the appellant was “a system of local self-government” for Indigenous people within the land council’s area, with the consequence that the land council did not have standing to sue in defamation to protect its “governing reputation”. However, in Robertson v John Fairfax Publications Pty Ltd,154 Simpson J found that the principle in Ballina Shire Council v Ringland, as interpreted in New South Wales Aboriginal Land Council v Jones, did not preclude the Development and Environmental Professionals’ Association, a registered organisation under the Industrial Relations Act 1996 (NSW), from suing for defamation, notwithstanding the fact that it was a representative body, the members of which were elected and, on one view, that it was seeking to protect its “governing reputation”.155 This seems consistent with the position that trade unions have standing to sue for defamation.156 Beyond these cases, the ambit and potential applications of the principle in Ballina Shire Council v Ringland remain unclear. There is a lack of clarity about what precisely constitutes a “governmental body”. In both Derbyshire County Council v Times Newspapers Ltd and Ballina Shire Council v Ringland, the plaintiffs were clearly elected, representative bodies. Where the members of the governmental body are not elected, the position is less clear as to the authority’s standing to sue for defamation.157 Whether an unelected governmental body should be precluded from suing for defamation would raise the issue of what the precise juridical basis for the principle in these two cases is: is it the elected and representative nature of the body, or is it the broader concern that freedom of speech about public bodies should not be unduly inhibited? Related to this, it is worth noting that the reasoning in Ballina Shire Council v Ringland does not turn significantly upon the implied freedom of political communication.158 Any future consideration of the extent and application of the principle in Ballina Shire Council v Ringland might need to take into account whether the reasoning in this case is buttressed by, or needs refinement in light of, the implied freedom of political communication.159

151

152 153 154 155 156 157 158 159

Ballina Shire Council v Ringland (1994) 33 NSWLR 680 at 684 per Gleeson CJ, at 710-11 per Kirby P. As to the issue of identification, see generally Chapter 7. In relation to the specific issue of identifying individuals when an aspersion is cast against a group, see [7.80]–[7.90]. Ballina Shire Council v Ringland (1994) 33 NSWLR 680 at 692 per Gleeson CJ. As to injurious falsehood, see [18.20]–[18.50]. (1998) 43 NSWLR 300 at 310 per Handley JA. (2003) 58 NSWLR 246. Robertson v John Fairfax Publications Pty Ltd (2003) 58 NSWLR 246 at 250-1. As to the standing of trade unions to sue for defamation, see [5.130]. Ballina Shire Council v Ringland (1994) 33 NSWLR 680 at 684 per Gleeson CJ. As to the impact of the implied freedom of political communication on defamation law, see [2.120]. As to the implied freedom of political communication, see [2.120].

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[5.120]

Trade unions [5.130] Depending upon the relevant legislation for the recognition of trade unions, a trade union may have a legal personality separate and distinct from its members.160 Consequently, it has its own reputation and thus standing to sue for defamation.161 It is always open to the legislature to deprive a trade union of the legal personality necessary to allow the trade union to sue for defamation.162

Unincorporated associations [5.140] An unincorporated association has no legal personality separate and distinct from its members. As such, it has no reputation, as recognised by defamation law, to protect.163 Thus, in Cother v John Fairfax & Sons Pty Ltd,164 the plaintiff purported to bring defamation proceedings in his own name on behalf of the Federation of Parents’ and Citizens’ Associations of New South Wales. The organisation in question was unincorporated, so had no standing to sue or be sued. Therefore, the defamation proceedings were stayed.165

The role of judge and jury in a defamation trial The respective roles of judge and jury [5.150] Historically, juries were integral to defamation law, as they were to

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other areas of civil litigation. They have always, though, be considered to have a special role in defamation cases.166 They were particularly important for determining whether the matter was defamatory or not167 – the issue of “libel or no libel” – and for assessing any damages payable to the plaintiff.168 They were considered to be representative of the community in a way that judges were not.169 Over the course of the 20th century, the use of juries in civil litigation declined.170 However, defamation was the one area of civil litigation in which 160

See, eg, Fair Work (Registered Organisations) Act 2009 (Cth) s 27(e); Industrial Relations Act 1996 (NSW) s 222(e); Industrial Relations Act 1999 (Qld) s 423(e); Fair Work Act 1994 (SA) s 123; Industrial Relations Act 1979 (WA) s 60(2).

161

National Union of General & Municipal Workers v Gillian [1946] KB 81 at 85, 87 per Scott LJ, at 88, 90 per Uthwatt LJ. Electrical, Electronic, Telecommunication and Plumbing Union v Times Newspapers Ltd [1980] 1 QB 585 at 600-1 per O’Connor J. Electrical, Electronic, Telecommunication and Plumbing Union v Times Newspapers Ltd [1980] 1 QB 585 at 595 per O’Connor J. (1947) 64 WN(NSW) 154. Cother v John Fairfax & Sons Pty Ltd (1947) 64 WN(NSW) 154 at 155 per Owen J. Sutcliffe v Pressdram Ltd [1991] 1 QB 273 at 295 per Nourse LJ. John v MGN Ltd [1997] QB 586 at 616 per curiam. Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581 at 584 per Scrutton LJ; Coyne v Citizen Finance Ltd (1991) 172 CLR 211 at 240 per McHugh J. Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 502 per Murphy J; Hepburn v TCN Channel Nine Pty Ltd [1984] 1 NSWLR 386 at 405 per Hunt J; Coyne v Citizen Finance Ltd (1991) 172 CLR 211 at 240 per McHugh J. Ward v James [1966] 1 QB 273 at 290 per Lord Denning MR; Pambula District Hospital v Herriman (1988) 14 NSWLR 387 at 395, 397 per Kirby P.

162 163 164 165 166 167 168 169

170

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[5.150]

The role of judge and jury in a defamation trial

juries have persisted in Australia and are still regularly used. The retention of juries in defamation cases, whilst being displaced in other types of civil litigation, attests to the special position of juries in defamation law.171 At common law, there was a division of responsibilities between judge and jury in a defamation trial. Broadly, the judge was responsible for determining the questions of law and the jury was responsible for determining the questions of fact. In a defamation trial, the threshold question of law was whether the matter was capable of being defamatory of the plaintiff.172 If the judge found for the plaintiff on this issue, the jury had to determine whether in fact the matter bore a defamatory meaning.173 The principles of defamation law have identified some issues relating to defences as being questions of law for the judge to determine, and some as being questions of fact for the jury to determine. At common law, the assessment of any damages payable to the jury was considered to be pre-eminently an issue for the jury to determine.174 Over the last three decades, there has been considerable experimentation with defamation trial practice in New South Wales, Australia’s largest defamation jurisdiction. A series of high-profile defamation cases, in which juries awarded plaintiffs large awards of damages, led to a perception that juries were not well suited to the task of assessing damages for defamation. It was thought that the threshold issue of defamatory meaning might have been obscured for the jury after sitting through several weeks of evidence on defences and damages at an “all issues” defamation trial, at which all the issues of liability, defences and damages were determined. This perception developed, in part due to the disparity between the level of damages for non-economic loss in defamation and personal injury cases.175 Whether this series of high-profile defamation cases was in fact representative of jury verdicts is open to question. In order to overcome the real or perceived distortion of the jury’s determination of the issue as to whether the matter bore a defamatory meaning, the New South Wales Court of Appeal held that a trial judge could order the issue to be tried as a separate question under the relevant rules of court.176 This was then legislated for defamation cases particularly by an amendment to the Defamation Act 1974 (NSW).177 The Defamation Act 1974 (NSW) s 7A required a jury to be empanelled in defamation cases, but limited its role to the determination of defamatory meaning.178 The issues of defences and damages were reserved for the trial judge.179 This marked a radical departure from defamation trial procedure at common law. It led to a bifurcated trial, with a short jury trial at which the issue of defamatory meaning was determined and, if necessary, a later hearing on the issues of defences and damages was heard before the trial judge. The purpose of having a jury trial on defamatory meaning was to attempt to get a response from the jury which would approximate more closely the response 171 172 173 174 175 176 177 178 179

Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 89 per Toohey J. As to defamatory capacity, see [6.60]. As to defamatory meaning, see [6.70]. Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581 at 584 per Scrutton LJ; Coyne v Citizen Finance Ltd (1991) 172 CLR 211 at 240 per McHugh J. As to the relationship between damages for non-economic loss in defamation and personal injury cases, see [15.110]. Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448; TCN Channel Nine Pty Ltd v Mahony (1993) 32 NSWLR 397. The Defamation Amendment Act 1994 (NSW) came into effect on 1 January 1995. Defamation Act 1974 (NSW) s 7A(3). Defamation Act 1974 (NSW) s 7A(4).

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of the original audience, thereby hopefully getting a better reflection of the ordinary, reasonable reader’s response. Such a response may have been obscured by the jury hearing evidence as to defences and damages, which was unrelated to the determination of the natural and ordinary meaning of the published matter. The increase in the volume of cases litigated increased the costs, not least because there was also an increase in the number of interlocutory skirmishes about pleadings before the s 7A trial. There was also an increase in the number of appeals against jury verdicts, leading to a series of almost 40 cases in which s 7A jury verdicts were challenged on the basis that they were “perverse” or unreasonable.180 By the time of its demise, the s 7A trial had few defenders. The national, uniform defamation laws sought to harmonise the approach to the use of juries in defamation trials across Australia. In this respect, they were not successful. Juries had not been used in civil litigation in South Australia and the Australian Capital Territory.181 The Northern Territory used the opportunity of the introduction of the national, uniform defamation laws to abolish juries in defamation trials entirely,182 citing the negligible incidence of their use in the preceding three decades. In the remaining States, either party could elect to have a jury.183 If a jury were empanelled, it was to determine the issues of defamatory meaning and questions of fact relating to defences.184 It was for the judge to determine the issues of defamatory capacity and questions of law relating to defences, allocated by the common law to the judge. Significantly, the judge was to assess any damages payable to the plaintiff.185 The national, uniform defamation laws also preserve for the judge any issue that, at general law, he or she is to determine.186 The position under the national, uniform defamation laws, therefore, represented a compromise between the diverse approaches which previously operated across Australia.

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[5.160] Juries continue to be used in defamation litigation in those Australian

jurisdictions which permit them.187 Trial procedure under the national, uniform defamation laws where a jury is involved in a defamation proceeding is 180

181

182 183 184 185 186

187

See, eg, John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77; (2003) 77 ALJR 1657; [2003] HCA 50; John Fairfax Publications Pty Ltd v Gacic (2007) 230 CLR 291; [2007] HCA 28. Bateman v Fairfax Media Publications Pty Ltd (2013) 8 ACTLR 13; [2013] ACTSC 72 at 21 (ACTLR) per Refshauge J (jury had never been used in defamation trial in Australian Capital Territory). Juries Act 1962 (NT) s 6A. Defamation Act 2005 (NSW) s 21(1); Defamation Act 2005 (Qld) s 21(1); Defamation Act 2005 (Tas) s 21(1); Defamation Act 2005 (Vic) s 21(1); Defamation Act 2005 (WA) s 21(1). Defamation Act 2005 (NSW) s 22(2); Defamation Act 2005 (Qld) s 22(2); Defamation Act 2005 (Tas) s 22(2); Defamation Act 2005 (Vic) s 22(2); Defamation Act 2005 (WA) s 22(2). Defamation Act 2005 (NSW) s 22(3); Defamation Act 2005 (Qld) s 22(3); Defamation Act 2005 (Tas) s 22(3); Defamation Act 2005 (Vic) s 22(3); Defamation Act 2005 (WA) s 22(3). Defamation Act 2005 (NSW) s 22(5)(b); Defamation Act 2005 (Qld) s 22(5)(b); Defamation Act 2005 (Tas) s 22(5)(b); Defamation Act 2005 (Vic) s 22(5)(b); Defamation Act 2005 (WA) s 22(5)(b). As to cases decided under the national, uniform defamation laws involving a jury, see Davis v Nationwide News Pty Ltd [2008] NSWSC 693; O’Hara v Sims [2009] QCA 186; Greig v WIN Television NSW Pty Ltd [2009] NSWSC 632; Trkulja v Yahoo! Inc LLC [2012] VSC

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[5.160]

The role of judge and jury in a defamation trial

still being developed and clarified. The emerging view is that the national, uniform defamation laws contemplate a single “all-issues” trial, rather than a split procedure, as occurred under the Defamation Act 1974 (NSW) s 7A.188 Where one party has elected to have a jury, there have been a number of applications by opponents seeking to dispense with the jury. These applications have had mixed success.189 A jury may be dispensed with if the case involves prolonged examination of documents or records, or a technical, scientific or other issue which cannot be adequately determined by a jury.190 An issue which has been clarified under the national, uniform defamation laws is whether the court, of its own motion, has the power to dispense with a jury where a party has elected to have one. In Channel Seven Sydney Pty Ltd v FierravantiWells,191 the New South Wales Court of Appeal held, McColl JA giving the leading judgment, that a court has no power of its own motion to dispense with a jury regularly elected for by a party. Rather than dispensing with juries, there have been a number of recent cases in which applications have been made to increase the size of juries. Ordinarily, juries in civil litigation are smaller than those in criminal trials.192 There is a statutory power to increase the size of a jury in civil proceedings.193 Again, applications to increase the size of juries in defamation cases have had mixed success.194 One of the cases in which a jury was increased from its ordinary number in civil proceedings to a jury of 12 persons was Ra v Nationwide News Pty

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188

189

190 191 192

193

194

88; Daily Examiner Pty Ltd v Mundine [2012] NSWCA 195; Hyndes v Nationwide News Pty Ltd [2012] NSWCA 349; Trkulja v Google Inc LLC (No 5) [2012] VSC 533; McMahon v John Fairfax Publications Pty Ltd (No 7) [2013] NSWSC 933; Ahmed v Harbour Radio Pty Ltd [2013] NSWSC 1928; Roberts v Prendergast [2014] 1 Qd R 357; [2013] QCA 47; Mizikovsky v Queensland Television Ltd [2014] 1 Qd R 197; [2013] QCA 68; Mather v Smith (No 1) [2014] QCA 65; Holt v TCN Channel Nine Pty Ltd (2014) 86 NSWLR 96; [2014] NSWCA 90; Lower Murray Urban and Rural Water Corporation v Di Masi [2014] VSCA 104; Fisher v Channel Seven Sydney Pty Ltd [2014] NSWSC 1616. Greig v WIN Television NSW Pty Ltd [2009] NSWSC 876 at [11]-[12] per McClellan CJ at CL; Trkulja v Google Inc LLC (No 5) [2012] VSC 533 at [10] per Beach J; Lower Murray Urban and Rural Water Corporation v Di Masi [2014] VSCA 104 at [120] per curiam. See, eg, unsuccessful applications to dispense with jury: Ange v Fairfax Media Publications Pty Ltd [2010] NSWSC 1383 at [90] per Garling J; Mizikovsky v Queensland Television Ltd [2011] QSC 205 at [15]-[19] per Boddice J; Belbin v Lower Murray Urban and Rural Water Corporation (Ruling No 1) [2012] VSC 359 at [8]-[9] per Kaye J; Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd [No 2] [2014] WASC 408 at [23] per Kenneth Martin J. For successful applications to dispense with jury, see, eg: Gunston v Davies Brothers Pty Ltd [2010] TASSC 65 at [11] per Holt AsJ; French v Herald & Weekly Times Pty Ltd (2010) 27 VR 140; [2010] VSC 127 at 145 (VR) per Beach J (matter withdrawn from jury due to complexity of defences). Defamation Act 2005 (NSW) s 21(3); Defamation Act 2005 (Qld) s 21(3); Defamation Act 2005 (Tas) s 21(3); Defamation Act 2005 (Vic) s 21(3); Defamation Act 2005 (WA) s 21(3). (2011) 81 NSWLR 315; [2011] NSWCA 246 at 339 (NSWLR) per McColl JA. Jury Act 1977 (NSW) s 20(1) (four persons); Jury Act 1995 (Qld) s 32 (four persons); Juries Act 2003 (Tas) s 25(1)(a) (seven persons); Juries Act 2000 (Vic) s 22(1) (six persons); Juries Act 1957 (WA) s 19 (six persons). Jury Act 1977 (NSW) s 20(2) (12 persons); Juries Act 2003 (Tas) s 25(1)(b) (nine persons), s 26(1) (two persons as reserve jurors); Juries Act 2000 (Vic) s 22(1) (eight persons), s 23(b) (two persons as reserve jurors); Juries Act 1957 (WA) s 24. For successful applications, see Waterhouse v Age Co Ltd [2012] NSWSC 1349 at [14]-[15] per Nicholas J; Ramjan v Kroger (unreported, NSW SC, Nicholas J, 5 March 2013) at [2], [13], [17]-[18] per Nicholas J; Wood v Channel Seven Sydney Pty Ltd [2014] NSWSC 1527 at [12] per McCallum J. For unsuccessful applications, see Howes v ACP Magazines Ltd [2013] NSWSC 88 at [12] per Nicholas J.

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Ltd.195 This case was also significant as it was the first time a jury was ordered in a Federal Court proceeding. Under the Federal Court of Australia Act 1976 (Cth), the presumption is that trials will be conducted before a judge sitting alone196 but there is a power to order trial by jury.197 Although applications for a jury in Federal Court proceedings had been periodically made, none had been successful until Rares J ordered one in Ra v Nationwide News.198 The matter settled prior to trial. Whether juries are essential to, or desirable in, defamation litigation has been the subject of recent debate in Australia. In England and Wales, the recent defamation law reform process resulted in the abolition of the presumption in favour of trial by jury in defamation cases.199

195 196 197 198

199

(2009) 182 FCR 148. Federal Court of Australia Act 1976 (Cth) s 39. Federal Court of Australia Act 1976 (Cth) s 40. Ra v Nationwide News Pty Ltd (2009) 182 FCR 148; [2009] FCA 1308 at 159 (FCR) per Rares J. For earlier attempts to have a jury empanelled in a Federal Court proceeding, see Commonwealth Bank of Australia v Rigg [2001] FCA 590 at [17] per Beaumont J; Gargan v Commonwealth Bank of Australia [2004] FCA 641 at [6]-[7] per Hely J; Draper v Official Trustee in Bankruptcy (2006) 156 FCR 53 at 69-70 (FCR) per Mansfield J, at 72 (FCR) per Rares J, at 81 (FCR) per Besanko J). Senior Courts Act 1981 (UK).

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6

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Defamatory Capacity and Meaning [6.10] Introduction..................................................................................................92 [6.20] The cause of action..................................................................................... 92 [6.20] The matter as the cause of action..................................................... 92 [6.30] Imputations.........................................................................................93 [6.40] What constitutes the matter............................................................... 96 [6.50] Defamatory capacity and meaning............................................................. 96 [6.50] Introduction........................................................................................ 96 [6.60] Defamatory capacity.......................................................................... 97 [6.70] Defamatory meaning..........................................................................97 [6.80] The ordinary, reasonable reader........................................................ 98 [6.90] Relevance of intention..................................................................... 100 [6.100] Natural and ordinary meaning and true innuendoes.............................. 101 [6.100] Introduction.................................................................................... 101 [6.110] The natural and ordinary meaning................................................ 101 [6.120] True innuendoes.............................................................................102 [6.130] Interpreting defamatory matter............................................................... 103 [6.130] Introduction.................................................................................... 103 [6.140] The single meaning rule................................................................ 103 [6.150] The role of context........................................................................ 104 [6.160] The nature of the publication........................................................ 105 [6.170] Bane and antidote.......................................................................... 106 [6.180] Implications and inferences........................................................... 107 [6.190] Imputations of suspicion................................................................108 [6.200] Mere vulgar abuse......................................................................... 109 [6.210] Mere jest.........................................................................................110 [6.220] The tests for what is defamatory............................................................ 110 [6.220] Introduction.................................................................................... 110 [6.230] Disparagement of reputation..........................................................111 [6.240] Hatred, contempt or ridicule..........................................................112 [6.250] Lowering in the estimation............................................................112 [6.260] Ridicule.......................................................................................... 113 [6.270] Shun and avoid.............................................................................. 114 [6.280] Professional reputation...................................................................115 [6.290] Community standards and sectional standards............................. 116 [6.300] Changing views about what is defamatory...................................116

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[6.10]

Introduction [6.10] For a plaintiff to succeed in a defamation claim, he or she must establish that there has been matter published by the defendant; that the matter identifies or is “of and concerning” the plaintiff; and that the matter is defamatory of the plaintiff. Once these three elements are satisfied, on the balance of probabilities, the onus shifts to the defendant to establish a defence. The plaintiff has the benefit of two forensically significant presumptions: the presumption of falsity1 and the presumption of damage.2 In many cases, the issue of identification3 and publication4 will be straightforward. Whether the matter is defamatory will often be the most contentious issue. Defamation law has developed, over several centuries, a complex – arguably needlessly complex – body of principles for determining whether the matter is defamatory or not. This chapter analyses the cause of action in defamation and how one determines whether the matter is capable of being, and is in fact, defamatory of the plaintiff.

The cause of action The matter as the cause of action

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[6.20] At common law, the matter is the cause of action.5 A single matter may convey multiple meanings but it is the matter as a whole which furnishes the cause of action. The common law position can be contrasted with the position which pertained in New South Wales for four decades. Under the Defamation Act 1974 (NSW) s 9(2), the imputation was the cause of action.6 The effect of this reform, unsurprisingly, was to increase the prolixity of pleadings and, consequently, the volume of interlocutory skirmishes,7 both of which were already identified as unflattering characteristics of defamation litigation. Under the national, uniform defamation laws, there is a single cause of action for defamation based on the defamatory matter, irrespective of whether more than one imputation is conveyed by the matter.8 The term “matter” is defined broadly and non-exhaustively to include an article, report, advertisement or any other thing communicated by means of a newspaper, magazine or other periodical; a program, report, advertisement or any other thing communicated by means of television, radio, the internet or any other form of electronic communication; a letter, note or any other form of writing; and a picture, gesture or oral utterance.9 Although the matter is now the cause 1 2 3 4 5

6

7 8 9

As to the presumption of falsity, see [9.40]. As to the presumption of damage, see [15.30]. As to identification, see Chapter 7. As to publication, see Chapter 8. Harris v Warre (1878) 4 CPD 125 at 128 per Lord Coleridge CJ; Chapman v Australian Broadcasting Corporation (2000) 77 SASR 181 at 188 per Lander J; Fairfax Media Publications Pty Ltd v Kermode (2011) 81 NSWLR 157; [2011] NSWCA 174 at 169 (NSWLR) per McColl JA. As to the implications of making the imputation the cause of action under the Defamation Act 1974 (NSW) s 9, see Fairfax Media Publications Pty Ltd v Kermode (2011) 81 NSWLR 157; [2011] NSWCA 174 at 173-4 (NSWLR) per McColl JA. Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 578 per Kirby J. Defamation Act 2005 (NSW) s 8. Defamation Act 2005 (NSW) s 4.

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[6.30]

The cause of action

of action across Australia, that does not mean that imputations no longer have a role to play in defamation litigation. Indeed, the pleading of imputations or the particularisation of meanings remains a central feature of defamation litigation.

Imputations [6.30] An imputation is an act or condition attributed to the plaintiff by the

defendant.10 In order to be defamatory, the imputation must be capable of reflecting adversely upon the plaintiff’s reputation.11 Imputations need to differ in substance from each other. There is also a need for some degree of precision in the pleading of imputations.12 On occasion, the imputation will appear from the words themselves but, in most cases, the pleader will need to distil the defamatory stings from the matter published by the defendant.13 At common law, where a plaintiff relied upon the natural and ordinary meaning of the words, there was no obligation on the part of the plaintiff to particularise the meanings upon which he or she relied.14 The plaintiff then had a considerable forensic advantage. A defendant could prepare his or her case comprehensively, only to find at trial that the plaintiff only relied upon one or two of the many possible meanings arising from the matter. The defendant had then wasted considerable time, energy and resources, preparing to meet a case that was never actually presented. Alternatively, a defendant could scrupulously prepare his or her case but omit to prepare a defence for a meaning upon which the plaintiff relies at trial.15 Both of these scenarios indicate the potential for unfairness to the defendant in the strict common law position. A concern about the need to avoid this unfairness and to ensure that a defendant was informed of the case he or she had to meet, in advance of the trial, led to the decision of the New South Wales Parliament, following the advice contained in the New South Wales Law Reform Commission’s 1971 report on defamation, to make the imputation the cause of action under the Defamation Act 1974 (NSW) s 9(2).

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From the mid-1960s onwards in England, and later in Australia, the common law position in relation to the particularisation of meanings began to 10 11

12

13

14

15

Hall-Gibbs Mercantile Agency Ltd v Dun (1910) 12 CLR 84 at 91 per Griffith CJ. Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 at 643-4 per Aickin J; Dawson Bloodstock Agency Pty Ltd v Mirror Newspapers Ltd [1979] 1 NSWLR 16 at 17-8 per Begg J; Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663 at 678 per Hunt J. As to the requirement for disparagement of reputation, see [6.230]. Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663 at 678 per Hunt J; Chapman v Australian Broadcasting Corporation (2000) 77 SASR 181 at 190 per Lander J. As to the need for precision under the national, uniform defamation laws, see King v Fairfax Media Publications Pty Ltd (No 2) [2014] NSWSC 1244 at [8] per McCallum J. Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663 at 678 per Hunt J; Petritsis v Hellenic Herald Pty Ltd [1978] 2 NSWLR 174 at 195 per Mahoney JA; Greek Herald Pty Ltd v Nikolopoulos (2002) 54 NSWLR 165; [2002] NSWCA 41 at 172 (NSWLR) per Mason P. Dougherty v Nationwide News Pty Ltd [1969] 1 NSWR 189 at 191-2; Packer v Mirror Newspapers Ltd (1969) 90 WN (Pt 1) (NSW) 308 at 309-10 per Wallace P; Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 530 per Brennan CJ and McHugh J, at 542 per Gaudron and Gummow JJ; Random House Australia Pty Ltd v Abbott (1999) 94 FCR 296 at 304 per Beaumont J; Chapman v Australian Broadcasting Corporation (2000) 77 SASR 181 at 189 per Lander J; Fairfax Media Publications Pty Ltd v Kermode (2011) 81 NSWLR 157; [2011] NSWCA 174 at 169 (NSWLR) per McColl JA. Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 532 per Brennan CJ and McHugh J.

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[6.30]

change, whereby it became proper pleading practice for the plaintiff to identify the meanings upon which he or she relied.16 This was because, more often than not, the defamatory meaning arises by implication or inference, rather than from the words themselves.17 Now, in all but perhaps the most straightforward matters, the plaintiff is obliged to plead the imputations upon which he or she relies.18 This allows the defendant to know the case against him or her.19 It defines the issues between the parties20 and allows for effective case management of the proceedings.21 Courts now discourage “trial by ambush”, which could occur under the traditional common law approach to this issue.22 By pleading imputations, the plaintiff “gives shape and focus to the cause of action”.23 More importantly, the consequence of pleading imputations is that the plaintiff confines his or her claim, foregoing some of the considerable advantage he or she enjoyed under the common law’s traditional approach. The plaintiff cannot then succeed on a meaning not pleaded.24 So as not to elevate form over substance – a real risk in defamation litigation – some latitude will be granted to a plaintiff to depart from his or her pleaded meanings, where it is no more than a different nuance and the departure is not prejudicial, disadvantageous or unfair to the defendant.25 There is, nevertheless, a need to plead imputations

16

17

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18

19

20

21

22 23 24

25

Lewis v Daily Telegraph Ltd [1964] AC 234 at 273 per Lord Hodson, at 281-2 per Lord Devlin); Slim v Daily Telegraph Ltd [1968] 2 QB 157 at 185 per Salmon LJ; Allsop v Church of England Newspaper Ltd [1972] 2 QB 161 at 167 per Lord Denning MR; S & K Holdings Ltd v Throgmorton Publications Ltd [1972] 1 WLR 1036 at 1040 per Lord Denning MR; Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 578-9 per Kirby J; Chapman v Australian Broadcasting Corporation (2000) 77 SASR 181 at 189 per Lander J; Fairfax Media Publications Pty Ltd v Kermode (2011) 81 NSWLR 157; [2011} NSWCA 174 at 169 (NSWLR) per McColl JA. See also Prichard v Krantz (1984) 37 SASR 379 at 384 per King CJ. Champan v Australian Broadcasting Corporation (2000) 77 SASR 181 at 189 per Lander J. As to the natural and ordinary meaning, see [6.110]. As to implications and inferences, see [6.180]. Allsop v Church of England Newspaper Ltd [1972] 2 QB 161 at 167 per Lord Denning MR: “clear and explicit”; Chapman v Australian Broadcasting Corporation (2000) 77 SASR 181 at 189 per Lander J. As to publications in narrow compass, see Berkoff v Burchill [1996] 4 All ER 1008 at 1011 per Neill LJ. Slim v Daily Telegraph Ltd [1968] 2 QB 157 at 185 per Salmon LJ; Allsop v Church of England Newspaper Ltd [1972] 2 QB 161 at 167 per Lord Denning MR; Prichard v Krantz (1984) 37 SASR 379 at 386 per King CJ; Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 531 per Brennan CJ and McHugh J, at 579 per Kirby J; Chapman v Australian Broadcasting Corporation (2000) 77 SASR 181 at 189 per Lander J. Prichard v Krantz (1984) 37 SASR 379 at 386 per King CJ; Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 530-2 per Brennan CJ and McHugh J, at 545 per Gaudron and Gummow JJ; Random House Australia Pty Ltd v Abbott (1999) 94 FCR 296 at 304-5 per Beaumont J. Allsop v Church of England Newspaper Ltd [1972] 2 QB 161 at 167 per Lord Denning MR; Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 545 per Gaudron and Gummow JJ; Random House Australia Pty Ltd v Abbott (1999) 94 FCR 296 at 304-5 per Beaumont J; Fairfax Media Publications Pty Ltd v Kermode (2011) 81 NSWLR 157; [2011] NSWCA 174 at 169 (NSWLR) per McColl JA. Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 532 per Brennan CJ and McHugh J. Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 531-2 per Brennan CJ and McHugh J. Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 532 per Brennan CJ and McHugh J; Random House Australia Pty Ltd v Abbott (1999) 94 FCR 296 at 305 per Beaumont J. Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 533-4 per Brennan CJ

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[6.30]

The cause of action

with precision. As Gleeson CJ explained in Drummoyne Municipal Council v Australian Broadcasting Corporation:26

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Defamation may come in the form of snide insinuation or robust denunciation, or something in between those two extremes. The attribution to a person of an act or condition may be done with a high degree of particularity or it may take the form of the most generalised and non-specific abuse. It is a feature of certain forms of defamation that one can read or hear matter published concerning a person and be left with the powerful impression that the person is a scoundrel, but find it very difficult to discern exactly what it is that the person is said or suggested to have done wrong.

The degree of precision with which a plaintiff must particularise his or her meanings has been the subject of judicial controversy in the largest defamation jurisdiction in Australia, New South Wales.27 The ultimate resolution of this dispute favoured a high degree of precision. This view has continued to pertain after the introduction of the national, uniform defamation laws. It is unclear to what extent this view reflects the position in New South Wales only or is representative of the proper approach to be adopted across Australia. Ultimately, however, Gleeson CJ’s counsel in Drummoyne Municipal Council v Australian Broadcasting Corporation28 remains apposite, that “if a problem arises, the solution will usually be found in considerations of practical justice rather than philology”. There are further requirements for the pleading of imputations: the matter should be able to support the pleaded imputation; and the imputation cannot be sustained merely by the pleader’s ingenuity.29 When pleading imputations, exaggeration and flourishes should be avoided.30 Rhetorical imputations should not be pleaded.31 The authorities counsel that certain terms – “weasel words” – should be avoided, or at least used with caution in the pleading of imputations.32 The pleading of imputations should be viewed as a means to an end, although, unfortunately, the functional nature of imputations is often forgotten or submerged in defamation litigation. A fixation on imputations can contribute not only to the prolixity of pleadings and complexity of proceedings, but it can also heighten the artificiality of defamation law. By focusing on the imputations, attention can be diverted away from what the defendant in fact published and how the ordinary, reasonable reader would interpret it, instead leading it

26 27

28 29 30 31 32

and McHugh J, at 580 per Kirby J; Random House Australia Pty Ltd v Abbott (1999) 94 FCR 296 at 305 per Beaumont J. See also Prichard v Krantz (1984) 37 SASR 379 at 386 per King CJ; Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 546 per Gaudron and Gummow JJ. (1990) 21 NSWLR 135 at 137. For criticism of excessive precision in the pleading of imputations, see Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 142-51 per Kirby P. (1990) 21 NSWLR 135 at 137. Grubb v Bristol United Press Ltd [1963] 1 QB 309 at 326 per Holroyd Pearce LJ; Chapman v Australian Broadcasting Corporation (2000) 77 SASR 181 at 190 per Lander J. Chapman v Australian Broadcasting Corporation (2000) 77 SASR 181 at 190 per Lander J. Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663 at 678 per Hunt J; Chapman v Australian Broadcasting Corporation (2000) 77 SASR 181 at 190 per Lander J. For example, “caused”: Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 163 per Hunt CJ at CL; “improperly”: Chapman v Australian Broadcasting Corporation (2000) 77 SASR 181 at 190 per Lander J; “unlawfully” and “wrongfully”: Chapman v Australian Broadcasting Corporation (2000) 77 SASR 181 at 190 per Lander J.

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towards an arid analysis of “the meaning of meanings”.33 It can also divert attention from an assessment of the damage done by the publication to the imputations formulated by the plaintiff’s lawyers.34

What constitutes the matter [6.40] In most cases, it will not be contentious as to what constitutes the matter. The plaintiff is obliged to plead the whole matter. He or she cannot select portions of the matter and rely only upon them.35 However, there are cases in which it is not entirely clear what constitutes the matter. For example, there may be instances where there are several segments of radio broadcasts, in between which there is other material; or there may be instances where there is a front-page story with a follow-up story inside the newspaper or magazine. The issue becomes whether these constitute one whole defamatory matter or whether they constitute separate defamatory matters, about which the plaintiff can complain individually. Ordinarily, the plaintiff is entitled to plead his or her case as he or she wishes, but this is subject to the requirement that the plaintiff’s pleading is not unreasonable, is able to be supported by the publication and is not unfair or otherwise an abuse of process. A defendant then can apply to have matters separately pleaded by a plaintiff treated as a single matter. In order to succeed, the defendant would need to demonstrate unfairness, unreasonableness or abuse of process resulting from the way in which the plaintiff chose to plead his or her claim.36

Defamatory capacity and meaning Introduction

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[6.50] When dealing with the plaintiff’s case as to liability, defamation law divides the issue into two: defamatory capacity and defamatory meaning. The tests mirror each other but serve distinct purposes. Defamatory capacity is a question of law reserved for the judge, as a threshold test for liability, whereas defamatory meaning is a question of fact for the jury, actually imposing liability or not for defamation.37 The centrality of the jury historically explains the distinction that has been drawn between defamatory capacity and meaning. The retention of the use of juries in defamation litigation in most Australian jurisdictions explains the need for this distinction to be maintained.38 The 33 34 35 36

37

38

Random House Australia Pty Ltd v Abbott (1999) 94 FCR 296 at 316 per Miles J. Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 580 per Kirby J. Cooke v Hughes (1824) Ry & M 112; 171 ER 961 at 962 (ER) per Abbott CJ; Gordon v Amalgamated Television Services Pty Ltd [1980] 2 NSWLR 410 at 412-3 per Hunt J. See, eg, Burrows v Knightley (1987) 10 NSWLR 651 at 654-7 per Hunt J; Phelps v Nationwide News Pty Ltd [2001] NSWSC 130 at [10], [21]-[22] per Simpson J; Beran v John Fairfax Publications Pty Ltd [2004] NSWCA 107 at [56] per McColl JA; Age Corporation Ltd v Beran [2005] NSWCA 289 at [42]-[44] per Hodgson JA; Australian Broadcasting Corporation v Obeid (2006) 66 NSWLR 605; [2006] NSWCA 231 at 606-7 (NSWLR) per Hodgson JA, at 621 per Tobias JA; Jneid v West Australian Newspapers Ltd [2015] WASC 68 at [121]-[148] per Kenneth Martin J. Australian Newspaper Co v Bennett [1894] AC 284 at 287 (PC); Nevill v Fine Art and General Insurance Co Ltd [1897] AC 68 at 72 per Lord Halsbury LC; Tolley v JS Fry & Sons Ltd [1931] AC 331 at 342 per Viscount Dunedin, at 350 per Lord Tomlin; Sim v Stretch [1936] 2 All ER 1236 at 1240 per Lord Atkin; Jones v Skelton [1964] NSWR 385 at 491 (PC). As to the role of juries in defamation cases, see [5.150].

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[6.70]

Defamatory capacity and meaning

distinction between defamatory capacity and meaning is less important in jurisdictions in which, and in cases, where there is no jury. The tests for defamatory meaning both make clear, though, that whether a judge or jury is determining the issue, the central, organising figure of defamation law is the ordinary, reasonable reader.

Defamatory capacity [6.60] The issue of defamatory capacity is a question of law.39 It is determined by the judge as a threshold issue. It acts as a “judicial filter”, sifting out meanings that should not be put before the jury. The issue of defamatory capacity comprises two subsidiary questions. First, the judge must determine whether the imputations are capable of being conveyed by the matter to the ordinary, reasonable reader. If the imputations are capable of being conveyed, the judge must then determine whether those imputations are capable of defaming the plaintiff in the eyes of the ordinary, reasonable reader.40 The guiding test is reasonableness.41 In applying the test of the ordinary, reasonable reader to determine the issue of defamatory capacity, the trial judge must exclude from the jury’s consideration “any strained, or forced, or utterly unreasonable interpretation”.42 Put another way, the judge must exclude from the jury’s consideration any meaning in respect of which a jury verdict in favour of the plaintiff would be set aside as unreasonable or perverse.43 Where reasonable minds could differ as to the issue of capacity, the preferable course is to leave the matter to the jury.44 A judge should exercise great caution in reaching the conclusion that the matter is incapable of bearing a defamatory meaning.45

Defamatory meaning [6.70] If the judge determines the issue of defamatory capacity in favour of the

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plaintiff, then the jury must determine the issue of defamatory meaning.46 The issue of defamatory meaning – “libel or no libel” – is pre-eminently one for the jury to determine, where a jury is empanelled.47 The issue of defamatory 39

40 41 42 43 44 45 46

47

Sim v Stretch [1936] 2 All ER 1236 at 1240 per Lord Atkin; Jones v Skelton [1964] NSWR 485 at 491 (PC); Lewis v Daily Telegraph Ltd [1964] AC 234 at 258 per Lord Reid; Farquhar v Bottom [1980] 2 NSWLR 380 at 385 per Hunt J; Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 164 per Hunt CJ at CL; Chapman v Australian Broadcasting Corporation (2000) 77 SASR 181 at 189 per Lander J. See, however, Lloyd v David Syme & Co Ltd (1985) 3 NSWLR 728 at 733 (PC). Farquhar v Bottom [1980] 2 NSWLR 380 at 385 per Hunt J. Jones v Skelton [1964] NSWR 485 at 491 (PC); Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 166 per Hunt CJ at CL. Farquhar v Bottom [1980] 2 NSWLR 380 at 385-6 per Hunt J; Chapman v Australian Broadcasting Corporation (2000) 77 SASR 181 at 190 per Lander J. Farquhar v Bottom [1980] 2 NSWLR 380 at 386-7 per Hunt J. See also Drummond-Jackson v British Medical Association [1970] 1 WLR 688 at 700 per Sir Gordon Willmer. Farquhar v Bottom [1980] 2 NSWLR 380 at 386 per Hunt J. Berkoff v Burchill [1996] 4 All ER 1008 at 1011 per Neill LJ. Australian Newspapers Co v Bennett [1894] AC 284 at 287 (PC); Sim v Stretch [1936] 2 All ER 1236 at 1240 per Lord Atkin; Jones v Skelton [1964] NSWR 485 at 491 (PC); Chapman v Australian Broadcasting Corporation (2000) 77 SASR 181 at 190 per Lander J. Australian Newspaper Co v Bennett [1894] AC 284 at 287 (PC); Broome v Agar (1928) 44 TLR 339 at 339-40 per Scrutton LJ; Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581 at 584 per Scrutton LJ; Jones v Skleton [1964] NSWR 485 at 492 (PC); Berkoff v Burchill [1996] 4 All ER 1008 at 1011 per Neill LJ.

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-22 20:21:46.

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meaning comprises two subsidiary questions, which mirror those asked in relation to defamatory capacity. First, the jury must determine whether the imputations are in fact conveyed by the matter to the ordinary, reasonable reader. If the imputations are in fact conveyed, then the jury must determine whether the imputations are in fact defamatory of the plaintiff in the eyes of the ordinary, reasonable reader.48 The determinative issue is how the ordinary, reasonable reader would understand the matter.49 Whether a matter is defamatory is ultimately a matter of impression.50 A significant danger inherent in defamation litigation is that the matter will be subjected to scrutiny and analysis that the ordinary, reasonable reader would never in fact undertake.51 The ordinary, reasonable reader will not usually re-read or review the same matter;52 yet, in a defamation trial, the concern about the imposition or non-imposition of liability entails a close examination of the matter complained of by judge and jury in a way divorced from the reality of actual recipients.

The “ordinary, reasonable reader” [6.80] Like negligence, defamation has, at its heart, an objective standard by reference to which liability for defamation is established. The central construct of defamation law, the “hypothetical referee”,53 is the “ordinary, reasonable reader”. Like the “reasonable person” in a claim for negligence, the “ordinary, reasonable reader” in defamation is imbued with certain characteristics and is not possessed of others. The case law discloses: that the ordinary reasonable reader is a person of fair, average intelligence … who is neither perverse … nor suspicious of mind … nor avid for scandal.54

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This ordinary reasonable reader does not … live in an ivory tower. He can, and does, read between the lines, in the light of his general knowledge and experience of worldly affairs … [T]he ordinary reasonable reader is a layman not a lawyer, and … his capacity for implication is much greater than that of the lawyer.55

As Kirby J notes in Chakravarti v Advertiser Newspapers Ltd,56 the construction of the “ordinary, reasonable reader” excludes the extremes of suspicion and cynicism on the one hand and the extremes of naivety and disbelief on the other. The “ordinary, reasonable reader” is avowedly a compromise between the disparate attitudes held by actual members of the readership or audience of a given matter. As Lord Reid observed in Lewis v Daily Telegraph Ltd:57 Ordinary men and women have different temperaments and outlooks. Some are unusually suspicious and some are unusually naïve. One must try to envisage people between those extremes and see what is the most damaging meaning they would put on the words in question. 48 49 50 51 52 53 54 55 56 57

Farquhar v Bottom [1980] 2 NSWLR 380 at 385 per Hunt J. Lewis v Daily Telegraph Ltd [1964] AC 234 at 258 per Lord Reid. Lewis v Daily Telegraph Ltd [1964] AC 234 at 260 per Lord Reid. Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 573 per Kirby J. Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 575 per Kirby J. Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 506 per Brennan J. Lewis v Daily Telegraph Ltd [1964] AC 234 at 260 per Lord Reid. Farquhar v Bottom [1980] 2 NSWLR 380 at 386 per Hunt J; see also Lewis v Daily Telegraph Ltd [1964] AC 234 at 258 per Lord Reid. (1998) 193 CLR 519 at 573. [1964] AC 234 at 259.

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[6.80]

Defamatory capacity and meaning

One is most unlikely to encounter a living embodiment of the “ordinary, reasonable reader”. The “ordinary reasonable reader” is the hypothetical referee according to which defamatory capacity and meaning are assessed.58 There have been various characterisations of the hypothetical referee at the centre of defamation law: “reasonable men”,59 “right-thinking members of society generally”, “ordinary men not avid for scandal” and “the arbitrium boni, the view which would be taken by the ordinary good and worthy subject of the King”.60 Whether all of these characterisations remain relevant, in light of recent High Court authorities, is open to question.61 The ordinary, reasonable reader is imbued with average intelligence. Importantly, however, he or she does not possess any special knowledge.62 If a plaintiff wishes to imbue the ordinary, reasonable reader with special knowledge, he or she would have to plead his or her cause of action as a true innuendo.63 The ordinary reasonable reader is taken to adopt a uniform view of the meaning of the words published by the defendant.64 The ordinary reasonable reader is also taken to adopt a uniform moral or social standard when assessing the defamatory character of an imputation. This standard is taken to be common to society in general.65 The ordinary, reasonable reader may read a sensational article with less “analytical attention” and expect less accuracy of it. The more sensational the article, the more the ordinary, reasonable reader is “prone to engage in a certain amount of loose thinking”.66 The mode or manner of publication is relevant to whether an imputation is conveyed by the matter. A reader of a book will devote closer attention to it than a reader of a newspaper. Where the matter published uses “imprecise, ambiguous, loose, fanciful or unusual” words, there is greater latitude given to the matter to convey imputations to the ordinary, reasonable reader.67 As Kirby J notes in Chakravarti v Advertiser Newspapers Ltd,68 “[t]hat is the price which publishers must pay for the use of loose language”. It is always open to publishers to choose the words they use. If they use precise and concrete language, they confine the possible range of meanings that the words they publish could reasonably convey. In order to establish defamatory meaning, it is insufficient that one or more persons might have understood the defamatory matter to have the meaning 58 59

60 61

62 63 64 65 66 67 68

Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 506 per Brennan J. See also Chapman v Australian Broadcasting Corporation (2000) 77 SASR 181 at 189 per Lander J: “reasonable men of ordinary intelligence with the ordinary man’s general knowledge and experience of worldly affairs”. Byrne v Deane [1937] 1 KB 818 at 833 per Slesser LJ. See the criticisms of “right-thinking” as a test embodied and applied by the ordinary, reasonable reader in Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460; [2009] HCA 16 at 477-8 (CLR) per French CJ, Gummow, Kiefel and Bell JJ. Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 573 per Kirby J. As to true innuendoes, see [6.120]. Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 506 per Brennan J. Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 506 per Brennan J. Farquhar v Bottom [1980] 2 NSWLR 380 at 386 per Hunt J; Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 165 per Hunt CJ at CL. Farquhar v Bottom [1980] 2 NSWLR 380 at 386 per Hunt J; Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 165 per Hunt CJ at CL. (1998) 193 CLR 519 at 574.

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ascribed to it by the plaintiff.69 The intention of the publisher is also irrelevant.70 The understanding of the ordinary, reasonable reader is determinative.71 This is determined on an objective basis.72 The “ordinary, reasonable reader” test has not escaped criticism. On occasion, certain judges have expressed the view that the jury should not apply the legal fiction of the “ordinary, reasonable reader” but should decide the issue of defamatory meanings based on their own subjective views, reflecting the facts that they are representative of the community.73 In Chakravarti v Advertiser Newspapers Ltd,74 Kirby J developed this view more fully, stating that: [i]n practice, the tribunal of fact, judge or jury, will ask itself about its own response to the matter complained of. To a very large extent that response will be impressionistic, subjective and individual to the decision-maker.

In his Honour’s view, in this case, the purpose of the “ordinary, reasonable reader” test is to serve as a reminder to the decision-maker that his or her own subjective response may not reflect that of the average recipient and that this possibility should be accommodated in the decision-making process. In applying the “ordinary, reasonable reader” test, the judge or jury, as relevant, should attempt to ascertain how the reasonable person, receiving the matter for the first time, would understand it.75 His Honour returned to his criticism of “the fiction of the ‘ordinary, reasonable reader’” in Favell v Queensland Newspapers Pty Ltd,76 describing the “almost ludicrous elaborations” of the characteristics of that hypothetical referee. Kirby J urged that this “fiction” be dropped, with judges and juries instead being frankly responsible for the decisions they make.77

Relevance of intention

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[6.90] There is no requirement that the defendant must intend to defame the plaintiff in order for the defendant to be held liable for defamation.78 There is no requirement that the defendant intended to convey the defamatory meaning alleged by the plaintiff. The tort of defamation has been described as one of strict liability. The relevant inquiry is whether the matter published by the defendant objectively had the tendency to cause harm to the plaintiff’s reputation.

69 70 71 72 73 74 75 76 77 78

Nevill v Fine Art and General Insurance Company [1897] AC 68 at 73 per Lord Halsbury LC. Berkoff v Burchill [1996] 4 All ER 1008 at 1018 per Neill LJ; Chapman v Australian Broadcasting Corporation (2000) 77 SASR 181 at 189 per Lander J. Farquhar v Bottom [1980] 2 NSWLR 380 at 386 per Hunt J. Chapman v Australian Broadcasting Corporation (2000) 77 SASR 181 at 189 per Lander J. See, eg, Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 502 per Murphy J. (1998) 193 CLR 519 at 573. Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 572-3 per Kirby J. (2005) 221 ALR 186; [2005] HCA 52 at 193-4 (ALR). Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186; [2005] HCA 52 at 194 (ALR). E Hulton & Co v Jones [1910] AC 20 at 23 per Lord Loreburn LC; Cassidy v Daily Mirror Newspapers Ltd [1929] 2 KB 331 at 354 per Russell LJ: “Liability for libel does not depend on the intention of the defamer; but on the fact of defamation.”

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[6.110]

Natural and ordinary meaning and true innuendoes

Natural and ordinary meaning and true innuendoes Introduction [6.100] There are two causes of action which can arise out of the publication of defamatory matter – a cause of action based on the natural and ordinary meaning of the words published and a cause of action based on a true innuendo.79

The natural and ordinary meaning [6.110] A plaintiff can have a cause of action against a defendant arising out of the natural and ordinary meaning of the words published. The natural and ordinary meaning is in fact a composite concept. It includes the words themselves. Thus, if the defendant calls the plaintiff a thief or a murderer, or a terrorist or a paedophile, he or she is liable to the plaintiff according to the natural and ordinary meaning of the words published.80 However, often the defamatory meaning will be conveyed not directly by the words themselves but by implications or inferences drawn from what the defendant published. These implications and inferences also form part of the natural and ordinary meaning.81 The natural and ordinary meaning therefore encompasses: any meaning that does not require the support of extrinsic facts passing beyond general knowledge, but is a meaning which is capable of being detected in the language used.82

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Implications and inferences are sometimes referred to collectively as “false innuendoes”. In this way then, the cause of action based on the natural and ordinary meaning is distinguished from the cause of action based on a true innuendo, which is based upon the ordinary, reasonable reader’s possession of extrinsic facts.83 Where a claim is based on the natural and ordinary meaning of the words, evidence is not admissible as to meaning.84 It is a matter for the jury to decide what the ordinary, reasonable reader would understand the words to mean. As Brennan J observed in Reader’s Digest Services Pty Ltd v Lamb,85 “it is pre-eminently a matter for the jury to give effect to a standard which they consider to accord with the attitude of society generally”. 79 80 81

82 83 84

85

Lewis v Daily Telegraph Ltd [1964] AC 234 at 273-4 per Lord Hodson. Lewis v Daily Telegraph Ltd [1964] AC 234 at 258 per Lord Reid. Jones v Skelton [1964] NSWR 485 at 491 (PC); Lewis v Daily Telegraph Ltd [1964] AC 234 at 258 per Lord Reid; Mirror Newspapers Pty Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 at 641 per Mason and Jacobs JJ; Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663 at 666 per Hunt J; Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 165 per Hunt CJ at CL. As to the difference between implications and inferences, see [6.180]. Jones v Skelton [1964] NSWR 485 at 491 (PC). Lewis v Daily Telegraph Ltd [1964] AC 236 at 271 per Lord Hodson. As to true innuendoes, see [6.120]. Hough v London Express Newspaper Ltd [1940] 2 KB 507 at 515 per Goddard LJ; Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 506 per Brennan J; Charleston v News Group Newspapers Ltd [1995] 2 AC 65 at 70 per Lord Bridge of Harwich. (1982) 150 CLR 500 at 506.

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[6.110]

True innuendoes [6.120] A matter may be defamatory not only in its natural and ordinary meaning. Although a matter may not be ex facie defamatory, it may become so when published to a person with knowledge of extrinsic facts which render it so.86 This is known as a “true innuendo”. A claim in defamation based on a true innuendo is a separate cause of action from one based on the natural and ordinary meaning of the words published.87 In order to plead a true innuendo, the plaintiff must particularise the meaning upon which he or she relies as well as pleading and proving the extrinsic facts which would render the matter defamatory to the person to whom it was published.88 For the defendant to be held liable, it is not necessary that the defendant knew of the extrinsic facts at the time of publication which would make the matter defamatory of the plaintiff.89 Where a plaintiff pleads a true innuendo, the judge needs to determine whether there is evidence of extrinsic facts capable of supporting the defamatory meaning.90 If the judge finds that there is, the issue is for the jury to determine whether the ordinary, reasonable reader, with knowledge of those extrinsic facts, would in fact find that the meaning conveyed by the matter and was defamatory of the plaintiff. True innuendoes may need to be pleaded where a slang, technical or foreign term is used in the matter complained of, because such words are not defamatory in their natural and ordinary meaning.91 They may need to be pleaded where a matter does not make an allegation about the plaintiff unless the matter is conveyed to a person knowing of a particular characteristic of the plaintiff which would render the matter defamatory.92 In some instances, whether a matter is defamatory in its natural and ordinary meaning or whether it requires pleading as a true innuendo can be difficult to ascertain.93

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86 87 88 89 90 91

92

93

Capital and Counties Bank Ltd v Henty (1882) 7 LR 7 App Cas 741 at 771 per Lord Blackburn. Grubb v Bristol United Press Ltd [1963] 1 QB 309 at 327 per Holroyd Pearce LJ; Chapman v Australian Broadcasting Corporation (2000) 77 SASR 181 at 189 per Lander J. Chapman v Australian Broadcasting Corporation (2000) 77 SASR 181 at 189 per Lander J. Cassidy v Daily Mirror Newspapers Ltd [1929] 2 KB 331 at 353 per Russell LJ. Lewis v Daily Telegraph Ltd [1964] AC 234 at 271 per Lord Hodson. Grubbv Bristol United Press Ltd [1963] 1 QB 309 at 328 per Holroyd Pearce LJ; Allsop v Church of England Newspaper Ltd [1972] 2 QB 161 at 168 per Lord Denning MR, at 168 per Karminski LJ: “bent”. See also, eg, Ahmed v Harbour Radio Pty Ltd (No 2) [2011] NSWSC 20: “grub”. For example, Cassidy v Daily Mirror Newspapers Ltd [1929] 2 KB 331 at 339 per Scrutton LJ: “Similarly, to say that A is a single man or a bachelor may be capable of a defamatory meaning if published to persons who know a lady who passes as Mrs A and whom A visits.” Tolley v JS Fry & Sons Ltd [1931] AC 331 at 339 per Viscount Hailsham. For example, in Grubb v Bristol United Press Ltd [1963] 1 QB 309 at 327-8, Holroyd Pearce LJ suggests that the publication of a statement about John Smith that “[h]is name is certainly not George Washington” may bear the implication, in its natural and ordinary meaning, that John Smith is untruthful, but it equally might be pleaded as a true innuendo, with proof of the extrinsic fact that George Washington has a reputation for truthfulness. Much will turn upon what might be imputed to the ordinary, reasonable reader from time to time, as well as prudence or need, or desire for caution in the pleading of a plaintiff’s claim. See also Grubb v Bristol United Press Ltd [1963] 1 QB 309 at 336 per Davies LJ: “Casanova”.

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[6.140]

Interpreting defamatory matter

Interpreting defamatory matter Introduction [6.130] Defamation law has developed its own set of rules and principles, its own particular, idiosyncratic approach, to ascertaining defamatory meaning. The approach to language adopted by defamation law is highly artificial. Defamation law departs markedly from the way in which actual readers, listeners and viewers consume published matter.

The “single meaning” rule [6.140] The clearest indication of the artificial approach defamation takes

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towards language is the “single meaning” rule. Even though the reality is that the same matter published to its audience can be understood in a range of ways, many of which are mutually exclusive, if not contradictory, by different members of the audience, acting reasonably, defamation law insists that the tribunal of fact determine the “single meaning” to be ascribed to the matter. The ordinary, reasonable reader is taken to adopt a uniform view of the meaning of the words published by the defendant.94 The stated rationale for the “single meaning” rule is that it is necessary to fix liability. The “single meaning” rule is an entrenched part of defamation law. In earlier times, it had some defenders.95 In Slim v Daily Telegraph Ltd,96 Diplock LJ (as his Lordship then was) famously sought to provide an explanation, if not a defence, of the “single meaning” rule: Libel is concerned with the meaning of words. Everyone outside a court of law recognises that words are imprecise instruments for communicating the thoughts of one man to another. The same words may be understood by one man in a different meaning from that in which they are understood by another and both meanings may be different from that which the author of the words intended to convey. But the notion that the same words should bear different meanings to different men and that more than one meaning should be “right” conflicts with the whole training of a lawyer. Words are the tools of his trade. He uses them to define legal rights and duties. They do not achieve that purpose unless there can be attributed to them a single meaning as the “right” meaning. And so the argument between lawyers as to the meaning of words starts with the unexpressed major premise that any particular combination of words has one meaning which is not necessarily the same as that intended by him who published them or understood by any of those who read them but is capable of ascertainment as being the “right” meaning by the adjudicator to whom the law confides the responsibility of determining it.

It is difficult to identify what useful purpose the “single meaning” rule serves. It seems only to heighten the artificiality of an already highly artificial area of law. A future defamation law reform process should give close consideration to whether the “single meaning” rule is indeed essential to the effective operation of Australian defamation law. 94

95 96

Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 506 per Brennan J; Charleston v News Group Newspapers Ltd [1995] 2 AC 65 at 71 per Lord Bridge of Harwich. See, eg, Stubbs Ltd v Russell [1913] AC 386 at 398 per Lord Shaw of Dunfermline. [1968] 2 QB 157 at 171-2.

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[6.140]

The role of context [6.150] When determining the issue of defamatory capacity and meaning,

it is necessary to consider the whole of the matter.97 The matter must be construed in context.98 As Mason P observed in Greek Herald Pty Ltd v Nikolopoulos,99 “[c]ontext may clarify or intensify the sting of a facially benign (pleaded) imputation. The converse is also true.” A statement in isolation may not be defamatory of the plaintiff, but when placed beside other facts or statements may cause the ordinary, reasonable reader to draw an implication adverse to the plaintiff’s reputation.100 The context of the matter includes the reputation of the particular plaintiff. The issue to be determined is not whether the matter could be defamatory of any plaintiff, but whether the matter is capable of being defamatory of the particular plaintiff in question. Thus, the identity of the plaintiff has been held to be a relevant aspect of the context which has to be construed when determining the issues of defamatory capacity and meaning.101 Defamatory meaning may not be conveyed by the use of words only. The use of images may be defamatory, depending upon their context. For instance, the ordinary, reasonable reader would interpret a cartoon as being “bound by its nature to traffic in exaggeration, caricature, allegory and fiction”.102 By contrast, in Tolley v JS Fry & Sons Ltd,103 the use of a caricature of the plaintiff, who was an amateur golfer, in the context of an advertisement for the defendant’s chocolate bars, was highly relevant as to whether the matter was defamatory of him. As Viscount Dunedin reasoned: [T]he caricature of the plaintiff, innocent itself as a caricature, is so to speak imbedded in an advertisement. It is held out as part of an advertisement, so that its presence there gives rise to speculation as to how it got there, or in other words provokes in the mind of the public an inference as to how and why the plaintiff’s picture, caricatured as it was, became associated with a commercial advertisement. The inference that is suggested is that his consent was given either gratuitously or for a consideration as to its appearance.104

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In Garbett v Hazell, Watson & Viney Ltd,105 the plaintiff, who was an outdoor photographer, had a photograph of him using his camera and showing 97

98

99 100 101 102 103 104

105

Chalmers v Payne (1835) 2 CM & R 156; (1835) 150 ER 67 at 157 (CM & R) per Abinger CJ, at 159 per Alderson B; S & K Holdings Ltd v Throgmorton Publications Ltd [1972] 1 WLR 1036 at 1039 per Lord Denning MR; Bik v Mirror Newspapers Ltd [1979] 2 NSWLR 679n at 683 per Taylor AJA; Chapman v Australian Broadcasting Corporation (2000) 77 SASR 181 at 190 per Lander J. Hadzel v De Waldorf (1970) 16 FLR 174 at 179 per Fox J; S & K Holdings Ltd v Throgmorton Publications Ltd [1972] 1 WLR 1036 at 1039 per Lord Denning MR; Bik v Mirror Newspapers Ltd [1979] 2 NSWLR 679n at 683 per Taylor AJA; Berkoff v Burchill [1996] 4 All ER 1008 at 1018 per Neill LJ; Greek Herald Pty Ltd v Nikolopoulos (2002) 54 NSWLR 165; [2002] NSWCA 41 at 172-3 (NSWLR) per Mason P. (2002) 54 NSWLR 165; [2002] NSWCA 41 at 173 (NSWLR). Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186; [2005] HCA 52 at 190 (ALR) per Gleeson CJ, McHugh, Gummow and Heydon JJ. Berkoff v Burchill [1996] 4 All ER 1008 at 1018 per Neill LJ. Harry Seidler & Associates Pty Ltd v John Fairfax & Sons Ltd (1986) Aust Torts Reports 80-002 at 67,476 per Glass JA. [1931] AC 331. Tolley v JS Fry & Sons Ltd [1931] AC 331 at 342. See also at 344 per Lord Buckmaster, at 350 per Lord Tomlin: “Regarded in vacuo it is admittedly innocent, but question remains whether it is capable of a defamatory meaning by reason of the circumstances surrounding its publication.” [1943] 2 All ER 359.

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-22 20:21:46.

[6.160]

Interpreting defamatory matter

photographs to two women published on the left-hand page of the magazine. On the right-hand page of the magazine, the editor of the magazine published “a photograph of a completely naked woman standing in a mountain stream”.106 Running across the bottom of both pages was the legend, “Of course, for another shilling, Madam – you can have something like this.”107 The Court of Appeal had little difficulty in upholding the verdict in favour of the photographer.108 The collocation of the photographs, along with the words at the bottom of the page, clearly conveyed the defamatory meaning that the photographer “dealt in indecent pictures”.109 A corollary of the principle that the ordinary, reasonable reader is taken to construe the matter in context is that the ordinary, reasonable reader is taken to read, listen or view the whole of the matter.110 It is not permissible to isolate parts of the matter, such as a headline or a photograph, and to rely upon them as the cause of action, notwithstanding the reality that many readers would not have read the entire matter.111 This principle of defamation law has not escaped criticism.112 Nevertheless, it is a well-established principle and remains the prevailing view. It again highlights the tension between how defamation law treats the ordinary, reasonable reader’s approach to the matter and how actual readers do the same. It is, of course, permissible to have regard to the prominence given to parts of a matter, such as a headline or a photograph, in contending that, overall, the matter bears a defamatory meaning.113

The nature of the publication [6.160] The nature of the publication is relevant to determining the defamatory

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meaning the ordinary, reasonable reader would ascribe to the matter. In particular, whether the matter is in a permanent or a transient form has been held to affect what the ordinary, reasonable reader, listener or viewer would find conveyed by the matter. If the matter is in a permanent form, such as a book, a newspaper or a magazine, the reader: has the opportunity to consider or to re-read the whole document at leisure, to check back on something which has gone before to see whether his or her recollection of it is correct, and in doing so to change the first impression of what message was being conveyed.114

By contrast, a person exposed to a transient publication, such as a television or a radio broadcast, will not have such an opportunity. Although a television 106

107 108 109 110 111 112 113 114

Garbett v Hazell, Watson & Viney Ltd [1943] 2 All ER 359 at 359 per Scott LJ: “Whether the stream is natural or artificial is completely immaterial. The point is that she is completely naked.” Garbett v Hazell, Watson & Viney Ltd [1943] 2 All ER 359 at 359 per Scott LJ. Garbett v Hazell, Watson & Viney Ltd [1943] 2 All ER 359 at 360 per Scott LJ, at 360 per Mackinnon LJ, at 361 per Goddard LJ. Garbett v Hazell, Watson & Viney Ltd [1943] 2 All ER 359 at 360 per Scott LJ, at 361 per Goddard LJ. Yrissari v Clement (1826) 3 Bing 432; (1826) 130 ER 579 at 583 (ER) per Best CJ. Charleston v News Group Newspapers Ltd [1995] 2 AC 65 at 71 per Lord Bridge of Harwich. Charleston v News Group Newspapers Ltd [1995] 2 AC 65 at 73 per Lord Nicholls of Birkenhead; Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 per Kirby J. Charleston v News Group Newspapers Ltd [1995] 2 AC 65 at 73 per Lord Nicholls of Birkenhead. Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 166 per Hunt CJ at CL.

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[6.160]

viewer or a radio listener will be taken to have watched or listened to the whole of the broadcast, the ephemeral nature of the medium means that he or she will not devote the same degree of concentration as he or she would to the written word.115 He or she will form an impression based on the fleeting nature of the broadcast116 and may miss a qualification or a contradiction at the beginning or the end of the broadcast, in a way in which a person reading a matter would not.117 The fact that television and radio broadcasts are deemed under statute to be in a permanent form, for the purposes of dealing with them as libels rather than slanders, does not affect this.118 What is relevant is the context in which the ordinary, reasonable viewer or listener would consume the mater.119 The development of audio or video recording and online catch-up services has not displaced this view. The ordinary, reasonable listener or viewer is intended to embody the reaction of the original audience of the matter, not the reaction of those who might seek out the matter at some later time or date. The emergence of new forms of technology will raise further issues. There are dicta suggesting that the posting of defamatory matter to a website is a permanent, rather than a transient, publication, able to be printed out or re-read.120 As Corboy J observed in Prefumo v Bradley:121 Emails, SMS messaging, Twitter, blogs and other forms of social media such as Facebook impact on the way people communicate and the language they use. Communications through those media often lack the formality and careful consideration that was once thought to mark the difference between the written and spoken word. The very purpose of the media is to enable people to communicate instantaneously, often in a language that is blunt in its message and attenuated as to its form. That will affect both what is regarded as defamatory and the potential for harm.

Bane and antidote

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[6.170] A particular application of the principle that, in order to ascertain the defamatory capacity and meaning of the matter, the matter must be taken as a whole, in context, is the concept of “bane and antidote”. The matter may convey an injurious imputation about the plaintiff but it may, at the same time, convey a positive representation about him or her as well. The concept of “bane and antidote” can be traced back to Alderson B’s speech in Chalmers v Payne,122 wherein his Lordship stated:

115 116 117 118 119

120 121 122

Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 166 per Hunt CJ at CL. Gorton v Australian Broadcasting Commission (1973) 22 FLR 181; 6 ACTR 1 at 187 (FLR) per Fox J. Gordon v Amalgamated Television Servces Pty Ltd [1980] 2 NSWLR 410 at 413 per Hunt J. As to the statutory deeming of television and radio broadcasts as being in permanent form, see [5.20]. Gorton v Australian Broadcasting Commission (1973) 22 FLR 181; 6 ACTR 1 at 184 (FLR) per Fox J; Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 166 per Hunt CJ at CL. Haddon v Forsyth [2011] NSWSC 123 at [20] per Simpson J; Higgins v Sinclair [2011] NSWSC 163 at [77] per Johnson J. [2011] WASC 251 at [43]; see also Smith v ADVFN Plc [2008] EWHC 1797 (QB) at [14]-[16] per Eady J. (1835) 2 CM & R 156; 150 ER 67.

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-22 20:21:46.

[6.180]

Interpreting defamatory matter

In one part of this publication, something disreputable to the plaintiff is stated, but that is removed by the conclusion; the bane and antidote must be taken together.123

The mere presence of a denial of a defamatory allegation in a matter is insufficient to establish that the matter is incapable of conveying the allegation.124 The inclusion of an express disclaimer in a matter may overcome the effect of a defamatory imputation which is conveyed in the same matter, but not invariably.125 There may be cases in which the matter states or repeats allegations against the plaintiff but, at the same time, contain statements which wholly overcome any detrimental effect to the plaintiff’s reputation. In such cases, the matter may be incapable of bearing a defamatory meaning about the plaintiff.126 These cases are comparatively rare.127 Ultimately, in every case, whether the antidote is sufficient to overcome the bane will need to be determined by construing the defamatory matter as a whole, in context. The test to be applied, when determining this issue as a matter of defamatory capacity, is: whether the effect [of the defamatory imputation] is overcome by contextual matter of an emollient kind so as to eradicate the hurt and render the whole publication harmless.128

Implications and inferences [6.180] A defendant is not only liable for the words themselves that he or she

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publishes. More often than not, the defamatory meaning will arise due to meanings derived from the words, rather than meanings stated in terms in the words. Defamatory meanings often arise by implication or inference, drawn from the words published by the defendant. Implications and inferences are collectively referred to as “false innuendoes”. They form part of the natural and ordinary meaning of the words.129 Defamation law draws a distinction between implications and inferences. As Hunt CJ at CL explained in Amalgamated Television Services Pty Ltd v Marsden:130 An implication is included in and is part of that which is expressed by the publisher. It is something which the reader (or listener or viewer) understands the publisher as having intended to say. An inference is something which the reader (or listener or viewer) adds to what is stated by the publisher; it may reasonably or even irresistibly follow from what has been expressly or impliedly said, but it is nevertheless a conclusion drawn by the reader (or listener or viewer).

A defendant is only liable for the implications and inferences which are reasonably capable of arising from the words he or she published. A defendant 123 124 125 126 127 128 129 130

Chalmers v Payne (1835) 2 CM & R 156; 150 ER 67 at 159 (CM & R) per Alderson B; see also Morosi v Broadcasting Station 2GB Pty Ltd [1980] 2 NSWLR 418n. Farquhar v Bottom [1980] 2 NSWLR 380 at 387-8 per Hunt J. Stubbs Ltd v Russell [1913] AC 386 at 392-3 per Lord Kinnear; Farquhar v Bottom [1980] 2 NSWLR 380 at 388 per Hunt J. See, eg, Bik v Mirror Newspapers Ltd [1979] 2 NSWLR 679n at 682 per Herron CJ, at 683 per Taylor AJA. Morosi v Broadcasting Station 2GB Pty Ltd [1980] 2 NSWLR 418n at 419 per Samuels JA. Morosi v Broadcasting Station 2GB Pty Ltd [1980] 2 NSWLR 418n at 419 per Samuels JA. As to the natural and ordinary meaning of the words, see [6.110]. (1998) 43 NSWLR 158 at 167; see also Bargold Pty Ltd v Mirror Newspapers Ltd [1981] 1 NSWLR 9 at 12 per Hunt J.

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[6.180]

cannot be held liable for meanings which originate from the prejudices of the reader.131 This is sometimes expressed in terms of a defendant not being held liable for “an inference upon an inference”.132 Rather than fixating upon the proper parsing of meanings – whether they are implications, inferences or inferences upon inferences – it is perhaps more appropriate to be guided by the fundamental test of reasonableness, by asking what are the meanings that the matter can reasonably bear, and can the defendant reasonably be held liable for them being conveyed by the matter?133

Imputations of suspicion [6.190] One aspect of defamatory meaning, which has been particularly

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difficult and is of considerable practical importance, is the defamatory capacity of imputations of suspicion. An imputation of suspicion and an imputation of guilt differ in substance.134 Reports of police charges are treated differently from reports of mere rumours as a matter of policy.135 It is in this context that the distinction between inferences and “inferences upon inferences” has played an important role. A mere statement of arrest and charge is incapable of bearing the additional, more serious imputation that the person so arrested and charged is in fact guilty of that offence. The reason for this view is that the ordinary, reasonable reader is taken to be aware of the presumption of innocence and the only way a reader could find that such a further, more damaging imputation arose from the matter was if he or she brought to bear his or her own prejudices. This is not something for which the defendant could reasonably be held responsible.136 The more difficult issue is whether a mere statement of arrest and charge invariably carries with it the additional, more serious imputation that the police reasonably suspect that the person so arrested and charged is guilty of that offence. In Mirror Newspapers Ltd v Harrison,137 the High Court of Australia noted this issue but did not deal with it definitively. Divergent views were expressed, or at least intimated. Mason J (as his Honour then was) reasoned that a mere statement of arrest and charge necessarily carried with it, as a matter of law, the further, more damaging imputation that the police had reason to suspect that the person arrested and charged was guilty of the offence. His Honour stated that police are required to have reasonable suspicion before they can arrest and charge an offender.138 Gibbs CJ and Brennan J left this issue open,139 although Gibbs CJ 131 132 133 134 135 136

137 138 139

Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 at 641 per Mason and Jacobs JJ. See also Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 153 at 167 per Hunt CJ at CL. Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 167 per Hunt CJ at CL. Lewis v Daily Telegraph Ltd [1964] AC 234 at 260 per Lord Reid. Australian Broadcasting Corporation v Comalco Ltd (1986) 12 FCR 510 at 589 per Pincus J. Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293; Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186; [2005] HCA 52 at 190 (ALR) per Gleeson CJ, McHugh, Gummow and Heydon JJ. (1982) 149 CLR 293. Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 at 301-2 per Mason J. Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 at 295 per Gibbs CJ, at 303-4 per Brennan J.

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[6.200]

Interpreting defamatory matter

noted that there may be instances in which a police officer did not have reasonable cause when arresting and charging a suspect.140 The issue fell for determination in the New South Wales Court of Appeal decision in Sergi v Australian Broadcasting Commission.141 In his judgment, Glass JA stated that it was undesirable to proscribe a rule about what gradations of meaning arise in advance. Rather, it was preferable to be guided by the test of reasonableness as applied to the particular matter before the court. His Honour reasoned that there must be a form of words available to a defendant to publish the statement that the plaintiff had been arrested and charged with an offence, whilst precluding the additional, more damaging imputation that the police had reason to suspect that the plaintiff was in fact guilty of that offence. To hold otherwise, Glass JA held, would involve casting: an unmerited slur on the resources of the English language to hold a priori that no report of a charge against the plaintiff, however cautiously articulated, could succeed in dissociating the publisher from the suggestion that the police suspicion was reasonably based.142

Thus, whether the matter conveys a mere statement of arrest and charge or investigation, or whether it conveys an additional, more damaging meaning needs to be determined by establishing what the words published by the defendant reasonably mean. This depends upon interpreting the words in context. For instance, a statement that a person is under investigation or has been arrested and charged might not convey, in isolation, any further damaging imputation, but might do so if printed in collocation with other facts which might cause the ordinary, reasonable reader to wonder or speculate about the plaintiff’s guilt.143

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Mere vulgar abuse [6.200] Abusive or insulting language may often be defamatory.144 However, in certain circumstances, the defendant may publish matter which is in such general but derogatory terms that it may not disparage the plaintiff’s reputation. In such a case, the defendant may have engaged in mere vulgar abuse, rather than defaming the plaintiff.145 There is authority suggesting that mere vulgar abuse applies only to cases of slander,146 although it is difficult to see as a matter of principle why this should be so. However, “vulgar abuse” is not a term of art. It is important not to overstate the distinction between mere vulgar abuse on the one hand and defamation on the other. The fundamental question 140 141 142

143 144 145 146

Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 at 295. [1983] 2 NSWLR 669. Sergi v Australian Broadcasting Commission [1983] 2 NSWLR 669 at 677. English defamation law on this point adopts a more structured approach, dividing meanings around guilt and suspicions into levels, following the decision in Chase v News Group Newspapers Ltd [2003] EMLR 11; [2002] EWCA Civ 1772. This has had some judicial support in Australia: see, eg, Shea v News Ltd [2015] WASC 1 at [69] per Kenneth Martin J; Moran v Schwartz Publishing Pty Ltd [No 2] [2015] WASC 35 at [13] per Kenneth Martin J; Jneid v West Australian Newspapers Ltd [2015] WASC 68 at [7]-[8] per Kenneth Martin J. Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186; [2005] HCA 52 at 190 (ALR) per Gleeson CJ, McHugh, Gummow and Heydon JJ. Bennette v Cohen (2005) 64 NSWLR 81; [2005] NSWCA 341 at 98 (NSWLR) per Bryson JA. Mundey v Askin [1982] 2 NSWLR 369 at 371-2 per curiam. Australian Consolidated Press Ltd v Uren [1969] 1 NSWR 745 at 752-3 per Sugerman JA. As to the abolition of the distinction between libel and slander, see [5.20].

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-22 20:21:46.

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[6.200]

should remain whether the matter in question was capable of conveying an imputation which disparaged the plaintiff’s reputation, rather than whether the defendant’s conduct amounted to mere vulgar abuse.147

Mere jest [6.210] The defendant may publish matter which he or she argues is incapable of being defamatory of the plaintiff because it was “mere jest”. The application of this principle is narrow. There is no strict dichotomy between “mere jest” and defamation. As Smith B in Donoghue v Hayes148 stated: If a man in jest conveys a serious imputation, he jests in peril …

In the same case, Joy CB stated:149 The principle is clear that a person shall not be allowed to murder another’s reputation in jest.

That the defendant intended merely to tell a joke about the plaintiff is not determinative of whether the plaintiff’s reputation was capable of being disparaged by the defendant’s publication.150 The defendant can only avoid liability, at the level of capacity, if he or she can establish that the ordinary, reasonable reader would only have understood the matter as being a benign joke, which did not disparage the plaintiff’s reputation or expose him or her to more than a trivial degree of ridicule.151 Thus, an argument based on “mere jest” is difficult for a defendant to establish.152

The tests for what is defamatory Introduction

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[6.220] An important reason why liability for defamation may be readily established is that there is no single, overarching test for what is defamatory.153 Rather, there are a multiplicity of tests upon which a plaintiff can rely to establish that he or she has been defamed.154 It has proven difficult for judges and academics to distil a comprehensive definition for what is defamatory.155 As Millett LJ (as his Lordship then was) observed in Berkoff v Burchill:156 147 148 149 150 151 152 153 154

155 156

Bennette v Cohen (2005) 64 NSWLR 81; [2005] NSWCA 341 at 98 (NSWLR) per Bryson JA. (1831) IR Ex Ch 265 at 266. (1831) IR Ex Ch 265 at 266. As to the relevance of the defendant’s intention, see [6.90]. Darbyshir v Daily Examiner Pty Ltd (unreported, NSW SC, Levine J, 29 August 1997) at 5-6. However, see Coleman v John Fairfax Publications Pty Ltd [2003] NSWSC 564; see also John v Guardian News & Media Ltd [2008] EWHC 3066 (QB). Berkoff v Burchill [1996] 4 All ER 1008 at 1011 per Neill LJ. Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581 at 584 per Scrutton LJ. For a useful review of the tests for what is defamatory, see Berkoff v Burchill [1996] 4 All ER 1008 at 1011-7 per Neill LJ. Sim v Stretch [1936] 2 All ER 1237 at 1240 per Lord Atkin; Drummond-Jackson v British Medical Association [1970] 1 WLR 688 at 700 per Sir Gordon Willmer. [1996] 4 All ER 1008.

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-22 20:21:46.

[6.230]

The tests for what is defamatory

Defamation has never been satisfactorily defined. All attempted definitions are illustrative. None of them is exhaustive. All can be misleading if they cause one to forget that defamation is an attack on reputation, that is on a man’s standing in the world.157

This again demonstrates the complexity of defamation law. In addition, the pre-existing proliferation of tests for what is defamatory is a sound reason, as a matter of policy and principle, to be averse to identifying new tests for imposing liability for defamation. The national, uniform defamation laws do not attempt to provide a test for what is defamatory, so the common law tests, in all their variety, continue to apply. A broad, working test for what is defamatory was suggested by the joint judgment of French CJ, Gummow, Kiefel and Bell JJ in Radio 2UE Sydney Pty Ltd v Chesterton:158 A person’s reputation may therefore be said to be injured when the esteem in which that person is held by the community is diminished in some respect.

It is important to note at the outset that the ordinary, reasonable reader is taken to adopt a uniform moral or social standard when determining whether a given imputation is defamatory of the plaintiff’s reputation.159 How tenable this view is in a pluralistic society is open to question.

Disparagement of reputation [6.230] At common law, the mere publication of false statements about the

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plaintiff was not sufficient to constitute defamation. The essence of defamation was that those false statements had to be disparaging to the plaintiff’s reputation.160 A broad, working test for what is defamatory that has been suggested is a “false statement to [the plaintiff’s] discredit”.161 The imputation must reflect adversely upon the plaintiff’s reputation.162 The primary tests for what is defamatory, then, require that the matter disparage the plaintiff’s reputation. There are two exceptions: where the matter exposes the plaintiff to more than a trivial degree of ridicule163 and where the matter tends to lead the ordinary, reasonable reader to shun and avoid the plaintiff.164 In these exceptional instances, the matter may be defamatory, even though it does not disparage the plaintiff’s reputation. 157 158 159 160

161 162 163 164

Berkoff v Burchill [1996] 4 All ER 1008 at 1019. As to the concept of reputation in defamation law, see [2.20]–[2.80]. (2009) 238 CLR 460; [2009] HCA 16 at 466 (CLR). Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 506 per Brennan J. Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 at 638-9 per Mason and Jacobs JJ, at 643 per Aickin J; Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 449 at 452-3 per Hunt J. The position was different under the now-repealed codified defamation laws of Queensland: see Defamation Act 1889 (Qld) s 4); Defamation Act 1957 (Tas); and Defamation Act 1958 (NSW) s 5, which Act was repealed by the Defamation Act 1974 (NSW). Under these codes, it was sufficient for the plaintiff to prove that the matter was false and tended to injure him or her in his or her profession, trade or business. There was no additional requirement of disparagement: see Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1 at 9-11 per Gibbs J, at 21-4 per Mason J; Mirror Newspapers Ltd v World Newspapers Pty Ltd (1979) 141 CLR 632 at 639 per Mason and Jacobs JJ. Scott v Sampson (1882) 8 QBD 491 at 503 per Cave J. This was endorsed by Scrutton LJ in Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581 at 584. Mirror Newspapers Ltd v World Newspapers Pty Ltd (1979) 141 CLR 632 at 643-4 per Aickin J. As to ridicule, see [6.260]. As to “shun and avoid” as a test for what is defamatory, see [6.270].

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[6.230]

Hatred, contempt or ridicule [6.240] The classic statement of the test for what is defamatory is the

formulation of Parke B in Parmiter v Coupland165 to the effect that a matter is defamatory if it is calculated to expose the plaintiff to “hatred, contempt or ridicule”.166 The term “calculated”, in this context, should be understood to mean “objectively likely”, rather than “subjectively intended”.167 Thus, in order for a plaintiff to establish that he or she has been defamed, it is sufficient that the plaintiff demonstrate that what was published by the defendant had the tendency to damage his or her reputation. As the plaintiff is entitled to the presumption of damage to reputation,168 the plaintiff does not have to prove that he or she suffered actual damage to reputation in order to establish that he or she has been defamed. Given the extremity of emotions involved, Parke B’s formulation in Parmiter v Coupland was criticised as being too narrow.169 A matter could be defamatory if it elicited less strong an emotion than hatred, contempt or ridicule from its recipient.

Lowering in the estimation

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[6.250] To overcome the seeming narrowness of the “hatred, contempt or ridicule” formulation, Lord Atkin influentially suggested the test for what is defamatory based on whether the words published would “tend to lower the plaintiff in the estimation of right-thinking members of society generally”.170 The complexity of the tests for what is defamatory is reinforced by the fact that there have been multiple characterisations of the hypothetical referee by which defamatory meaning is to be evaluated. Other formulations include Griffith CJ’s test of whether the matter injured the plaintiff’s reputation in the opinion of a reasonable reader “of fair, average intelligence”,171 Jordan CJ’s test of whether the matter was “likely to cause ordinary decent folk in the community, taken in general, to think less” of the plaintiff172 or, more simply, Lord Selborne LC’s test of “reasonable men”.173 The incorporation of the element of “right thinking” in Lord Atkin’s formulation of the test has been criticised by Griffith CJ in Slatyer v Daily Telegraph Co Ltd174 for its ambiguity and by Bray CJ in Potts v Moran175 on the grounds that it “involves question begging and assumptions and circuity of 165 166

167

168 169 170 171 172 173 174 175

(1840) 6 M & W 105; 151 ER 340. Parmiter v Coupland (1840) 6 M & W 105; 151 ER 340 at 108 (M & W), at 341-2 (ER). For an earlier example of the use of the “hatred, contempt or ridicule” formulation, see Thorley v Lord Kerry (1812) 4 Taunt 355; 128 ER 367 at 370 (ER) per Mansfield CJ; see also Nevill v Fine Art and General Insurance Co Ltd [1897] AC 68 at 72 per Lord Halsbury LC. Ettingshausen v Australian Consolidated Press Ltd (1991) 23 NSWLR 443 at 447-8 per Hunt J; Carrier v Bonham [2002] 1 Qd R 474; [2001] QCA 234 at 480-1 (Qd R) per McMurdo P, at 483 per McPherson JA; Y and Z v W (2007) 70 NSWLR 377; [2007] NSWCA 329 at 381 (NSWLR) per Giles JA. As to the presumption of damage in defamation, see [15.30]. Tournier v National Provincial and Union Bank of England [1924] 1 KB 461 at 487 per Atkin LJ; Sim v Stretch [1936] 2 All ER 1237 at 1240 per Lord Atkin. [1936] 2 All ER 1237 at 1240. Slatyer v Daily Telegraph Co Ltd (1908) 6 CLR 1 at 7. Gardiner v John Fairfax & Sons Pty Ltd (1942) 42 SR(NSW) 171 at 172. Capital and Counties Bank Ltd v Henty (1882) 7 LR 7 App Cas 741 at 745. (1908) 6 CLR 1 at 7. (1976) 16 SASR 284.

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[6.260]

The tests for what is defamatory

reasoning”.176 Most recently, in Radio 2UE Sydney v Chesterton,177 French CJ, Gummow, Kiefel and Bell JJ made the following observations about the element of “right-thinking” in the tests for what is defamatory: The reference in the general test, as stated in Sim v Stretch, to a plaintiff being “lowered in the estimation” of the hypothetical referee does not imply the exercise of a moral judgment, on their part, about the plaintiff, because of what is said about that person. It does not import particular standards, those of a moral or ethical nature, to the assessment of the imputations. It simply conveys a loss of standing in some respect. The expression “right-thinking” should not be taken to refer to the application by the hypothetical referee of moral or social standards, those referable to general character. Such an approach might also limit the application of the general test. It should be understood as a rejection of a wrong standard, one not held by the community. It should be taken to describe a person who shares the standards of the general community and will apply them.

Ridicule [6.260] A matter can be defamatory if it exposes the plaintiff to more than a

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trivial degree of ridicule in the view of the ordinary, reasonable reader, even if it does not disparage the plaintiff’s reputation.178 Ridicule has long been a basis for defamation, with cases dating back to at least the 17th century.179 That ridicule is well established as a basis for defamation is demonstrated by its inclusion in Parke B’s classic formulation in Parmiter v Coupland.180 According to Beaumont J in Random House Australia Pty Ltd v Abbott,181 ridicule “is a familiar weapon for attacking reputation”. Although ridicule has a long history as a test for what is defamatory, whether it should, as a matter of principle, form the basis of liability is open to question.182 Ridicule, as a basis for finding defamatory meaning, has been relied upon in a substantial number of cases in Australia, particularly following Ettingshausen v Australian Consolidated Press Ltd.183 However, there are real difficulties in pleading imputations based on ridicule, as the recent decisions in Kenny v 176

177 178

179

180

181 182 183

Potts v Moran (1976) 16 SASR 284 at 303: “It is hard to feel much confidence in a conclusion drawn from a conflation of two propositions, ‘This conduct is wrong because right-thinking persons condemn it’ and ‘Right thinking persons condemn this conduct because it is wrong.’” (2009) 238 CLR 460; [2009] HCA 16 at 477 (CLR). Burton v Crowell Publishing Co 82 F 2d 154 (1936) at 155 per Learned Hand J; Ettingshausen v Australian Consolidated Press Ltd (1991) 23 NSWLR 443 at 447-9 per Hunt J. See, eg, Cropp v Tilney (1693) 3 Salk 225; 90 ER 1132 at 1132 (ER) per Holt CJ; Villers v Monsley (1769) 2 Wils 403; 95 ER 886 at 886-7 (ER) per Lord Wilmot CJ, at 887 per Gould J. According to Millett LJ, ridicule “is the second member of a well-known trinity”: see Berkoff v Burchill [1996] 4 All ER 1008 at 1019. Strictly speaking, Parke B in Parmiter v Coupland placed ridicule in third place in the trinity: see [6.240]. (1999) 94 FCR 296 at 306. For criticism of ridicule as a test for what is defamatory, see L McNamara, Reputation and Defamation (Oxford University Press, Oxford, 2008) pp 188-9. As for cases involving the “Ettingshausen” imputation, see Haines v Australian Broadcasting Corporation (unreported, NSW SC, Levine J, 9 May 1995) at 4-6; McDonald v North Queensland Newspaper Co Ltd [1997] 1 Qd R 62 at 64-66 per curiam; Shepherd v Walsh [2001] QSC 358 at [27] per Jones J; Obermann v ACP Publishing Pty Ltd [2001] QSC 1022 at [18]-[19], [36] per Levine J. As to the Ettingshausen litigation generally, see D Rolph, Reputation, Celebrity and Defamation Law (Ashgate, Aldershot, 2008) Ch 7.

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[6.260]

Australian Broadcasting Corporation184 and Hanson-Young v Bauer Media Ltd185 demonstrate. This highlights again the awkwardness of imposing liability for defamation on the basis of ridicule, where no disparagement of reputation is required.

“Shun and avoid” [6.270] A matter can be defamatory if it tends to cause others to shun and

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avoid the plaintiff in the view of the ordinary, reasonable reader, even if it does not disparage the plaintiff’s reputation.186 It has been held that to state falsely that a woman has been raped or “ravished” is capable of being defamatory of her on the basis that such a statement might cause others to shun and avoid her, even though no one would think less of her.187 Whether such a case would be decided in the same way in contemporary Australia is a matter about which conflicting views have been expressed.188 A false allegation that a person has a serious contagious or infectious disease has also been held to be defamatory, again on the basis of shunning and avoiding.189 Likewise, a false allegation that a person has a mental illness has been considered defamatory.190 Attempting to distil a common feature between the cases in which defamation had been established on the basis of shunning and avoiding, Phillips LJ in Berkoff v Burchill191 identified that they all concerned “allegations of fact – illness, madness, filthiness or defilement”.192 His Lordship contrasted the position in those cases with the one before him for determination, which concerned a film critic’s repeated aspersion that an actor was “hideously ugly”. Phillips LJ held that an allegation that the plaintiff was “hideously ugly” was incapable of being defamatory on the basis of shunning and avoiding, as the aspersion depended upon a subjective, aesthetic assessment and, as such, it was not possible to evaluate the response of the ordinary, reasonable reader.193

184 185 186

187

188

189

190 191 192 193

Kenny v Australian Broadcasting Corporation [2014] NSWSC 190. Hanson-Young v Bauer Media Ltd [2013] NSWSC 1306; Hanson-Young v Bauer Media Ltd (No 2) [2013] NSWSC 2029. Villers v Monsley (1769) 2 Wils 403; 95 ER 886 at 886-7 (ER) per Lord Wilmot CJ; Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581 at 586 per Slesser LJ; see also Zbyszko v New York American Inc 228 AD 277; 239 NYS 411 (1930) at 413 per McAvoy J. Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581 at 584 per Scrutton LJ, at 586 per Slesser LJ: “One may, I think, take judicial notice of the fact that a lady of whom it has been said that she has been ravished, albeit against her will, has suffered in social reputation and in opportunities of receiving respectful consideration from the world.” Compare Krahe v TCN Channel Nine Pty Ltd (1986) 4 NSWLR 536 at 546 per Hunt J and Galea v Amalgamated Television Services Pty Ltd (unreported, NSW SC, Levine J, 20 February 1998). See also Berkoff v Burchill [1996] 4 All ER 1008 at 1020 per Phillips LJ (suggesting that this view is now historical). Villers v Monsley (1769) 2 Wils 403; 95 ER 886 at 886-7 (ER) per Lord Wilmot CJ, at 887 per Gould J; Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581 at 586 per Slesser LJ. Morgan v Lingen (1863) 8 LT 800. [1996] 4 All ER 1008. Berkoff v Burchill [1996] 4 All ER 1008 at 1020. Berkoff v Burchill [1996] 4 All ER 1008 at 1020-21.

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-22 20:21:57.

[6.280]

The tests for what is defamatory

Professional reputation [6.280] A plaintiff may not only be disparaged in his or her personal capacity. The defendant may publish matter which reflects adversely upon the plaintiff’s reputation. A publication may be defamatory of a professional person even if it does not “impute moral fault or defect of personal character” to him or her.194 It is sufficient, in order to be defamatory, that the matter “impute lack of qualification, knowledge, skill, capacity, judgment or efficiency in the conduct of his trade or business or professional activity”.195 Defamation law protects professional reputations just as much, and often more so, than it protects personal reputations. Historically, claims for aspersions against professional reputations were amongst the first to be litigated in the royal courts when the tort of defamation began to emerge in the 16th century. Such claims continue to be litigated frequently.196 The tenderness defamation law has shown to the protection of professional reputations, in particular those of legal practitioners, is demonstrated by the observations of Cory J in Botiuk v Toronto Free Press Publications Ltd,197 to the effect that: [a] reputation for integrity and trustworthiness is the cornerstone of their professional life. Injury done to reputation can only with the greatest difficulty be repaired. As Cardozo J put it in People ex rel Karlin v Culkin 162 NE 487 (NY 1928) at 492, “[r]eputation in such a calling is a plant of tender growth and its blossom, once lost, is not easily restored.” It should be recognized that these observations will be equally applicable to other professions and callings.

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Defamation law also protects professional reputations more than it protects those in trade. In Drummond-Jackson v British Medical Association,198 the plaintiff dental surgeon sued the publisher of the British Medical Journal for defamation over an article critical of a surgical technique which he had developed and for which he was particularly well known. An issue arose as to whether criticism of the plaintiff’s surgical technique was capable of being defamatory of him. Criticism of a trader’s goods, for example, would ordinarily be actionable as injurious falsehood rather than defamation.199 Lord Pearson drew a distinction between a professional person’s technique and a trader’s goods, observing that: 194 195 196

197 198 199

Drummond-Jackson v British Medical Association [1970] 1 WLR 688 at 698-9 per Lord Pearson. Drummond-Jackson v British Medical Association [1970] 1 WLR 688 at 699 per Lord Pearson. See, eg, O’Neill v Jones [1999] NSWSC 270 at [5] per Levine J (banker); Haertsch v Andrews [1999] NSWSC 359 at [4] per Levine J (surgeon); Mularczyk v John Fairfax Publications Pty Ltd [2001] NSWCA 467 at [32] per Beazley JA (schoolteachers); Roberman v Australian Broadcasting Corporation [2002] WASC 56 at [21] per Steytler J (obstetrician and gynaecologist); Warren v Tweed Shire Council [2002] NSWSC 211 at [16] per Levine J (environmental consultant); Saint v John Fairfax Publications Pty Ltd [2002] NSWSC 312 at [3] per Kirby J (public servant); Phelps v Nationwide News Pty Ltd [2003] NSWSC 614 at [2] per Levine J (general practitioner); Stokes v John Fairfax Publications Pty Ltd [2003] NSWSC 678 at [3] per Simpson J (chairman of public company); Markovic v White [2004] NSWSC 37 at [3]-[4] per Levine J (solicitor); Australian Broadcasting Corporation v Reading [2004] NSWCA 205 at [28] per Hodgson JA, at [106] per Ipp JA; Nationwide News Pty Ltd v Sleeman [2005] NSWCA 349 at [4] per Brownie AJA (journalist); Mahommed v Channel Seven Pty Ltd [2006] NSWCA 213 at [9] per McColl JA (mortgage broker and financial advisor); Haertsch v Channel Nine Pty Ltd [2010] NSWSC 182 at [91]-[94] per Nicholas J. [1995] 3 SCR 3 at 33. [1970] 1 WLR 688. As to injurious falsehood, see [18.20]–[18.60].

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-22 20:21:57.

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[g]oods are impersonal and transient. A professional man’s technique is at least relatively permanent, and it belongs to him: it may be considered to be an essential part of his professional activity and of him as a professional man.200

The High Court of Australia confirmed in Radio 2UE Sydney Pty Ltd v Chesterton201 that the general test for what is defamatory applies to all claims for defamation, whether the reputation at issue in a particular case is personal or professional, and that claims for damage to professional reputation are assessed by reference to community standards applying generally, not sectional standards.202

Community standards and sectional standards [6.290] Whether a matter is defamatory in its natural and ordinary meaning is

determined by the application of community standards.203 The ordinary, reasonable reader is taken to embody a uniform moral or social standard.204 This approach might be criticised as failing to reflect the reality of the diverse, pluralistic society in contemporary Australia, in which reasonable people can hold fundamentally different views about important moral or social issues. Nevertheless, defamation law has long proceeded on the basis that the ordinary, reasonable reader embodies and applies such a uniform view. However, there may be imputations which relate to subject matters which are so deeply divisive that it may not be possible to identify such a uniform moral or social standard. There is slender authority in Australia to suggest that, where a highly contentious issue, such as abortion, is the subject of defamation litigation, a sectional standard, embodying an “appreciable and reputable” section of the community, may be applied to determine the defamatory character of the imputation.205 This reflects an approach more usually adopted in United States defamation law.206 It is not an approach which has received widespread support within Australian defamation law.

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[6.300] What is defamatory may alter as social, moral and political views change. For example, it is no longer defamatory to call a woman a “witch”, as the ordinary, reasonable reader is no longer taken to believe in witches.207 For many decades in the 20th century, an allegation that the plaintiff was a communist was defamatory,208 but, since the end of the Cold War, such a charge has lost much of its sting. Such an allegation is now more likely to be viewed as connoting eccentricity rather than subversiveness. In Tolley v JS Fry 200 201 202 203 204 205 206 207 208

Drummond-Jackson v British Medical Association [1970] 1 WLR 688 at 698. (2009) 238 CLR 460; [2009] HCA 16. Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460; [2009] HCA 16 at 478-81 (CLR) per French CJ, Gummow, Kiefel and Bell JJ. Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460; [2009] HCA 16 at 478-81 (CLR) per French CJ, Gummow, Kiefel and Bell JJ. Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 506 per Brennan J. Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682 at 693 per Glass JA. See, eg, Peck v Tribune Co 214 US 185 at 190 (1909) per Holmes J. Loukas v Young [1968] 3 NSWR 549 at 550 per Taylor J. See, eg, Cross v Denley (1952) 52 SR(NSW) 112 at 115 per Owen J (plaintiff was a Communist sympathiser or was willing to gain through assisting Communism by printing its propaganda); Dowding v Ockerby [1962] WAR 110 at 119 per Wolff CJ.

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[6.300]

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& Sons Ltd,209 an amateur golfer sued for libel arising out of the inclusion of a caricature of him in an advertisement for chocolate bars. He particularised the meanings arising from the advertisement in his statement of claim thus: that the plaintiff had agreed or permitted his portrait to be exhibited for the purpose of the advertisement of the defendants’ chocolate; that he had done so for gain and reward; that he had prostituted his reputation as an amateur golf player for advertising purposes, that he was seeking notoriety and gain by the means aforesaid; and that he had been guilty of conduct unworthy of his status as an amateur golfer.210

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The House of Lords upheld the jury verdict as to defamatory meaning in favour of the plaintiff but set aside the jury verdict as to damages, which it considered, at £1,000, to be manifestly excessive. The matter was remitted for retrial on the issue of damages only.211 It is difficult to imagine any amateur sportsperson now bringing such a substantial claim, or any court entertaining it, so complete has been the professionalisation of elite sport and the eclipse of the cult of the amateur. The liberalisation of sexual attitudes, from the 1960s onwards, means that it is not invariably defamatory to say of a married person that he or she had an adulterous relationship.212 However, it is probably still capable of being defamatory to say that a person associated with prostitutes.213 A slightly more difficult issue has presented itself in relation to whether an imputation of homosexuality is in and of itself incapable of being defamatory, due to the significant legislative and societal changes which have occurred in Australia over the last four decades. In the past, there have been awards of damages in defamation cases for allegations of homosexuality.214 More recently, there have been challenges to whether imputations of homosexuality are capable of being defamatory. The current weight of the authorities in Australia suggests that such an imputation is still capable of being defamatory. In Horner v Goulburn City Council,215 Levine J held that an imputation that the plaintiffs were in a homosexual relationship was capable of being defamatory. His Honour stated that: [c]ommunity attitudes to an assertion of a homosexual relationship may range from sympathetic tolerance and understanding to an irrational abhorrence. Whether the former represents a perception from the “ivory tower” and the latter an “avidity for scandal” cannot be concluded. I do not consider that it can be conclusively said that even towards the end of this century’s last decade that there 209 210 211 212

213 214

215

[1931] AC 331. Tolley v JS Fry & Sons Ltd [1931] AC 333 at 337 per Viscount Hailsham. Tolley v JS Fry & Sons Ltd [1931] AC 331 at 341 per Viscount Hailsham. Cairns v John Fairfax & Sons Ltd [1983] 2 NSWLR 708 at 719 per Mahoney JA. See also Cairns v John Fairfax & Sons Ltd [1983] 2 NSWLR 708 at 710 per Hutley JA: “The imputation of an improper adulterous relationship would be harder to justify as not being defamatory, but the reputations of Anthony and Cleopatra have not been lowered in the eyes of the public by their romance, and in other days, the title of the King’s Mistress was one of honour. Despite Rofe QC’s confident assertion that the imputation of adultery must lower the two appellants in the public esteem, even in these days in which fault has been officially expelled from the law of domestic relations, passions between the powerful and the glamorous may have a quality which transcends middle-class morality. The expulsion of the concept of fault in domestic relations means that as far as the State is concerned anything goes.” Dwek v Macmillan Publishers Ltd [2000] EMLR 284 at 295 per Judge LJ. See, eg, Kerr v Kennedy [1942] 1 KB 409 at 413 per Asquith J (£3,000 damages for slander in front of one person); Harrison v Galuszko (unreported, WA SC, Adams AM, 8 November 1991) ($11,000 damages for slander in front of four persons) at 9. (Unreported, NSW SC, Levine J, 5 December 1997).

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can be, among ordinary members of the community, a view that to say of a person that that person is in a homosexual relationship is not disparaging or is not likely to lower that person in the estimation of such people. I do not hold that the imputations of a homosexual relationship are not capable of being defamatory.216

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In Rivkin v Amalgamated Television Services Pty Ltd,217 Bell J held that an imputation of homosexual intercourse simpliciter was incapable of being defamatory of the plaintiff. Her Honour accepted that there had been changes in federal and State legislation, including the decriminalisation of homosexual intercourse, the prohibition of discrimination on the basis of sexual orientation and the recognition of same-sex couples for the purposes of de facto relationships legislation and migration regulations, which indicated a decisive shift in community attitudes to homosexuality, such that an imputation of homosexuality, without an addition sting, could no longer be considered as being capable of being defamatory. However, she did find that an imputation of homosexual intercourse, if coupled with an additional sting, such as infidelity, hypocrisy or abuse of position, was still capable of being defamatory.218 After expressing seeming agreement with Bell J’s position in Rivkin v Amalgamated Television Services Pty Ltd in Obermann v ACP Publishing Pty Ltd,219 Levine J was invited to reconsider his view in Kelly v John Fairfax Publications Pty Ltd.220 His Honour found that the existence of the legislative developments identified by Bell J were of variable effect. The fact that legislation existed to protect homosexual persons from discrimination suggested that such persons suffered from discrimination. The fact that legislative changes occurred in relation to the decriminalisation of homosexual intercourse established that homosexuality was lawful, not necessarily that it was completely socially acceptable. Therefore, Levine J was unwilling to find that an imputation of homosexuality was incapable of being defamatory, leaving the issue to the jury to determine.221 In his judgment in John Fairfax Publications Pty Ltd v Rivkin,222 Kirby J observed that: [i]n most circumstances, it ought not to be the case in Australia that to publish a statement that one adult was involved in consenting, private homosexual activity with another adult involves a defamatory imputation. But whether it does or does not harm a person’s reputation to publish such an imputation is related to time, personality and circumstance. Once, it was highly defamatory in many countries to allege, or suggest, that a person was a communist. Now, in most circumstances, it would be a matter of complete indifference. The day may come when, to accuse an adult of consenting homosexual activity is likewise generally a matter of indifference. However, it would ignore the reality of contemporary Australian society to say that that day has arrived for all purposes and all people. At least for people who treat their sexuality as private or secret, or people who have presented 216 217 218

219 220 221 222

Horner v Goulburn City Council (unreported, NSW SC, Levine J, 5 December 1997) at p 5. [2001] NSWSC 432. Rivkin v Amalgamated Television Services Pty Ltd [2001] NSWSC 432 at [30]. Rivkin was ultimately awarded $150,000 damages for the repleaded imputations: see Rivkin v Amalgamated Television Services Pty Ltd [2002] NSWSC 496 at [65] per Cripps AJ [2001] NSWSC 1022 at [20]-[21]. [2003] NSWSC 586. Kelly v John Fairfax Publications Pty Ltd [2003] NSWSC 586 at [32]-[38], [40]. The jury found that the imputation of homosexuality was conveyed but was not defamatory. (2003) 201 ALR 77; [2003] HCA 50.

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[6.300]

The tests for what is defamatory

themselves as having a different sexual orientation, such an imputation could, depending on the circumstances, sometimes be defamatory.223

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The day of which Kirby J spoke may be close to arriving. In the most recent decision on this issue, Cole J of the District Court of South Australia held that an imputation of homosexuality was not defamatory of the plaintiff.224 In the absence of a jury in South Australian defamation proceedings, the strict demarcation between questions of defamatory capacity and meaning did not need to be decided.225

223 224

225

John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77; [2003] HCA 50 at 109 (ALR). As to the interaction of defamation and privacy, see [18.200]–[18.220]. Tassone v Kirkham [2014] SADC 134 at [35]. The plaintiff did, however, succeed in relation to all other imputations, alleging promiscuity, loose moral character and a lack of professionalism. He was awarded $75,000 damages. At the time of writing, this case is subject to an appeal to the Full Court of the Supreme Court of South Australia. As to the use of juries in Australian defamation litigation, see [5.150]–[5.160].

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119

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7

Identification [7.10] Introduction................................................................................................121 [7.20] Direct identification................................................................................... 122 [7.30] Relevance of intention...............................................................................123 [7.40] Indirect identification.................................................................................123 [7.50] Examples of indirect identification................................................. 127 [7.60] Where plaintiff has the same name as real person to whom defendant intends to refer................................................................................................ 128 [7.70] Where plaintiff has same name as a fictitious person to whom defendant intends to refer............................................................................... 129 [7.80] Aspersion against group or class.............................................................. 130 [7.80] General principles............................................................................ 130 [7.90] Particular examples..........................................................................132 [7.100] Use of prior and subsequent publications to establish identification.................................................................................................... 135

Introduction

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[7.10] In order to succeed in a claim for defamation, the plaintiff must establish that the defamatory matter identified him or her. This is sometimes expressed as a requirement that the defamatory matter must be published “of and concerning” the plaintiff.1 The rationale for this requirement is that the defamatory matter can only adversely affect the plaintiff’s reputation if the plaintiff is identified in the defamatory matter.2 The plaintiff bears the onus of proof in relation to the issue of identification.3 If the plaintiff fails to prove identification, the plaintiff’s cause of action fails.4 In many cases, the issue of identification is not problematic. The plaintiff will be directly identified in the defamatory matter and the defendant will have intended to identify the plaintiff. There are a range of circumstances, though, in which identification may be more contestable. The defamatory matter may not directly name the plaintiff.5 The plaintiff may only be identifiable to some readers who possess knowledge of facts and circumstances which would connect the plaintiff to the matter.6 Prior or subsequent publications, but not the matter itself, may render the plaintiff identifiable.7 The defendant may 1 2 3 4 5 6 7

Sadgrove v Hole [1901] 2 KB 1 at 4 per A L Smith MR; Knupffer v London Express Newspaper Ltd [1944] AC 116 at 119 per Viscount Simon LC, at 121 per Lord Atkin. Kruse v Lindner (1978) 19 ALR 85 at 87 per Smithers J. Sadgrove v Hole [1901] 2 KB 1 at 4 per A L Smith MR; David Syme & Co v Canavan (1918) 25 CLR 234 at 238 per Isaacs J. Sadgrove v Hole [1901] 2 KB 1 at 4 per A L Smith MR; Bruce v Odhams Press Ltd [1936] 1 KB 697 at 705 per Greer LJ. See [7.40]. See [7.40]. See [7.100].

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122

7: Identification

[7.10]

intend to refer to a particular person who shares the same name as the plaintiff.8 The defendant may intend to create a fictitious character who happens to share the same name as the plaintiff.9 The defendant may cast an aspersion against a group or a class of persons without specifically identifying the plaintiff.10 These are all examples of the issues relating to identification which have arisen in the case law. Ultimately, in each case where identification arises as an issue, reasonableness is the guiding principle, as with so much of defamation law.11

Direct identification [7.20] Where the matter is defamatory in its natural and ordinary

meaning12 and refers to the plaintiff by name, it is not necessary for the plaintiff to establish that the matter was published to persons who had knowledge of the plaintiff.13 In such a case, it is not necessary, for the purposes of liability, to prove that the recipient knew the plaintiff or thought less of the plaintiff.14 Even if the matter does not refer to the plaintiff by name, it may nevertheless readily identify him or her if it refers to his or her title or office.15 A frequently cited example is a matter which refers to “the Prime Minister of Australia” without referring by name to the incumbent.16 However, as Jordan CJ notes in Consolidated Trust Co Ltd v Browne,17 “the less revealing the description the greater the danger of omitting proof of identification”.18 The publication of the plaintiff’s photograph or image, without being named in the same matter, is not the same as the publication of the plaintiff’s name in a newspaper or other printed material.19 Whether this view should continue to

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8 9 10 11 12 13

14

15 16

17 18

See [7.60]. See [7.70]. See [7.80]–[7.90]. Knupffer v London Express Newspaper Ltd [1944] AC 116 at 119 per Viscount Simon LC. As to the natural and ordinary meaning, see [6.110]. Jones v E Hulton & Co [1909] 2 KB 444 at 454 per Lord Alverstone CJ; Consolidated Trust Co Ltd v Browne (1948) 49 SR(NSW) 86 at 89 per Jordan CJ; Cross v Denley (1952) 52 SR(NSW) 112 at 116 per Owen J; Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 at 639 per Mason and Jacobs JJ. Consolidated Trust Co Ltd v Browne (1948) 49 SR(NSW) 86 at 89 per Jordan CJ; see also Multigroup Bulgaria Holding AD v Oxford Analytica Ltd [2001] EMLR 28 at 744 per Eady J; Jameel v Dow Jones & Co Inc [2005] QB 946; [2005] EWCA Civ 75 at 959 (QB) per curiam. Cross v Denley (1952) 52 SR(NSW) 112 at 116 per Owen J. Consolidated Trust Co Ltd v Browne (1948) 49 SR(NSW) 86 at 91 per Jordan CJ; see also Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581 at 585 per Greer LJ (seeking to avoid offence or in keeping with the milieu of fictionalised monarchy, his Lordship invokes the example of “the Prime Minister of Ruritania”). (1948) 49 SR(NSW) 86. Consolidated Trust Co Ltd v Browne (1948) 49 SR(NSW) 86 at 91. See also, eg, Bonighton v Nationwide News Pty Ltd [2006] ACTSC 7 at [17]-[18] per Connolly J (holder of office of Director of Defence Signals Directorate): True it is that everyone knows who the Prime Minister is, and it may be said that, together with Cabinet Ministers, certain senior office holders in the Commonwealth Government would also be sufficiently well known that an allegation concerning “the Secretary to the Treasury”, or “the Secretary to the Department of Foreign Affairs and Trade” would be actionable by the office holder without special pleading going to identification.

19

This may reflect a somewhat Canberra-centric approach to the problem but the underlying principle seems clear. Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 at 35 per Hunt J.

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[7.40]

Indirect identification

prevail is open to question. In Dwek v Macmillan Publishers Ltd,20 Sedley LJ doubted the correctness of this view, stating that he: can see at present no logical or factual distinction between the two. Identification by appearance can, it seems to me, be at least as potent and as direct as identification by name. Either, in a particular case, may be sufficiently plain to call for no elaboration by particulars or by evidence.

Relevance of intention [7.30] A defendant does not have to intend to refer to the plaintiff in order to

be held liable for defamation.21 Indeed, a defendant can be held liable for defamation even in circumstances where the defendant was unaware of the plaintiff’s existence.22 Just as the intention of the publisher to defame the plaintiff is irrelevant to the issue of whether the plaintiff has been defamed,23 so, too, the intention of the publisher to identify the plaintiff is irrelevant to the issue of whether the plaintiff has been identified by the matter.24

Indirect identification [7.40] It is not necessary that a plaintiff is directly named by the matter in

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order for the defendant to be held liable in defamation.25 To hold otherwise would be to permit a defendant to avoid liability simply by avoiding naming the plaintiff directly.26 This may, however, expose innocent publishers to liability for defamation. The fact that the defendant did not intend to refer to the plaintiff,27 or was unaware of the plaintiff,28 is no defence if the matter published by the defendant was reasonably capable of referring to the plaintiff. The intention or state of knowledge of the publisher is not determinative.29 The issue is the impact of the defamatory matter on the plaintiff’s reputation. As Lord Morris of Borth-Y-Gest expressed it in Morgan v Odhams Press 20 21 22

23 24 25

26

27 28

29

[2000] EMLR 284 at 294-5. Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1242 per Lord Reid, at 1252 per Lord Morris. Cassidy v Daily Mirror Newspapers Ltd [1929] 2 KB 331 at 340-1 per Scrutton LJ, at 354 per Russell LJ; Newstead v London Express Newspapers Ltd [1940] 1 KB 377 at 389 per Mackinnon LJ; Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1242 per Lord Reid. As to the relevance of intention to liability for defamation, see [6.90]. E Hulton & Co v Jones [1910] AC 20 at 24 per Lord Loreburn LC; see also Gibson v Evans (1889) 23 QBD 384 at 386 per Lord Coleridge CJ. Godhard v James Inglis & Co Ltd (1905) 2 CLR 78 at 92 per Griffith CJ; Cassidy v Daily Mirror Newspapers Ltd [1929] 2 KB 331 at 338-9 per Scrutton LJ; Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1247 per Lord Morris of Borth-Y-Gest. See also Bourke v Warren (1826) 2 Car & P 307; 172 ER 138 at 140 (ER) per Abbott CJ: “It is not necessary that all the world should understand the libel; it is sufficient if those who know the plaintiff can make out that he is the person meant.” Le Fanu v Malcomson (1848) 1 HLC 637 at 664-5; Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1244 per Lord Reid; Hayward v Thompson [1982] QB 47 at 60 per Lord Denning MR. Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1242 per Lord Reid, at 1252 per Lord Morris of Borth-Y-Gest. Cassidy v Daily Mirror Newspapers Ltd [1929] 2 KB 331 at 340-1 per Scrutton LJ, at 354 per Russell LJ; Newstead v London Express Newspapers Ltd [1940] 1 KB 377 at 389 per Mackinnon LJ; Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1242 per Lord Reid. As to the relevance of intention, see [7.30].

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123

124

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[7.40]

Ltd,30 “[t]he question was ‘who was hit’ by the words which were published. The issue was – was the plaintiff hit?” Although the potential unfairness or hardship of this position on defendants has been acknowledged,31 the interests of plaintiffs are preferred by defamation law. There are, however, some protections afforded to the defendant’s position,32 which are available to all publishers, innocent or otherwise. Where a plaintiff is not directly named by a matter, he or she is obliged to prove that a person or persons read, saw or heard the matter and connected it with the plaintiff.33 That is, identification can be established by means of innuendo.34 As a matter of principle, establishing identification by innuendo should be treated in the same way as establishing defamatory meaning by true innuendo.35 Just as with establishing defamatory meaning by means of a true innuendo, establishing identification by means of innuendo requires the plaintiff to particularise the extrinsic facts which would have allowed the ordinary, reasonable reader with knowledge of those extrinsic facts to have identified him or her from the defamatory matter.36 What will be required to establish proof of identification will depend upon the circumstances of the particular case.37 The most straightforward way to establish this is by calling one or more witnesses to give evidence.38 It is sufficient if the plaintiff proves that the matter was published to one person other than the plaintiff who has knowledge of the plaintiff.39 However, where a plaintiff is not directly named in a matter, there is no inflexible rule that the plaintiff must call at least one witness to attest that he or she saw the matter and reasonably connected it with the plaintiff.40 Depending upon the circumstances, it is possible to infer that the matter was published to a

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30 31

32 33

34

35 36

37 38

39 40

[1971] 1 WLR 1239, 1252. Cassidy v Daily Mirror Newspapers Ltd [1929] 2 KB 331 at 341-2 per Scrutton LJ, at 354 per Russell LJ. See also Newstead v London Express Newspapers Ltd [1940] 1 KB 377 at 388 per Sir Wilfrid Greene MR; O’Shea v MGN Ltd [2001] EMLR 40 at 952 per Morland J. Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1242 per Lord Reid. Hough v London Express Newspaper Ltd [1940] 2 KB 507 at 511-14 per Slesser LJ, at 515 per Goddard LJ; Consolidated Trust Co Ltd v Browne (1948) 49 SR(NSW) 86 at 89 per Jordan CJ; Cross v Denley (1952) 52 SR(NSW) 112 at 116 per Owen J; Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 at 35 per Hunt J. Bruce v Odhams Press Ltd [1936] 1 KB 697 at 708 per Slesser LJ; Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 at 362 per Hutley JA; Abbott v TCN Channel Nine Pty Ltd (1987) Aust Torts Reports 80-138 at 69,079 per Hunt J. Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 at 363 per Hutley JA. Turner v Bulletin Newspaper Co Pty Ltd (1974) 131 CLR 69 at 80 per Barwick CJ; Dawson Bloodstock Agency Pty Ltd v Mirror Newspapers Ltd [1979] 1 NSWLR 733 at 736 per Hunt J. Consolidated Trust Co Ltd v Browne (1948) 49 SR(NSW) 86 at 92 per Davidson J. Consolidated Trust Co Ltd v Browne (1948) 49 SR(NSW) 86 at 89 per Jordan CJ; Channel Seven Sydney Pty Ltd v Parras (2002) Aust Torts Reports 81-675; [2002] NSWCA 202 at 69,226 (Aust Torts Reports). The witnesses should ordinarily give evidence about their own reactions to the publication of the defamatory matter, not the reactions of other recipients: Ware v Associated Newspapers Ltd (1969) 90 WN(NSW) (Pt 1) 180 at 185 per Walsh JA. However, see also Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 at 234 per Hutley JA. Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 at 365 per Hutley JA. Raul Amon International Pty Ltd v Telstra Corporation Ltd [1998] 4 VR 798 at 807 per Charles JA; Channel Seven Sydney Pty Ltd v Parras (2002) Aust Torts Reports 81-675; [2002] NSWCA 202 at 69,226 (Aust Torts Reports).

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[7.40]

Indirect identification

person with such knowledge.41 In limited circumstances, a plaintiff not directly identified in the matter may be able to argue that his or her identity is sufficiently notorious that this element of his or her case can be established.42 However, there are incentives for a plaintiff to ensure that his or her evidentiary case as to identification is sound by calling at least one witness. First, a failure to provide evidence that a plaintiff not directly identified in the matter should be identified leads to the failure of the plaintiff’s defamation claim.43 Secondly, a plaintiff seeking to obtain substantial damages has an interest in ensuring that there is evidence before the court as to the scope of the publication.44 The evidence of the witnesses is not determinative of the issue as to whether the ordinary, reasonable reader, with knowledge of those extrinsic facts, would have identified the plaintiff in the matter.45 Those witnesses do not have to attest that they believe what was published about the plaintiff was true.46 Equally, the fact that the witnesses did not believe what was published was true is not fatal to the plaintiff’s claim.47 However, it can be of relevance as to how the ordinary, reasonable reader would have reacted to the matter.48 Where a plaintiff seeks to establish identification by innuendo, he or she has to adduce evidence that a person or persons read the matter and connected it with the plaintiff. It is for the trial judge to determine whether, as a matter of law, the ordinary, reasonable reader, with knowledge of those extrinsic facts, could reasonably have identified the plaintiff.49 If there is no evidence upon which the jury could reasonably conclude that the plaintiff has been identified by the matter, the trial judge cannot place the case before the jury.50 If there is at least some evidence upon which the jury could so reasonably conclude, the judge must leave the issue for the jury. The issue then for the jury is whether, as a matter of fact, the ordinary, reasonable reader, with knowledge of those 41

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42 43 44 45 46

47 48 49

50

Hough v London Express Newspaper Ltd [1940] 2 KB 507 at 515 per Goddard LJ; Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 at 36 per Hunt J. However, see also Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 at 373-4 per Samuels JA. Consolidated Trust Co Ltd v Browne (1948) 49 SR(NSW) 86 at 91 per Jordan CJ. Consolidated Trust Co Ltd v Browne (1948) 49 SR(NSW) 86 at 91-2 per Jordan CJ, at 94 per Davidson J; Cross v Denley (1952) 52 SR(NSW) 112 at 117 per Owen J. Consolidated Trust Co Ltd v Browne (1948) 49 SR(NSW) 86 at 91 per Jordan CJ. Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1245 per Lord Reid; see also, eg, O’Shea v MGN Ltd [2001] EMLR 40 at 946-7 per Morland J. Hough v London Express Newspaper Ltd [1940] 2 KB 507 at 515 per Goddard LJ; Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1252 per Lord Morris of Borth-Y-Gest; Vlasic v Federal Capital Press of Australia Pty Ltd (1976) 9 ACTR 1 at 10 per Blackburn J; Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 at 36 per Hunt J. In Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 at 36-7, eg, the plaintiff, Dominic Barbaro, responded affirmatively to a journalist’s question as to whether he was Dominic Sergi. The journalist then asserted that the man identifying as Sergi was one of six men mentioned in a report of a royal commission for being responsible for a murder. Four witnesses gave evidence of having identified the plaintiff as the man shown on the program. Hunt J held that the plaintiff could be identified, notwithstanding the fact that the witnesses knew that the identification in the program was wrong. Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1246 per Lord Reid, at 1252 per Lord Morris-Y-Gest. Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 at 365 per Hutley JA. Knupffer v London Express Newspaper Ltd [1944] AC 116 at 121 per Viscount Simon LC; Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1242, 1245 per Lord Reid; Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 at 362 per Hutley JA at 371 per Samuels JA. Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1246 per Lord Reid, at 1252 per Lord Morris of Borth-Y-Gest.

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[7.40]

extrinsic facts, would in fact reasonably have identified the plaintiff.51 In applying the standard of the ordinary, reasonable reader to this inquiry, factors relevant to the application of this standard to the issue of defamatory capacity and meaning will also be relevant here.52 “[A] certain amount of loose thinking” on the part of the ordinary, reasonable reader will be tolerated.53 The ordinary, reasonable reader, as a lay person not a lawyer, will more readily draw implications and inferences about identification.54 The context of the matter will be relevant. Thus, greater latitude will be given to the ordinary, reasonable reader identifying the plaintiff where the matter “is published in a sensationalist newspaper as contrasted with one with a reputation for sobriety and veracity”.55 Similarly, the ordinary, reasonable viewer of a transient publication, such as a radio or television broadcast, has less opportunity than the ordinary, reasonable reader to review the defamatory matter before forming his or her impression.56 There is no additional, artificial requirement that the defamatory matter have some peg or pointer to the plaintiff in order for the plaintiff to be sufficiently identified.57 It is not essential that a recipient know the plaintiff’s name in order for the plaintiff to be identified in the defamatory matter. In Channel Seven Sydney Pty Ltd v Parras,58 Mason P canvassed a range of scenarios in which a plaintiff may be indirectly identified without being able to point to a recipient who knew the plaintiff’s name. Citing an example given by the trial judge in this case, Simpson J, Mason P accepted that a statement, “‘The man who lives in that house is a paedophile’, made of a reclusive person whose name was not even known to people living in his street” could be defamatory of the subject of that statement if he “remained the nameless occupant of No X, Smith Street”.59 His Honour also gave the example of a plaintiff with a stage name who retains a family name for private purposes. Mason P stated that “[i]f defamatory matter was published of and concerning the plaintiff by his stage name then he should be able to recover damages without calling witnesses who know his private

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51

52

53 54 55

56 57 58 59

Knupffer v London Express Newspaper Ltd [1944] AC 116 at 121 per Viscount Simon LC; Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1253 per Lord Morris of Borth-Y-Gest, at 1269-70 per Lord Pearson. Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1243 per Lord Reid; Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 at 364 per Hutley JA. As to the principles of defamatory capacity and meaning, see [6.60]–[6.70]. Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1245 per Lord Reid. Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1245 per Lord Reid. Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1254 per Lord Morris of Borth-Y-Gest; Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 at 364 per Hutley JA. Lord Morris of Borth-Y-Gest in Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1254, referring to Jones v E Hulton & Co [1909] 2 KB 444, observed that “[t]he plaintiff who successfully complained of an article which described someone as of a churchwarden at Peckham was neither a churchwarden nor did he reside at Peckham”. According to Hutley JA in Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 at 364, the jury is given a great deal of latitude in relation to such cases and the standard of reasonableness is not onerous. His Honour characterised the witnesses who identified the plaintiff in Hulton v Jones and Cassidy v Daily Mirror Newspapers Ltd [1929] 2 KB 331 as “not behaving sensibly” and the witnesses who identified the plaintiff in Morgan v Odhams Press Ltd [1971] 1 WLR 1239 as giving evidence which was “nothing short of far-fetched”. However, see also Abbott v TCN Channel Nine Pty Ltd (1987) Aust Torts Reports 80-138 at 69,080 per Hunt J. Savvas v TCN Channel Nine Pty Ltd (1987) A Def R 50,020 at 40,104-5 per Hunt J. Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1243 per Lord Reid. (2002) Aust Torts Reports 81-675; [2002] NSWCA 202 at 69,226 (Aust Torts Reports). Channel Seven Sydney Pty Ltd v Parras (2002) Aust Torts Reports 81-675; [2002] NSWCA 202 at 69,226 (Aust Torts Reports).

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[7.50]

Indirect identification

name”.60 His Honour stated that, where a well-known business was allegedly defamed, it was not necessary to adduce evidence that a recipient knew “the obscure name of the corporate owner”.61 It will obviously be an unusual case in which the evidence adduced to establish that the plaintiff was identified by the matter does not also link the defamatory matter to the plaintiff’s name.62 Mason P’s approach in Channel Seven Sydney Pty Ltd v Parras reinforces the view that what is reasonably required to establish identification will depend upon the particular matter in issue and the circumstances of the case.

Examples of indirect identification [7.50] There are a variety of ways in which indirect identification can be established.63 A plaintiff can be identified from his or her initials.64 A plaintiff can be identified if his or her name is replaced with asterisks or blanks.65 A plaintiff can be identified from a caricature or a painting of him or her.66 A plaintiff can be identified from his or her telephone number.67 Because the prevailing view is that the publication of a photograph of the plaintiff is not the same as the plaintiff being directly named,68 a plaintiff who is only identifiable due to the publication of a still or moving image of him or her will ordinarily be obliged to prove that one or more persons saw the image and identified the plaintiff.69 Depending upon the circumstances of the case, such as whether the

60 61

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62 63 64 65 66

67

68 69

Channel Seven Sydney Pty Ltd v Parras (2002) Aust Torts Reports 81-675; [2002] NSWCA 202 at 69,226 (Aust Torts Reports). Channel Seven Sydney Pty Ltd v Parras (2002) Aust Torts Reports 81-675; [2002] NSWCA 202 at 69,226, 69,230 (Aust Torts Reports) per Mason P (evidence of knowledge of recipients that corporate plaintiff, Hotel Pursuits Pty Ltd, owned Soho Bar, which was identified in news bulletin). See also Universal Communication Network Inc (t/as New Tang Dynasty) v Chinese Media Group (Aust) Pty Ltd (2008) Aust Torts Reports 81-932; [2008] NSWCA 1 at 61,227 (Aust Torts Reports) per McColl JA. Channel Seven Sydney Pty Ltd v Parras (2002) Aust Torts Reports 81-675; [2002] NSWCA 202 at 69,226 (Aust Torts Reports) per Mason P. See, eg, Hayward v Thompson [1982] QB 47 at 60 per Lord Denning MR. Roach v Garvan (St James’s Evening Post) (1742) 2 Atk 469; 26 ER 683 at 684 (ER) per Lord Hardwicke LC. Bourke v Warren (1826) 2 Car & P 307; 172 ER 138 at 139-40 (ER) per Abbott CJ (asterisks); Levi v Milne (1827) 4 Bing 195; 130 ER 743. See, eg, Du Bost v Beresford (1810) 2 Camp 511; (1810) 170 ER 1235 at 1235 (ER) per Lord Ellenborough (painting); Tolley v JS Fry & Sons Ltd [1931] AC 333 at 336-7 per Viscount Hailsham, at 350 per Lord Tomlin. See, eg, Falkenberg v Nationwide News Pty Ltd (unreported, NSW SC, Levine J, 16 December 1994). A plaintiff may also be identified from some other kind of identifying number, such as his or her car registration or fleet number. See, eg, Paschalidis v Yellow Corporation [2005] SASC 151 at [38] per Gray J (no evidence that recipient knew plaintiff was driver of vehicle identified by fleet number). Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 at 35 per Hunt J. Dwek v Macmillan Publishers Ltd [2000] EMLR 284 at 291 per May LJ; Nixon v Slater & Gordon (2000) Aust Torts Reports 81-565; [2000] FCA 531 at 63,822 (Aust Torts Reports) per Merkel J; Dojas v TCN Channel Nine Pty Ltd [2001] NSWCA 398 at [36] per Hodgson JA; Channel Seven Sydney Pty Ltd v Parras (2002) Aust Torts Reports 81-675; [2002] NSWCA 202 at 69,223 (Aust Torts Reports) per Mason P; see also Marley’s Transport Pty Ltd v West Australian Newspapers Ltd [2001] WASC 31 at [24] per Hasluck J. However, see also Dwek v Macmillan Publishers Ltd [2000] EMLR 284 at 294 per Sedley LJ.

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[7.50]

plaintiff had a high public profile and whether the defamatory matter was widely circulated, it may be possible for the plaintiff to draw the inference that he or she was identified.70

Where plaintiff has the same name as real person to whom defendant intends to refer [7.60] Where a defendant publishes defamatory matter intending to refer to a particular person, he or she can be liable to another person with the same name if that other person could reasonably be identified from the matter.71 It does not assist the defendant that he or she did not intend to refer to the plaintiff. The tort of defamation is concerned with the effect of the defendant’s publication of defamatory matter on the plaintiff’s reputation, not the defendant’s subjective intention.72 However, in Jameel v Dow Jones & Co Inc,73 the English Court of Appeal observed that:

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[w]here a common name is included in an article, the name itself will not suffice to identify any individual who bears that name. The context in which the name appears, coupled with the name may, however, do so.

This may also be supplemented by evidence from witnesses who received the matter and connected it with the plaintiff. What is required will depend upon the circumstances of the particular case. The leading Australian authority on this issue is the decision of the High Court of Australia in Lee v Wilson & Mackinnon.74 In this case, The Star newspaper published an account of a police inquiry in which a prisoner gave evidence that “Detective Lee” accepted a bribe.75 The prisoner in fact identified First Constable Lee of the Motor Registration Branch but was misreported. At the time, there were three officers with the surname, Lee, serving in the Victorian police force. In addition to First Constable Lee of the Motor Registration Branch, there were also the two plaintiffs, Arthur Lonsdale Lee, a senior constable, and Clifford Lee, a first constable, both in the Criminal Investigation Branch. They were informally referred to as “Detective Lee”,76 whereas the subject of the evidence at the inquiry and the person to whom the report was intended to refer was not.77 Arthur Lonsdale Lee and Clifford Lee commenced defamation proceedings against the publisher of The 70 71

Dwek v Macmillan Publishers Ltd [2000] EMLR 284 at 291, 293-4 per May LJ. Lee v Wilson & Mackinnon (1934) 51 CLR 276 at 290 per Dixon J: [A] description on its face designating one person only may, nevertheless, be a libel of two or more, if, being capable of denoting each of them, it is reasonably understood by one group of people to refer to one of them, and by another group to another and so on.

72 73 74 75 76 77

See also Newstead v London Express Newspapers Ltd [1940] 1 KB 377 at 288 per Sir Wilfrid Greene MR. However, see also Shaw v London Express Newspapers Ltd (1925) 41 TLR 475 at 475 per Horridge J (not reasonable to identify plaintiff from story relating to murder, which occurred in premises where he and his family lived, and where victim lived with man with same surname as plaintiff); O’Shea v MGN Ltd [2001] EMLR 40 at 946-7 per Morland J (not reasonable to identify plaintiff from photograph of glamour model used in pornographic advertisement, notwithstanding evidence of witnesses who saw resemblance between the two women). Lee v Wilson & Mackinnon (1934) 51 CLR 276 at 287 per Dixon J. [2005] QB 946; [2005] EWCA Civ 75 at 963 (QB). (1934) 51 CLR 276. Lee v Wilson & Mackinnon (1934) 51 CLR 276 at 282-3 per Starke J, at 286 per Dixon J. Lee v Wilson & Mackinnon (1934) 51 CLR 276 at 286 per Dixon J. Lee v Wilson & Mackinnon (1934) 51 CLR 276 at 283 per Starke J.

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[7.70]

Where plaintiff has same name as fictitious person

Star newspaper and were successful at first instance. The decision was reversed by the Supreme Court of Victoria. On appeal, the High Court of Australia found that, where the matter was reasonably capable of identifying more than one person, and those acquainted with those other persons reasonably connect them with the matter, the plaintiff is sufficiently identified by the matter and the defendant cannot avoid liability on the basis that he or she did not intend to refer to the plaintiff. Thus, the plaintiffs in the case were entitled to succeed.78 Although this approach may expose publishers to more extensive liability than they intended or can control, publishers do have the means to protect themselves to some extent. As Sir Wilfrid Greene MR observed in Newstead v London Express Newspapers Ltd:79 But the hardships are in practice not so serious as might appear, at any rate in the case of statements which are ex facie defamatory. Persons who make statements of this character may not unreasonably be expected, when describing the person of whom they are made, to identify that person so closely as to make it very unlikely that a judge would hold them to be reasonably capable of referring to someone else, or that a jury would hold that they did so refer. This is particularly so in the case of statements which purport to deal with actual facts. If there is a risk of coincidence it ought not, I think, in reason to be borne by the innocent party to whom the words are held to refer, but by the party who puts them in circulation.

Where plaintiff has same name as a fictitious person to whom defendant intends to refer

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[7.70] Where a defendant publishes matter intending to refer to a fictitious person, he or she can nevertheless be held liable in defamation to a real person of the same name if that real person could be reasonably identified from the matter. The plaintiff will have to prove that he or she was reasonably identified from the matter by recipients and the most straightforward way of demonstrating this is by calling witnesses who received the matter to give such evidence.80 Again, it does not assist the defendant that he or she did not intend to refer to the plaintiff, or that the defendant was unaware of the existence of the plaintiff, because the tort of defamation is concerned with the effect of the defendant’s publication of defamatory matter on the plaintiff’s reputation, not the defendant’s subjective intention.81 To hold otherwise would be to allow defendants to defame plaintiffs under the guise of fictitious names. It has been recognised that this approach has the potential to occasion hardship to publishers but the balancing of competing interests favours publishers bearing the risk rather than leaving plaintiffs without a remedy.82 78

79 80

81 82

Lee v Wilson & Mackinnon (1934) 51 CLR 276 at 286 per Starke J, at 295 per Dixon J, at 298-9 per Evatt and McTiernan JJ. See also Newstead v London Express Newspapers Ltd [1940] 1 KB 377 at 395 per du Parcq LJ (reference to “Harold Newstead, thirty-year-old Camberwell man” in report about trial for bigamy, intended to refer to barman, Harold Newstead, reasonably capable of referring to hairdresser’s assistant of same name). [1940] 1 KB 377 at 388. See, eg, Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581 at 582-3 per Scrutton LJ, at 585 per Greer LJ, at 587 per Slesser LJ; Jozwiak v Sader [1954] 1 WLR 275 at 277 per Ormerod J. E Hulton & Co v Jones [1910] AC 20 at 24 per Lord Loreburn LC. Newstead v London Express Newspapers Ltd [1940] 1 KB 377 at 388 per Sir Wilfrid Greene MR.

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129

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[7.70]

The most famous case on this issue is E Hulton & Co v Jones.83 In this case, the plaintiff was a barrister practising on the North Wales circuit, Thomas Artemus Jones, known from childhood by his middle name. The defendants were responsible for the publication of a newspaper, The Sunday Chronicle which carried a story about a married churchwarden from Peckham named Artemus Jones misbehaving at a motor festival in Dieppe with a woman who was not his wife.84 The writer of the article gave evidence that he had used what he thought was an imaginary name. The real Artemus Jones, who did not live at Peckham and was not a churchwarden,85 brought defamation proceedings against The Sunday Chronicle and was able to produce five witnesses who had seen the article and thought that it referred to him.86 What did not assist The Sunday Chronicle’s case was that, in the past, the real Artemus Jones had been a contributor, over a period of six to seven years, to The Sunday Chronicle.87 At first instance, the jury found in favour of Jones and awarded him £1,750 damages. Appeals against this verdict to both the Court of Appeal and the House of Lords were unsuccessful.88 As Lord Loreburn LC observed, the real Artemus Jones was well-known in the district in which he lived and worked and, given his previous working relationship with The Sunday Chronicle, the jury was entitled to conclude that there was at least recklessness on the part of the newspaper.89

Aspersion against group or class General principles

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[7.80] The focus of the common law of defamation is damage to the reputation of a particular plaintiff. It is on the characteristics of that particular plaintiff in question and every plaintiff’s reputation is unique to him or her. Given its individualistic focus, defamation law is not an effective mechanism for providing redress for aspersions cast upon aspects of collective or group identity.90 Thus, to speak of group or class defamation or libel is apt to mislead. The issue is not whether each and every member of the group or class is entitled to sue for defamation in relation to a slur cast against the whole group or class. Nor is the issue whether a plaintiff is entitled to sue for defamation merely by virtue of his or her membership of a group or class against which an aspersion has been cast. The issue is whether the plaintiff’s individual reputation is reasonably capable of being identified in an aspersion cast against a group or class, such that the plaintiff is entitled to sue for damage to his or her individual 83 84 85 86 87 88 89

90

[1910] AC 20. Jones v E Hulton & Co [1909] 2 KB 444 at 451 per Lord Alverstone CJ. Jones v E Hulton & Co [1909] 2 KB 444 at 455 per Lord Alverstone CJ. Jones v E Hulton & Co [1909] 2 KB 444 at 452 per Lord Alverstone CJ. Jones v E Hulton & Co [1909] 2 KB 444 at 455 per Lord Alverstone CJ. Jones v E Hulton & Co [1909] 2 KB 444 (CA); E Hulton & Co v Jones [1910] AC 20 (HL(E)). E Hulton & Co v Jones [1910] AC 20 at 24-5. For another case in which the plaintiff was found reasonably to be identifiable from a matter purporting to be fictitious, see Harrison v Smith (1869) 22 LT 713 at 714 per Lush J. For a case in which the plaintiff was found not reasonably to be identifiable from a matter purporting to be fictitious, see Blennerhassett v Novelty Sales Services Ltd (1933) 175 LT 393. For the use of the Racial Discrimination Act 1975 (Cth) Pt IIA as a means of providing legal protection against attacks on aspects of collective or group identity, see [18.180].

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[7.80]

Aspersion against group or class

reputation.91 As Willes J famously observed in Eastwood v Holmes,92 “[i]f a man wrote that all lawyers were thieves, no particular lawyer could sue him unless there is something to point to the particular individual.” It may be, as Wilcox J suggested in Mann v Medicine Group Pty Ltd,93 that defamation law’s refusal to permit each and every member of a group or class subject to such a slur to sue is based upon a concern about the imposition of indeterminate liability. Whatever the precise principled basis for defamation law’s approach to this issue, it is clear that defamation law requires that the particular plaintiff’s reputation is implicated in, and thereby affected by, the publication of the defamatory matter. There is no special or different approach to be adopted when dealing with whether an aspersion against a group or class implicates the individual reputations of one or more members of that group or class.94 The resolution of the issue merely involves, or should involve, the application of general principles to a particular context.95 This issue arises particularly in circumstances where aspersions have been cast against partnerships or corporations and individual partners or directors who are not specifically named want to sue for defamation.96 However, they are obviously not limited to such circumstances.

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As a matter of law, the trial judge will need to determine whether the plaintiff could reasonably be identified from an aspersion cast against a group or class.97 If the plaintiff could not be so identified, the plaintiff’s claim fails at the outset and the trial judge cannot place it before the jury. If the plaintiff could be so identified, the jury will need to determine whether, as a matter of fact, the plaintiff would be identified by the ordinary, reasonable reader.98 These inquiries need to be undertaken in the context of the particular case.99 Relevant to these inquiries are factors such as “the size of the class, the generality of the charge and the extravagance of the accusation”.100 In Knupffer v London Express Newspaper Ltd,101 Lord Atkin suggested that it was necessary to distinguish between “unfounded” and “vulgar” generalisations, such as “All lawyers are thieves”, which are incapable of defaming a particular plaintiff, and 91

92 93 94

95 96

97 98 99 100 101

David Syme & Co v Canavan (1918) 25 CLR 234 at 238 per Isaacs J; Knupffer v London Express Newspaper Ltd [1944] AC 116 at 122 per Lord Atkin, at 123-4 per Lord Porter; Abraham v Advocate Co Ltd [1946] 2 WWR 181 at 185 (PC); Dowding v Ockerby [1962] WAR 110 at 119 per Wolff CJ; Hyams v Peterson [1991] 3 NZLR 648 at 654 per Cooke P; Mann v Medicine Group Pty Ltd (1992) 38 FCR 400 at 402-3 per Wilcox J. (1858) 1 F & F 347; 175 ER 758 at 759 (ER). (1992) 38 FCR 400 at 401-2. Knupffer v London Express Newspaper Ltd [1944] AC 116 at 121 per Lord Atkin, at 123 per Lord Russell of Killowen. For instance, there is no threshold requirement that the group or class be determinate in size before considering whether the plaintiff has been identified: Mann v Medicine Group Pty Ltd (1992) 38 FCR 400 at 411 per Miles J; cf Dowding v Ockerby [1962] WAR 110 at 115-6 per Hale J. Mann v Medicine Group Pty Ltd (1992) 38 FCR 400 at 409-10 per Miles J. Knupffer v London Express Newspaper Ltd [1944] AC 116 at 123 per Lord Russell of Killowen. As to the capacity of partnerships to sue for defamation, see [5.90]. As to the capacity of corporations to sue for defamation at common law, see [5.100]. Knupffer v London Express Newspaper Ltd [1944] AC 116 at 124 per Lord Porter. Knupffer v London Express Newspaper Ltd [1944] AC 116 at 124 per Lord Porter. Mann v Medicine Group Pty Ltd (1992) 38 FCR 400 at 403 per Wilcox J. Knupffer v London Express Newspaper Ltd [1944] AC 116 at 124 per Lord Porter. [1944] AC 116 at 122.

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131

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[7.80]

an aspersion cast upon a group or class which was capable of reflecting upon the reputation of a particular plaintiff. It must be borne in mind that no single factor is determinative.

Particular examples

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[7.90] As each case is dependent upon its facts, the decided cases merely provide illustrations of these principles in application. In David Syme & Co v Canavan,102 the plaintiff was a member of the Returned Soldiers’ NoConscription League. At a pro-conscription rally held in December 1917, Sergeant Wallis DCM gave a speech in which he claimed that the group had only 100 members and was composed of “undesirables”. The Age newspaper published a report of the meeting.103 Canavan sued it for defamation. He gave evidence that the group in fact had 1,000 members.104 The High Court of Australia found that the jury’s verdict, rejecting Canavan’s claim, was not so unreasonable that it ought to be set aside. It was open to the jury to find that, given the reference to such a large group, Canavan’s reputation was not particularly implicated by the defamatory matter.105 In Healy v Askin,106 the plaintiff was the endorsed Labor candidate for the seat of North Sydney at the May 1974 Federal election. He sought to restrain the broadcast of a television advertisement which claimed that the Australian Labor Party was a “disguised communist” organisation. The claim was framed in defamation.107 A significant difficulty for the plaintiff was whether he was capable of being identified by the matter. Lee J (as his Honour then was) held that the matter was not capable of identifying the plaintiff. The matter was a criticism directed at the Australian Labor Party as a political entity and its putative ideology and was not capable of being construed as being directed to any particular individual, such as the plaintiff.108 In Mann v Medicine Group Pty Ltd,109 the plaintiff was a specialist medical practitioner from the Australian Capital Territory. He sued the Medicine Group Pty Ltd in relation to its publication of a letter to the editor in its journal, Australian Dr Weekly, which severely criticised doctors who bulk-billed, suggesting they contravened the Hippocratic oath out of greed for money.110 He sought to overcome the issue of identification by confining his claim to publication of the periodical and offending letter merely within the Australian Capital Territory. This was a significantly smaller medical community, one in which the plaintiff was particularly prominent.111 Wilcox J, with whom Neaves J agreed, held, however, that the matter was not capable of identifying the plaintiff. The periodical was circulated to medical practitioners nationally and the statements made in the letter applied to all Australian bulk-billing 102 103 104 105 106 107 108 109 110 111

(1918) 25 CLR 234. David Syme & Co v Canavan (1918) 25 CLR 234 at 236 per Barton J, at 238-9 per Isaacs J. David Syme & Co v Canavan (1918) 25 CLR 234 at 237 per Barton J, at 239 per Isaacs J. David Syme & Co v Canavan (1918) 25 CLR 234 at 237 per Barton J, at 238-9 per Isaacs J. [1974] 1 NSWLR 436. Healy v Askin [1974] 1 NSWLR 436 at 437-8 per Lee J. Healy v Askin [1974] 1 NSWLR 436 at 440 per Lee J. (1992) 38 FCR 400. Mann v Medicine Group Pty Ltd (1992) 38 FCR 400 at 406 per Miles J. Mann v Medicine Group Pty Ltd (1992) 38 FCR 400 at 403 per Wilcox J, at 407-8 per Miles J.

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[7.90]

Aspersion against group or class

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doctors, wherever they might be found. If there were an imputation against the appellant, there was the same imputation against every other Australian bulk-billing doctor.112 By contrast, in Bjelke-Petersen v Warburton,113 the then Queensland Premier, Sir Joh Bjelke-Petersen, and the whole of his ministry, sued the Deputy Leader of the Opposition, Tom Burns, for defamation over an interview in which Burns spoke of the “Government’s corruption” and “Ministers [having] their hands in the till”.114 The Full Court of the Supreme Court of Queensland held that these statements were capable of reflecting adversely on the reputations of each Government Minister. The reference to the “Government” was not so diffuse that it could reasonably encompass every public servant. The Ministry, as the apex of executive government, could reasonably be implicated in the matter.115 The class of persons was sufficiently narrow that the allegations could reasonably refer to each member of the class. There was no impediment to this finding on the basis that no individual Minister could reasonably be implicated by the matter because “to say that some members of a class are guilty of some form of misconduct, without saying which, is to cast a slur on all of them”.116 In David Syme & Co Ltd v Lloyd,117 the then West Indian cricket captain, Clive Lloyd, sued The Age newspaper over an article it published under the headline, “Come on dollar, come on.” Lloyd claimed the article alleged that he had engaged in match-fixing. Lloyd was not named in the article. In the New South Wales Court of Appeal, Priestley JA found that there was sufficient evidence to allow the jury to conclude that Lloyd was identified by the article.118 His Honour held that the ordinary, reasonable reader would know that the captain of a cricket team has “the overall responsibility for the control and performance of the team on and off the field”.119 It was not necessary that the witnesses called by Lloyd did not attest that they thought that the article referred to Lloyd.120 On appeal, the Privy Council agreed with Priestley JA’s reasoning on this issue.121 Where the aspersion is cast against a limited class of persons, it may be reasonable to find that the individual reputations of each and every member of the class are implicated by the matter.122 A difficult issue of principle, which has 112 113 114 115 116

117 118 119 120 121 122

Mann v Medicine Group Pty Ltd (1992) 38 FCR 400 at 404 per Wilcox J. [1987] 2 Qd R 465. Bjelke-Petersen v Warburton [1987] 2 Qd R 465 at 466 per Kneipp J, at 468-70 per Connolly J, at 473 per Vasta J. Bjelke-Petersen v Warburton [1987] 2 Qd R 465 at 470-1 per Connolly J, at 475 per Vasta J. Bjelke-Petersen v Warburton [1987] 2 Qd R 465 at 467 per Kneipp J. See also Bjelke-Petersen v Warburton [1987] 2 Qd R 465 at 472 per Connolly J, at 475 per Vasta J; cf Chomley v Watson [1907] VLR 502 at 505-6 per Madden CJ. For criticisms of the reasoning in this case, see McCormick v John Fairfax & Sons Ltd (1989) 16 NSWLR 485 at 489-90 per Hunt J. [1984] 3 NSWLR 346. David Syme & Co Ltd v Lloyd [1984] 3 NSWLR 346 at 363. David Syme & Co Ltd v Lloyd [1984] 3 NSWLR 346 at 361 per Priestley JA. David Syme & Co Ltd v Lloyd [1984] 3 NSWLR 346 at 361-2 per Priestley JA. Lloyd v David Syme & Co Ltd (1985) 3 NSWLR 728 at 734. Browne v Thomson & Co 1912 SC 359; Knupffer v London Express Newspaper Ltd [1944] AC 116 at 119 per Viscount Simon LC, at 123 per Lord Russell of Killowen; McCormick v John Fairfax & Sons Ltd (1989) 16 NSWLR 485 at 487 per Hunt J; Hyams v Peterson [1991] 3 NZLR 648 at 654-5 per Cooke P; Mann v Medicine Group Pty Ltd (1992) 38 FCR 400 at 402 per Wilcox J; Taylor v Network Ten (Perth) Pty Ltd [1999] WASC 264 at [23]

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133

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[7.90]

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produced divided authority in Australia, is whether an aspersion cast against one, or only some, of a group or class of persons allows each and every member of the group or class to sue for defamation. Although earlier authorities had suggested that, in such a case, all members of the group would not be entitled to sue for damage to their reputations, the Full Court of the Supreme Court of South Australia in Pryke v Advertiser Newspapers Ltd,123 held that letters published in two newspapers criticising the conduct of a commissioner presiding in an industrial dispute, without naming the commissioner in question, was defamatory of all four commissioners of the Industrial Relations Commission of South Australia.124 By contrast, in McCormick v John Fairfax & Sons Ltd,125 Hunt J found that an allegation published in a newspaper that one of three partners in a firm of private investigators was involved in the fixing of court cases, had sold stolen property and had been involved in the bogus renting of television sets, but did not indicate which partner,126 was incapable of conveying the imputation that each of the three partners was guilty of this conduct.127 In context, the article was also incapable of conveying an imputation of a suspicion of guilt against each of the three partners.128 In reaching this decision, Hunt J refused to follow Pryke v Advertiser Newspapers Ltd.129 With respect, it is preferable to approach this issue in light of the particular matter in a given case, guided by the test of reasonableness, rather than trying to prescribe a general rule for all cases. There will be cases, arguably including McCormick v John Fairfax & Sons Ltd, in which an allegation levelled against only one or some of a group or class could reasonably reflect adversely upon the reputations of each member of that group or class. More recently, in Christiansen v Fairfax Media Publications Pty Ltd,130 Nicholas J did not follow Hunt J’s approach in McCormick v John Fairfax & Sons Ltd, instead finding that a newspaper article stating that three managers at a casino had been dismissed, one for possessing pornography and emailing it to a colleague and one for emailing documents to a whistleblower, without linking a person to the ground for dismissal, was “clearly capable of casting a cloud of suspicion over each of them”.131

123 124 125 126 127 128 129 130 131

per Steytler J; Bryant v Nationwide News Pty Ltd [1999] NSWSC 360 at [15] per Levine J; Jackson v TCN Channel Nine Pty Ltd [2001] NSWCA 108 at [15]-[17], [23]-[29] per Handley JA, at [47] per Hodgson CJ in Eq (drawing a distinction between plaintiffs being recognisable and plaintiffs being identified). See also Foxcroft v Lacy (1614) Hobart 89; 80 ER 239. (1984) 37 SASR 175. Pryke v Advertiser Newspapers Ltd (1984) 37 SASR 175 at 190 per King CJ; as to the facts of the case, see at 186-9 per King CJ. (1989) 16 NSWLR 485. McCormick v John Fairfax & Sons Ltd (1989) 16 NSWLR 485 at 486-7. McCormick v John Fairfax & Sons Ltd (1989) 16 NSWLR 485 at 491. McCormick v John Fairfax & Sons Ltd (1989) 16 NSWLR 485 at 492 per Hunt J. McCormick v John Fairfax & Sons Ltd (1989) 16 NSWLR 485 at 491. [2012] NSWSC 1258. Christiansen v Fairfax Media Publications Pty Ltd [2012] NSWSC 1258 at [32].

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[7.100]

Use of prior and subsequent publications to establish identification

Use of prior and subsequent publications to establish identification

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[7.100] As a general principle, the matter must identify the plaintiff at the time

of publication.132 If the matter does not directly identify the plaintiff, it is possible to establish identification by proof of extrinsic facts, but those extrinsic facts have to exist at the time of publication.133 However, there are certain circumstances in which prior or subsequent publications may be relied upon to establish identification. Where a matter does not identify the plaintiff, there are authorities that suggest that a prior publication may be relied upon to establish “the public mind” as to the plaintiff’s identity at the time of publication.134 Reliance upon prior publications is less problematic than reliance upon subsequent publications.135 Ordinarily, a plaintiff cannot rely upon a subsequent publication to establish identification, given that identification, as an element of the cause of action, has to be provable at the time of publication.136 In Ware v Associated Newspapers Ltd,137 Walsh JA found that, where a plaintiff sued upon an article published by the defendant on one day in which she was not identified and, on the following day, the defendant published another article in which the plaintiff was named, the reference to the plaintiff in the second article was not irrelevant to the issue of whether the plaintiff was identified in the first article. A similar approach was suggested by Lord Denning MR in Hayward v Thompson.138 Similarly, in John Fairfax & Sons Ltd v Foord,139 Mahoney JA was not inclined to rule out categorically that a defendant could never rely upon subsequent publications to establish identification, but indicated that care needed to be taken when allowing such an approach. The most detailed consideration of this issue thus far was provided by Hunt J in Baltinos v Foreign Language Publications Pty Ltd.140 In this case, his Honour accepted that there may be some departure from the general principle where the defendant is responsible for the subsequent publications in question. The rationale for allowing some latitude on this point is that the defendant can be taken by the ordinary, reasonable reader to have intended to refer to the plaintiff. Hunt J found in this case that a plaintiff was entitled to rely upon a subsequent publication by a person other than the defendant, in order to establish that the plaintiff was identified in the matter published by the defendant, where the defendant’s matter invited the reader to 132 133 134

135 136 137 138 139 140

Grappelli v Derek Block (Holdings) Ltd [1981] 1 WLR 822 at 825 per Lord Denning MR; Baltinos v Foreign Language Publications Pty Ltd (1986) 6 NSWLR 85 at 88 per Hunt J. Baltinos v Foreign Language Publications Pty Ltd (1986) 6 NSWLR 85 at 88 per Hunt J. Astaire v Campling [1966] 1 WLR 34 at 39 per Sellers LJ, citing Van Ingen v Mail & Express Publishing Co 156 New York Reports 376; 50 NE 979 (1898) at 386-7 (New York Reports), 981-2 (NE); Baltinos v Foreign Language Publications Pty Ltd (1986) 6 NSWLR 85 at 87-8 per Hunt J. In Astaire v Campling, Sellers LJ and Diplock LJ, in their respective judgments, stressed that the matter itself still needed to be defamatory and that liability for defamatory meaning could not be established merely by incorporating the defamatory meaning of the prior publication: at 39 per Sellers LJ, at 41 per Diplock LJ. The disposition against allowing a plaintiff to rely on post-publication evidence to establish identification is not inflexible: see, eg, Jozwiak v Sader [1954] 1 WLR 275 at 277 per Ormerod J. John Fairfax & Sons Ltd v Foord (1988) 12 NSWLR 706 at 708 per Mahoney JA. Cross v Denley (1952) 52 SR(NSW) 112 at 116 per Owen J; Baltinos v Foreign Language Publications Pty Ltd (1986) 6 NSWLR 85 at 88 per Hunt J. (1969) 90 WN (Pt 1) (NSW) 180 at 184-5. [1982] QB 47 at 60. (1988) 12 NSWLR 706 at 708-9. (1986) 6 NSWLR 85.

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135

136

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[7.100]

refer to that subsequent publication. In such a case, the defendant can be taken by the ordinary, reasonable reader to have intended to refer to the plaintiff.141 Thus, in Baltinos v Foreign Language Publications Pty Ltd, The Greek Herald published an item suggesting that a television program on a particular channel on a specified date at a specified time would provide information about “rapacious con-men” who had swindled people seeking to migrate to Australia.142 In the television program, Baltinos was named. Hunt J found that it was open to the jury to conclude that The Greek Herald had invited the reader to view the television program from which Baltinos could be identified, thereby satisfying this element of the cause of action against The Greek Herald.143 In Chase v News Group Newspapers Ltd,144 Eady J had to deal with an application by the media defendant to strike out particulars of identification, where those particulars postdated the publication. Following the lifting of a High Court injunction, the plaintiff was subsequently identifiable as the person who was subject to a police investigation into the deaths of 18 children. His Lordship acknowledged the general rule but also noted that there had been departures from it, rendering this area of defamation law uncertain. He identified the task facing courts in relation to this issue as follows: The courts may need to define the precise principle justifying reliance upon subsequent material. It is clear that such reliance can only be placed in rare circumstances, but the boundaries are unclear.

Eady J found that there was no logical or principled reason why reliance upon subsequent publications should be limited to those of the defendant. His Lordship held that the inference of identification may be drawn from subsequent third party publications, observing that he could: envisage circumstances in which a newspaper starts a train of events and could be held responsible for the obvious consequences which flow from its own actions, even though they manifest themselves in the actions of third parties.

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Eady J went on to note that: If a defendant has, by publication of an article or articles of a sensational character, lit a fuse which is, objectively judged, going inevitably to lead to the claimant’s identification, it may well be that the law should afford a remedy. Alternatively, the test may be … that a remedy would be available if it is foreseeable that the claimant will be identified as a result of the defendant’s own actions.

Eady J found that it was inappropriate to try to resolve the difficult issues of principle on an interlocutory application, so declined to strike out the impugned particulars. His Lordship did emphasise that whether subsequent publications should be admitted to establish identification depended upon the facts of the particular case. Most recently, in Pedavoli v Fairfax Media Publications Pty Ltd,145 McCallum J had to consider whether a teacher defamed by a newspaper, in circumstances where the teacher was not named but was identifiable to those with knowledge of extrinsic facts, was limited to 141 142 143 144 145

Baltinos v Foreign Language Publications Pty Ltd (1986) 6 NSWLR 85 at 97 per Hunt J. Baltinos v Foreign Language Publications Pty Ltd (1986) 6 NSWLR 85 at 86-7 per Hunt J. Baltinos v Foreign Language Publications Pty Ltd (1986) 6 NSWLR 85 at 98. [2002] EWHC 2209 (QB). [2014] NSWSC 1674.

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[7.100]

Use of prior and subsequent publications to establish identification

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recovering damages for publication only to those with knowledge of the relevant extrinsic facts at the time of publication or whether the extent of publication, for the purposes of assessing damages, could include those who subsequently ascertained her identity.146 The difference between the two groups was significant. The publication of the newspaper article led to a surge in traffic to the school’s website, from which interested readers could ascertain the plaintiff’s identity.147 McCallum J endorsed Eady J’s remarks from Chase v News Group Newspapers Ltd.148 Dealing with the case before her, McCallum J found, on two bases, that the plaintiff could rely upon publications to persons who read the story without knowing her identity but who had subsequently ascertained it.149 First, her Honour found that the article in question, whilst raising a serious and important issue, reported sensational allegations. The allegations were such that they would excite readers’ interest as to the identity of the teacher. McCallum J found that the article implicitly invited readers to ascertain the identity of the teacher. It contained what her Honour described as sufficient “tantalising detail” to allow this to occur.150 Secondly, her Honour found that it was reasonably foreseeable that the plaintiff would be subsequently identified.151 There may now be greater latitude given to plaintiffs to rely upon subsequent publications to prove the element of identification than in the past. The precise principled basis upon which this is to occur, if it is to occur, will require careful consideration. It should be borne steadily in mind, though, that these cases are the exceptions rather than the rule. The general principle that the matter itself must identify the plaintiff still holds in most cases.

146 147 148 149 150 151

Pedavoli v Fairfax Media Publications Pty Ltd [2014] NSWSC 1674 at [110]-[111], [113]. Pedavoli v Fairfax Media Publications Pty Ltd [2014] NSWSC 1674 at [112] per McCallum J. Pedavoli v Fairfax Media Publications Pty Ltd [2014] NSWSC 1674 at [129]. Pedavoli v Fairfax Media Publications Pty Ltd [2014] NSWSC 1674 at [132] per McCallum J. Pedavoli v Fairfax Media Publications Pty Ltd [2014] NSWSC 1674 at [130] per McCallum J. Pedavoli v Fairfax Media Publications Pty Ltd [2014] NSWSC 1674 at [131] per McCallum J.

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137

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8

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Publication [8.10] Introduction................................................................................................139 [8.20] The concept of publication....................................................................... 140 [8.30] Who is a publisher?...................................................................................141 [8.40] Control over, or assent to, publication..................................................... 142 [8.50] Acts or omissions amounting to publication............................................142 [8.60] Repetition...................................................................................................144 [8.70] Republication............................................................................................. 145 [8.80] Proof of publication...................................................................................146 [8.80] Media publication............................................................................ 146 [8.90] Limited publication..........................................................................147 [8.100] Mistaken or accidental publication......................................................... 150 [8.110] Publication between husband and wife.................................................. 150 [8.120] Foreign language publication..................................................................151 [8.130] Multiple publication................................................................................ 151 [8.140] Place of publication.................................................................................153 [8.150] Jurisdiction and choice of law in multi-state defamation...................... 153 [8.150] The common law position............................................................. 153 [8.160] The statutory position.................................................................... 155 [8.170] Jurisdiction over internet defamation..................................................... 157 [8.180] Internet technologies............................................................................... 161 [8.190] The particular position of internet service providers and search engines.............................................................................................................162 [8.200] Hyperlinks................................................................................................166 [8.210] Proportionality......................................................................................... 168

Introduction [8.10] Publication of defamatory matter by the defendant is an essential part of the plaintiff’s cause of action, which he or she must prove, on the balance of probabilities, to establish the defendant’s liability. Liability for publication in defamation is broad and strict. The breadth and strictness of defamation law’s imposition of liability for publication can lead, on occasion, to harsh outcomes.1 They are ameliorated, to a certain extent, by the availability of defences, such as innocent dissemination.2 Nevertheless, it is still accurate to characterise the common law’s approach to publication as being very wide indeed. 1 2

O’Shea v MGN Ltd [2001] EMLR 40; [2001] EWHC 425 (QB) at 952 (EMLR) per Morland J. The development of the defence of innocent dissemination is intertwined with the refinement of the principles of publication in the late 19th century. As to the defence of innocent dissemination, see [14.20]–[14.50].

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140

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[8.10]

This chapter analyses the principles of publication. It explores what constitutes publication and who is a publisher for the purposes of defamation law. It deals with the difficulties presented by multi-state defamation. It also gives particular attention to the issues of publication facing internet intermediaries, such as internet service providers and search engines, and arising from internet technologies and practices, such as hyperlinking. The resolution of these issues may require an extension and adaptation of the basic principles relating to publication, which, in turn, may invite reflection upon, and refinement of, those basic principles.

The concept of publication [8.20] In order to prove his or her claim in defamation, the plaintiff must

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establish that the defendant published the defamatory matter. The tort of defamation is complete upon publication of the defamatory matter.3 Publication is a question of fact. Whether publication has occurred depends upon the circumstances of the particular case.4 Publication, in defamation law, is a term of art.5 Although the terms, “publication” and “matter”, are often used interchangeably to refer to the conduits of defamation – newspapers, radio and television broadcasts and the like – strictly speaking, publication is the process of communicating defamatory matter to a person other than the plaintiff. As Isaacs J observed in Webb v Bloch,6 “[t]o publish a libel is to convey by some means to the mind of another the defamatory sense embodied in the vehicle.” For the purposes of defamation law, publication is better understood as the process by which the defamatory meaning is conveyed, not the product by which it is conveyed. Importantly, it is the act of communication, not the act of mere composition, of the defamatory matter that is the essence of the wrong in defamation.7 It is essential that the defamatory meaning is conveyed to a person other than the plaintiff.8 No wrong is done if the defendant communicates the defamatory matter to the plaintiff only.9 This follows from the fact that the gist of the action in defamation is damage to reputation, not any insult, affront or offence.10 If 3

4 5 6 7

8

9

10

Powell v Gelston [1916] 2 KB 615 at 619 per Bray J: “the foundation of the action”; Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 at 600 (CLR) per Gleeson CJ, McHugh, Gummow and Hayne JJ. Byrne v Deane [1937] 1 KB 818 at 837 per Greene LJ; Bunt v Tilley [2007] 1 WLR 1243; [2006] EWHC 407 (QB) at 1248 per Eady J. Tom & Bill Waterhouse Pty Ltd v Racing New South Wales (2008) 72 NSWLR 577; [2008] NSWSC 1013 at 585-6 (NSWLR) per Palmer J. Webb v Bloch (1928) 41 CLR 331 at 363 per Isaacs J. Hebditch v MacIlwaine [1894] 2 QB 54 at 58 per Lord Esher MR; Lee v Wilson & McKinnon (1934) 51 CLR 276 at 287 per Dixon J; Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 at 639 (CLR) per Kirby J; see also White v J and F Stone (Lighting and Radio) Ltd [1939] 2 KB 827 at 834 per MacKinnon LJ. Pullman v Walter Hill & Co Ltd [1891] 1 QB 524 at 527 per Lord Esher MR, at 529 per Lopes LJ; Gambrill v Schooley 93 Md 48 (1901) at 60 per Pearce J: “to shout aloud defamatory words on a desert moor where no one hears them, is not a publication”; Powell v Gelston [1916] 2 KB 615 at 619 per Bray J: “publication to the plaintiff is no publication”; Consolidated Trust Co Ltd v Browne (1948) 49 SR(NSW) 86 at 88 per Jordan CJ. Pullman v Walter Hill & Co Ltd [1891] 1 QB 524 at 527 per Lord Esher MR. The common law position in relation to criminal defamation differs on this issue, with publication to the victim being sufficient and no additional requirement that there is publication to a third party: see [4.30]. Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 at 600 (CLR) per

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[8.30]

Who is a publisher?

the matter is not communicated to a person other than the plaintiff, then there is no potential damage to the plaintiff’s reputation. However, in order to establish that publication has occurred, publication to one person other than the plaintiff is sufficient.11 The number of recipients is not relevant to liability but the extent of publication will be highly relevant to the assessment of damages.12 Because the essence of publication is the communication of defamatory matter in a comprehensible form to a person other than the plaintiff, publication is a bilateral, not a unilateral, act. The publisher’s act of making the matter available and the recipient’s receipt and understanding of it are both essential in order to establish the element of publication.13

Who is a publisher? [8.30] Liability for publication in defamation law is extensive because it is

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strict. Any person or entity who voluntarily participates in the dissemination of defamatory matter is, in principle, a publisher.14 As the essence of the wrong in defamation is the publication, not the composition, of the defamatory matter, liability for defamation is not limited to the author of the defamatory matter.15 Indeed, it is not limited to the persons or entities responsible for the first publication of the defamatory matter. For instance, signatories to a petition become joint tortfeasors in the publication of any defamatory matter contained in the petition.16 A person who reads aloud a defamatory matter composed by another person can be a publisher of it himself or herself.17 In principle, subordinate distributors, such as booksellers, newsagents and libraries, are publishers, although, in practice, they are not routinely sued for defamation, given the availability of policy-based defences, most notably the defence of innocent dissemination.18 In most cases, persons or entities with primary responsibility for publication are the parties sued.

11

12 13 14

15 16

17 18

Gleeson CJ, McHugh, Gummow and Hayne JJ: “Perhaps, as Pollock said in 1887, the law went ‘wrong from the beginning in making the damage and the not the insult the cause of action’ for slander but it is now too late to deny that damage by publication is the focus of the law.” Capital and Counties Bank Ltd v Henty (1882) 7 App Cas 741 at 765 per Lord Penzance: “A libel does not require publication to more than one person”; Consolidated Trust Co Ltd v Browne (1948) 49 SR(NSW) 86 at 89 per Jordan CJ. See also Lee v Wilson & McKinnon (1934) 51 CLR 276 at 288 per Dixon J. This may be contrasted with the treatment of publication for the purposes of the common law offence of criminal libel: see [4.30]; and may now be subject to considerations of proportionality: see [8.210]. The identity of the recipient can also be highly important for the purpose of the assessment of damages: Powell v Gelston [1916] 2 KB 615 at 619 per Bray J. Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 at 600 (CLR) per Gleeson CJ, McHugh, Gummow and Hayne JJ. Goldsmith v Sperrings Ltd [1977] 1 WLR 478 at 505 per Bridge LJ; Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 at 647 (CLR) per Callinan J; see also Day v Bream (1837) 2 Mood & R 54; 174 ER 212 at 212 (ER) per Patteson J (porter carrying defamatory handbills prima facie publisher unless he could establish ignorance of defamatory contents). Lee v Wilson (1934) 51 CLR 276 at 287 per Dixon J. Collerton v McLean [1962] NZLR 1045 at 1050 per McGregor J (requisition); Trantum v McDowell [2007] NSWCA 138 at [54] per Tobias JA. Cf David v Abdishou [2012] NSWCA 109. Forrester v Tyrrell (1893) 9 TLR 257 at 257 per Lord Esher MR. As to the defence of innocent dissemination, see [14.20]–[14.50].

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-22 20:22:06.

141

142

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[8.30]

The common law’s approach to publication may be too broad. By exposing subordinate distributors to the possibility that they might be sued, with the uncertainty as to whether they might be able to establish a defence of innocent dissemination – for all litigation is risky – defamation law’s current approach to publication arguably poses a threat to freedom of speech, causing the well-known “chilling effect” and leading such persons or entities to self-censor more than is necessary.19 The difficulty for courts is that the common law’s approach to publication is so well established that it would require legislative intervention to depart from it.20 These difficulties are likely to become particularly acute when dealing with the treatment of internet intermediaries, such as internet service providers, search engines and social media platforms, as publishers for the purposes of defamation law.21

Control over, or assent to, publication [8.40] If, however, a person merely contributes a part of what is published, for example, by giving an interview, he or she is not jointly liable as an original publisher of the whole of the defamatory matter unless he or she has control over, or assents to, the publication of the whole of the defamatory matter in its final form.22 Such a person may be liable for the original publication of his or her own particular contribution and for its subsequent republication.

Acts or omissions amounting to publication

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[8.50] In most cases, a defendant will be sued for matter he or she positively published. However, in order for a defendant to be held liable as a publisher, it is not necessary that the defendant engage in positive conduct with respect to the dissemination of defamatory matter. A defendant can be held liable for failing to act to prevent the continuation of defamatory matter, where the defamatory matter is being performed or broadcast.23 In addition, a defendant can be held liable for the failure to remove defamatory matter in certain circumstances.24 For instance, an occupier of premises may be held liable as a publisher if defamatory matter, which the occupier did not compose, is able to be made available at the occupier’s premises and the occupier, having been made aware of the presence of defamatory matter on the premises, does not take steps to remove it.25 In such a case, the occupier of the premises is more likely to be held liable as a publisher if the occupier has the power to remove the defamatory matter and the cost and inconvenience of removing it was not unreasonable.26 The principle has been extended beyond the plaintiff’s premises. 19 20 21 22

23

24 25 26

As to the “chilling effect” of defamation law, see [2.110]. Goldsmith v Sperrings Ltd [1977] 1 WLR 478 at 501 per Bridge LJ. As to issues of publication relating to internet technologies generally, see [8.180]. As to the particular issues relating to internet service providers and search engines, see [8.190]. Dank v Whittaker (No 1) [2013] NSWSC 1062 at [22] per McCallum J. Leave to appeal against this decision was refused: Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288 at [144] per Ward JA. See also Thiess v TCN Channel Nine Pty Ltd (No 5) [1994] 2 Qd R 156 at 195 per curiam. Bishop v New South Wales [2000] NSWSC 1042 at [21] per Dunford J (open to jury to find that headmaster’s failure to stop defamatory sketch by students at high school assembly exposed headmaster to liability as publisher). Byrne v Deane [1937] 1 KB 818 at 837-8 per Greene LJ. Byrne v Deane [1937] 1 KB 818 at 829 per Greer LJ. Byrne v Deane [1937] 1 KB 818 at 838 per Greene LJ.

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[8.50]

Acts or omissions amounting to publication

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In Urbanchich v Drummoyne Municipal Council,27 the plaintiff sued the Urban Transit Authority (UBA) for defamation arising out of posters stuck to bus shelters. The plaintiff, who was a political candidate, claimed that the posters imputed that he had collaborated with, and supported, the Nazis and was attempting to advance Nazism in modern Australia. The posters were created and placed on the bus shelters by third parties. Hunt J held that the UBA could only be held liable as a publisher if the plaintiff could prove that the UBA had actual knowledge of the presence of the defamatory matter, the power and the opportunity to remove it within a reasonable period of time and that, by failing to remove it, the UBA had consented to, approved of, or adopted the defamatory matter as its own. His Honour noted that consent, approval or adoption of the defamatory matter will often occur by way of inference. Nevertheless, he stressed the need for this element to be established, in addition to actual knowledge of the defamatory matter and a failure to act within a reasonable period of time, in order to establish that the defendant was a publisher for the purposes of defamation law.28 The principle has been extended beyond physical space. The imposition of liability on this basis has become particularly important in dealing with the issue of whether internet service providers and search engines are publishers for the purposes of defamation law.29 Such reasoning has been applied recently to suggest that the operator of a Facebook page could be held liable for defamatory statements posted by third parties to that page in circumstances where the operator had actual knowledge of the presence of those statements and did not remove them within a reasonable period of time.30 For the purposes of defamation law, a person can be a publisher for failing to remove defamatory matter of which he or she is aware from both physical walls, as in Byrne v Deane,31 and virtual walls, as in Murray v Wishart.32 In terms of the form the publication of defamatory matter might take, the national uniform defamation laws provide some assistance, defining the term, “matter”, to include standard forms of publications:33 articles, reports and advertisements in newspapers, magazines or periodicals; programs, reports and advertisements on radio or television or via the internet; letters and notes; and pictures, gestures and oral utterances. The statutory definition is not exhaustive. The case law discloses some additional, outré ways of publishing defamatory matter. Thus, in Jeffries v Duncombe,34 the plaintiff complained that the defendant had suspended a lamp outside the plaintiff’s house to indicate that he 27 28 29

30

31 32 33

34

(1991) Aust Torts Reports 81-127 at 69,191 per Hunt J. Urbanchich v Drummoyne Municipal Council (1991) Aust Torts Reports 81-127 at 69,193 per Hunt J. See, eg, Loutchansky v Times Newspapers Ltd (Nos 2-5) [2002] QB 783; [2001] EWCA Civ 1805 at 817-8 (QB). See further, [8.190]. However, see also Oriental Press Group Ltd v Fevaworks Solutions Ltd (2013) HKCFAR 366; [2013] HKCFA 47 at 387 (HKCFAR) per Ribeiro PJ. Murray v Wishart [2014] NZCA 461 at [144] per curiam: the New Zealand Court of Appeal specifically rejected a standard based on the operator’s constructive knowledge (at [136]-[143]). [1937] 1 KB 818. [2014] NZCA 461. Civil Law (Wrongs) Act 2002 (ACT) s 116; Defamation Act 2006 (NT) s 3; Defamation Act 2005 (NSW) s 4; Defamation Act 2005 (Qld) s 4; Defamation Act 2005 (SA) s 4; Defamation Act 2005 (Tas) s 4; Defamation Act 2005 (Vic) s 4; Defamation Act 2005 (WA) s 4. (1809) 2 Camp 3, 5; 170 ER 1061 at 1062 (ER) per Grose J.

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143

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[8.50]

kept a brothel. In Hird v Wood,35 the English Court of Appeal held that the defendant silently and repeatedly pointing at a defamatory placard, written and placed in public by a person or persons unknown, could constitute publication for the purposes of defamation law. In Gulf Oil (Great Britain) Ltd v Page,36 the plaintiffs complained about a sign attached to the tail of a light aircraft flying over an air race meeting. In Bishop v New South Wales,37 the plaintiff schoolteacher sued over a sketch at a high school assembly which comprised a mime in which he claimed he was depicted as engaging in extramarital sex with another teacher. In Monson v Tussauds Ltd,38 the plaintiff complained that a waxwork dummy of him was on display in the “Chamber of Horrors” at Madame Tussaud’s famous gallery, the plaintiff having been the subject of a verdict of “not proven” in a Scottish murder trial. In his judgment in this case, Lopes LJ observed that: [l]ibels are generally in writing or printing, but this is not necessary; the defamatory matter may be conveyed in some other permanent form. For instance, a statue, a caricature, an effigy, chalk marks on a wall, signs, or pictures may constitute a libel.39

There are many ways to damage a reputation, with human ingenuity and imagination seemingly the only limits.

Repetition

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[8.60] A defendant cannot avoid liability as a publisher on the basis that he or she was merely repeating defamatory matter originating from another source. A defendant who repeats defamatory matter prima facie will be liable as a publisher of the defamatory matter.40 This is a rule of defamation law “of considerable antiquity”.41 A defendant who repeats defamatory matter is taken to have committed a separate act of defamation to the one committed by the person who published the statement being repeated.42 As Lord Devlin pithily expressed it in Lewis v Daily Telegraph Ltd,43 “[f]or the purpose of the law of libel a hearsay statement is the same as a direct statement, and that is all there is to it.” There is no additional requirement that such a defendant should adopt or

35 36 37 38 39 40

41 42

43

(1894) 28 Sol Jo 234. [1987] Ch 327 at 330-1 per Parker LJ. [2000] NSWSC 1042 at [1]-[4], [20] per Dunford J. [1894] 1 QB 671 at 692 per Lopes LJ. Monson v Tussauds Ltd [1894] 1 QB 671 at 692. R v Paine (1696) 5 Mod R 163; 87 ER 584 at 587 (ER) per curiam: “If one repeat and another write a libel, and a third approve what it wrote, they are all makers of it”; M’Pherson v Daniels (1829) 10 B & C 263; 109 ER 448 at 451-2 (ER) per Littledale J; Watkin v Hall (1868) LR 3 QB 396 at 401 per Blackburn J, at 403 per Lush J; Hughes v West Australian Newspapers (1940) 43 WALR 12 at 13 per Dwyer J; Truth (New Zealand) Ltd v Holloway [1961] NZLR 22 at 25-6 (PC); Wake v John Fairfax & Sons Ltd [1973] 1 NSWLR 43 at 50 per curiam; John Fairfax Publications Pty Ltd v Obeid (2005) 64 NSWLR 485; [2005] NSWCA 60 at 503 (NSWLR) per McColl JA. Stern v Piper [1997] QB 123 at 129 per Hirst LJ. Ward v Weeks (1830) 3 Bing 211; 131 ER 81 at 215 (Bing) per Tindal CJ; Wake v John Fairfax & Sons Ltd [1973] 1 NSWLR 43 at 50 per curiam: “When a defamatory publication purports to repeat or report the defamatory statement of another it is essentially different libel from one where the same imputation is conveyed directly.” [1964] AC 234 at 284.

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[8.70]

Republication

endorse the defamatory matter.44 Yet, whether the defendant is liable for his or her repetition of the defamatory matter will depend upon the context in which the defamatory matter was published.45 Whether the defendant adopted or endorsed the defamatory matter he or she repeated is part of the context of publication by reference to which the defendant’s liability is to be assessed.46 The purpose of the repetition will also be relevant in many cases.47 It is possible for a defendant to repeat the defamatory matter but at the same time publish a denial or a negation of the defamatory matter, such that the matter as a whole is incapable of bearing a defamatory meaning and the defendant is not liable for defaming the plaintiff.48 It will be a question of fact as to whether the defendant is liable for the repetition of the defamatory matter.49 The extent of a person’s liability for repeating defamatory matter may vary from the extent of the original publisher’s liability.50 A defendant repeating the defamatory statement of another person may be able to rely upon a different defence from the original publisher of the defamatory matter.51

Republication [8.70] Generally, in the law of torts, a defendant is not liable for the acts or

omissions of others.52 Thus, in defamation, a defendant ordinarily is only responsible for his or her own acts of publication. In most instances, a defendant cannot be held liable for the fact that third parties voluntarily republish the defamatory matter published by the defendant.53 Thus, a person 44

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45

John Fairfax Publications Pty Ltd v Obeid (2005) 64 NSWLR 485; [2005] NSWCA 60 at 503-4 (NSWLR) per McColl JA. Ross McConnel Kitchen & Co Pty Ltd v John Fairfax & Sons Ltd [1980] 2 NSWLR 845 at 848 per Hunt J; John Fairfax Publications Pty Ltd v Obeid (2005) 64 NSWLR 485; [2005] NSWCA 60 at 504-5 (NSWLR) per McColl JA; Sands v Channel Seven Adelaide Pty Ltd (2010) 270 LSJS 340; [2010] SASC 202 at [116] per Gray J; see also Bell v Byrne (1811) 13 East 554; 104 ER 486 at 489 (ER) per Le Blanc J; Lawrence v Newberry (1891) 64 LT 797; 7 TLR 588 at 589 (TLR) per Denman J. For instance, in Sands v Channel Seven Adelaide Pty Ltd (2010) 270 LSJS 340; [2010] SASC 202 at [118] per Gray J, a radio report of court proceedings including an allegation made by one party, where the reporter did not adopt the allegation as his own, needed to be viewed in context, with: [r]easonable listeners and readers of the publications … [being] taken to understand that court proceedings involve the resolution of competing claims by opposing litigants, and that it is not until judgment that one or other of those versions is found to be true.

46

47 48

49 50 51 52 53

Cf Stern v Piper [1997] QB 123 at 134-5 per Hirst LJ. John Fairfax Publications Pty Ltd v Obeid (2005) 64 NSWLR 485; [2005] NSWCA 60 at 506 (NSWLR) per McColl JA (discussing test in terms of approval, reaffirmation or endorsement). Wake v John Fairfax & Sons Ltd [1973] 1 NSWLR 43 at 49-50 per curiam. See, eg, Ronald v Harper (1910) 11 CLR 63 at 77 per Griffith CJ; Bik v Mirror Newspapers Ltd [1979] 2 NSWLR 679n at 681-2 per Herron CJ, at 683-4 per Taylor AJA; Ross McConnel Kitchen & Co Pty Ltd v John Fairfax & Sons Ltd [1980] 2 NSWLR 845 at 850 per Hunt J. Ronald v Harper (1910) 11 CLR 63 at 77 per Griffith CJ. Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 at [128] per McColl JA. Wake v John Fairfax & Sons Ltd [1973] 1 NSWLR 43 at 50 per curiam. Weld-Blundell v Stephens [1920] AC 956 at 986 per Lord Sumner. Ward v Weeks (1830) 7 Bing 211; 131 ER 81 at 215 (Bing) per Tindal CJ; Weld-Blundell v Stephens [1920] AC 956 at 987 per Lord Sumner; State Bank of NSW Ltd v Currabubula Holdings Pty Ltd (2001) 51 NSWLR 399; [2001] NSWCA 47 at 408 (NSWLR) per Giles JA. For an alternative analysis, see Slipper v British Broadcasting Corporation [1991] 1 QB 283 at 295-6 per Stocker LJ.

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who repeats defamatory matter originally published by another person is ordinarily taken to have committed a separate tort of defamation.54 In certain circumstances, however, a defendant may be held liable for a third party’s republication of the defamatory matter. This involves an application of general principles relating to the extent of liability for damage in tort.55 The leading authority setting out the categories of case for which an original publisher will be held liable for republication of the defamatory matter by a third party is the decision of the English Court of Appeal in Speight v Gosnay.56 According to Lopes LJ in this case, an original publisher may be held liable for a third party’s republication of defamatory matter where the original publisher authorised republication;57 where the original publisher intended that the third party republish the defamatory matter;58 where the third party’s republication was the natural and probable consequence of the original publisher’s initial publication of the defamatory matter;59 and where the original publisher communicates the defamatory matter to a third party who is under a moral obligation to republish it.60 When a plaintiff seeks to hold the defendant liable not only for his or her own original publication but also for subsequent republication, there are two ways of pleading such a claim. Either the plaintiff can plead each republication in a separate paragraph of the statement of claim, which then allows the defendant to raise a defence in relation to each republication, or the plaintiff can complain about the original publication only but rely on the extent of republication for which the defendant is liable as a matter relevant to the assessment of damages.61

Proof of publication Media publication [8.80] Where a publication is ex facie defamatory and refers to the plaintiff by

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name, the plaintiff does not need to prove that it was published to persons who had knowledge of him or her.62 Where defamatory matter is published through 54 55 56 57 58

59

60

61 62

As to the “repetition rule”, see [8.60]. Toomey v Mirror Newspapers Ltd (1985) 1 NSWLR 173 at 183 per Hunt J. (1891) 60 LJQB 231; 7 TLR 239. Speight v Gosnay (1891) 60 LJQB 231; 7 TLR 239 at 232 (LJQB); see also Parkes v Prescott (1869) LR 4 Ex 169 at 178 per Montague Smith J. Speight v Gosnay (1891) 60 LJQB 231; 7 TLR 239 at 232 (LJQB); see also Whitney v Moignard (1890) 24 QBD 630 at 631 per Huddleston B; Cutler v McPhail [1962] 2 QB 292 at 298 per Salmon J (author of letter to editor intended newspaper to republish letter). Speight v Gosnay (1891) 60 LJQB 231; 7 TLR 239 at 232 (LJQB); see also Cutler v McPhail [1962] 2 QB 292 at 298 per Salmon J; Sims v Wran [1984] 1 NSWLR 317 at 320 per Hunt J; Slipper v British Broadcasting Corporation [1991] 1 QB 283 at 296 per Stocker LJ; Wen Yue He v Australian Chinese Newspapers Pty Ltd [2005] NSWSC 253 at [6] per Greg James J (natural and probable consequence for husband to republish defamatory matter to wife). Speight v Gosnay (1891) 60 LJQB 231; 7 TLR 239 at 232 (LJQB); see also Wen Yue He v Australian Chinese Newspapers Pty Ltd [2005] NSWSC 253 at [6] per Greg James J (no moral obligation for husband to republish defamatory matter to wife); McManus v Beckham [2002] 1 WLR 2932; [2002] EWCA Civ 939 at 2998 (WLR) per Waller LJ. Sims v Wran [1984] 1 NSWLR 317 at 320 per Hunt J; Toomey v Mirror Newspapers Ltd (1985) 1 NSWLR 173 at 181-2 per Hunt J. Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 at 639 per Mason and Jacobs JJ.

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[8.90]

Proof of publication

a mass media outlet, such as a newspaper or on radio or television, or a widely disseminated matter, such as a commercially published book, the plaintiff does not need to provide particulars of the persons to whom it was published. The plaintiff is able to rely upon “the width or the unrestricted nature of the publication” to satisfy this element.63 In such cases, an inference of publication can be drawn from sales and circulation figures.64 This approach has not been extended to internet technologies yet. Thus, in Al Amoudi v Brisard,65 Gray J rejected the submission that there was a rebuttable presumption of law that making available defamatory matter on a website which could be viewed without restriction in England constituted substantial publication within the jurisdiction.66 However, in the circumstances of a particular case, there may be sufficient evidence from which to draw the inference of the fact of publication.67

Limited publication

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[8.90] In many cases, given the way in which it is defined for the purpose of defamation law, publication will not be a difficult element of a plaintiff’s case to establish. Where defamatory matter is disseminated through a media outlet, such as a newspaper or a radio or television station, a plaintiff would have no problem establishing publication.68 There are, however, circumstances where the defamatory matter is only given limited circulation by the publisher. The question then arises as to whether this limited dissemination satisfies the requirement of publication for the purposes of defamation law. In Traztand Pty Ltd v Government Insurance Office of New South Wales,69 Hunt J held that defamatory statements made by the defendant insurer only to employees of the plaintiff company was sufficient to establish publication for the purposes of defamation law. Although the company could only act through its servants or agents, it nevertheless had a corporate personality which was separate and distinct from them. Consequently, publication to a company’s employees was a communication of defamatory matter to persons other than the plaintiff. In Jones v Amalgamated Television Services Pty Ltd,70 Hunt J held that the communication of defamatory matter by one employee to another employee within a company was sufficient to establish publication for the purposes of defamation law. However, in State Bank of NSW Pty Ltd v Currabubula Holdings Pty Ltd,71 Giles JA took a different view on this issue. His Honour held that “intra-company communications do not necessarily constitute publication for the purposes of defamation law”. Giles JA went further, reasoning that, because companies can 63

64 65 66 67 68 69 70 71

Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188 at 192-3 per Hunt J; see also Fullam v Newcastle Chronicle and Journal Ltd [1977] 1 WLR 651 at 654-5 per Lord Denning MR. Al Amoudi v Brisard [2007] 1 WLR 113; [2006] EWHC 1062 (QB) at 119 (WLR) per Gray J. [2007] 1 WLR 113; [2006] EWHC 1062 (QB). Al Amoudi v Brisard [2007] 1 WLR 113; [2006] EWHC 1062 (QB) at 123 (WLR); see also Carrie v Tolkien [2009] EMLR 9; [2009] EWHC 29 (QB) at 169 (EMLR) per Eady J. Carrie v Tolkien [2009] EMLR 9; [2009] EWHC 29 (QB) at 169 (EMLR) per Eady J. As to the presumption of publication in relation to matter disseminated via mass media outlets, see [8.80]. [1984] 2 NSWLR 598 at 599-600. (1991) 23 NSWLR 364 at 366. (2001) 51 NSWLR 399; [2001] NSWCA 47 at 415 (NSWLR).

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only act through natural persons, a communication to a company received on behalf of the company is a communication only to the company.72 Following Giles JA’s approach in State Bank of NSW Pty Ltd v Currabubula Holdings Pty Ltd, the position under Australian law as to whether “intra-company communications” constitute publication for the purposes of defamation law has arguably diverged from the position under English law. In Riddick v Thames Board Mills Pty Ltd,73 the English Court of Appeal held that a confidential internal memorandum about the plaintiff’s work performance, dictated by one employee to his secretary and sent to another employee within the company, constituted publication for the purposes of defamation law. The issue of proving publication where there is only limited circulation of defamatory matter arises not only in relation to “intra-company communications”. It has also arisen in circumstances, often domestic, where the defendant has directed a communication to the plaintiff but it has in fact been read by a third party. Whether publication has been established will depend upon the facts of the case.74 It will depend upon a number of considerations, such as the form of the communication; the particular features of the communication, such as whether it was sealed or unsealed75 and whether it was marked “Private” or not; whether the defendant actually knew or could reasonably have foreseen that a third party would read the communication; and whether it was the natural and probable consequence of the defendant’s sending of the communication to the plaintiff that a third party would read it.76 It should be noted that, in many of the older authorities, the issue of whether the defamatory matter was published was inextricably linked to the issues of whether the matter was published on a privileged occasion and whether the fact of publication itself constituted evidence of malice.77 These cases may now be treated differently, not only due to developments in the common law defence of qualified privilege, but also if the principle of proportionality is accepted as part of Australian law.78 The decided cases provide many instances where courts have found that publication has been established, notwithstanding the limited circulation of the defamatory matter. In Thorley v Kerry,79 publication was established where the servant carrying a letter from the defendant to the plaintiff opened and read it. In Clutterbuck v Chaffers,80 the defendant had a third party deliver a letter to the plaintiff. The letter was “folded up, but unsealed”. The person charged with delivering the letter gave evidence that the letter was delivered unread. In 72 73 74 75

76 77

78 79 80

State Bank of NSW Pty Ltd v Currabubula Holdings Pty Ltd (2001) 51 NSWLR 399; [2001] NSWCA 47 at 415 (NSWLR). [1977] 1 QB 881 at 898-9 per Stephenson LJ, at 907 per Waller LJ; cf at 892-5 per Lord Denning MR. Theaker v Richardson [1962] 1 WLR 151 at 157 per Harman LJ. There is no general presumption of fact that an unsealed letter will be opened and read by a person other than its addressee: Huth v Huth [1915] 3 KB 32 at 41-42 per Lord Reading CJ, at 46-7 per Bray J. Huth v Huth [1915] 3 KB 32 at 43 per Swinfen Eady J. See, eg, Pullman v Walter Hill & Co Ltd [1891] 1 QB 524 at 527-8 per Lord Esher MR, at 529-30 per Lopes LJ; Boxsius v Golbet Freres [1894] 1 QB 842 at 845 per Lord Esher MR, at 846-7 per Lopes LJ; Osborn v Thomas Boulter & Son [1930] 2 KB 226 at 236 per Greer LJ. As to whether an occasion is privileged for the purposes of the common law defence of qualified privilege, see [11.30]. As to malice, see [11.80]–[11.100]. As to the principle of proportionality, see [8.210]. (1812) 4 Taunt 355; 128 ER 367 at 370 (ER) per Mansfield CJ. (1816) 1 Stark 471; 171 ER 533.

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[8.90]

Proof of publication

Delacroix v Thevenot,81 Lord Ellenborough found that there was sufficient evidence to establish publication in circumstances where the defendant had sent a handwritten letter to the plaintiff, not marked “Private”, knowing that the plaintiff’s clerk opened and read the letters the plaintiff received as part of his employment.82 In Pullman v Walter Hill & Co Ltd,83 the English Court of Appeal held that there was sufficient evidence to establish publication in circumstances where a letter from the defendant company was addressed and sent to the plaintiffs, who were members of a partnership. The acts of publication in this case were the managing director dictating the letter to his clerk, who typed it up,84 and the opening and reading of the letter by the clerks at the plaintiffs’ firms. As the letter was not sent to the plaintiffs in their private capacity, it was natural and probable that their employees would open and read the letter.85 To similar effect, in Gomersall v Davies,86 the English Court of Appeal found that it was open to the jury to find publication had been established, having found that the defendant sent the plaintiff a letter, knowing that, in the plaintiff’s business, the plaintiff’s foreman was likely to open and read correspondence. By contrast, in Huth v Huth,87 the English Court of Appeal found that there was no evidence of publication, in circumstances where the defendant sent a letter in an unclosed envelope addressed to the plaintiffs. The only third party who read the letter was the butler, who opened and read the letter in breach of his duty and out of curiosity. The defendant could not be held liable for this conduct. In Powell v Gelston,88 Bray J found that a letter sent by the defendant, addressed to a particular man but opened and read by his father in his absence, and indeed never seen by the addressee, was not published for the purposes of defamation law because the defendant did not intend, and could not have foreseen, that the addressee’s father would open and read the letter. The form of the communication can also be important for determining whether publication has occurred. For instance, in relation to postcards and telegrams, courts have held that the form of the communications in question gave rise to an inference of publication. In Sadgrove v Hole,89 the English Court of Appeal held that if the defendant sends defamatory matter to the plaintiff by postcard, there is prima facie evidence of publication. In Williamson v Freer,90 the Court of Common Pleas found that a telegram was published, even if directed by the defendant to the plaintiff, because it necessarily had to be communicated to clerks, through whose hands it passed. 81 82 83 84

85 86 87 88 89 90

(1817) 2 Stark 63; 171 ER 573. Delacroix v Thevenot (1817) 2 Stark 63; 171 ER 573. [1891] 1 QB 524. Pullman v Walter Hill & Co Ltd [1891] 1 QB 524 at 527 per Lord Esher MR, at 529 per Lopes LJ; see also Osborn v Thomas Boulter & Son [1930] 2 KB 226 at 236 per Greer LJ, at 237 per Slesser LJ. Cf Boxsius v Goblet Freres [1984] 1 QB 842 at 845-6 per Lord Esher MR. Pullman v Walter Hill & Co Ltd [1891] 1 QB 524 at 528 per Lord Esher MR, at 529 per Lopes LJ. (1898) 14 TLR 430 at 431 per A L Smith LJ. Huth v Huth [1915] 3 KB 32 at 38-9 per Lord Reading CJ, at 43 per Swinfen Eady J, at 46 per Bray J. [1916] 2 KB 615 at 619 per Bray J. [1901] 2 KB 1 at 5 per A L Smith MR (noting similarity to position relating to telegrams), at 5-6 per Collins LJ. (1874) LR 9 CP 393 at 395 per Brett J.

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-22 20:22:06.

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As general guidance for those considering sending offensive or abusive correspondence directly to a person, Lord Esher MR warned of the risk attending all such communications: “If he wishes not to publish it, he must, so far as he possibly can, keep it to himself, or he must send it himself to the person to whom it is written.”91

Mistaken or accidental publication [8.100] Where a defendant mistakenly or accidentally communicates defamatory matter to a third party, there is no publication at all for the purposes of defamation law.92 The scope of operation for this principle is narrow. It can occur in instances of limited publication, such as where a defendant intends to communicate directly to the plaintiff, but other persons, whom the defendant did not intend to see, and could not have foreseen would see, in fact read the matter. It can occur in instances where the defendant composes defamatory matter but does not communicate it, instead having the matter communicated by the act of a third party. Thus, for example, according to Lord Esher MR: [I]f the writer of a letter locks it up in his own desk, and a thief comes and breaks open the desk and takes away the letter and makes its contents known, I should say that would not be a publication.93

Publication between husband and wife

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[8.110] Historically, the dissemination of defamatory matter between husband and wife did not constitute publication for the purposes of defamation law because of “the common law principle that husband and wife are one”.94 The legal fiction of the unity of husband and wife has disappeared but the rule persists in limited circumstances. However, the precise juridical basis of the rule remains unclear – whether it is properly an instance of “no publication”; whether it is a form of immunity or privilege; or whether its true foundation is a matter of policy.95 There is, however, sufficient publication if the defendant communicates defamatory matter about the plaintiff to the plaintiff’s husband or wife.96 91 92 93 94

95

96

Pullman v Walter Hill & Co Ltd [1891] 1 QB 524 at 527. R v Paine (1696) 5 Mod R 163; 87 ER 584 at 587 (ER) per curiam; Gomersall v Davies (1898) 14 TLR 430 at 431 per A L Smith LJ. Pullman v Walter Hill & Co Ltd [1891] 1 QB 524 at 527 per Lord Esher MR. Wennhak v Morgan (1888) 20 QBD 635 at 637 per Huddleston B; see also at 639 per Manisty B. Prior to the introduction of the national, uniform defamation laws, the position was different in certain jurisdictions, such as Queensland and Tasmania, where defamation law was codified: see Defamation Act 1889 (Qld) s 5(2) (repealed); Defamation Act 1957 (Tas) s 7 (repealed). See also Tanner v Miles [1912] QWN 7 at 7 per Macnaughton DCJ. As to the history of Australian defamation law prior to the introduction of the national, uniform defamation laws, see Ch 3. See, eg, Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 175 per Deane J; Cattanach v Melchior (2003) 215 CLR 1; [2003] HCA 38 at 30 (CLR) per McHugh and Gummow JJ; Markisic v Middletons Lawyers [2005] NSWSC 258 at [32]-[36] per Nicholas J; Roberts-Smith v Crawshaw [2014] WASC 12 at [15]-[21] per Edelman J. However, see also Wen Yue He v Australian Chinese Newspapers Pty Ltd [2005] NSWSC 253 at [6] per Greg James J (evidence of republication by plaintiff to wife admissible to prove publication). Howard v Howard (1885) 2 WN(NSW) 5 at 6 per curiam.

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[8.130]

Multiple publication

Foreign language publication [8.120] As publication requires the communication of defamatory matter in a comprehensible form to a person other than the plaintiff, if the defamatory matter is in a language other than English, the plaintiff must prove that there was at least one recipient who was able to understand the language in which the matter was spoken or written.97 If there is no recipient able to comprehend the foreign language in which the defamatory matter was spoken or written, there is no potential for the plaintiff’s reputation to be damaged, thus there is no publication for the purposes of defamation law.

Multiple publication

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[8.130] Every communication of defamatory matter constitutes a separate

cause of action.98 This is known as the “multiple publication rule”. It is a longstanding rule able to be traced back to the decision in Duke of Brunswick v Harmer.99 This rule poses obvious difficulties for widely circulated publications, particularly those produced by media outlets. In practice, there are some means to overcome some of the difficulties. Thus, where a plaintiff sues over a newspaper article or a book, there is, in theory, a separate publication of the article to each reader, with the plaintiff having as many causes of action in defamation as there are copies of the newspaper or the book in circulation.100 The practice developed permitting the plaintiff to plead the circulation of the newspaper in a given jurisdiction as a single count.101 The “multiple publication rule”, nevertheless, remains part of Australian defamation law and still has significant consequences in operation. It is important in two ways: first, in relation to multi-state defamation;102 secondly, in relation to the application of limitation periods.103 In relation to the former, because every communication of defamatory matter is a separate cause of action and because publication occurs where the defamatory matter is received in a comprehensible form, liability for defamation can arise in every jurisdiction where a recipient is located. Prior to the national, uniform defamation laws, there were eight substantially different defamation regimes within Australia,104 so cases of multi-state defamation were not unknown.105 In 97

98

99 100 101 102 103 104

Jones v Davers (1595) Cro Eliz 496; 78 ER 747; Price v Jenkings (1600) Cro Eliz 865; 78 ER 1091 (Welsh); Fleetwood v Curley (1619) Hob 267; 80 ER 413 at 268 (Hob), at 414 (ER) (Welsh); Amann v Damm (1860) 8 CB9NS) 597; 141 ER 1300 at 606 (CB(NS)), at 1302 (ER) per Williams J (German); see also Wen Yue He v Australian Chines Newspapers Pty Ltd [2005] NSWSC 253; Amanatidis v Darmos [2011] VSC 163 (Greek). Maple v David Syme & Co Ltd [1975] 1 NSWLR 97 at 100 per Begg J; Toomey v Mirror Newspapers Ltd (1985) 1 NSWLR 173 at 177-8 per Hunt J; Berezovsky v Michaels [2000] 2 All ER 986; [2000] 1 WLR 1004 at 993 (All ER) per Lord Steyn; Loutchansky v Times Newspapers Ltd (Nos 2-5) [2002] QB 783; [2001] EWCA Civ 1805 at 813 (QB); Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 at 600 (CLR) per Gleeson CJ, McHugh, Gummow and Hayne JJ, at 652 per Callinan J. (1849) 14 QBD 185; 117 ER 75. McLean v David Syme & Co Ltd (1970) 72 SR(NSW) 513 at 519-20 per Asprey JA, at 528 per Mason and Manning JJA. Maple v David Syme & Co Ltd [1975] 1 NSWLR 97 at 100 per Begg J; Toomey v Mirror Newspapers Ltd (1985) 1 NSWLR 173 at 178 per Hunt J. Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 at 601 (CLR) per Gleeson CJ, McHugh, Gummow and Hayne JJ. As to limitation periods for defamation law, see [5.30]–[5.40]. As to the history of Australian defamation law, see [3.70].

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-22 20:22:06.

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relation to the latter, because every communication of defamatory matter is a separate cause of action and because the tort of defamation is complete upon publication, a fresh cause of action accrues every time there is communication of the defamatory matter. Every publication is subject to its own limitation period.106 This means that the defendant’s liability can accrue long after the matter was first published. The facts of Duke of Brunswick v Harmer illustrate this. The plaintiff sued the defendant in respect of a defamatory article published in the Weekly Dispatch periodical in 1830. Eighteen years later, the Duke of Brunswick had his manservant procure a copy from the British Museum and also had one procured from the defendant’s office.107 The defendant was unable to rely upon the six-year limitation that then applied as a bar to the proceedings because two fresh causes of action had accrued in 1848, when there had been new communication of the defamatory matter to the Duke of Brunswick’s agents. The impact of the “multiple publication rule” on limitation periods as applied to archives has become even more acute with the advent of online archives in various forms. Like many principles of defamation law, the “multiple publication rule” is well established historically, even if not entirely defensible on rational grounds. Because it has long been accepted as part of Australian defamation law, courts are understandably reluctant to depart lightly from it.108 However, merely because it has been sanctioned by its application for over 150 years does not mean that the “multiple publication rule” is an indispensable part of defamation law.109 Although courts in Australia have rejected a “single publication rule” as part of the common law of Australia,110 courts and legislatures in the United States have been more willing to adopt such a rule.111 The Defamation Act 2013 (UK) also introduced a “single publication rule” which was directed at overcoming the impact of the “multiple publication rule” on the application of

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105

106 107 108 109

110

111

See, eg, Gorton v Australian Broadcasting Commission (1973) 1 ACTR 6; 22 FLR 181 at 205 per Fox J ($7,500 damages for publication in the Australian Capital Territory and Victoria); Lawrie v Northern Territory News Services Pty Ltd (1985) 82 FLR 70 at 89-90 per Nader J ($28,500 damages awarded for publication in all States and Territories). Loutchansky v Times Newspapers Ltd (Nos 2-5) [2002] QB 783; [2001] EWCA Civ 1805 at 813 (QB). As to the limitation period for defamation claims, see [5.30]–[5.40]. Duke of Brunswick v Harmer (1849) 14 QBD 185; 117 ER 75 at 187 (QBD), at 76 (ER). Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 at 601 (CLR) per Gleeson CJ, McHugh, Gummow and Hayne JJ. For criticism of the rule in Duke of Brunswick v Harmer (1849) 14 QB 185; 117 ER 75, see, eg, Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 at 619 (CLR) per Kirby J. In Jameel v Dow Jones & Co Inc [2005] QB 946; [2005] EWCA Civ 75 at 966 (QB), the English Court of Appeal observed: “We do not believe that Duke v Brunswick v Harmer 14 QB 185 [sic] could today have survived an application to strike out for abuse of process.” However, the European Court of Human Rights found that the rule in Duke of Brunswick v Harmer was not incompatible with the European Convention on Human Rights, Art 10: see Times Newspapers Ltd v United Kingdom [2009] EMLR 14 at 268. As to the principle of proportionality, see [8.210]. Australian Broadcasting Corporation v Waterhouse (1991) 25 NSWLR 519 at 536-7 per Samuels JA; Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 at 604 (CLR) per Gleeson CJ, McHugh, Gummow and Hayne JJ, at 652 per Callinan J. As to the position under English law, see Berezovsky v Michaels [2000] 2 All ER 986; 1 WLR 1004 at 993 (All ER) per Lord Steyn. See generally, DR Cohen, “The Single Publication Rule: One Action, Not One Law” (1996) 62 Brooklyn Law Review 921; see also Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 at 601 (CLR) per Gleeson CJ, McHugh, Gummow and Hayne JJ.

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-22 20:22:06.

[8.150]

Jurisdiction and choice of law in multi-state defamation

limitation periods to defamation claims.112 Under the national, uniform defamation laws, a form of the “single publication rule” was introduced in relation to the publication of defamatory matter occurring in more than one jurisdictional area within Australia.113 This is clearly designed to overcome the “multiple publication rule” in the context of multi-state defamation cases occurring in Australia. The problem of the “multiple publication rule” in relation to limitation periods persists in Australia and should be given attention in any future defamation law reform process.

Place of publication [8.140] As damage to reputation is the gist of the action in defamation and such damage occurs when the defamatory matter is received in a comprehensible form, the place of publication is wherever a recipient is located.114 This means that a television program is published in every place where it is seen, not only the place in which it is produced and from which it is first broadcast.115 In Dow Jones & Co Inc v Gutnick,116 the High Court of Australia specifically found that the place of publication for internet defamation is where the recipient downloads the material, not where the publisher uploads the material. In respect of defamatory matter disseminated across multiple jurisdictions, publication occurs in each jurisdiction where a recipient is located.117 This approach to the concept of publication, then, leads to issues of jurisdiction and choice of law in multi-state defamation claims.

Jurisdiction and choice of law in multi-state defamation The common law position

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[8.150] Issues of jurisdiction and choice of law have presented particular problems for defamation claims. This is a consequence of the “multiple publication rule”, which implicates as many systems of law as there are places of publication.118 Over the last 15 years in Australia, there have been substantial changes to the rules governing choice of law in tort generally and choice of law in defamation specifically. Prior to 2000, the applicable choice of 112 113

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115 116 117 118

Defamation Act 2013 (UK) s 8. As to the limitation period for defamation actions, see [5.30]–[5.40]. Civil Law (Wrongs) Act 2002 (ACT) s 123; Defamation Act 2006 (NT) s 10; Defamation Act 2005 (NSW) s 11; Defamation Act 2005 (Qld) s 11; Defamation Act 2005 (SA) s 11; Defamation Act 2005 (Tas) s 11; Defamation Act 2005 (Vic) s 11; Defamation Act 2005 (WA) s 11. As to choice of law in defamation law in Australia under the national, uniform defamation laws, see [8.160]. Bata v Bata [1948] WN 366 at 366-7 per Scott LJ; Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 at 606-7 (CLR) per Gleeson CJ, McHugh, Gummow and Hayne JJ, at 652 per Callinan J. Gorton v Australian Broadcasting Commission (1973) 1 ACTR 6; 22 FLR 181 at 183 per Fox J. Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 at 607 (CLR) per Gleeson CJ, McHugh, Gummow and Hayne JJ. Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 at 649 (CLR) per Callinan J. As to the “multiple publication rule”, see [8.130]. As to the place of publication, see [8.140].

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-22 20:22:06.

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law in tort rule in Australia was the rule in Phillips v Eyre.119 This rule provided that, in order to be able to sue in the forum in respect of a foreign tort, the plaintiff had to satisfy the court that the matter was actionable under the law of the forum (the lex fori) and was not justifiable under the law of the place of the wrong (the lex loci delicti).120 If the matter was justiciable under both systems of law, then the plaintiff could bring proceedings in the forum in respect of the foreign tort121 and the prevailing view was that the lex fori would apply to the determination of the claim.122 This rule was applied in defamation claims.123 In 2000, in John Pfeiffer Pty Ltd v Rogerson,124 the High Court of Australia made a significant change to the choice of law in tort rules, abrogating the rule in Phillips v Eyre and replacing it with the lex loci delicti for torts committed within Australia,125 with no flexible exception.126 Amongst the major reasons for this decision were conformity with the parties’ reasonable expectations,127 promotion of certainty and limitation on the number of systems of law involved in a dispute.128 However, in their joint judgment, Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ specifically recognised that the tort of defamation posed particular problems because there were likely to be multiple places of publications, implicating multiple systems of law.129 For defamation, the replacement of the rule in Phillips v Eyre with the lex loci delicti did not reduce the number of legal systems to which regard needed to be had, given that the rule in Phillips v Eyre required a plaintiff to establish 119 120

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122

123 124 125 126 127 128 129

(1870) LR 6 QB 1. Phillips v Eyre (1870) LR 6 QB 1 at 28 per Willes J. As to the reformulation of the rule in Phillips v Eyre in Australia, see Breavington v Godleman (1988) 169 CLR 41 at 110-11 per Brennan J; McKain v RW Miller & Co Pty Ltd (1991) 174 CLR 1 at 39 per Brennan, Dawson, Toohey and McHugh JJ. In order to show that the publication of the defamatory matter was justifiable under the lex loci delicti, the plaintiff was entitled to raise any defence under that system of law: Carleton v Freedom Publishing Co Pty Ltd (1982) 45 ACTR 1 at 21 per Kelly J; Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188 at 190 per Hunt J; see also The Halley (1868) LR 2 PC 193 at 202-4 (PC). Phillips v Eyre (1870) LR 6 QB 1 at 28 per Willes J; Machado v Fontes [1897] 2 QB 231 at 233 per Lopes LJ, at 234-5 per Rigby LJ; M Isaacs and Sons Ltd v Cook [1925] 2 KB 391 at 400 per Roche J. Anderson v Eric Anderson Radio & TV Pty Ltd (1965) 114 CLR 20 at 42 per Windeyer J; Hartley v Venn (1967) 10 FLR 151 at 155-6 per Kerr J; Kolsky v Mayne Nickless Ltd [1970] 3 NSWR 511 at 517 per curiam; Maple v David Syme & Co Ltd [1975] 1 NSWLR 97 at 104 per Begg J; Walker v WA Pickles Ltd [1980] 2 NSWLR 281 at 289 per Glass JA; Pozniak v Smith (1982) 151 CLR 38 at 49-50 per Mason J; Gardner v Wallace (1995) 184 CLR 95 at 98-9 per Dawson J; Nalpantidis v Stark (No 2) (1995) 65 SASR 454 at 473 per Debelle J; Thompson v Hill (1995) 38 NSWLR 714 at 741-2 per Clarke JA; contra Wilson v Nattrass (1995) 21 MVR 41 at 51 per Ashley J. See also M Davies, “Exactly What is the Australian Choice of Law Rule in Torts Cases?” (1996) 70 ALJ 711. See, eg, Gorton v Australian Broadcasting Commission (1973) 1 ACT 6; 22 FLR 181 at 182-3 per Fox J. (2000) 203 CLR 503; [2000] HCA 36. John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; [2000] HCA 36 at 540 (CLR) per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; [2000] HCA 36 at 538 (CLR) per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; [2000] HCA 36 at 536 (CLR) per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; [2000] HCA 36 at 539 (CLR) per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; [2000] HCA 36 at 538-9 (CLR) per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. For an earlier identification of this problem, see Australian Broadcasting Corporation v Waterhouse (1991) 25 NSWLR 519 at 535-6 per Samuels JA.

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-22 20:22:06.

[8.160]

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justifiability under the lex loci delicti. Shortly after Pfeiffer v Rogerson, the High Court abrogated the rule in Phillips v Eyre for torts committed outside Australia,130 replacing it with the lex loci delicti.131 The common law position then was that the lex loci delicti was the applicable choice of law in tort rule for all claims – for those occurring both within Australia and outside Australia. Another important development in relation to choice of law in tort, which affected the common law’s approach to multi-state defamation, was the recognition that the doctrine of renvoi could apply to claims in tort. The longstanding view had been that the doctrine of renvoi did not apply to claims in tort.132 However, in Neilson v Overseas Project Corporation of Victoria,133 the High Court of Australia recognised the application of the doctrine of renvoi in a claim for personal injuries. The common law position, then, is that a reference to the lex loci delicti will include a reference to that system of law, including its rules relating to conflict of laws.

The statutory position [8.160] The national, uniform defamation laws sought to overcome some of the problems posed by the common law’s approach to choice of law in tort, which problems persisted for claims in defamation, notwithstanding the reformulation of the relevant rules. They introduced a statutory choice of law rule for defamation claims, but this was limited to publications within Australia.134 If there is multiple publication of defamatory matter135 in more than one Australian jurisdictional area,136 the substantive law to be applied to the harm caused by the publication as a whole is that which has the closest connection to the harm so caused.137 In determining which system of law has 130 131

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132 133 134

135

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Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491; [2002] HCA 10 at 515 (CLR) per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491; [2002] HCA 10 at 520 (CLR) per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. See, eg, M’Elroy v M’Allister [1949] SC 110; SLT 139 at 126 (SC) per Lord Russell. (2005) 223 CLR 331; [2005] HCA 54 at 342 (CLR) per Gleeson CJ, at 368-9 per Gummow and Hayne JJ. Civil Law (Wrongs) Act 2002 (ACT) s 123; Defamation Act 2006 (NT) s 10; Defamation Act 2005 (NSW) s 11; Defamation Act 2005 (Qld) s 11; Defamation Act 2005 (SA) s 11; Defamation Act 2005 (Tas) s 11; Defamation Act 2005 (Vic) s 11; Defamation Act 2005 (WA) s 11. The term, “multiple publication of defamatory matter” is defined to mean the publication of the same, or substantially the same matter, in substantially the same form to two or more persons: see Civil Law (Wrongs) Act 2002 (ACT) s 123(5); Defamation Act 2006 (NT) s 10(5); Defamation Act 2005 (NSW) s 11(5); Defamation Act 2005 (Qld) s 11(5); Defamation Act 2005 (SA) s 11(5); Defamation Act 2005 (Tas) s 11(5); Defamation Act 2005 (Vic) s 11(5); Defamation Act 2005 (WA) s 11(5). Broadly, an “Australian jurisdictional area” is defined as the geographical area within a State or Territory: see Civil Law (Wrongs) Act 2002 (ACT) s 123(5); Defamation Act 2006 (NT) s 10(5); Defamation Act 2005 (NSW) s 11(5); Defamation Act 2005 (Qld) s 11(5); Defamation Act 2005 (SA) s 11(5); Defamation Act 2005 (Tas) s 11(5); Defamation Act 2005 (Vic) s 11(5); Defamation Act 2005 (WA) s 11(5). Civil Law (Wrongs) Act 2002 (ACT) s 123(2); Defamation Act 2006 (NT) s 10(2); Defamation Act 2005 (NSW) s 11(2); Defamation Act 2005 (Qld) s 11(2); Defamation Act 2005 (SA) s 11(2); Defamation Act 2005 (Tas) s 11(2); Defamation Act 2005 (Vic) s 11(2); Defamation Act 2005 (WA) s 11(2). The national, uniform defamation laws also provide that, where matter is published wholly within an Australian jurisdictional area, the law of that jurisdictional area is to apply to the determination of a defamation claim relating to it:

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-22 20:22:06.

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the closest connection to the harm caused by the publication, the court may consider the plaintiff’s place of ordinary residence or, if a corporation, its principal place of business at the time of publication;138 the extent of publication139 and harm sustained by the plaintiff in each Australian jurisdictional area;140 and any other matter it considers relevant.141 The reference to the substantive law of an Australian jurisdictional area expressly excludes that system of law’s choice of law rules, to the extent that they differ from those prescribed by the statutory choice of law rule.142 This overcomes the application of the doctrine of renvoi in multi-state defamation claims in Australia.143 The statutory choice of law rule, along with the substantive harmonisation of Australian defamation law, furthers the object of promoting uniform defamation law in Australia144 and removes incentives for “forum shopping”.145 The effect of the introduction of a statutory choice of law rule for multi-state defamation committed within Australia is that there is now a bifurcated approach to choice of law in defamation. For a multi-state defamation claim based on an international publication, the common law approach, with the lex loci delicti as the applicable choice of law rule and the application of the doctrine of renvoi, continues to prevail.146 For a multi-state defamation claim based on intra-national publication, a single system of law applies to the whole of the publication and the doctrine of renvoi is excluded. As a matter of

138

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139

140

141

142

143 144

145

146

see Civil Law (Wrongs) Act 2002 (ACT) s 123(1); Defamation Act 2006 (NT) s 10(1); Defamation Act 2005 (NSW) s 11(1); Defamation Act 2005 (Qld) s 11(1); Defamation Act 2005 (SA) s 11(1); Defamation Act 2005 (Tas) s 11(1); Defamation Act 2005 (Vic) s 11(1); Defamation Act 2005 (WA) s 11(1). Civil Law (Wrongs) Act 2002 (ACT) s 123(3)(a); Defamation Act 2006 (NT) s 10(3)(a); Defamation Act 2005 (NSW) s 11(3)(a); Defamation Act 2005 (Qld) s 11(3)(a); Defamation Act 2005 (SA) s 11(3)(a); Defamation Act 2005 (Tas) s 11(3)(a); Defamation Act 2005 (Vic) s 11(3)(a); Defamation Act 2005 (WA) s 11(3)(a). Civil Law (Wrongs) Act 2002 (ACT) s 123(3)(b); Defamation Act 2006 (NT) s 10(3)(b); Defamation Act 2005 (NSW)s 11(3)(b); Defamation Act 2005 (Qld) s 11(3)(b); Defamation Act 2005 (SA) s 11(3)(b); Defamation Act 2005 (Tas) s 11(3)(b); Defamation Act 2005 (Vic) s 11(3)(b); Defamation Act 2005 (WA) s 11(3)(b). Civil Law (Wrongs) Act 2002 (ACT) s 123(3)(c); Defamation Act 2006 (NT) s 10(3)(c); Defamation Act 2005 (NSW) s 11(3)(c); Defamation Act 2005 (Qld) s 11(3)(c); Defamation Act 2005 (SA) s 11(3)(c); Defamation Act 2005 (Tas) s 11(3)(c); Defamation Act 2005 (Vic) s 11(3)(c); Defamation Act 2005 (WA) s 11(3)(c). Civil Law (Wrongs) Act 2002 (ACT) s 123(3)(d); Defamation Act 2006 (NT) s 10(3)(d); Defamation Act 2005 (NSW) s 11(3)(d); Defamation Act 2005 (Qld) s 11(3)(d); Defamation Act 2005 (SA) s 11(3)(d); Defamation Act 2005 (Tas) s 11(3)(d); Defamation Act 2005 (Vic) s 11(3)(d); Defamation Act 2005 (WA) s 11(3)(d). Civil Law (Wrongs) Act 2002 (ACT) s 123(4); Defamation Act 2006 (NT) s 10(4); Defamation Act 2005 (NSW) s 11(4); Defamation Act 2005 (Qld) s 11(4); Defamation Act 2005 (SA) s 11(4); Defamation Act 2005 (Tas) s 11(4); Defamation Act 2005 (Vic) s 11(4); Defamation Act 2005 (WA) s 11(4). As to the application of the doctrine of renvoi at common law in Australia, see [8.150]. Civil Law (Wrongs) Act 2002 (ACT) s 115(a); Defamation Act 2006 (NT) s 2(a); Defamation Act 2005 (NSW) s 3(a); Defamation Act 2005 (Qld) s 3(a); Defamation Act 2005 (SA) s 3(a); Defamation Act 2005 (Tas) s 3(a); Defamation Act 2005 (Vic) s 3(a); Defamation Act 2005 (WA) s 3(a). As to the need to provide disincentives for “forum shopping” as an impetus for this reform, see Australian Government Attorney-General’s Department, Revised Outline of a Possible National Uniform Defamation Law (July 2004) p 29. As to choice of law in defamation at common law in Australia, see [8.150].

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-22 20:22:06.

[8.170]

Jurisdiction over internet defamation

principle, it seems undesirable to treat intra-national and international publications differently. There is nothing intrinsic about the character of either category of publication which would dictate a differential approach was required. The distinction is pragmatic, rather than principled. There are limits on the extraterritorial reach of State and Territory legislatures. Defamation claims involving international publications are not unknown in Australian courts147 and are likely to continue to be litigated, given the proliferation and pervasiveness of internet technologies, which are not limited by geographical boundaries.148 Nevertheless, in a federation, where national media outlets are well established, multi-state defamation claims involving intra-national publication are more likely to be regularly litigated. The statutory choice of law rule is a practical means of addressing the most pressing problems presented by the application of the common law rules relating to choice of law in tort to claims for multi-state defamation.

Jurisdiction over internet defamation [8.170] As well as being the binding Australian authority on the concept of

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publication in defamation law, the High Court’s decision in Dow Jones & Co Inc v Gutnick149 is significant as the first decision by an ultimate appellate court on jurisdiction over internet defamation claims. In this case, prominent Melbourne businessman, Joseph Gutnick, commenced defamation proceedings against Dow Jones & Co Inc in the Supreme Court of Victoria. Gutnick claimed that he had been defamed by an article entitled “Unholy Gains”, which had been published in Barron’s Online in late October 2000. The originating process was served on Dow Jones in its United States headquarters, pursuant to the Supreme Court (General Civil Procedure) Rules 1996 (Vic) r 7.01(1)(i) and (j). Dow Jones applied to the Supreme Court of Victoria to have the originating process set aside and to have the proceedings stayed. It was unsuccessful before Hedigan J and the Victorian Court of Appeal,150 so appealed to the High Court of Australia.151 Gleeson CJ, McHugh, Gummow and Hayne JJ and, in separate reasons for judgment, Kirby J, found that the jurisdiction of the Supreme Court of Victoria was regularly invoked by the service of the originating process pursuant to the Supreme Court (General Civil Procedure) Rules 1996 (Vic) r 7.01(1)(j), as Gutnick had suffered damage to his reputation in Victoria. It was strictly unnecessary for their Honours then to consider whether the other basis for extraterritorial service, namely whether a tort had been committed within

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148 149 150 151

See, eg, Macquarie Bank Ltd v Berg (1999) A Def R 53-035; [1999] NSWSC 526; Cullen v White [2003] WASC 153; Markovic v White [2004] NSWSC 37; National Auto Glass Supplies (Australia) Pty Ltd v Nielsen & Moller Autoglass (NSW) Pty Ltd (No 8) [2007] FCA 1625. As to the issues of publication posed by internet technologies, see [8.180]. (2002) 210 CLR 575; [2002] HCA 56. Gutnick v Dow Jones & Co Inc [2001] VSC 305; Dow Jones & Co Inc v Gutnick [2001] VSCA 249. As to the facts of the case and the procedural history, see Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 at 594-5 (CLR) per Gleeson CJ, McHugh, Gummow and Hayne JJ, at 612 per Kirby J, at 643-7 per Callinan J.

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-22 20:22:06.

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Victoria, had been satisfied, although, from their reasoning in relation to the place of publication, it is likely that it would have been.152 The issue then became whether the Supreme Court of Victoria should exercise its discretion not to exercise jurisdiction on the basis of forum non conveniens.153 As Gutnick had elected to confine his claim to the damage to his reputation in Victoria, which was the place where he was ordinarily resident and had his most substantial reputation, and given that the law of Victoria would apply to the case, it was unsurprising that the High Court of Australia refused to accept that the Supreme Court of Victoria was a clearly inappropriate forum.154 A striking feature of the judgments in Dow Jones & Co Inc v Gutnick is the differing perceptions of the impact internet technologies should have upon established principles of defamation law and conflict of laws, yet also the ultimate agreement as to the principles to be applied and how they should be applied. Kirby J was the most receptive to Dow Jones’ arguments as to the revolutionary nature of internet technologies and the impact the recognition of this should have upon the relevant legal principles, stating that:

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[t]he idea that this Court should solve the present problem by reference to judicial remarks in England in a case, decided more than a hundred and fifty years ago, involving the conduct of a manservant of a Duke, despatched to procure a back issue of a newspaper of minuscule circulation, is not immediately appealing to me.155

His Honour canvassed the arguments in favour of altering the common law principles to accommodate internet technologies, citing in support of such a development the novelty and particularity of the technologies; the need for effective legal responses to the challenges presented by them but equally the need for effective remedies for damage to reputation; and the urgency for new rules, meaning that waiting for legislative intervention was not appropriate.156 However, his Honour was ultimately persuaded by the arguments against altering the relevant common law principles, citing as his reasons for refusing to declare a “single publication rule” the well-settled nature of the principles in issue; the need for rules to be technologically neutral in order to accommodate further technological developments; and the desirability for legislative action over judicial law-making.157 Although Kirby J ultimately applied established principles to reach the same outcome as the joint judgment, he characterised the outcome as “a result contrary to 152 153 154

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Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 at 607-8 (CLR) per Gleeson CJ, McHugh, Gummow and Hayne JJ, at 621-2 per Kirby J. Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 at 607 (CLR) per Gleeson CJ, McHugh, Gummow and Hayne JJ. Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 at 608 (CLR) per Gleeson CJ, McHugh, Gummow and Hayne JJ, at 640 per Kirby J. It is likely that the application of a less onerous test for forum non conveniens, such as the “more appropriate forum” test under English law, would have reached the same conclusion as the Australian courts, given the preponderance of connecting factors to Victoria. As to the forum non conveniens test under English law, see Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 at 476-8 per Lord Goff of Chieveley. Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 at 619 (CLR). Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 at 625-8 (CLR) per Kirby J. Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 at 629-35 (CLR) per Kirby J.

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-22 20:22:06.

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intuition”,158 suggesting that it would “appear to warrant national legislative attention and to require international discussion in a forum as global as the internet”.159 In over a decade since the High Court’s decision in Dow Jones & Co Inc v Gutnick, no meaningful discussion in such a forum has eventuated. Callinan J’s views on the impact of internet technologies were diametrically opposed to those expressed by Kirby J. Callinan J was unconvinced as to the revolutionary nature of internet technologies.160 His Honour stated that “[t]here is nothing unique about multinational business”. By way of analogy, he observed that:

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[s]ome brands of motor cars are ubiquitous but their manufacturers, if they wish to sell them in different jurisdictions, must comply with the laws and standards of those jurisdictions.161

With respect, the analogy works only at a high level of generality, if at all. As the joint judgment in Pfeiffer v Rogerson162 observed, there is a qualitative difference between the harms caused by multi-state defamation and those caused by other forms of multi-state tort claims, such as a product liability claim arising out of a defective imported motor vehicle. Callinan J pointed out that “[m]ultiple publication in different jurisdictions is certainly no novelty in a federation such as Australia”.163 His Honour found that there was no need to revisit settled principles of defamation law and conflict of laws in order to dispose of the appeal. The position adopted in the joint judgment can be characterised as intermediate between that of Kirby and Callinan JJ. Gleeson CJ, McHugh, Gummow and Hayne JJ accepted that “the advent of the World Wide Web is a considerable technological advance” but did not accept that the legal issues it presented were unique. They were amplifications of pre-existing and wellknown problems, which had already been encountered in relation to national and sometimes international newspapers, magazines, radio and television broadcasts.164 Their Honours were reluctant to fashion technology-specific rules to deal with internet publications.165 The effect of the High Court’s decision in Dow Jones & Co Inc v Gutnick on the exercise of jurisdiction over cases of internet defamation should not be overstated. There are a range of principled and practical reasons why multiple proceedings in multiple jurisdictions, concurrently or consecutively, in respect of widespread dissemination of defamatory matter, are unlikely to occur.166 In appropriate cases, the doctrine of forum non conveniens will allow a court to refuse to exercise jurisdiction where it is a clearly inappropriate forum.167 It 158 159 160 161 162 163 164 165 166 167

Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 at 642 (CLR). Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 at 643 (CLR). Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 at 647-8 (CLR). Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 at 649 (CLR) per Callinan J. John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; [2000] HCA 36 at 538-9 (CLR) per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 at 650 (CLR). Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 at 605 (CLR). Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 at 605 (CLR) per Gleeson CJ, McHugh, Gummow and Hayne JJ. D Rolph, “The Message, Not the Medium: Defamation, Publication and the Internet in Dow Jones & Co Inc v Gutnick” (2002) 24 Syd LR 263 at 275-6. Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 at 247-8 per Deane J; Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 557-60 per Mason CJ, Deane,

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-22 20:22:06.

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may be possible for the plaintiff to bring defamation proceedings in one jurisdiction and claim damages for publication within and outside that jurisdiction.168 Where a plaintiff has successfully brought proceedings in one jurisdiction in respect of publication of defamatory matter in that jurisdiction and then commences proceedings in another jurisdiction in respect of publication of the defamatory matter in that jurisdiction, he or she may face having the subsequent proceedings stayed as an abuse of process.169 Under the national, uniform defamation laws, where a plaintiff has brought proceedings against a defendant in relation to the publication of defamatory matter, he or she cannot bring further defamation proceedings for damages against the same defendant in relation to the publication of “the same or like matter” without leave of the court.170 The principles of res judicata, issue estoppel and Anshun estoppel171 can limit a plaintiff from attempting to bring multiple, successive actions. The anti-suit injunction can prevent a plaintiff from maintaining

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Dawson and Gaudron JJ; Henry v Henry (1996) 185 CLR 571 at 586-7 per Dawson, Gaudron, McHugh and Gummow JJ; Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 at 608 (CLR) per Gleeson CJ, McHugh, Gummow and Hayne JJ, at 611 per Gaudron J. The applicable test in Australia diverges from that under English law, which is expressed in terms of identifying a “more appropriate forum”: see Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 at 476-8 per Lord Goff of Chieveley. As to whether the application of these different tests leads to different outcomes in practice, see Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 558 per Mason CJ, Deane, Dawson and Gaudron JJ. Within Australia, there is also the cross-vesting legislation, which permits the transfer of proceedings in the interests of justice to a more appropriate State or Territory Supreme Court: see Jursidiction of Courts (Cross-Vesting) Act 1987 (Cth) s 5; Jurisdiction of Courts (Cross-Vesting) Act 1993 (ACT) s 5; Jurisdiction of Courts (Cross-Vesting) Act 1987 (NT) s 5; Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) s 5; Jurisdiction of Courts (Cross-Vesting) Act 1987 (Qld) s 5; Jurisdiction of Courts (Cross-Vesting) Act 1987 (SA) s 5; Jurisdiction of Courts (Cross-Vesting) Act 1987 (Tas) s 5; Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vic) s 5; Jurisdiction of Courts (CrossVesting) Act 1987 (WA) s 5. For examples of the transfer of proceedings being made in a defamation case, see Waterhouse v Australian Broadcasting Corporation (1989) 86 ACTR 1; Arrowcrest Group Pty Ltd v Advertiser News Weekend Publishing Co Pty Ltd (1993) 113 FLR 57; Bateman & Idameneo (No 123) Pty Ltd v Fairfax Media Publications Pty Ltd (2013) 8 ACTLR 13; [2013] ACTSC 72. For examples of a refusal to order the transfer of proceedings in a defamation case, see Baffsky v John Fairfax & Sons Ltd (1990) 97 ACTR 1; Windschuttle v ACP Publishing Pty Ltd [2002] ACTSC 64. Whitney v Moignard (1890) 24 QBD 630 at 631 per Huddleston B; McLean v David Syme & Co Ltd (1970) 72 SR(NSW) 513 at 525 per Asprey JA; Toomey v Mirror Newspapers Ltd (1985) 1 NSWLR 173 at 184 per Hunt J. However, see also David Syme & Co Ltd v Grey (1992) 38 FCR 303 at 323-7 per Gummow J. Meckiff v Simpson [1968] VR 62 at 65 per Menhennitt J; McLean v David Syme & Co Ltd (1970) 72 SR(NSW) 513 at 528 per Mason and Manning JJA; Maple v David Syme & Co Ltd [1975] 1 NSWLR 97 at 102 per Begg J. Civil Law (Wrongs) Act 2002 (ACT) s 133; Defamation Act 2006 (NT) s 20; Defamation Act 2005 (NSW) s 23; Defamation Act 2005 (Qld) s 23; Defamation Act 2005 (SA) s 21; Defamation Act 2005 (Tas) s 23; Defamation Act 2005 (Vic) s 23; Defamation Act 2005 (WA) s 23. As to the interpretation and application of this section, see Buckley v Herald & Weekly Times Pty Ltd (No 2) [2008] VSC 475 at [12]-[15] per Kaye J; Carey v Australian Broadcasting Corporation (2012) 84 NSWLR 90; [2012] NSWCA 176 at 106 (NSWLR) per McColl JA; Sullivan v Griffin [2012] NSWSC 687 at [21]-[23] per Nicholas J. For judicial consideration of the predecessor provisions, see, eg, Singleton v John Fairfax & Sons Ltd [1982] 2 NSWLR 38 at 41-6 per Hunt J; Lee v Kim (2006) 68 NSWLR 433; [2006] NSWCA 384 at 438-9 (NSWLR) per Handley JA. Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. For the application of Anshun estoppel in the context of a defamation claim, see Lee v Kim (2006) 68 NSWLR 433; [2006] NSWCA 384 at 437-8 (NSWLR) per Handley JA.

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-22 20:22:06.

[8.180]

Internet technologies

multiple, concurrent proceedings.172 The ability to enforce a judgment against a defendant will also be a material consideration for a plaintiff when considering in which jurisdiction to sue. If the defendant does not have assets located in a particular jurisdiction, there will be a real disincentive for a plaintiff to sue the defendant there.173 In addition, it will only be useful to a plaintiff to sue in a jurisdiction or jurisdictions where he or she has a substantial reputation.174 More often than not, a plaintiff will sue for defamation in the jurisdiction where he or she is ordinarily resident, so that the identification of the plaintiff will allow the publisher, in advance, to know which law needs to be considered and which law is likely to apply to any case brought by the plaintiff.175 The legal complexities and costs associated with pleading publication in multiple jurisdictions acts, or should act, as a disincentive to plaintiffs pursuing claims in respect of publication of places in which they have minimal reputations or marginal connections.176 As Gleeson CJ, McHugh, Gummow and Hayne JJ suggested in Dow Jones & Co Inc v Gutnick,177 “the spectre … of a publisher forced to consider every article it publishes on the World Wide Web against the defamation laws of every country from Afghanistan to Zimbabwe is … unreal”.

Internet technologies [8.180] Unsurprisingly, given the pervasiveness of internet technologies in daily life, defamation cases arising from various forms of internet-based communications have been brought before Australian courts. There are now a substantial number of cases dealing with defamatory emails.178 There have also been cases dealing with defamatory Facebook postings.179 There has been one case, to final judgment, of defamation via Twitter in Australia. In Mickle v Farley,180 Elkaim DCJ awarded a schoolteacher $105,000 damages (including a component of $20,000 aggravated damages) arising from an ex-student’s 172

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173 174 175 176 177 178

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Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 at 604, 608 (CLR) per Gleeson CJ, McHugh, Gummow and Hayne JJ, at 611 per Gaudron J. Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 at 609 (CLR) per Gleeson CJ, McHugh, Gummow and Hayne JJ. Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 at 609 (CLR) per Gleeson CJ, McHugh, Gummow and Hayne JJ. Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 at 609 (CLR) per Gleeson CJ, McHugh, Gummow and Hayne JJ, at 634, 639 per Kirby J. See, eg, Whelan v John Fairfax Publications Pty Ltd (2002) 56 NSWLR 89; [2002] NSWSC 1028 at 113 (NSWLR) per Levine J. Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 at 609 (CLR) per Gleeson CJ, McHugh, Gummow and Hayne JJ. See, eg, Enders v Erbas & Associates Pty Ltd [2014] NSWCA 70; Ell v Milne (No 8) [2014] NSWSC 175; Haddon v Forsyth [2011] NSWSC 123; Association of Quality Child Care Centres (NSW) v Manefield [2012] NSWCA 123; Ryan v Premachandran [2009] NSWSC 1186; National Auto Glass Supplies (Australia) Pty Ltd v Nielsen & Moller Autoglass (NSW) Pty Ltd (2006) 156 FCR 148; [2006] FCA 1386; Markovic v White [2004] NSWSC 37. See, eg, Polias v Ryall [2013] NSWSC 1267 at [1], [5]-[6], [20], [27], [30], [34], [38]-[39], [43] per McCallum J; North Coast Children’s Home Inc t/as Child and Adolescent Specialist Programs & Accommodation (CASPA) v Martin [2014] NSWDC 125, [11]-[22], [80], [88], [93] per Gibson DCJ (three plaintiffs awarded combined amount of $250,000 damages arising from, inter alia, Facebook postings); Polias v Ryall [2014] NSWSC 1692 at [98] per Rothman J (plaintiff awarded $340,000 damages against four defendants over six Facebook posts and two conversations including aggravated damages). [2013] NSWDC 295 at [16], [20].

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-22 20:22:06.

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tweets. There are more Twitter defamation cases currently before Australian courts.181 There have also been a number of high-profile Twitter defamation cases internationally.182 Many complaints about defamation arising from social media, such as Facebook and Twitter, are, of course, resolved without recourse to litigation. As the reach of these platforms increases and as new forms of social media develop, defamation cases based upon them will undoubtedly proliferate. Social media communications present some particular problems, which arise more acutely or regularly than they do in relation to more traditional forms of media. For example, anonymity, or more often, pseudonymity, is not uncommon in social media usage. This presents an obvious difficulty for a prospective plaintiff seeking to identify the prospective defendant.183 In dealing with the issues of defamation law raised by internet technologies, courts have been averse to creating or fashioning technology-specific rules.184 Aside from any limits on judicial lawmaking, an obvious practical reason for this approach is that existing technologies become obsolete and new technologies are developed but are not covered by any technology-specific rules. In order to cope with emerging technologies, new, specific rules would have to be developed and would proliferate. Instead, courts have sensibly preferred to extend and adapt existing principles of defamation law by way of analogy, whilst remaining acutely aware of the limitations of analogical reasoning.185 Courts have counselled that attention needs to be given to the particular features of the specific internet intermediary or technology in question. How the general principles of defamation law will apply in a given case will be necessarily fact-sensitive.186

The particular position of internet service providers and search engines

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[8.190] Difficult issues of principle have arisen in relation to determining whether an internet service provider (ISP) or an internet-based search engine is, or should be, a publisher for the purposes of defamation law. These issues invite renewed consideration of the basic principles of defamation law relating to what constitutes publication and who is a publisher.187 They have been explored through a series of English cases over the last 15 years. In Godfrey v 181 182

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See, eg, Crosby v Kelly (2012) 203 FCR 451; [2012] FCAFC 96; see also Crosby v Kelly [2013] FCA 1343. See, eg, Cairns v Modi [2013] 1 WLR 1015; [2012] EWCA Civ 1382 at 1025-7 (WLR) per curiam (£90,000 damages, including £15,000 aggravated damages, for tweet about cricketer by person with 65 followers); McAlpine v Bercow [2013] EWHC 1342 (QB); Murray v Wishart [2014] NZCA 461 (Twitter and Facebook). For a comprehensive analysis of the legal issues relating to defamation via Facebook and Twitter, see J Ireland, “Defamation 2.0: Facebook and Twitter” (2012) 17 Media and Arts Law Review 53. See, eg, Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 at 605 (CLR) per Gleeson CJ, McHugh, Gummow and Hayne JJ; Visscher v Maritime Union of Australia (No 6) [2014] NSWSC 350 at [28] per Beech-Jones J. See, eg, Metropolitan International Schools Ltd (t/as Skillstrain and/or Train2Game) v Designtechnica Corpn (t/as Digital Trends) [2011] 1 WLR 1743; [2009] EWHC 1765 at 1757 (WLR) (QB) per Eady J; Murray v Wishart [2014] NZCA 461 at [99], [125]-[126] per curiam. See, eg, Murray v Wishart [2014] NZCA 461 at [125]-[126] per curiam. D Rolph, “Publication, Innocent Dissemination and the Internet After Dow Jones & Co Inc v Gutnick” (2010) 33 UNSWLJ 562 at 578-9.

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-22 20:22:06.

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[8.190] The particular position of internet service providers and search engines

Demon Internet Ltd,188 the plaintiff was an academic who complained about a posting to a newsgroup on a news server hosted by Demon Internet, which publication was characterised by Morland J as “squalid” and “obscene”. Dr Godfrey contacted Demon Internet, requesting that it take down the posting but it failed to do so, instead allowing the posting to expire automatically.189 Morland J found that the ISP here was a publisher of the defamatory matter, as it had not merely provided the internet service but had also hosted the content.190 Subsequently, in Bunt v Tilley,191 Eady J had to determine whether an ISP was a publisher for the purposes of defamation law in slightly different circumstances. John Bunt sued three personal defendants, as well as three ISPs, AOL UK Ltd, Tiscali Ltd and British Telecommunications plc. Bunt’s claim against the ISPs was only that they provided the internet service which allowed the personal defendants to publish the defamatory matter. They did not host the material in question, unlike in Godfrey v Demon Internet Ltd. The ISPs applied to have the case against them struck out.192 Eady J agreed, drawing, as a matter of principle, a distinction between publication on the one hand and mere passive facilitation on the other hand. A postal service through which a defamatory letter was posted or a telephone company through which a defamatory telephone call was made, or a defamatory text message was sent would be regarded as mere passive facilitators, rather than publishers, according to Eady J’s analysis of the relevant authorities. The ISPs, which provided an internet service to the defendants who composed and communicated the defamatory matter but no more, were properly characterised, in Eady J’s view, as a mere passive facilitator, rather than as a publisher. As a consequence, whether or not the ISPs had knowledge of the defamatory matter was irrelevant: because they were not publishers, they did not require a defence and could not be fixed with liability.193 In Metropolitan Schools Ltd v Designtechnica Corp,194 Eady J extended this reasoning to internet-based search engines. In this case, the plaintiff company sought to sue Google for defamation on the basis that, when a third party typed its name into a Google search, the organic results would direct the user to the defamatory matter originally posted in Designtechnica’s online forums. Google could not control the user’s search terms. The results generated by the Google search were automatic, with no human intervention.195 Eady J held that Google was a mere passive facilitator, not a publisher.196 There are limits as to how far this reasoning can be applied. In Tamiz v Google Inc,197 the Court of Appeal overturned a decision by Eady J that 188 189 190 191 192 193 194 195

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[2001] QB 201. Godfrey v Demon Internet Ltd [2001] QB 201 at 204-5 per Morland J. Godfrey v Demon Internet Ltd [2001] QB 201 at 212. [2007] 1 WLR 1243; [2006] EWHC 407 (QB). Bunt v Tilley [2007] 1 WLR 1243; [2006] EWHC 407 (QB) at 1244-5 (WLR) per Eady J. Bunt v Tilley [2007] 1 WLR 1243; [2006] EWHC 407 (QB) at 1252 (WLR) per Eady J. [2011] 1 WLR 1743; [2009] EWHC 1765 (QB). Metropolitan International Schools Ltd (t/as Skillstrain and/or Train2Game) v Designtechnica Corpn (t/as Digital Trends) [2011] 1 WLR 1743; [2009] EWHC 1765 at 1746-7 (WLR) (QB) per Eady J. Metropolitan International Schools Ltd (t/as Skillstrain and/or Train2Game) v Designtechnica Corpn (t/as Digital Trends) [2011] 1 WLR 1743; [2009] EWHC 1765 at 1757-60 (WLR). For further analysis of these cases, see generally, D Rolph, “Publication, Innocent Dissemination and the Internet After Dow Jones & Co Inc v Gutnick” (2010) 33 UNSWLJ 562. [2013] 1 WLR 2151; [2013] EWCA Civ 68 at 2154-5 (WLR) per Richards LJ.

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-22 20:22:06.

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Google was again a mere passive facilitator rather than a publisher. In this case, the claimant brought defamation proceedings against Google in respect of comments posted on a blog hosted by Google’s Blogger service. Google was notified about the presence of the allegedly defamatory comments but the comments remained online for over a month after that notification, at which time the blogger voluntarily removed them. Richards LJ refused to find that Eady J’s judgment in Bunt v Tilley was wrong. However, his Lordship did find that Eady J’s conclusion that Google’s role in the present case was sufficiently analogous to that of the internet service providers in Bunt v Tilley was in error. He rejected the finding that, in the present case, Google was a mere passive facilitator.198 Google provided the platform and the design tools and made the service available on terms of its own choice.199 It did not control the content of the blogs, thus was not a primary publisher. Prior to the claimant’s notification, Richards LJ’s view was that Google was also not a secondary publisher of the defamatory matter.200 However, after notification, his Lordship was of the view that Google was a secondary publisher, by an application of the Court of Appeal’s earlier, pre-internet decision in Byrne v Deane.201 Just as the Deanes had provided and controlled the noticeboard in the golf club, so Google provided and controlled the Blogger service. Both could be held responsible as secondary publishers if they were notified as to the presence of defamatory matter on areas which they controlled and they took no steps to remove that defamatory matter within a reasonable period of time. The effect of the Court of Appeal’s decision in Tamiz v Google is not to reject emphatically the distinction drawn by Eady J between publishers and mere passive facilitators. That distinction may still hold good. What the Court of Appeal’s decision in Tamiz v Google suggests is that the proper approach is to consider whether the particular type of conduct by the particular internet intermediary constitutes publication for the purposes of defamation law. It seems unhelpful to discuss internet intermediaries’ liability as publishers of defamatory matter in the abstract, divorced from a consideration of what exactly those internet intermediaries did. This line of authority has had a mixed reception in Australian courts. As Mansfield J observed, dealing with an application for leave to serve originating process in a defamation claim against Google Inc outside of Australia, “the law in this regard is far from settled”.202 The decided cases thus far have principally concerned the liability of search engines as publishers of defamatory matter. In 198 199 200

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Tamiz v Google Inc [2013] 1 WLR 2151; [2013] EWCA Civ 68 at 2161 (WLR) per Richards LJ. Tamiz v Google Inc [2013] 1 WLR 2151; [2013] EWCA Civ 68 at 2161-2 (WLR) per Richards LJ. Tamiz v Google Inc [2013] 1 WLR 2151; [2013] EWCA Civ 68 at 2162 (WLR). The characterisation of a publisher as a secondary distributor is important for the purposes of the availability of a defence of innocent dissemination, as to which, see [14.20]–[14.50]. Tamiz v Google Inc [2013] 1 WLR 2151; [2013] EWCA Civ 68 at 2162-5 (WLR) per Richards LJ. As to Byrne v Deane [1937] 1 KB 818 and liability for publication arising out of a failure or refusal to act, see [8.50]. For a similar approach to the liability of Google as a publisher arising out of its Blogger service, see Davison v Habeeb [2011] EWHC 3031 (QB) at [47] per Judge Parkes QC. Rana v Google Australia Pty Ltd [2013] FCA 60 at [50], citing Duffy v Google Inc [2011] SADC 178 at [29]-[31] per Millsteed J. Australian courts will now take judicial notice of the fact that “the use of the internet, to ascertain information about people, is now commonplace”: Trkulja v Yahoo! Inc LLC [2012] VSC 88 at [36] per Kaye J; Cripps v Vakras [2014] VSC 279 at [268] per Kyrou J.

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-23 21:44:50.

[8.190] The particular position of internet service providers and search engines

Trkulja v Yahoo! Inc LLC,203 a search engine was ordered to pay the plaintiff $225,000 damages for page results generated by third party users’ searches for the plaintiff’s name, which results suggested that the plaintiff was a criminal and involved in Melbourne’s criminal underworld.204 At trial, Yahoo! did not take the point that it was not a publisher for the purposes of defamation law, based on the line of authority in English case law.205 In a separate defamation proceeding brought by the same plaintiff against a different search engine, Google did take this point. In Trkulja v Google Inc, the jury found, as it did in Trkulja v Yahoo!, that the search engine published the defamatory matter.206 Google applied for judgment notwithstanding the jury’s verdict.207 It explicitly based its argument on the recent line of English case law.208 Beach J rejected the submission that Google was not a publisher, concluding that: it was open to the jury to find the facts in this proceeding in such a way as to entitle the jury to conclude that Google Inc was a publisher even before it had any notice from anybody acting on behalf of the plaintiff. The jury were entitled to conclude that Google Inc intended to publish the material that its automated systems produced, because that was what they were designed to do upon a search request being typed into one of Google’s search products.209

Beach J distinguished Eady J’s judgment in Metropolitan International Schools Ltd v Designtechnica Corporation in part because:

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his Lordship does not appear to have given any consideration to the fact that internet search engines, while operating in an automated fashion from the moment a request is typed into them, operate precisely as intended by those who own them and who provide their services.210

His Honour went further, holding that the English line of authority “does not represent the common law of Australia”, to the extent that it compelled the conclusion that a search engine, such as Google, was not, as a matter of law, a publisher.211 Beach J awarded Trkulja $200,000 damages.212 More recently, McCallum J had to consider this issue as part of an application by Google permanently to stay defamation proceedings on the basis of proportionality.213 The proceedings again related to snippets as well as the hyperlinked pages which resulted from a third party user’s entry of the plaintiff’s name into the search engine.214 After reviewing the relevant English authorities as well as Beach J’s judgment in Trkulja v Google,215 McCallum J expressed respectful disagreement with Beach J’s view that the English authorities did not represent the common law of Australia.216 Specifically, her 203 204 205 206 207 208 209 210 211 212 213 214 215 216

[2012] VSC 88. Trkulja v Yahoo! Inc LLC [2012] VSC 88 at [63] per Kaye J. As to the facts of the case, see at [2]-[5]. Trkulja v Yahoo! Inc LLC [2012] VSC 88 at [6] per Kaye J. As to the jury’s verdict, see Trkulja v Google Inc [2012] VSC 533 at [11]-[12] per Beach J. Trkulja v Google Inc [2012] VSC 533 at [13] per Beach J. Trkulja v Google Inc [2012] VSC 533 at [15] per Beach J. Trkulja v Google Inc [2012] VSC 533 at [18] per Beach J. Trkulja v Google Inc [2012] VSC 533 at [27]. Trkulja v Google Inc [2012] VSC 533 at [29] per Beach J. Trkulja v Google Inc [2012] VSC 533 at [55]-[56]. Bleyer v Google Inc [2014] NSWSC 897. As to proportionality, see [8.210]. Bleyer v Google Inc [2014] NSWSC 897 at [7]-[8] per McCallum J. Bleyer v Google Inc [2014] NSWSC 897 at [66]-[75]. Bleyer v Google Inc [2014] NSWSC 897 at [77].

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-23 21:44:50.

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Honour rejected the view expressed by Beach J in Trkulja v Google that, as a matter of law, a search engine may be a publisher of defamatory matter even before it was put on notice.217 Instead, her Honour found that, given that “there is no human input in the application of the Google search engine apart from the creation of the algorithm”, Google was not a publisher for the purposes of defamation law, at least prior to notification. In so finding, McCallum J explicitly followed the line of authority in English law.218 The issue of whether a search engine is a publisher for the purposes of defamation law has not only perplexed English and Australian courts. Courts around the world have had to grapple with this difficult issue of principle.219 Undoubtedly, this issue will be revisited by Australian courts, given the pervasiveness of internet technologies in everyday life. Not only is the law on this point “far from settled”, it is likely to remain so for some time.

Hyperlinks

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[8.200] An issue which also arises in relation to internet-based technologies is the liability of a person who provides a hyperlink to defamatory matter. It invites renewed consideration of the basic principles of defamation law relating to republication,220 as it involves the application of such principles to a different technological context. This issue has some specific relevance to determining the liability of search engines as publishers of defamatory matter, as plaintiffs often seek to hold search engines liable not only for the snippets generated as a result of third party users’ searches but also for the hyperlinked page results. It is also highly relevant to cases of Twitter defamation, where a defendant tweets a hyperlink to arguably defamatory matter.221 In addition, it has an application beyond internet intermediaries and platforms. The Supreme Court of Canada considered this issue in Crookes v Newton.222 In this case, the appellant, Wayne Crookes, brought defamation proceedings against the respondent, Jon Newton, who operated a website concerned with, inter alia, freedom of speech and the internet. Newton posted two hyperlinks on the website to publications which Crookes claimed were defamatory of him. Newton refused to remove the hyperlinks from his website.223 A range of different views on the issue of whether providing a hyperlink amounted to publication for the purposes of defamation law were expressed in the various judgments in the Supreme Court of Canada in this case. McLachlin CJ and Fish J held that “[p]ublication of a defamatory statement via a hyperlink should be found if the text indicates adoption or 217 218

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220 221 222 223

Bleyer v Google Inc [2014] NSWSC 897 at [76] per McCallum J. Bleyer v Google Inc [2014] NSWSC 897 at [83]. Cf Tamiz v Google Inc [2013] 1 WLR 2151; [2013] EWCA Civ 68 at 2162 (WLR) per Richards LJ (seemingly accepting the correctness of Metropolitan International Schools Ltd (t/as Skillstrain and/or Train2Game) v Designtechnica Corpn (t/as Digital Trends) [2011] 1 WLR 1743; [2009] EWHC 1765 (QB) on its own facts). See, eg, A v Google New Zealand Ltd [2012] NZHC 2352 at [71]-[73] per Abbott AJ (arguable that search engine publisher); Yeung v Google Inc [2014] HKCFI 1404 at [103] per Ng J (arguable that Google publisher of its automated search results). As to republication, see [8.70]. See, eg, Murray v Wishart [2014] NZCA 461 at [31]-[32] per curiam. [2011] 3 SCR 269; [2011] SCC 47. As to the facts of the case, see [2011] 3 SCR 269; [2011] SCC 47 at 277-9 (SCR) per Abella J.

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[8.200]

Hyperlinks

endorsement of the content of the hyperlinked text.”224 However, “mere general reference to a web site is not enough”. In their Honours’ view, this approach was consistent with the principles of defamation law relating to publication.225 However, they acknowledged that this approach in fact required some refinement of the traditional common law approach to publication. According to McLachlin CJ and Fish J, a hyperlink should be treated presumptively as “a content-neutral reference” unless, in context, the person providing the hyperlink could reasonably be construed as adopting or endorsing the hyperlinked matter.226 In her judgment, Abella J likened a hyperlink to a reference and found that: [a] reference to other content is fundamentally different from other acts involved in publication. Referencing on its own does not involve exerting control over the content. Communicating something is very different from merely communicating that something exists or where it exists.227

According to her Honour, both hyperlinks and references “communicate that something exists, but do not, by themselves, communicate its content. And they both require some act on the part of a third party before he or she gains access to the content.” In her view, a hyperlink, like a footnote, is “content-neutral – it expresses no opinion, nor does it have any control over, the content to which it refers”.228 Abella J was fortified in her reasoning on this issue by the importance of freedom of speech under the Canadian Charter of Rights and Freedoms.229 Hyperlinks are vital to the free flow of information on the internet, thereby performing an important role in the facilitation of free speech in a networked world.230

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In separate reasons for judgment, Deschamps J suggested yet another way of dealing with the issue, namely, by holding a person providing a hyperlink liable as a publisher only where that person deliberately made that defamatory matter available.231 The issue of a defendant’s liability as a publisher for providing a hyperlink to defamatory matter has arisen in Australia in Visscher v Maritime Union of Australia (No 6).232 The plaintiff sought to hold the defendant trade union liable in defamation for, inter alia, providing a hyperlink on its website to a newspaper article, which the plaintiff claimed was defamatory of him.233 BeechJones J found that the approach of McLachlin CJ and Fish J in Crookes v Newton was the most consistent with general principles of liability for publication under Anglo-Australian defamation law.234 Applying that approach to the given facts, the defendant trade union was found to be a publisher of the defamatory matter contained in the hyperlink because, by continuing to 224 225 226 227 228 229 230 231 232 233 234

Crookes v Newton [2011] 3 SCR 269; [2011] SCC 47 at 294 (SCR) (emphasis in original). [2011] 3 SCR 269; [2011] SCC 47 at 294 (SCR). [2011] 3 SCR 269; [2011] SCC 47 at 294-5 (SCR). [2011] 3 SCR 269; [2011] SCC 47 at 285 (SCR) (emphasis in original). [2011] 3 SCR 269; [2011] SCC 47 at 286 (SCR). [2011] 3 SCR 269; [2011] SCC 47 at 286-7 (SCR). [2011] 3 SCR 269; [2011] SCC 47 at 288-9 (SCR) per Abella J. [2011] 3 SCR 269; [2011] SCC 47 at 297-8 (SCR). [2014] NSWSC 350. Visscher v Maritime Union of Australia (No 6) [2014] NSWSC 350 at [17]-[18] per Beech-Jones J. [2014] NSWSC 350 at [29].

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provide access to it via its website, it adopted or promoted that content.235 As with the liability of internet service providers and search engines, issues about liability in defamation for providing hyperlinks are unsettled under Australian law and are likely to be more frequently litigated in the near future.

Proportionality [8.210] Although publication to only one person other than the plaintiff is

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sufficient to establish the tort of defamation, there is, or should be, a live issue as to whether a claim for defamation involving publication to a minuscule audience should be allowed to be litigated. Many of the important authorities in defamation law involve publication to a small audience.236 There are still defamation cases brought, and litigated, to the highest level, arising out of publication to only a small number of recipients.237 Whether the finite time and resources of the judicial system should be able to be absorbed with cases involving publication to a limited audience and consequently, in many instances, involving less substantial damage to reputation, is an open question. In Jameel v Dow Jones & Co Inc,238 the English Court of Appeal struck out a defamation claim brought by a foreign plaintiff in respect of publication to only five internet subscribers in England, three of whom where “members of the claimant’s camp”.239 The court found that there was no “real and substantial tort” committed within England, thus the time and resources involved in allowing Jameel to litigate his claim were so disproportionate to any vindication of his reputation he might achieve as to amount to an abuse of process.240 It identified two principal reasons for this approach, the first being the introduction of the new Civil Procedure Rules 1998 (UK) with their emphasis on enhanced, proactive case management, the second being the incorporation of the European Convention on Human Rights into domestic law through the enactment of the Human Rights Act 1998 (UK).241 In relation to the former, the court observed that: [i]t is no longer the role of the court simply to provide a level playing field and to referee whatever game the parties choose to play upon it. The court is concerned to ensure that judicial and court resources are appropriately and proportionately used in accordance with the requirements of justice.242

In relation to the latter,243 the court was able to point to cases decided before the introduction of the Human Rights Act 1998 (UK) in which English courts had set aside permission to serve originating process outside of the jurisdiction, 235 236 237 238 239

240 241 242 243

[2014] NSWSC 350 at [30]-[31] per Beech-Jones J. See, eg, Duke of Brunswick v Harmer (1849) 117 ER 75; Sim v Stretch [1936] 2 All ER 1237; Consolidated Trust Co Ltd v Browne (1948) 49 SR(NSW) 86. See, eg, Cush v Dillon (2011) 243 CLR 298; [2011] HCA 30; Ritson v Burns [2014] NSWSC 272. [2005] QB 946; [2005] EWCA Civ 75. Jameel v Dow Jones & Co Inc [2005] QB 946; [2005] EWCA Civ 75 at 956-7 (QB). These three recipients were the claimant’s solicitor, the director of a company associated with the claimant and a consultant who had worked with the claimant. Jameel v Dow Jones & Co Inc [2005] QB 946; [2005] EWCA Civ 75 at 970 (QB). Jameel v Dow Jones & Co Inc [2005] QB 946; [2005] EWCA Civ 75 at 966 (QB). Jameel v Dow Jones & Co Inc [2005] QB 946; [2005] EWCA Civ 75 at 965 (QB). Jameel v Dow Jones & Co Inc [2005] QB 946; [2005] EWCA Civ 75 at 964, 966 (QB).

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[8.210]

Proportionality

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as in Kroch v Rossell,244 or struck out the claim as an abuse of process, as in Schellenberg v British Broadcasting Corporation.245 In the latter case, Eady J stated that he was “not only entitled, but indeed bound, to ask whether, in the old colloquial phrase, the game is worth the candle”.246 In Jameel, the court found that the disproportion between the damage done to the claimant’s reputation and the vindication of his reputation on the one hand and the projected cost of the trial on the other hand was so vast that, in their Lordships’ view, “[t]he game will not merely not have been worth the candle, it will not have been worth the wick.”247 In subsequent cases, English courts have applied the principle in Jameel to stay proceedings on the basis that they were an abuse of process or to set aside service of originating process outside the jurisdiction on the ground that there was no “real and substantial tort” committed within the jurisdiction.248 The principle in Jameel has not been limited to defamation proceedings. It has been involved and, on some occasions, succeeded in relation to other causes of action, such as breach of confidence and the tort of misuse of private information.249 The principle in Jameel informs the requirement of “serious harm” before a matter is actionable under the new legislation in England and Wales, the Defamation Act 2013 (UK) s 1(1). The principle in Jameel has been considered by Australian courts in a small group of cases. In Manefield v Child Care NSW,250 Kirby J rejected the submission that proportionality, as applied in Jameel, could form part of Australian law. His Honour did so on the basis that proportionality was based on the Civil Procedure Rules 1998 (UK) and the Human Rights Act 1998 (UK), which did not operate in Australia. In Barach v University of New South Wales,251 Garling J followed Kirby’s approach in Manefield v Child Care NSW. In Bristow v Adams,252 the respondent sought leave to argue proportionality by way of notice of contention, filed out of time and raising the issue for the first time on appeal. Basten JA refused to permit this. Referring briefly to the substantive issue, his Honour observed that, if or when the availability of proportionality in Australia arose for determination, “careful attention to the differences between English and Australian law” would be required. He identified three relevant differences, namely, the differences between the statutory language in the Civil Procedure Act 2005 (NSW) ss 56 – 58 and the Civil Procedure Rules 1998 [1998 (UK)] r 1.1; the availability of a statutory 244 245 246 247 248

249 250 251 252

[1937] 1 All ER 725. [2000] EMLR 296; [1999] EWHC 851 (QB). Schellenberg v British Broadcasting Corporation [2000] EMLR 296; [1999] EWHC 851 at 318 (EMLR). Jameel v Dow Jones & Co Inc [2005] QB 946; [2005] EWCA Civ 75 at 969-70 (QB). For examples of the application of the Jameel principle to stay proceedings, see Williams v MGN Ltd [2009] EWHC 3150 (QB); Budu v British Broadcasting Corporation [2010] EWHC 616 (QB); Kaschke v Gray [2010] EWHC 1907 (QB). For examples of refusal to apply the Jameel principle to stay proceedings, see Mardas v New York Times Co [2009] EMLR 8; [2008] EWHC 3135 (QB); Baturina v Times Newspapers Ltd [2010] EWHC 696 (QB). See, eg, Abbey v Gilligan [2012] EWHC 3217 (QB); Briggs v Jordan [2013] EWHC 3205 (QB). [2010] NSWSC 1420 at [187]. [2011] NSWSC 431 at [122], [128]-[129]. [2012] NSWCA 166.

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defence of triviality under Australian law,253 which has no analogue under English law; and the Human Rights Act 1998 (UK), which conversely has no analogue under Australian law.254 The dicta in these three cases seemed to tell against the recognition of proportionality as part of Australian law. More recently, however, in Bleyer v Google Inc,255 McCallum J applied proportionality permanently to stay a plaintiff’s proceedings. The plaintiff brought defamation proceedings against the search engine, Google, in respect of snippets and hyperlinks generated as a result of third party users’ searches. As to publication, he was only able to point to two people who read the matters in Victoria and only one in New South Wales, the latter only being identified after Google had been notified of Bleyer’s concern and had sought further information.256 McCallum J closely analysed the relevant provisions of the Civil Procedure Act 2005 (NSW), asking rhetorically: “Can it seriously be doubted that the power conferred by s 67 can properly be exercised to stay proceedings in which the resources required of the court and the parties to determine the claim are vastly disproportionate to the interest at stake?”257 Having concluded that considerations of proportionality were relevant to the ways in which courts exercised their procedural powers, her Honour characterised it as “a small and logical step” to hold that courts could stay or dismiss proceedings on the basis of proportionality.258 McCallum J rejected the suggestion that the availability of a defence of triviality was inconsistent with the recognition of proportionality.259 Her Honour pithily observed that “[d]efences protect defendants.” The purpose of proportionality was to allow a court to protect itself against an abuse of its own process.260 McCallum J expressly stated that such disproportionality can be properly regarded as a species of abuse of process.261 Her Honour emphasised that cases in which the principle of proportionality should be applied to stay or dismiss proceedings should be rare. In applying the principle of proportionality, McCallum J noted that the value of the interest at stake would need to be assessed in some instances by reference to matters other than the amount of money involved. Her Honour identified a defamation proceeding as such an instance, given the importance of non-monetary considerations, such as vindication of reputation in defamation cases.262 Applying the principle of proportionality to the given facts, McCallum J permanently stayed Bleyer’s defamation proceedings against Google.263 McCallum J’s judgment has already been followed as a ground to dismiss defamation proceedings.264 253 254 255 256 257 258 259 260 261 262 263 264

As to the defence of triviality, see [14.70]–[14.100]. Bristow v Adams [2012] NSWCA 166 at [41]. [2014] NSWSC 897 at [7]-[9]. Bleyer v Google Inc [2014] NSWSC 897 at [10]-[12]. Bleyer v Google Inc [2014] NSWSC 897 at [51]. Bleyer v Google Inc [2014] NSWSC 897 at [56]-[57]. As to the defence of triviality, see [14.70]–[14.100]. Bleyer v Google Inc [2014] NSWSC 897 at [58]-[59]. [2014] NSWSC 897 at [62]. Bleyer v Google Inc [2014] NSWSC 897 at [63]. As to the purposes of awards of damages for defamation, including vindication of reputation, see [15.50]. Bleyer v Google Inc [2014] NSWSC 897 at [98]. Ghosh v TCN Channel Nine Pty Ltd (No 4) [2014] NSWDC 151 at [122] per Gibson DCJ; Freeburn v Cake Decorators Association of NSW Inc (No 2) [2014] NSWDC 173 at [69]-[72] per Gibson DCJ. However, see also Smith v Lucht [2014] QDC 302 at [25] per McGill DCJ.

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[8.210]

Proportionality

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With respect, there is much to recommend McCallum’s approach in Bleyer v Google. It is consistent with the terms and purpose of the Civil Procedure Act 2005 (NSW), which has analogues in the other Australian States and Territories.265 The statutory defence of triviality may not be the best means by which to deter trivial claims, given the terms of the statutory provision and the fact that it arises for determination after liability has been established.266 Conversely, as Basten JA suggested in Bristow v Adams,267 an application based on proportionality should ordinarily be brought prior to trial, rather than at final judgment. The need to deter trivial claims effectively at the outset is necessary, given that, as the English Court of Appeal identified in Jameel,268 there is no small claims procedure for defamation.

265

266 267 268

F ederal Court of Australia Act 1976 (Cth) s 37M; Court Procedures Rules 2006 (ACT) r 21; Supreme Court Rules 1987 (NT) r 1.10; Civil Procedure Act 2005 (NSW) s 56; Uniform Civil Procedure Rules 1999 (Qld) r 5; Supreme Court Civil Rules 2006 (SA) r 3; Supreme Court Rules 2000 (Tas) r 414A; Civil Procedure Act 2010 (Vic) s 10; Rules of the Supreme Court 1971 (WA) O 1 r 4B. As to the defence of triviality, see [14.70]–[14.100]. [2012] NSWCA 166 at [38]. Jameel v Dow Jones & Co Inc [2005] QB 946; [2005] EWCA Civ 75 at 970 (QB) per curiam.

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9

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Justification [9.10] Defences to defamation.............................................................................173 [9.10] Introduction...................................................................................... 173 [9.20] The defence of justification.......................................................................174 [9.20] Introduction...................................................................................... 173 [9.30] Requirements of the defence of justification.................................. 175 [9.40] Presumption of falsity......................................................................179 [9.50] Public interest and public benefit....................................................180 [9.70] Partial justification.....................................................................................185 [9.80] The Polly Peck and Hore-Lacy defences................................................. 185 [9.80] Introduction...................................................................................... 185 [9.90] Separate and distinct stings............................................................. 187 [9.100] The Polly Peck defence................................................................. 187 [9.110] Criticisms of the Polly Peck defence in Chakravarti v Advertiser Newspapers............................................................................. 189 [9.120] The Hore-Lacy defence................................................................. 191 [9.130] Contextual truth....................................................................................... 194 [9.130] Introduction.................................................................................... 194 [9.140] Elements of the defence of contextual truth.................................195 [9.150] The respective roles of judge and jury......................................... 197 [9.160] The defence of contextual truth in operation............................... 198 [9.170] The practice of pleading back....................................................... 198 [9.180] The relationship between the Polly Peck and Hore-Lacy defences and the defence of contextual truth.......................................... 201

Defences to defamation Introduction [9.10] Once a plaintiff has established a prima facie case of defamation, the onus of proof then shifts to the defendant to establish a defence. Over several centuries, the common law developed a number of important defences to defamation: justification (or truth); absolute and qualified privilege; and fair comment. In addition, there are a number of other defences to defamation that the common law developed, but which are less frequently pleaded. There are also statutory defences to defamation. Although, under previous legislative regimes, defences to defamation were codified, in whole or in part,1 the position now under the national, uniform defamation laws is that common law 1

Prior to the introduction of the national, uniform defamation laws, defamation law was codified in Queensland and Tasmania: see Defamation Act 1889 (Qld); Defamation Act

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and statutory defences co-exist.2 In relation to certain defences, the national, uniform defamation laws are substantially declaratory of the common law; in relation to others, there are minor variations between the common law and statutory defences; and substantive differences in relation to certain other defences. It is important to attend closely to the words of the statute, as subtle changes in terminology or usage can have a significant effect on the form and application of the statutory defences and distinguish such a defence from its common law analogue or an earlier legislative provision. Just as with defamatory capacity and meaning,3 there is a division of responsibilities between judges and juries in relation to defences. Some questions relating to defences are reserved for the judge and some for the jury. The national, uniform defamation laws specifically preserve the allocation of responsibilities between judge and jury at general law.4 In those Australian jurisdictions which still permit the use of juries in defamation trials, juries determine issues relating to defences.5

The defence of justification Introduction [9.20] One of the major defences to defamation is the defence of justification

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(or truth). A defendant can have a complete defence to defamation if he or she is able to establish the substantial truth of the defamatory allegation or allegations made against the plaintiff. In practice, establishing the defence of justification may be difficult for a defendant.6 There are many things one might know to be true which would nevertheless be difficult to prove by admissible evidence. For instance, if a media outlet relies upon confidential sources for a story, it may confront an invidious forensic decision if sued for defamation – either betray the confidence or lose the defamation action. Also, the starting point for the defence of justification is that, if a defendant publishes a specific charge against a plaintiff, the plaintiff is entitled to have the defendant justify that charge. This stricture can also prove difficult for defendants.

2

3 4

5

6

1957 (Tas). For an example of a codified defence in a jurisdiction where defamation law as a whole was not codified, see Defamation Act 1974 (NSW) s 29 (defence of comment not available except in accordance with legislation). As to the history of defamation law in Australia generally, see [3.70]. Civil Law (Wrongs) Act 2002 (ACT) s 134(1); Defamation Act 2006 (NT) s 21(1); Defamation Act 2005 (NSW) s 24(1); Defamation Act 2005 (Qld) s 24(1); Defamation Act 2005 (SA) s 22(1); Defamation Act 2005 (Tas) s 24(1); Defamation Act 2005 (Vic) s 24(1); Defamation Act 2005 (WA) s 24(1). As to the respective roles of judge and jury in a defamation trial, see [5.150]. Defamation Act 2005 (NSW) s 22(5)(b); Defamation Act 2005 (Qld) s 22(5)(b); Defamation Act 2005 (Tas) s 22(5)(b); Defamation Act 2005 (Vic) s 22(5)(b); Defamation Act 2005 (WA) s 22(5)(b). Defamation Act 2005 (NSW) s 22(2); Defamation Act 2005 (Qld) s 22(2); Defamation Act 2005 (Tas) s 22(2); Defamation Act 2005 (Vic) s 22(2); Defamation Act 2005 (WA) s 22(2). This represents an expansion of the jury’s role in New South Wales. Under the Defamation Act 1974 (NSW) s 7A(4)(a), the judge, not the jury, determined all issues of fact and law relating to defences. Juries are not used in defamation trials in the Australian Capital Territory, the Northern Territory and South Australia. See [5.150]. Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 132 per Mason CJ, Toohey and Gaudron JJ.

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[9.30]

The defence of justification

Some latitude has been introduced both at common law and under statute. In terms of common law developments, there has been significant judicial attention given to the reception in Australian law of the English Court of Appeal’s decision in Polly Peck plc v Trelford.7 After more than two decades of case law, it now seems clear that a uniquely Australian, and narrower, form of the Polly Peck defence, the Hore-Lacy defence,8 has been widely, but not universally, accepted. This defence allows for a defendant to depart somewhat from a plaintiff’s particularised meaning and to justify the defendant’s own variant meaning. More radically, the statutory defence of contextual truth permits a defendant to justify imputations in the matter complained of by the plaintiff, and if those true imputations identified by the defendant outweigh the false imputations relied upon by the plaintiff, then the defendant has a complete defence to defamation. Some judges have expressed concern that defences in the nature of justification which depart from the stricter common law approach, such as the Polly Peck and Hore-Lacy defences, partial justification, and contextual truth, may be abused by defendants, “converting a modest and narrow claim by a plaintiff into a wide-ranging expansive and expensive inquiry”9 or, more evocatively, allowing the “hijacking of the plaintiff’s claim”.10 Courts may have more control over the Polly Peck and Hore-Lacy defences and the defence of partial justification than the defence of contextual truth, which has its source in statute and cannot be artificially read down by reference to notions of fairness unconnected to its terms. Perhaps more than any other area of defamation law, the defence of justification and its common law and statutory variants illustrate Australian defamation law’s fixation with the pleading of imputations and the interdependence between the pleading and the substance of the law.

Requirements of the defence of justification [9.30] At common law, truth alone is a complete defence to a claim for

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defamation.11 This now applies across Australia under the national, uniform defamation laws.12 The rationale for this position is explained by Street ACJ in Rofe v Smith’s Newspapers Ltd:13 [A]s the object of civil proceedings is to clear the character of the plaintiff, no wrong is done to him by telling the truth about him. The presumption is that, by telling the truth about a man, his reputation is not lowered beyond its proper level, but is merely brought down to it. 7 8 9

10 11 12

13

[1986] QB 1000. As to the Polly Peck defence, see [9.80]–[9.110]. Derived from the decision of the Victorian Court of Appeal in David Syme & Co Ltd v Hore-Lacy (2000) 1 VR 667; [2000] VSCA 24. As to the Hore-Lacy defence, see [9.120]. Woodger v Federal Capital Press of Australia Pty Ltd (1992) 107 ACTR 1 at 21 per Miles CJ. To similar effect, see Robinson v Laws [2003] 1 Qd R 81; [2001] QCA 122 at 95 (Qd R) per de Jersey CJ: “The conduct of civil litigation cannot be allowed to elasticise to the point where it resembles the workings of a roving commission of inquiry.” Kennett v Farmer [1988] VR 991 at 996 per Nathan J. Sutherland v Stopes [1925] AC 47 at 62 per Viscount Finlay. Civil Law (Wrongs) Act 2002 (ACT) s 135; Defamation Act 2006 (NT) s 22; Defamation Act 2005 (NSW) s 25; Defamation Act 2005 (Qld) s 25; Defamation Act 2005 (SA) s 23; Defamation Act 2005 (Tas) s 25; Defamation Act 2005 (Vic) s 25; Defamation Act 2005 (WA) s 25. Prior to the introduction of the national, uniform defamation laws, a number of jurisdictions required proof of public interest or public benefit, in addition to proof of substantial truth, in order to establish a defence of justification: see [9.50]. (1924) 25 SR(NSW) 4 at 21-2.

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The purpose of defamation law is to protect deserved, not undeserved, reputations. As Littledale J observed in M’Pherson v Daniels,14 “[t]he law will not permit a man to recover damages in respect of an injury to a character he does not or ought not to possess.” If, by telling the truth about the plaintiff, his or her reputation is lowered, the plaintiff’s reputation is not so much damaged as recalibrated down to its proper level. No one is entitled to protect a reputation he or she does not, in truth, deserve. The defendant bears the onus of proof in relation to the truth of the defamatory matter.15 The defendant must prove that the imputations are true in substance and in fact.16 The matter does not need to be completely or strictly accurate in order to be justified. It is sufficient if the matter is substantially true. Thus, “[i]naccuracy, in some detail, which does not alter or aggravate the character of the imputation is immaterial.”17 This is now reflected under the national, uniform defamation laws, which require the defendant to prove that the defamatory imputations conveyed by the matter are substantially true.18 In turn, the term, “substantially true”, is defined to mean “true in substance or not materially different from the truth”.19 There are some classic examples which illustrate this point. In Alexander v North Eastern Railway Co,20 the plaintiff complained that the defendant railway company had defamed him by publishing a notice to the effect that he was convicted of travelling without a ticket and refusing to pay the fare, as a result of which he was ordered to pay a fine or to serve three weeks’ imprisonment. In fact, he was sentenced to two weeks’ imprisonment as an alternative to paying the fine. As Mellor J stated, “[t]he gist of the libel is that the plaintiff was sentenced to pay a sum of money, and in default of payment to be imprisoned.”21 Blackburn J added that “[t]he substance of the libel is true: the question is whether what is stated inaccurately is the gist of the libel.”22 Their Lordships unsurprisingly found in favour of the railway company.

14 15 16 17

18

19

20 21 22

(1829) 10 B & C 263; 109 ER 448 at 272 (B & C), at 451 (ER). Rofe v Smith’s Newspapers Ltd (1924) 25 SR(NSW) 4 at 22 per Street ACJ. Sutherland v Stopes [1925] AC 47 at 62 per Viscount Finlay, at 73 per Lord Shaw of Dunfermline. Rofe v Smith’s Newspapers Ltd (1924) 25 SR(NSW) 4 at 22 per Street ACJ; see also Potts v Moran (1976) 16 SASR 284 at 306 per Bray CJ. See further, Edwards v Bell (1824) Bing 403; 130 ER 162 at 409 (Bing), at 165 (ER) per Burrough J: “As much must be justified as meets the sting of the charge, and if any thing be contained in a charge which does not add to the sting of it, that need not be justified.” Civil Law (Wrongs) Act 2002 (ACT) s 135; Defamation Act 2006 (NT) s 22; Defamation Act 2005 (NSW) s 25; Defamation Act 2005 (Qld) s 25; Defamation Act 2005 (SA) s 23; Defamation Act 2005 (Tas) s 25; Defamation Act 2005 (Vic) s 25; Defamation Act 2005 (WA) s 25. Civil Law (Wrongs) Act 2002 (ACT) s 116; Defamation Act 2006 (NT) s 3; Defamation Act 2005 (NSW) s 4; Defamation Act 2005 (Qld) s 4, Sch 5; Defamation Act 2005 (SA) s 4; Defamation Act 2005 (Tas) s 4; Defamation Act 2005 (Vic) s 4; Defamation Act 2005 (WA) s 4. (1865) 6 B & S 340; 122 ER 1221. Alexander v North Eastern Railway Co (1865) 6 B & S 340; 122 ER 1221 at 343 (B & S), at 1222 (ER). Alexander v North Eastern Railway Co (1865) 6 B & S 340; 122 ER 1221 at 344 (B & S), at 1222 (ER).

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[9.30]

The defence of justification

Writing hypothetically in Sutherland v Stopes,23 Lord Shaw of Dunfermline gave another famous example of the need for substantial, rather than complete, accuracy: If I write the defendant on 6 March took a saddle from my stable and sold it the next day and pocketed the money all without notice to me, and that in my opinion he stole the saddle, and if the facts truly are found to be that the defendant did not take the saddle from the stable but from the harness room, and that he did not sell it the next day but a week afterwards, but nevertheless he did, without my knowledge or consent, sell my saddle so taken and pocketed the proceeds, then the whole sting of the libel may be justifiably affirmed by a jury notwithstanding these errors in detail.

Conversely, his Lordship emphasised that “the allegation of fact must tell the whole story” and must not be “meticulously true in fact” but “false in substance”. Developing his example, Lord Shaw of Dunfermline hypothesised:

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If, for instance, in the illustration given, the facts as elicited show what my writing had not disclosed – namely, that the defendant had a saddle of his own lying in my harness room, and that he took by mistake mine away instead of his own, and still labouring under that mistake, sold it – then the jury would probably declare that the libel was not justified.24

Whilst a defendant need only prove that the imputation as a whole is substantially accurate, he or she must prove that every material part of that imputation is substantially accurate in order to have a complete defence of justification.25 The defence of justification fails if the defendant fails to prove that all the stings complained of are not proven to be substantially true.26 If an imputation comprises multiple allegations of fact, each fact must be proven to be substantially accurate in order to justify the imputation as a whole.27 If an imputation is cast in general terms, the defendant will need to prove an adequate number of substantially accurate and relevant examples in order to justify the imputation as a whole. For example, in Craftsman Homes Australia Pty Ltd v TCN Channel Nine Pty Ltd,28 Smart AJ found that the plaintiffs’ imputations that they had engaged in shoddy building practices and were incompetent at building residential houses were substantially true on the basis

23 24 25

26 27 28

[1925] AC 47 at 79. Sutherland v Stopes [1925] AC 47 at 79. Edwards v Bell (1825) 1 Bing 403; 130 ER 162 at 165 per Burrough J: “as much must be justified as meets the sting of the charge, and if anything be contained in a charge which does not add to the sting of it, that need not be justified”; Helsham v Blackwood (1851) 11 CB 111; 138 ER 412 at 129 (CB), at 419 (ER) per Maule J; Howden v “Truth” and “Sportsman” Ltd (1937) 58 CLR 416 at 419 per Starke J, at 420-1 per Dixon J; Potts v Moran (1976) 16 SASR 284 at 305 per Bray CJ; Cross v Queensland Newspapers Pty Ltd [2008] NSWCA 80 at [71] per Beazley JA; Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1; [2003] VSCA 161 at 57-8 (VR) per Gillard AJA. For example, in Howden v “Truth” and “Sportsman” Ltd (1937) 58 CLR 416, the defendant newspaper was unable to rely upon a defence of justification in relation to a publication that stated that the plaintiff had been convicted and sentenced to imprisonment for a crime but which omitted to mention that the conviction was quashed and that the plaintiff was acquitted of a separate, related charge, both of which occurred before publication. Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1; [2003] VSCA 161 at 58 (VR) per Gillard AJA. Potts v Moran (1976) 16 SASR 284 at 305 per Bray CJ. [2006] NSWSC 519.

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of four proven instances.29 By contrast, in Cross v Queensland Newspapers Pty Ltd,30 the New South Wales Court of Appeal held that a finding by the trial judge, Cooper AJ, that the plaintiff’s imputation that he had “ripped off Mum and Dad investors by selling them investment properties at exorbitant prices” was proven substantially true could not be supported by the evidence. Giving the leading judgment on appeal, Beazley JA (as her Honour then was) found that the evidence of one offer of sale, two sales and (disputed) valuations of a further 11 properties was insufficient to establish that customers had been “ripped off” where they had suffered no detriment and where they paid, or had been asked to pay, a high, but not a grossly excessive, price.

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There is a potential issue in relation to the defence of justification under the national, uniform defamation laws and the extent to which it replicates the common law position. At common law and under the national, uniform defamation laws, the matter, not the imputations conveyed by the matter, is the cause of action. At common law, “the plea of truth is not to individual innuendoes (unless true innuendoes) but rather to the whole of the matter complained of”.31 However, the statutory defence of justification is expressed so as to require the defendant to prove “that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true”.32 The focus of the defendant’s defence of justification under the national, uniform defamation laws seems clearly not to be upon whether the matter is substantially true but whether the plaintiff’s pleaded imputations are substantially true. This has the potential to generate more prolix pleadings and interlocutory skirmishes, for which defamation law is renowned, if not notorious. It arguably represents an unintended development in the approach to justification in jurisdictions other than New South Wales where the imputation was not the cause of action as it was under the Defamation Act 1974 (NSW) s 9(2).33 If the legislative intention of the national, uniform defamation laws was to displace the focus on the imputation and return it to the matter itself, this may not have been given consistent effect in the drafting of the legislation and may require revisiting.34

29

30 31

32

33 34

[2006] NSWSC 519. The plaintiffs did not appeal against the findings in relation to their claim in defamation: see TCN Channel Nine Pty Ltd v Ilvariy Pty Ltd (2008) 71 NSWLR 323; [2008] NSWCA 9 at 326 (NSWLR) per Spigelman CJ. [2008] NSWCA 80. Allworth v John Fairfax Group Pty Ltd (1993) 113 FLR 254 at 265 per Higgins J. As to the consequences for the defence of justification of the increasing obligation at common law for a plaintiff to particularise meanings, see below [9.110]. Civil Law (Wrongs) Act 2002 (ACT) s 135; Defamation Act 2006 (NT) s 22; Defamation Act 2005 (NSW) s 25; Defamation Act 2005 (Qld) s 25; Defamation Act 2005 (SA) s 23; Defamation Act 2005 (Tas) s 25; Defamation Act 2005 (Vic) s 25; Defamation Act 2005 (WA) s 25. As to the imputation as the cause of action under the Defamation Act 1974 (NSW) s 9(2), see [6.20]. Cf Hadzel v De Waldorf (1970) 6 FLR 174 at 179 per Fox J.

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[9.40]

The defence of justification

Presumption of falsity [9.40] The plaintiff does not have to prove that the defamatory imputation is false as part of his or her claim.35 Once the plaintiff has proven that the defendant has published the defamatory matter of and concerning the plaintiff, the onus of proof shifts to the defendant to prove that the imputation is true. There is then a presumption of falsity that arises.36 Like many principles of defamation law, the presumption of falsity might be based on an error, a distortion or a misunderstanding, but it is one that, because it has been repeatedly sanctioned for over two centuries, is difficult to eliminate from the basic structure of Anglo-Australian defamation law.37 As the national, uniform defamation laws purport to enact the common law approach to justification, it can be inferred that they proceed on the basis that the presumption of falsity continues to apply as part of Australian defamation law.38 In many areas of law, the onus of proof is not of great practical importance. Arguably, it is in the context of proving the truth or falsity of defamatory matter. The forensic burden on a defendant seeking to justify, by admissible evidence, defamatory imputations means it is often difficult, though not impossible, for a defendant to establish this defence.39 The resistance to altering the onus of proof of truth suggests it is important. One of the significant differences between Anglo-Australian and United States defamation law is the presumption of falsity. Following its constitutionalisation in the United States Supreme Court’s landmark decision in New York Times v Sullivan,40 United States defamation law requires the plaintiff to prove that the defamatory matter was false. Law reform bodies in Australia and England have not endorsed an alteration to the traditional common law position.41

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35

36 37

38 39

40 41

Singleton v Ffrench (1986) 5 NSWLR 425 at 442 per McHugh JA; Age Co Ltd v Elliott (2006) 14 VR 375; [2006] VSCA 168 at 378 (VR) per Buchanan JA. As to the history of the presumption of damage at common law, see Singleton v Ffrench (1986) 5 NSWLR 425 at 442-3 per McHugh JA. A v Ipec Australia Ltd [1973] VR 39 at 47-8 per Menhennitt J. Age Co Ltd v Elliott (2006) 14 VR 375; [2006] VSCA 168 at 378 (VR) per Buchanan JA, at 379 per Ashley JA. The origin of the presumption of falsity is Roberts v Camden (1807) 9 East 93; 103 ER 508 at 95 (East), at 509 (ER) per Lord Ellenborough CJ: Age Co Ltd v Elliott (2006) 14 VR 375; [2006] VSCA 168 at 378 (VR) per Buchanan JA. As Ashley JA observed: “if the presumption of falsity of defamatory imputations is an error springing from the corruption of the principle, dating from the seventeenth century, that a plaintiff is neither required to aver nor prove that defamatory matter was published ‘falsely and maliciously’, it is an error which occurred nearly 200 years ago, and an error which has become entrenched in the common law defamation”: Age Co Ltd v Elliott (2006) 14 VR 375; [2006] VSCA 168 at 378 (VR). Age Co Ltd v Elliott (2006) 14 VR 375; [2006] VSCA 168 at 379 (VR) per Ashley JA. For cases in which defendants were able to justify their publications, see Li v Herald & Weekly Times Pty Ltd (2007) Aust Torts Reports 81-887; [2007] VSC 109; Shift2Neutral Pty Ltd v Fairfax Media Publications Pty Ltd [2014] NSWSC 86; Sims v Jooste [No 2] [2014] WASC 373. 376 US 254; 84 S Ct 710 (1964). See further, [2.140]. Report of the Committee on Defamation (“Faulks Committee”) (HMSO, London, 1975) [141] p 36 (“tends to inculcate a spirit of caution in publishers of potentially actionable statements which we regard as salutary”); Australian Law Reform Commission, Unfair Publication: Defamation and Privacy, Report No 11 (1979) at [122]. Cf New South Wales Law Reform Commission, Defamation, Report No 75 (1995) at [4.7]-[4.15], Recommendation 5.

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[9.40]

Public interest and public benefit [9.50] Prior to the introduction of the national, uniform defamation laws, the proof of substantial truth alone was insufficient, in a number of Australian jurisdictions, to justify the publication of defamatory matter. Many jurisdictions require, and had required, through various iterations of the defence historically, proof of an additional element of public interest or public benefit.42 The putative rationale for the additional requirement of public interest was explained by Street ACJ in Rofe v Smith’s Newspapers Ltd:43 The law was altered in this respect in New South Wales many years ago. It was felt that to allow past misconduct, or discreditable episodes which were dead and gone, to be revived and dragged into the light of day at will by maliciously minded scandalmongers was too hard upon people who, whatever indiscretions they might have committed in the past, were leading respectable lives.

Previously, this aspect of Australian defamation law has been explained on the basis of features particular to local history. Windeyer suggested that the position under New South Wales, which was included in the first defamation legislation passed in the colony and was retained continuously under the introduction of the national, uniform defamation laws, was motivated by a specific concern, namely “to prevent emancipated convicts being taunted as ‘lags’”.44 Mitchell has compellingly argued that the impetus for the reform in New South Wales was a broader social concern that individuals’ pasts should not be able to be revived and used against them and that the development was an example of law reform succeeding in the colonies where it had failed in Westminster.45 Mitchell’s explanation for this legislative addition seems consistent with that advanced by Street ACJ in Rofe v Smith’s Newspapers Ltd. In Chappell v TCN Channel Nine Pty Ltd,46 Hunt J has a slightly different explanation again, suggesting that:

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[t]he mischief which was sought to be remedied by the statutory requirement that the imputation relate to a matter of public interest was the gratuitous destruction of reputation which was permitted by the defence of truth alone which is available at common law.47

This seems to suggest that the additional requirement of public interest expanded the nature of the wrong done in a claim for defamation. At common law, no harm was done and no wrong was committed by telling the truth about a person’s reputation. In those jurisdictions where an element of public interest or public benefit was required in addition to proof of substantial truth, there 42

43 44 45 46 47

See, eg, Civil Law (Wrongs) Act 2002 (ACT) s 127 (repealed); Defamation Act 1974 (NSW) s 15; Defamation Act 1889 (Qld) s 15 (repealed); Defamation Act 1957 (Tas) s 15 (repealed); see also Criminal Code (WA) s 356 (repealed). However, the common law defence of justification continued to operate in Western Australia: see West Australian Newspapers Ltd v Bridge (1979) 141 CLR 535 at 544 per Jacobs J. For earlier examples of legislation requiring proof of public interest or public benefit as part of a defence of justification, see Defamation Act 1901 (NSW) s 6 (repealed); Defamation Act 1912 (NSW) s 7 (repealed); Defamation Act 1958 (NSW) s 16 (repealed). (1924) 25 SR(NSW) 4 at 21-2; see also Howden v Truth and Sportsman Ltd (1937) 58 CLR 416 at 427 per Evatt J. V Windeyer, “The Truth of a Libel” (1935) 8 ALJ 319 at 323. P Mitchell, “The Foundations of Australian Defamation Law” (2006) 28 Syd LR 477 at 494. (1988) 14 NSWLR 153. Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153 at 165, citing New South Wales Law Reform Commission, Defamation, Report No 11 (1979) at [64].

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[9.60]

The defence of justification

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was an acceptance of the reality that a person’s reputation may be harmed by the publication of the truth and that defamation law should only permit this where there was demonstrable public interest or public benefit. As truth alone was not a complete defence to defamation in those jurisdictions, no presumption of falsity could arise.48 A defamatory matter could be substantially true but nonetheless defamatory if there was no public interest in, or public benefit from, the publication of the defamatory matter. The concept of public interest is not susceptible to comprehensive definition.49 An infinite variety of matters may be of public interest.50 The concept of public interest can be broadly or narrowly construed.51 Although not always borne out by the decided cases, a broad approach to the public interest should be preferred. Defamation law should facilitate freedom of speech on legitimate matters of public interest. Although the concept of public interest may be broadly drawn, courts are averse to allowing matters of public interest to be identified at too high a level of generality or abstraction, instead preferring a concrete articulation of what constitutes the public interest in a given case.52 What is in the public interest or for the public interest changes, as social, political, moral and cultural values change.53 Thus, in Mutch v Sleeman,54 Ferguson J held that reference in a newspaper article to allegations of domestic violence levelled against a politician in divorce proceedings was not for the public benefit as the matter was a private affair between husband and wife. It is difficult to imagine that a court today, called on to determine this issue, would decide it in the same way. [9.60] It is important to note that the common law has long drawn a distinction between a legitimate matter of public interest and that which the public is merely interested in. In the context of a case of breach of confidence, Lion Laboratories v Evans,55 Griffiths LJ asserted that “there is a world of difference between what is in the public interest and what is of interest to the public”.56 Whilst it is vital to distinguish between the public interest, properly

48 49

50 51

52 53 54 55 56

Australian Consolidated Press Ltd v Uren (1966) 117 CLR 185 at 205 per Windeyer J; Singleton v Ffrench (1986) 5 NSWLR 425 at 443-4 per McHugh JA. London Artists Ltd v Littler [1969] 2 QB 375 at 391 per Lord Denning MR; John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484; [2007] NSWCA 364 at 516 (NSWLR) per McColl JA. John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484; [2007] NSWCA 364 at 487 (NSWLR) per Ipp JA. Allworth v John Fairfax Group Pty Ltd (1993) 113 FLR 254 at 262 per Higgins J, citing London Artists Ltd v Littler [1969] 2 QB 375 at 391 per Lord Denning MR; cf Allsop v Incorporated Newsagencies Co Pty Ltd (1975) 26 FLR 238 at 244-5 per Blackburn J. See also Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 193 per Brennan CJ, at 215 per Dawson, McHugh and Gummow JJ. Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 214 per Dawson, McHugh and Gummow JJ. Green v Schneller (2000) Aust Torts Reports 81-568; [2000] NSWSC 548 at 63,895 (Aust Torts Reports) per Simpson J. Mutch v Sleeman (1928) 29 SR(NSW) 125 at 136-7. [1985] QB 526. Lion Laboratories v Evans [1985] QB 526 at 553. This case concerned breach of confidence but the observation is equally applicable to the concept of public interest as it manifests itself across various causes of action at general law.

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so called, and that which the public is merely interested in, the demarcation between the two may not always be so clear in practice.57 It is clear, though, that:

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[a] salacious interest by members of the public in a particular subject matter, of which they had no previous knowledge and which was introduced to them by the very publication in question, does not translate the subject matter of the publication into a matter of public interest.58

Whether the publication related to a matter of public interest or was for the public benefit needed to be determined in light of all the circumstances of the case, including the facts proven and the manner of publication.59 For instance, whether there had been previous publicity given to the matter has been considered relevant to the assessment of whether the publication related to a matter of public interest or public benefit.60 It is a question for the judge, not the jury, to determine.61 A publication will not relate to a matter of public interest merely because it does not relate to a private concern.62 In this way, a matter of public interest is not negatively defined but needs to be positively established. There have been many different articulations of what constitutes a matter of public interest. In London Artists Ltd v Littler,63 Lord Denning MR provided one of the most frequently cited formulations of the public interest, suggesting that a publication will relate to a matter of public interest “[w]henever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on, or what may happen to them or to others.”64 In Bellino v Australian Broadcasting Corporation,65 Dawson, McHugh and Gummow JJ stated that a subject of public interest was one which related to “the actions or omissions of a person or institution engaged in activities that either inherently, expressly or inferentially invited public criticism or discussion”. Although these dicta come from cases dealing with defences other than statutory defences of justification, their treatment of the concept of public interest can be, and has been, applied in cases involving proof of truth.66 Thus, a publication can relate to a matter of public interest if the plaintiff’s conduct or activities were of a nature or otherwise invited, inherently, expressly or inferentially, public criticism or discussion; if the plaintiff had assumed a public persona in which the public could legitimately be interested or which otherwise invited, inherently, expressly or inferentially, public criticism or discussion; if the plaintiff had exposed his or her private life in such a manner as to invite public criticism or discussion; or if the plaintiff had placed his or her 57 58 59

60 61 62 63 64 65 66

John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484; [2007] NSWCA 364 at 520 (NSWLR) per McColl JA. Green v Schneller (2000) Aust Torts Reports 81-568; [2000] NSWSC 548 at 63,896-7 (Aust Torts Reports) per Simpson J. Crowley v Glissan (No 2) (1905) 2 CLR 744 at 756 per Griffith CJ; see also John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484; [2007] NSWCA 364 at 521 (NSWLR) per McColl JA. Cohen v Mirror Newspapers Ltd [1971] 1 NSWLR 623 at 628 per Jacobs and Manning JJA. London Artists Ltd v Littler [1969] 2 QB 375 at 391 per Lord Denning MR; Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 191 per Brennan CJ. Allworth v John Fairfax Group Pty Ltd (1993) 113 FLR 254 at 264 per Higgins J. [1969] 2 QB 375. London Artists Ltd v Littler [1969] 2 QB 375 at 391. (1996) 185 CLR 183 at 215. See, eg, John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484; [2007] NSWCA 364 at 490 (NSWLR) per Tobias JA.

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[9.60]

The defence of justification

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conduct before the public for its approval or attention.67 Merely because a person is a public figure does not mean that all aspects of the public figure’s life relate to a matter of public interest.68 Australian law has not embraced a “public figure” doctrine in the way that United States law has.69 Public figures are entitled to a right to a private life. However, the private conduct or activities of public figures can become matters of public interest if the public figures themselves make their conduct or activities matters of public interest, or if their conduct or activities have a bearing upon their capacity to perform their public activities.70 Where a plaintiff has voluntarily exposed his or her private life to the public or has used his or her private life to attract public attention, favourable or otherwise, he or she has a diminished entitlement to assert that his or her private conduct is not a matter of public interest.71 The concepts of public interest and public benefit are similar but not identical. They will often overlap and, in many circumstances, are interchangeable. As Dawson, McHugh and Gummow JJ observed in Bellino v Australian Broadcasting Corporation,72 “[i]n the great majority of cases, the public discussion of a subject of public interest must be for the public benefit.” Whether the publication of matter is for the public benefit involves an additional element, absent from the public interest, namely “a value judgment as to whether the public would benefit from the publication in issue”.73 Given the forensic difficulty of establishing substantial truth, as well as the breadth of matters which could be of public interest, it was comparatively rare that a defence of justification would fail on the issue of public interest or public benefit. Often, the element of public interest or public benefit would be conceded or readily established. However, there were some instances in which the defence of justification failed due to the fact that the publication did not relate to a matter of public interest or public benefit.74 The concept of public interest occurs in a number of contexts in defamation law, most notably in relation to the defences of fair comment and honest opinion.75 The inclusion of an additional element of public interest or public benefit in variants of the defence of justification served then to provide a measure of protection of privacy. For instance, there is considerable force in the view that the famous case of Ettingshausen v Australian Consolidated Press Ltd 67 68 69

70 71 72 73

74

75

John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484; [2007] NSWCA 364 at 490 (NSWLR) per Tobias JA. John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484; [2007] NSWCA 364 at 521 (NSWLR) per McColl JA. Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153 at 165 per Hunt J; Australian Capital Television Pty Ltd v Commonwealth (No 2) (1992) 177 CLR 106 per Brennan J. Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153 at 165, 167 per Hunt J. John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484; [2007] NSWCA 364 at 528 (NSWLR) per McColl JA. (1996) 185 CLR 183 at 229. Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46 at 69 (CLR) per Gleeson CJ and Crennan J; see also Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 229 per Dawson, McHugh and Gummow JJ. See, eg, Tisdall v Hutton [1944] Tas SR 1 at 11-12 per Morris CJ and Clark J; Green v Schneller (2000) Aust Torts Reports 81-568; [2000] NSWSC 548 at 63,896-7 (Aust Torts Reports) per Simpson J (tabloid current affairs program’s report on neighbourhood dispute did not relate to matter of public interest); see also Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153 at 165 per Hunt J. As to the element of public interest as a part of the defences of fair comment and honest opinion, see [13.70].

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was really concerned with an invasion of the plaintiff’s privacy, rather than damage to his reputation. In the New South Wales Court of Appeal, an inference was drawn that the manifestly excessive award of damages made by the jury was motivated by a desire to provide compensation for the gross invasion of privacy the plaintiff suffered at the hands of the publisher. Given that the focus of defamation is on the plaintiff’s reputation, this was impermissible. Nevertheless, the plaintiff was still entitled to succeed in defamation and was able to receive substantial, albeit reduced, damages.76 The element of public interest, as it is applied across various aspects of defamation law, indicates that this cause of action provides incidental, indirect protection of privacy. As McColl JA observed, “[t]he concept of ‘public interest’ is a critical mechanism for the purposes of the law of defamation by which the law seeks to resolve the tension between privacy and freedom of speech.”77

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The extent to which the inclusion of an additional element of public interest was an effective protection of privacy is open to question. It may have played an important role at a pre-publication stage, preventing stories being published which, whilst true, were invasive of a person’s privacy. It may have been deployed at an early stage of litigation to encourage settlement. Its impact is difficult to quantify. Equally, the impact of the removal of the additional element of public interest or public benefit from defamation law is hard to assess. It is difficult to test empirically whether this reform has led, in practice, to more intrusive but true publications. What can be concluded, though, is that the removal of an additional element of public interest or public benefit from the defence of justification has not been the impetus for the development of direct privacy protection, notwithstanding some encouraging dicta in the High Court of Australia’s decision in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd.78 There is a real issue as to whether it is desirable to protect privacy only indirectly through the tort of defamation. Such protection afforded to privacy could only then be piecemeal, given that the focus of defamation law is upon reputation, not privacy. If privacy is an interest worth protecting by law, it seems preferable to protect it directly.79 76

77

78 79

Australian Consolidated Press Ltd v Ettingshausen (unreported, NSW CA, Gleeson CJ, Kirby P and Clarke JA, 13 October 1993) at pp 26-8 per Kirby P, pp 131-2 per Clarke JA. For a full analysis of this case, see D Rolph, Reputation, Celebrity and Defamation Law (Ashgate, Aldershot, 2008) Ch 7. John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484; [2007] NSWCA 364 at 516(NSWLR) per McColl JA. See also Cohen v Mirror Newspapers Ltd [1971] 1 NSWLR 623 at 628 per Jacobs and Manning JJA: “Public benefit requires a weighing of the right to privacy against the public interest of free discussion of matters of public concern”; Australian Consolidated Press Ltd v Ettingshausen (unreported, NSW CA, Gleeson CJ, Kirby P and Clarke JA, 13 October 1993) at p 27 per Kirby P: “the value of privacy protection may generally inform common law developments”. See further, John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484 at 515 per McColl JA: privacy is a value underlying defamation law, citing Campbell v MGN Ltd [2004] 2 AC 457; [2004] UKHL 22 at 471 (AC) per Lord Hoffmann and explicitly recognising that the European Convention on Human Rights underpins his Lordship’s view. With respect, the extent to which privacy can be said to be a value underlying defamation law in a common law country without a human rights framework, where the central interest protected by defamation law is acknowledged to be reputation and where there is no general, enforceable right to privacy, and the impact which such a recognition could have on the development of defamation law, is open to question. As to the concept of reputation, see [2.20]–[2.80]. As to the interaction between defamation and privacy, see [18.200]–[18.220]. (2001) 208 CLR 199; [2001] HCA 63. See generally, D Rolph, “Preparing for a Full-Scale Invasion? Truth, Privacy and Defamation” (2007) 25(3/4) Communications Law Bulletin 5.

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[9.80]

The Polly Peck and Hore-Lacy defences

Partial justification [9.70] At common law, there is a defence of partial justification.80 If a matter conveys multiple, separate imputations and the defendant is only able to justify some, but not all, of them, he or she does not have a complete defence. It is always open to a defendant to justify some, but not all, of the imputations conveyed by the defamatory matter.81 If he or she only justifies some of the imputations so conveyed, the defence is only established in relation to those imputations which have been justified and, if the remaining imputations are otherwise indefensible, the plaintiff is entitled to have damages assessed in relation to the undefended imputations. However, the defendant may rely upon the imputations which he or she has justified in mitigation of damages.82 Whether this is properly viewed as a defence or merely as a factor affecting the assessment of damages is a difficult issue of taxonomy about which there is no clear, definitive answer.

The Polly Peck and Hore-Lacy defences Introduction

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[9.80] The traditional common law approach required the defendant to justify

the matter he or she published.83 The matter was the cause of action and there was no obligation on the plaintiff to particularise the meanings upon which he or she relied.84 The emergence of the practice, first in England, then in Australia, strongly encouraging or even requiring plaintiffs to particularise the meanings upon which they relied had the advantage of alerting defendants to the case they had to meet.85 It has, however, had other, less desirable consequences.86 There has been considerable debate and confusion in Australian defamation law about the extent to which the plaintiff is bound by his or her pleaded meanings, the extent to which the defendant is bound to meet those pleaded, or is at liberty to advance his or her own alternative meanings, and the extent to which the tribunal of fact is bound by either party’s meanings. At common law, variants of the defence of justification have developed as a result of the practice of particularising meanings: the Polly Peck 80

81

82

83 84 85

86

Whelan v John Fairfax Publications Pty Ltd (2002) 56 NSWLR 89; [2002] NSWSC 1028 at 108 (NSWLR) per Levine J; Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1; [2003] VSCA 161 at 58 (VR) per Gillard AJA. Clarke v Taylor (1836) 2 Bing (NC) 654; 132 ER 252 at 256 per Tindal CJ; Sutherland v Stopes [1925] AC 47 at 78 per Lord Shaw of Dunfermline; Howden v “Truth” and “Sportsman” Ltd (1938) 38 SR(NSW) 287 at 291 per Jordan CJ; Woodger v Federal Capital Press of Australia Pty Ltd (1992) 107 ACTR 1; (1992) 106 FLR 183 at 200 per Miles CJ. As to the role of imputations under the national, uniform defamation laws, see [6.30]. Vessey v Pike (1829) 3 C & P 512; 172 ER 526 at 526 (ER) per Lord Tenterden CJ; Wilson v Mutual Store Ltd (1899) 25 VLR 262 at 268 per Madden CJ; Plato Films Ltd v Speidel [1961] AC 1090 at 1143-4 per Lord Denning; Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1; [2003] VSCA 161 at 58 (VR) per Gillard AJA. As to mitigation of damages, see [15.210]. Allworth v John Fairfax Group Pty Ltd (1993) 113 FLR 254 at 265 per Higgins J). As to the common law approach to pleading a defamation claim, see [6.30]. As to the emergence in English and Australian defamation law of the requirement at common law for a plaintiff to particularise the meanings upon which he or she relies, see [6.30]. Setka v Abbott [2014] VSCA 287 at [51] per Warren CJ and Ashley JA.

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defence87 and its Australian derivative, the Hore-Lacy defence.88 These defences have been the subject of a substantial body of case law, the overwhelming majority comprising interlocutory decisions, over the past three decades, with significant concerns still remaining about their form, their application and even their availability in Australia. In Jones v John Fairfax Publications Pty Ltd,89 Simpson J observed that “[i]t would be an understatement to say that the decision in Polly Peck has not commanded universal admiration in Australia.” As Nicholas J opined almost a decade ago in Woodham v John Fairfax Publications Pty Ltd:90

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One may well wonder whether Lord Justice O’Connor could have ever anticipated that for two decades gallons of ink would have been spent in judicial and academic analysis of his judgment in Polly Peck to no certain conclusion.

In Herald & Weekly Times Ltd v Popovic,91 Gillard AJA noted that the Polly Peck defence was frequently pleaded but rarely successful. (A similar observation might be made about the Hore-Lacy defence.) His Honour went on to suggest that “[u]nfortunately, there is a trend in [Victoria] that defence counsel feel that unless they have pleaded a Polly Peck defence, they have not done their job.” Polly Peck and Hore-Lacy defences are also regularly pleaded, without much ultimate success, in other Australian jurisdictions. These defences and the complex, related issues of pleading and procedure warrant ultimate appellate consideration or, more likely, substantial legislative reform. The prospect of either of these possibilities eventuating seems remote. Two observations should be made at the outset of discussing the reception of Polly Peck in Australian law. First, there is a real question as to whether Polly Peck is, properly understood, a freestanding defence or merely a form of pleading the defendant’s case as to meaning. There is much to recommend the latter characterisation.92 However, given the way in which this concept is ordinarily described and for ease of reference, without foreclosing debate as to its proper classification, the shorthand expression, “Polly Peck defence”, will be used. The second and related point is that it should not be forgotten that it is always open to a defendant to submit that the meanings the plaintiff argues are conveyed by the matter are not in fact conveyed when the matter is viewed in context.93 Expressed another way, it is always open to the defendant to deny that the matter bears a defamatory meaning and, as part of that denial, to articulate an alternative, non-defamatory meaning which it contends the matter should bear. Whether the defendant should be permitted or required to go beyond that, to particularise or plead that alternative, non-defamatory meaning or even to justify it, has been the major source of contention in relation to the reception of the Polly Peck defence in Australia. The case law on the Polly Peck and Hore-Lacy defences suggests that pleading has almost become an end in itself. Pleading should facilitate the timely identification and determination of 87 88 89 90 91 92

See Polly Peck plc v Trelford [1986] QB 1000. See David Syme & Co Ltd v Hore-Lacy (2000) 1 VR 667; [2000] VSCA 24. (2005) 67 NSWLR 434; [2005] NSWSC 1133 at 444 (NSWLR). (2005) Aust Torts Reports 81-822; [2005] NSWSC 1204 at 68,152 (Aust Torts Reports). (2003) 9 VR 1; [2003] VSCA 161 at 62 (VR). See, eg, Bateman v Fairfax Media Publications Pty Ltd (No 2) [2014] NSWSC 1380 at [41] per McCallum J: The contention that the decision in Hore-Lacy does not create a specific defence is plainly right, in my view. What the decision establishes is a principle relating to the proper manner of pleading the defence of justification at common law.

93

Hadzel v De Waldorf (1970) 16 FLR 174 at 179 per Fox J.

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[9.100]

The Polly Peck and Hore-Lacy defences

the real issues between the parties. Further legislative and judicial attention on this area should focus on reforming pleading procedures so that both sides bring forward their respective cases sooner rather than later.

Separate and distinct stings [9.90] In the pleading of his or her case, the plaintiff has a significant forensic advantage. If the matter contains separate and distinct meanings, the plaintiff can elect to complain about some meanings and not others.94 There is no obligation on the plaintiff to plead all possible injurious meanings arising from the matter. Ordinarily, a defendant would then have to justify the meanings the plaintiff pleaded. The fact that the defendant could justify other meanings conveyed by the matter, but not relied upon by the plaintiff, is of no assistance to the defendant.95 Justifying those meanings would be non-responsive to the plaintiff’s pleaded claim. From the defendant’s perspective, this can be productive of unfairness. Whether the matter conveys separate and distinct stings is a question of fact.96 If the defendant is able to identify a meaning which is not separate and distinct from the plaintiff’s pleading meaning but rather is a variant of it, the defendant may be able to particularise and justify his or her own variant meaning, thereby having a complete defence.

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The Polly Peck defence [9.100] The Polly Peck defence is an example of precisely this type of defence. Properly understood, the Polly Peck defence is the justification of a common sting. Under this defence, the defendant is entitled to consider the plaintiff’s pleaded imputation in the context of the matter and, if there are several related defamatory allegations, the defendant is able to extract a common sting and justify it rather than the plaintiff’s pleaded imputation.97 An example of the Polly Peck defence in operation is Khashoggi v IPC Magazines Ltd.98 In this case, the plaintiff, Soraya Khashoggi, sought an interlocutory injunction against the magazine, Woman’s Own, restraining it from publishing an article containing the defamatory allegation that Khashoggi had had an extramarital affair with the president of a named country.99 The article alleged that Khashoggi had had extramarital affairs with other named men, but she made no complaint about that. Refusing the injunction, Sir John Donaldson MR observed that the publisher, IPC Magazines, had an arguable Polly Peck defence, the common sting between the several allegations conveyed in the article being an imputation of promiscuity. IPC Magazines could seek to justify the article not by proving the substantial truth of the specific allegation relied upon by Khashoggi, but by proving the substantial truth of one or more 94 95

96 97 98 99

Hadzel v De Waldorf (1970) 16 FLR 174 at 179 per Fox J; Polly Peck plc v Trelford [1986] QB 1000 at 1032 per O’Connor LJ. Bremridge v Latimer (1864) 10 LT 816; 12 WR 878; Watkin v Hall (1868) LR 3 QB 396 at 401 per Blackburn J, at 403 per Lush J; Polly Peck plc v Trelford [1986] QB 1000 at 1032 per O’Connor LJ. Polly Peck plc v Trelford [1986] QB 1000 at 1032 per O’Connor LJ. Polly Peck plc v Trelford [1986] QB 1000 at 1032 per O’Connor LJ. [1986] 3 All ER 577; 1 WLR 1412. Khashoggi v IPC Magazines Ltd [1986] 3 All ER 577; 1 WLR 1412 at 1413-4.

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of the other allegations. His Lordship suggested that “it is not more defamatory to have an extra-marital affair with one person rather than another in the circumstances of the case”.100 An example of the limitations of a Polly Peck approach to the pleading of a defendant’s case is provided by the decision of the New Zealand Court of Appeal in Templeton v Jones,101 which predated the English Court of Appeal’s decision in Polly Peck but was relied upon heavily by Brennan CJ and McHugh J in Chakravarti v Advertiser Newspapers Ltd,102 the most significant case on the reception of Polly Peck in Australia. In Templeton v Jones, the plaintiff was a candidate in the 1984 general election in New Zealand. The defendant was the sitting member in the seat the plaintiff was contesting.103 The defendant circulated a speech to the parliamentary press gallery, which was subsequently republished in the national media.104 The plaintiff sued, claiming that he had been accused of being anti-Semitic.105 The defendant tried to rely on the other allegations levelled at the plaintiff, including that he was sexist, homophobic and racist, and to suggest that the matter conveyed the true imputation that the plaintiff engaged in “politics of hatred”.106 The New Zealand Court of Appeal held that the defendant had made a specific, concrete allegation – “a distinct charge” – against the plaintiff and the defendant should not be able to justify an imputation at a higher level of generality, which was different from the damaging allegation he had made.107 Some confusion arose in Australian cases between the Polly Peck defence and another decision of the English Court of Appeal, Lucas-Box v News Group Newspapers Ltd108 (Lucas-Box). These cases involve distinct but related pleading points. In some Australian cases, they have been conflated or treated as interchangeable.109 In Lucas-Box, the court held that, in the interests of fairness to the plaintiff, a defendant had to particularise the meaning he or she would seek to justify, just as the plaintiff was ordinarily required to particularise the meanings upon which he or she would seek to rely.110 Such an approach to pleading in defamation cases has not been adopted in Australian defamation practice. The Polly Peck defence was initially applied by Australian courts.111 However, prior to the introduction of the national, uniform defamation laws, the Polly Peck defence was believed not to apply in New 100 101 102 103 104 105 106 107 108 109

110 111

Khashoggi v IPC Magazines Ltd [1986] 3 All ER 577; 1 WLR 1412 at 1417. [1984] 1 NZLR 448. (1998) 193 CLR 519. Templeton v Jones [1984] 1 NZLR 448 at 449. Templeton v Jones [1984] 1 NZLR 448 at 449-50. Templeton v Jones [1984] 1 NZLR 448 at 450. Templeton v Jones [1984] 1 NZLR 448 at 450-1. Templeton v Jones [1984] 1 NZLR 448 at 452. [1986] 1 All ER 517; [1986] 1 WLR 147. See, eg, Woodger v Federal Capital Press of Australia Pty Ltd (1992) 107 ACTR 1 at 24 per Miles CJ; Sands v Channel Seven Adelaide Pty Ltd (2005) 91 SASR 466; [2005] SASC 182 at 478 (SASR) per White J; Sands v Channel Seven Adelaide Pty Ltd (2009) 105 SASR 452; [2009] SASC 215 at 481 (SASR) per Bleby J. Lucas-Box v News Group Newspapers Ltd [1986] 1 All ER 517; [1986] 1 WLR 147 at 152-3 (WLR) per Ackner LJ. The volume of case law on this issue is vast. For a representative selection of Australian cases prior to Chakravarti endorsing or applying Polly Peck, see Kennett v Farmer [1988] VR 991 at 1000 per Nathan J; National Mutual Life Association of Australasia Ltd v GTV Corporation Pty Ltd [1989] VR 747 at 751 per Ormiston J; Kelly v Special Broadcasting

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[9.110]

The Polly Peck and Hore-Lacy defences

South Wales,112 attributable largely to the fact that under the Defamation Act 1974 (NSW) s 9, the imputation was the cause of action, which precluded a defendant from seeking to link imputations together to extract a common sting at a higher level of abstraction and justify the common sting instead. Therefore, the prevailing view was that the Polly Peck defence was not available in New South Wales.113 In Robinson v Laws,114 the Queensland Court of Appeal also firmly rejected the availability of the Polly Peck defence in that State because of the centrality of pleading imputations in that jurisdiction.115 Nevertheless, the weight of authority for over a decade after Polly Peck was decided was that such a defence could be raised in most Australian jurisdictions. The turning point in the reception of the Polly Peck defence in Australian law was the High Court’s decision in Chakravarti v Advertiser Newspapers Ltd.116

Criticisms of the Polly Peck defence in Chakravarti v Advertiser Newspapers

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[9.110] Given the centrality of the High Court’s decision in Chakravarti v Advertiser Newspapers Ltd117 in the development of the common law of Australia in relation to the pleading of defamation claims and defences and the latitude, if any, that parties should be granted to depart from their pleaded cases, it is necessary to set out the reasoning of the various judgments in Chakravarti at length. O’Connor LJ’s judgment in Polly Peck was strongly criticised in the joint judgment of Brennan CJ and McHugh J in Chakravarti. The thrust of their Honours’ criticism of Polly Peck118 was that it “is contrary to the basic rules of common law pleadings and in many contexts will raise issues which can only embarrass the fair trial of the action”.119 They were firmly of the view that a defence of justification raised in relation to an imputation not pleaded by the plaintiff did not plead a good defence.120 Referring to the earlier decision of Cooke J in the New Zealand Court of Appeal in Templeton v Jones,121 Brennan CJ and McHugh J agreed that it was not for a defendant to “take severable parts of a publication each containing defamatory imputations, link them together and give the publication

112 113 114 115

116 117 118 119 120 121

Service [1990] VR 69 at 72 per Murphy J; Woodger v Federal Capital Press of Australia Pty Ltd (1992) 107 ACTR 1 at 23-4 per Miles CJ; Hart v Wrenn (1995) 5 NTLR 17 at 21 per Mildren J; Watt v General Television Corporation Pty Ltd [1998] 3 VR 501 at 506 per Hedigan J. However, see Whelan v John Fairfax Publications Pty Ltd (2002) 56 NSWLR 89; [2002] NSWSC 1028 at 100 (NSWLR) per Levine J. Jones v John Fairfax Publications Pty Ltd (2005) 67 NSWLR 434; [2005] NSWSC 1133 at 445-6 (NSWLR) per Simpson J. [2003] 1 Qd R 81; [2001] QCA 122. Robinson v Laws [2003] 1 Qd R 81; [2001] QCA 122 at 92 (Qd R) per de Jersey CJ, at 101 per Williams JA, at 108 per Mackenzie J. As to the extent to which this decision turns upon the imputation as the cause of action under the Defamation Act 1889 (Qld), see [2003] 1 Qd R 81; [2001] QCA 122 at 100 (Qd R) per Williams JA. (1998) 193 CLR 519. (1998) 193 CLR 519. Polly Peck plc v Trelford [1986] QB 1000. Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 527. Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 528. Their Honours extended this principle to include fair comment and qualified privilege. [1984] 1 NZLR 448.

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a meaning at a sufficiently high level of abstraction to subsume the meanings of the severable parts”. Their Honours gave the following example to illustrate the problem as they perceived it: [A] defendant cannot take a part of an article that wrongly alleges that the plaintiff has convictions for dishonesty and a part that imputes that the plaintiff has defrauded shareholders, assert that the article means that the plaintiff is dishonest, and then justify that meaning, perhaps by proving that the plaintiff had in fact defrauded shareholders. On that hypothesis, it would be outrageous if the defendant could obtain a finding that the article was true in substance and in fact when plainly it was not.122

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They then asserted that “[n]o injustice is done by holding a defendant to the fundamental principles of pleading by requiring a defence to respond to the statement of claim.”123 Brennan CJ and McHugh J then turned, though, to examine what they described as “[a] distinct but related question” of the effect of a plaintiff particularising, or failing to particularise, a meaning.124 Their Honours noted that, at common law, there was no obligation on the plaintiff to particularise meanings where he or she relied upon the natural and ordinary meaning of the words published.125 They observed, however, that, in order to define the issues between the parties, to ensure the efficient use of finite court resources and, as a matter of fairness, to allow a defendant to mount a proper defence, a plaintiff should be strongly encouraged to particularise the meanings upon which he or she intends to rely.126 In the absence of particularised meanings, a defendant might expend considerable time and resources preparing an unnecessary defence. Alternatively, notwithstanding a defendant’s scrupulous preparation for trial, the plaintiff might establish a meaning which the defendant did not anticipate they would need to meet. The effect of the plaintiff particularising the meaning upon which he or she relied was that he or she was then not able to seek a verdict based on a meaning which differed in substance from those pleaded.127 Their Honours considered the extent to which a plaintiff should be bound by their pleaded meanings. They suggested that allowing a plaintiff to rely on a less injurious meaning, or a meaning which was no more than a nuance apart from the plaintiff’s pleaded meanings, would not be unfair to the defendant. Ultimately, Brennan CJ and McHugh J identified the criteria by which to assess whether a plaintiff should be permitted to depart from his or her own pleaded meanings as being whether it would be prejudicial, embarrassing or unfair to the defendant.128 Although forcefully expressed, Brennan CJ and McHugh J’s judgment was not the only one on this issue in Chakravarti. In their joint judgment, Gaudron and Gummow JJ noted that it had become common practice for plaintiffs to particularise the meanings upon which they relied,129 although they observed that the precise legal consequences of this development were “far from 122 123 124 125 126 127 128 129

Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 529. Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 529. Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 530. Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 530. Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 530-1. Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 532. Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 534. Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 542.

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[9.120]

The Polly Peck and Hore-Lacy defences

settled”.130 Their Honours observed that, in the case law considering these consequences, there had been “a tendency to translate into rules what are best seen as considerations going to fair and efficient practice”.131 In the present case, they held that there was no disadvantage to Advertiser Newspapers in allowing Chakravarti’s proposed departure from his pleaded meaning.132 Interestingly, Gaudron and Gummow JJ seem to endorse the practice sanctioned by the English Court of Appeal in Lucas-Box of allowing a defendant to particularise and justify his or her own meanings.133 In his judgment, Kirby J also noted the increasing practice of requiring the plaintiff to particularise the meanings upon which he or she relied.134 His Honour emphasised that this was not a rigid rule and, citing Polly Peck, stressed that the only purpose of this practice was “to facilitate the fair determination of the dispute which the parties bring to court”.135 He rejected an approach which strictly held the plaintiff to his or her pleaded case,136 underlining the need for flexibility.137 Kirby J accepted, as a general proposition, that a more serious allegation comprehended less serious gradations of meaning, so long as they did not differ in substance from those relied on by the plaintiff.138 Ultimately, Kirby J stated that the court could protect the defendant against any “surprise, prejudice or other disadvantage”.139 His Honour noted that such unfairness would not arise where the plaintiff sought to rely on imputations which were no more than nuances of the meanings he or she had already pleaded.140

The Hore-Lacy defence

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[9.120] Given the division of judicial views expressed in Chakravarti v

Advertiser Newspapers Ltd141 and the uncertainty it cast upon the availability of a Hore-Lacy defence in Australia,142 it was to be expected that there would be an attempt to reconcile those divergent views and to seek to clarify the position under Australian law. The most influential attempt to do this was the decision of the Victorian Court of Appeal in David Syme & Co Ltd v Hore-Lacy.143 The first issue addressed in David Syme & Co Ltd v Hore-Lacy was the extent to which the plaintiff could depart from his or her particularised meanings. The Victorian Court of Appeal held that the tribunal of fact could find in favour of the plaintiff on a meaning which was no more than a nuance 130 131 132 133 134 135 136 137 138 139 140 141 142

143

Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 543. Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 544. Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 545. Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 543-4. Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 578. Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 579. Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 580. Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 579. Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 580. Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 580-1. Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 581. (1998) 193 CLR 519. Kelly v Nationwide News Pty Ltd (1998) 147 FLR 410 at 421 per Kelly ACJ; Steiner Wilson and Webster Pty Ltd (t/as Abbey Bridal) v Amalgamated Television Services Pty Ltd (2000) Aust Torts Reports 81-537 at 63,301 per Crispin J. (2000) 1 VR 667; [2000] VSCA 24.

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or a variant of, or not substantially different from, and no more injurious or serious than, the plaintiff’s particularised meaning.144 The complementary issue was whether the defendant was confined to justifying the plaintiff’s particularised meanings, or whether he or she could also depart from them in some way.145 Charles JA, with whom Ormiston JA agreed, held that a defendant could only seek to justify a meaning which was only a nuance or a variant of, or not substantially different from, and no more injurious or serious than, the plaintiff’s particularised meaning.146 By limiting the defendant in this way, mirroring the limitations placed upon the plaintiff, a court can avoid unfairness, prejudice or embarrassment to the plaintiff.147 Charles JA, with whom Ormiston JA agreed, went further, finding that a defendant who intends to justify a meaning which is a permissible nuance or variant must plead the meaning and provide particulars in support of its defence of justification.148 In this way, their Honours did not follow Polly Peck but applied Lucas-Box.149 Just as the Polly Peck defence is not limited to justification but can equally apply to comment, so too it appears that the Hore-Lacy defence can apply to cases of comment as well as cases involving justification.150 The Hore-Lacy defence has been subsequently endorsed by intermediate appellate courts not only in Victoria151 but also in South Australia152 and Western Australia.153 It has also been applied by the Supreme Court of the Australian Capital Territory.154 The Polly Peck defence was rejected in Queensland because of the centrality of the pleading of imputations under the Defamation Act 1889 (Qld). Although the imputation was not the cause of action under the Defamation Act 1889 (Qld), the term, “defamatory matter”, was defined by reference to imputations and, according to de Jersey CJ, it was the “invariable practice” for plaintiffs in Queensland defamation cases to particularise the meanings upon

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144 145 146 147 148 149 150

151 152 153 154

David Syme & Co Ltd v Hore-Lacy (2000) 1 VR 667; [2000] VSCA 24 at 675 (VR) per Ormiston JA, at 686 per Charles JA. As to the interdependence of these issues, see David Syme & Co Ltd v Hore-Lacy (2000) 1 VR 667; [2000] VSCA 24 at 684 (VR) per Charles JA. David Syme & Co Ltd v Hore-Lacy (2000) 1 VR 667; [2000] VSCA 24 at 686-7 (VR) per Charles JA; see also at 675 per Ormiston JA. David Syme & Co Ltd v Hore-Lacy (2000) 1 VR 667; [2000] VSCA 24 at 686-7 (VR) per Charles JA. David Syme & Co Ltd v Hore-Lacy (2000) 1 VR 667; [2000] VSCA 24 at 688-9 (VR) per Charles JA; see also at 675 per Ormiston JA. Lucas-Box v News Group Newspapers Ltd [1986] 1 All ER 517; [1986] 1 WLR 147. See, eg, Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245; [2007] HCA 60 at 288 (CLR) per Gummow, Hayne and Heydon JJ; Hore-Lacy v Cleary (2007) 18 VR 562; [2007] VSCA 314 at 570-1 (VR) per Ashley JA. As to the defence of fair comment, see Chapter 13. Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1; [2003] VSCA 161; Setka v Abbott [2014] VSCA 287 at [42], [45] per Warren CJ and Ashley JA. Advertiser-News Weekend Publishing Co Ltd v Manock (2005) 91 SASR 206; [2005] SASC 82 at 219-20 (SASR) per Doyle CJ. Nationwide News Pty Ltd v Moodie (2003) 28 WAR 314; [2003] WASCA 273; West Australian Newspapers Ltd v Elliott (2008) 37 WAR 387; [2008] WASCA 172. John Holland Group Pty Ltd v John Fairfax Publications Pty Ltd (2006) 204 FLR 290; [2006] ACTSC 108 at 293-6 (FLR) per Connolly J; Betfair Ltd v Nason [2006] ACTSC 111 at [29] per Gray J.

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-23 21:44:58.

[9.120]

The Polly Peck and Hore-Lacy defences

which they relied.155 This has presumably deterred consideration of whether the Hore-Lacy defence should be recognised in Queensland. Since the introduction of the national, uniform defamation laws, the Hore-Lacy defence has been endorsed by the New South Wales Court of Appeal.156 However, in Bateman v Fairfax Media Publications Pty Ltd (No 2),157 McCallum J held that the Hore-Lacy pleading had no scope for operation in New South Wales, given the pleading practice in that jurisdiction.158 The correctness of that decision, in light of the authorities to the contrary, may yet be tested on appeal. As yet, though, the Hore-Lacy defence has not been considered by the High Court of Australia.159 The Polly Peck defence, in its pure “common sting” form, therefore, seems to have been rejected in Australia,160 although, as with the Hore-Lacy defence,161 there is no binding decision of the High Court of Australia on this point.162 Some clarity on the common law of Australia on this exceedingly complex area of defamation law, particularly in light of decisions reaffirming jurisdictional differences, would be welcome.

155

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156

157 158 159

160

161 162

Robinson v Laws [2003] 1 Qd R 81; [2001] QCA 122 at 92-5 (Qd R) per de Jersey CJ (describing the imputation as “the heart or essence of the cause of action”); see also Robinson v Laws [2003] 1 Qd R 81; [2001] QCA 122 at 100-1 (Qd R) per Williams JA, at 107-8 per Mackenzie J. As to the position prior to the introduction of the national, uniform defamation laws, see Fawcett v John Fairfax Publications Pty Ltd [2008] NSWSC 139 per Simpson J. Cf John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484 at [233]. [2014] NSWSC 1380. Bateman v Fairfax Media Publications Pty Ltd (No 2) [2013] NSWSC 1380 at [50]-[51]. For examples of the Hore-Lacy defence in operation, see Snedden v Nationwide News Pty Ltd [2011] NSWCA 262 at [48] per McClellan CJ at CL (imputation that plaintiff committed war crimes did not differ in substance from imputation that plaintiff was death squad commander); Fleming v Advertiser-News Weekend Publishing Co Pty Ltd [2012] SASC 58 at [28]-[31] per Peek J (where plaintiff sought to confine allegation of sexual intercourse to penile or vaginal sexual intercourse and defendant sought to justify by proving oral sexual intercourse). John Fairfax Publications Pty Ltd v Zunter [2006] NSWCA 227 at [42] per Handley AJA; John Holland Group Pty Ltd v John Fairfax Publications Pty Ltd (2006) 204 FLR 290; [2006] ACTSC 108 at 292-3 (FLR) per Connolly J; Snedden v Nationwide News Pty Ltd [2011] NSWCA 262 at [152] per McClellan CJ at CL. However, see Li v Herald & Weekly Times Pty Ltd (2007) Aust Torts Reports 81-887; [2007] VSC 109 at 69,502 (Aust Torts Reports) per Gillard J; Buckeridge v Walter [2007] WASCA 19 at [20] per McLure JA; West Australian Newspapers Ltd v Elliott (2008) 37 WAR 387; [2008] WASCA 273 at 411 (WAR) per McClure JA; Sands v Channel Seven Adelaide Pty Ltd (2009) 104 SASR 452; [2009] SASC 215 at 480-1 (SASR) per Bleby J. To the extent that the dicta in the latter cases departs from the dicta in the former cases, it may be that the disagreement turns upon a semantic or a terminological point, rather than a substantive point. Advertiser-News Weekend Publishing Co Ltd v Manock (2005) 91 SASR 206; [2005] SASC 82 at 213 (SASR) per Doyle CJ. Whelan v John Fairfax Publications Pty Ltd (2002) 56 NSWLR 89; [2002] NSWSC 1028 at 100 (NSWLR) per Levine J. Leave to appeal to the High Court of Australia was refused in Robinson v Laws [2003] 1 Qd R 81; [2001] QCA 122 and Elliott v West Australian Newspapers Ltd [2009] HCATrans 153.

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193

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9: Justification

[9.120]

Contextual truth Introduction [9.130] Another means by which the strict common law approach to justification has been overcome or ameliorated is by the enactment of the defence of contextual truth.163 A defendant can have a complete defence to defamation, even if he or she is unable to prove the substantial truth of all of the plaintiff’s pleaded meanings. Under the defence of contextual truth, the defendant is permitted to identify and justify meanings arising from the defamatory matter not relied upon by the plaintiff. If the injury to the plaintiff’s reputation done by the publication of the defendant’s substantially true imputations outweighs that done by the publication of the false imputations complained of by the plaintiff, the defendant has a complete defence. The defence of contextual truth has a narrow scope of operation. It can only effectively operate in circumstances where the plaintiff has elected not to sue upon serious allegations conveyed by the defamatory matter. As McCallum J recently described it:

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[t]he plain object of the section is to preclude a remedy based on the selection of discrete, indefensible defamatory imputations in the context of a publication in which the dominant harm to reputation is justified.164

It does, however, permit a defendant to do the very thing that the common law defence of justification forbids him or her from doing, namely to plead and justify an imputation which is separate and distinct from that complained of by the plaintiff.165 The defence of contextual truth has its origins in the Defamation Act 1952 (UK) s 5.166 Prior to the introduction of the national, uniform defamation laws, New South Wales and Tasmania had variants of this defence.167 Unsurprisingly, the more developed jurisprudence on the defence of contextual truth was that of New South Wales. The case law on the defence of contextual truth under the Defamation Act 1974 (NSW) s 16 may continue to be of relevance to the application of the defence under the national, uniform defamation laws, although some care will need to be taken, given the different wording between the statutory provisions and the fact that the matter, not the imputation, is now the cause of action in defamation, unlike the position that pertained under the Defamation Act 1974 (NSW).168 163

164 165 166 167

168

Civil Law (Wrongs) Act 2002 (ACT) s 136; Defamation Act 2006 (NT) s 23; Defamation Act 2005 (NSW) s 26; Defamation Act 2005 (Qld) s 26; Defamation Act 2005 (SA) s 26; Defamation Act 2005 (Tas) s 26; Defamation Act 2005 (Vic) s 26; Defamation Act 2005 (WA) s 26. As to the stricture of the common law’s approach to justification and the unavailability of a common law variant of contextual truth, see Potts v Moran (1976) 16 SASR 284 at 308 per Wells J. King v Fairfax Media Publications Pty Ltd (No 2) [2014] NSWSC 1244 at [5]. Jones v John Fairfax Publications Pty Ltd (2005) 67 NSWLR 434; [2005] NSWSC 1133 at 445 (NSWLR) per Simpson J; see also Hart v Wrenn (1995) 5 NTLR 17 at 23 per Mildren J. Jackson v John Fairfax & Sons Ltd [1981] 1 NSWLR 36 at 39 per Hunt J. As to the current equivalent provision in England and Wales, see now Defamation Act 2013 (UK) s 2(3). Defamation Act 1974 (NSW) s 16 (repealed); Defamation Act 1957 (Tas) s 18 (repealed). As to the history of the New South Wales provision, see Waterhouse v Hickie (1995) Aust Torts Reports 81-347 at 62,490 per Priestley JA. As to the imputation as the cause of action under the Defamation Act 1974 (NSW) (repealed), see [6.30].

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-23 21:44:58.

[9.140]

Contextual truth

Elements of the defence of contextual truth [9.140] In order to establish a defence of contextual truth, the defendant must

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prove that, in addition to the matter conveying the defamatory imputations of which the plaintiff complains, the matter also conveys one or more other substantially true imputations. These true imputations are called “contextual imputations”.169 The contextual imputations must differ in substance from the plaintiff’s pleaded imputations.170 Expressed in this way, the pleading of the defendant’s contextual imputations reflects the pleading of the plaintiff’s imputations, a fundamental requirement of which is that they differ in substance from each other.171 More recently, this requirement has been interpreted to exclude contextual imputations which are merely a reformulation of the plaintiffs’ pleaded imputations.172 The stated rationale for this approach lies in the purpose of the statutory defence of contextual truth, which is “directed to a situation in which the same publication conveyed imputations which differ in their character, not merely a different way of formulating the same imputation at a higher level of generality”.173 Whether a requirement that contextual imputations not only differ in substance but also differ in kind or character is required by the legislation is open to question. The textual basis for this approach under the national, uniform defamation laws is that the contextual imputations need to be “in addition to” the plaintiff’s pleaded imputations. Whether the contextual imputations differ in substance will be a question of fact in each case.174 Just as the plaintiff’s pleaded imputations must be precise,175 so also must the defendant’s contextual imputations be sufficiently precise.176 The defamatory matter must convey the plaintiff’s pleaded imputations and the defendant’s contextual imputations at the same time.177 The contextual imputations must arise from matter published by the defendant. Thus, a defendant cannot rely upon a contextual imputation based upon additional matter published by a third party, even if it is published at the same time as the matter published by the defendant.178 169

Civil Law (Wrongs) Act 2002 (ACT) s 136(a); Defamation Act 2006 (NT) s 23(a); Defamation Act 2005 (NSW) s 26(a); Defamation Act 2005 (Qld) s 26(a); Defamation Act 2005 (SA) s 26(a); Defamation Act 2005 (Tas) s 26(a); Defamation Act 2005 (Vic) s 26(a); Defamation Act 2005 (WA) s 26(a).

170

Jackson v John Fairfax & Sons Ltd [1981] 1 NSWLR 36 at 40 per Hunt J; John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484; [2007] NSWCA 364 at 530 (NSWLR) per McColl JA. As to the requirement that imputations differ in substance from each other, see [6.30]. John Fairfax Publications Pty Ltd v Jones [2004] NSWCA 205 at [16] per Spigelman CJ, at [99] per Hodgson JA; John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484; [2007] NSWCA 364 at 488 (NSWLR) per Ipp JA, at 530 per McColl JA. As to the requirement that the plaintiff’s pleaded imputations differ in substance, see [6.30]. John Fairfax Publications Pty Ltd v Jones [2004] NSWCA 205 at [20] per Spigelman CJ. See, eg, John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484; [2007] NSWCA 364 at 488-9 (NSWLR) per Ipp JA, at 491 per Tobias JA (contextual imputation that plaintiff gatecrashed function did not differ in substance from imputation that plaintiff knowingly gatecrashed function). As to the requirement of precision for the plaintiff’s pleaded imputations, see [6.30]. Australian Broadcasting Corporation v Hodgkinson [2005] NSWCA 190 at [31] per Hodgson JA; King v Fairfax Media Publications Pty Ltd (No 2) [2014] NSWSC 1244 at [11] per McCallum J. Jackson v John Fairfax & Sons Ltd [1981] 1 NSWLR 36 at 39-40 per Hunt J. Pioneer International Ltd v Knox (1991) 22 NSWLR 266 at 269 per Hunt J (where interviewee sued upon comments made in televised interview, he could not rely on other matter in broadcast as part of his defence of contextual truth).

171 172

173 174

175 176

177 178

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195

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196

9: Justification

[9.140]

The defendant must prove that the substantial truth of the contextual imputations means that the defamatory imputations established by the plaintiff do not further harm the plaintiff’s reputation.179 The test is sometimes colloquially described as deciding whether the defendant’s contextual imputations “swamp” the plaintiff’s pleaded imputations.180 Under the Defamation Act 1974 (NSW) s 16, there was a debate about what the proper focus of the defence of contextual truth should be. There was disagreement expressed as to whether the focus should be on the terms of the contextual imputations themselves or whether it should instead involve an evaluation of the injury to reputation weighed against the facts and circumstances which establish the substantial truth of those contextual imputations.181 The simplification of the language in the defence of contextual truth under the national, uniform defamation laws from the more convoluted language in the Defamation Act 1974 (NSW) s 16(2)(c) has hopefully meant that the somewhat arid debate about the focus of this defence has evanesced. Under the national, uniform defamation laws, the statutory language seems to make it clear that the evaluation which needs to occur is a weighing of the plaintiff’s imputations against the substantial truth of the defendant’s contextual imputations – the focus is on the respective imputations pleaded by the parties. The simplification of the language of the statutory defence of contextual truth has not been entirely positive, having had some unintended consequences.182 This is another aspect of the national, uniform defamation laws which preserves the central role of imputations, notwithstanding that the matter, not the imputation, is now the cause of action.183 The defence of contextual truth thus permits a defendant to do what the defence of justification and its common law variants prohibit, namely to rely on and justify imputations about which the plaintiff does not complain and to have a complete defence by doing so. It sanctions the evaluation of the relative harm to reputation done by the publication of separate and distinct stings.184 In undertaking this assessment, the cumulative effect of the contextual imputations needs to be weighed against the plaintiff’s pleaded imputations. Under the Defamation Act 1974 (NSW), it was established that the cumulative effect of the defendant’s contextual imputations needed to be evaluated as 179

180

181

182 183 184

Civil Law (Wrongs) Act 2002 (ACT) s 136(b); Defamation Act 2006 (NT) s 23(b); Defamation Act 2005 (NSW) s 26(b); Defamation Act 2005 (Qld) s 26(b); Defamation Act 2005 (SA) s 26(b); Defamation Act 2005 (Tas) s 26(b); Defamation Act 2005 (Vic) s 26(b); Defamation Act 2005 (WA) s 26(b). Under the Defamation Act 1974 (NSW) s 16, proof of the substantial truth of the contextual imputation alone was insufficient, just as the defence of justification required the proof of an additional element of public interest or publication on an occasion of qualified privilege. Hepburn v TCN Channel Nine Pty Ltd [1984] 1 NSWLR 386 at 405 per Hunt J; Whelan v John Fairfax Publications Pty Ltd (2002) 56 NSWLR 89 at 96 per Levine J): “It is the custom in the Defamation List for the term ‘swamp’ to be used.” However, note Channel Seven Sydney Pty Ltd v Mahommed (2010) 278 ALR 232; [2010] NSWCA 335 at 264 (ALR) per McColl JA. Cf John Fairfax Publications Pty Ltd v Blake (2001) 53 NSWLR 541; [2001] NSWCA 434 at 543 (NSWLR) per Spigelman CJ, at 556 per Hodgson JA; Australian Broadcasting Corporation v Hodgkinson [2005] NSWCA 190 at [32]-[38] per Hodgson JA; see also Purcell v Cruising Yacht Club of Australia Pty Ltd [2002] NSWSC 557 at [14] per Levine J. See, eg, the impact on the practice of “pleading back”.at [9.170]. As to the matter as the cause of action in defamation law, see [6.20]. Jones v John Fairfax Publications Pty Ltd (2005) 67 NSWLR 434; [2005] NSWSC 1133 at 445 (NSWLR) per Simpson J.

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[9.150]

Contextual truth

against the plaintiff’s pleaded imputations, rather than the contextual imputations being considered in isolation. This approach applied both to the trial judge’s determination of the issues of capacity relating to the defence of contextual truth,185 as well as to the jury’s determination of whether the defence was established.186 The language of the statutory provision permitted this and the defence would be inefficacious if the effect of each contextual imputation had to be considered in isolation. A defendant might then plead a range of contextual imputations unrelated to the plaintiff’s pleaded imputations, raising issues not complained of by the plaintiff and expanding the scope of the trial. A court cannot prevent the defendant pleading contextual imputations, merely because of the adverse impact on the plaintiff’s case and arguably the administration of justice more generally, when the statute allows the defendant to do this. There are, however, two protections for a plaintiff. The first is the court can always strike out a defence of contextual truth or parts of it that are incapable of being established. The second is that if a defendant maintains a baseless defence of contextual truth at trial, this could increase the damages awarded to the plaintiff.187 The difference in wording between the previous provision in New South Wales and the current provision under the national, uniform defamation laws does not appear to provide a basis for arguing that this approach should not continue.

The respective roles of judge and jury

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[9.150] If a jury is empanelled in a proceeding,188 the issues of whether the defendant’s contextual imputations are conveyed by the matter, whether the contextual imputations are substantially true and the ultimate assessment of the harm done to the plaintiff’s reputation are questions of fact for the jury.189 In addition, the jury would need to determine whether the contextual imputations were in fact “in addition to” the plaintiff’s pleaded imputations.190 However, before the defence of contextual truth can be left to the jury, the trial judge needs to be satisfied that the contextual imputations are capable of being conveyed by the matter, that there is sufficient evidence for the jury to find that the contextual imputations are substantially true and that the harm to the plaintiff’s reputation done by the contextual imputations, if substantially true, is capable of outweighing the harm to the plaintiff’s reputation done by the publication of the defamatory imputations of which the plaintiff complained.191 The trial judge also needs to find that the defendant’s

185 186 187 188

189 190 191

Hepburn v TCN Channel Nine Pty Ltd [1984] 1 NSWLR 386 at 400 per Hunt J; Waterhouse v Hickie (1995) Aust Torts Reports 81-347 at 62,495 per Priestley JA. Hepburn v TCN Channel Nine Pty Ltd [1984] 1 NSWLR 386 at 396-7 per Hunt J; Waterhouse v Hickie (1995) Aust Torts Reports 81-347 at 62,495 per Priestley JA. Waterhouse v Hickie (1995) Aust Torts Reports 81-347 at 62,496 per Priestley JA