Defamation Law in Australia 9780409345582, 040934558X

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DEFAMATION LAW IN AUSTRALIA 3RD EDITION

DEFAMATION LAW IN AUSTRALIA 3RD EDITION

PATRICK GEORGE BA (SYD), LLB (UNSW) SOLICITOR, SUPREME COURT OF NEW SOUTH WALES

LEXISNEXIS BUTTERWORTHS AUSTRALIA 2017

AUSTRALIA

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George, Patrick Thomas. Defamation law in Australia. 3rd edition. 9780409345575 (pbk). 9780409345582 (ebk). Includes index. Australia. Defamation Act 1974. Libel and slander — New South Wales. Libel and slander — Australia.

© 2017 Reed International Books Australia Pty Limited trading as LexisNexis. First edition 2006; reprinted 2008. Second edition 2012. This book is copyright. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced by any process, electronic or otherwise, without the specific written permission of the copyright owner. Neither may information be stored electronically in any form whatsoever without such permission. Inquiries should be addressed to the publishers. Typeset in ITC Legacy Sans and Granjon. Printed by Griffin Press, Australia. Visit LexisNexis Butterworths at www.lexisnexis.com.au

FOREWORD When the first edition of Mr George’s book, Defamation Law in Australia, was published in 2006, the uniform defamation legislation had just been adopted in each state and territory of Australia, with operation from 1 January of that year. As a New South Wales Attorney General said in the Second Reading Speech of the Bill which became the Defamation Act 2005 (NSW), the uniform defamation legislation was the result of the nation’s Attorneys General recognising that the defamation laws in each Australian jurisdiction had progressively diverged since the mid-nineteenth century, a situation which was tolerable while publications were largely confined within state and territory borders, but became ridiculous once those borders metaphorically collapsed. The Attorneys General recognised the necessity to bring the state and territory laws into alignment having regard, not least, to the fact that material was simultaneously published across the nation by the medium of the internet. It took them 25 years to achieve that objective. Four years before the passage of the uniform defamation legislation, in Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56, despite accepting that the World Wide Web represented a considerable technological advance (and notwithstanding evidence that, by the end of 2002, the estimated number of internet users would reach 655 million and, in some countries, doubled every six months), the High Court of Australia rejected a submission that publications via that medium should be treated as ‘one global tort’ calling for the adoption of the single publication rule applied in the United States. The High Court’s rejection of that submission was embraced by the English Court of Appeal in Lewis v King [2004] EWCA Civ 1329 (at [29]–[31]). Perhaps it is not surprising in that environment that, while the uniform defamation legislation sought to synthesise the common law of defamation and defamation statutes as they existed around the country, there was no recognition in 2005 of any need for any internet specific provisions.

In his first edition, Mr George acknowledged the impact of the internet per se. He noted, referring to Lewis v King, that despite arguments that the internet involved a quantum leap of technological capacity demanding a ‘root and branch revision’ of the common law rules of defamation, English courts had declined to take that opportunity. In 2006, while the internet was well established, the world of social media barely existed. Both Facebook and Twitter were in their infancy. At around the time the second edition of this work was published in 2012, there were over 1 billion users of Facebook, 11.68 million of whom were said to be in Australia. There were more than 465 million Twitter accounts and an estimated 175 million tweets published daily. The second edition was more expansive in its treatment of what Mr George described as the ‘social network’, an expression encapsulating both the internet and social media. As he observed, tweets could deliver the news instantly, while newspapers and broadcasters were still checking their facts. The hazards of seeking to bring proceedings against anonymous bloggers, tracking those behind false Facebook profiles and commencing injunctive proceedings against ‘persons unknown’ in that context were all discussed. The Defamation Act 2005 required the Minister to review the Act as soon as possible after the period of five years from the date of assent. A report on the outcome of the review was to be tabled in each House of Parliament within 12 months after the end of the period of five years. Although the statutory review was initiated in 2011, according to the New South Wales Justice Department’s website, it has not been completed. In the meantime, the United Kingdom has introduced the Defamation Act 2013 (UK), s 1 of which provides that a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant. No longer is damage presumed on the publication of a defamatory statement. Not surprisingly, s 1 has been described as having ‘made a major change to the substantive law of defamation’: Theedom v Nourish Training [2015] EWHC 3769 (QB) at [14] per Moloney J. Its effect is that the plaintiff must establish that the statement complained of has in fact caused or is likely to cause serious harm to his or her reputation: Sobrinho v Impresa Publishing SA [2016] EWHC 66 (QB) at [46] per Dingemans J. It is clearly intended to discourage the bringing of defamation proceedings.

In addition, s 5 of the Defamation Act 2013 deals with the liability of operators of websites. It provides a defence, subject to the matters there specified, for operators who show they were not the operator who posted a statement on a website. It is unnecessary to dwell on the ambit of s 5. It is sufficient to note that, in recognising the necessity for a defence peculiar to such website operators, the United Kingdom Parliament has taken a step neither Australian nor English courts were prepared to take. Writing extra-judicially in 2007, Justice Ipp described defamation as the ‘Galapagos Islands Division of the law of torts’, complaining that it had evolved ‘all on its own’, had ‘created legal forms and practices unknown anywhere else … [and] evolved its own dialectic and adopted esoteric customs.’ His Honour called for a law of defamation, which, like the law of negligence, was ‘readily comprehensible to ordinary people.’ It is regrettable that, to date, Australian legislature have not tackled the task of moving beyond the 2005 uniformity exercise, to uniform defamation legislation which reflects both the contemporary standards to which Justice Ipp appealed and, too, the unique features of internet publications as described by Kirby J in Dow Jones v Gutnick. As in his previous editions, Mr George’s third edition tracks judicial consideration of the uniform defamation legislation and continues to be an invaluable reference work for all concerned in this area of the law. It also seeks to come to terms in relevant areas with the continuing encroachment of the internet, including social media, on the law of defamation and the concomitant difficulties existing Australian defamation legislation has in accommodating such matters. He addresses in relevant passages provisions of the Defamation Act 2013 (UK). His work recognises too, more broadly, the need for reform of defamation legislation in the pursuit of the objectives of uniformity and access to justice. His proposals for reform clearly require anxious consideration. It remains to be seen if, and when, a fourth edition is published, whether Australian defamation law has moved off the Galapagos Islands. It would be hoped it does not take another 25 years. The Honourable Justice Ruth McColl AO Court of Appeal Supreme Court of New South Wales July 2017

TABLE OF CONTENTS Foreword Preface Table of Cases Table of Statutes

PART ONE — HISTORY AND CONCEPTS 1 INTRODUCTION 1.1

Introduction

2 HISTORY OF DEFAMATION LAW IN ENGLAND 2.1 2.2 2.3 2.4 2.5 2.6 2.7 2.8 2.9 2.10 2.11 2.12 2.13 2.14 2.15

Introduction The Ancients The Romans Early England The Church The Manor The Common Law Slanderous Words Censorship Shakespeare Stemming the Tide The Star Chamber War and Revolution Duelling The Torts of Libel and Slander

2.16 2.17 2.18 2.19 2.20 2.21 2.22 2.23 2.24

The Meaning of Defamation The Emergence of the Defences Pleading the Action The Public Interest The Victorian Age The World at Large The House of Windsor The Social Network Sources

3 HISTORY OF DEFAMATION LAW IN AUSTRALIA 3.1 3.2 3.3 3.4 3.5 3.6 3.7 3.8 3.9 3.10 3.11 3.12 3.13 3.14 3.15 3.16 3.17 3.18

Introduction Penal Colony Regulation of the Press Self-Government Windeyer’s Libel Act Changes to New South Wales Law Other States and Territories The Australian Constitution The Common Law of Australia International Covenant on Civil and Political Rights Government or Political Matters Development of the Common Law Defamation Law Reform A Defamation Code National or Uniform Law Common Law Principles and Statutory Modification Purpose of the Defamation Act Sources

4 REPUTATION 4.1

Introduction

4.2 4.3 4.4 4.5 4.6 4.7 4.8

Good Reputation Fame Bad Reputation Scandal Narcissism Ostracism Competing Interests

5 FREEDOM OF SPEECH 5.1 5.2 5.3 5.4 5.5 5.6 5.7

Introduction Seditious Libel/Words Defamatory (Criminal) Libel Obscene Libel Blasphemous Libel Civil Libel/Defamation Striking the Balance

PART TWO — GENERAL PRINCIPLES 6 THE CAUSE OF ACTION FOR DEFAMATION 6.1 6.2 6.3 6.4 6.5

Cause of Action at Common Law Statutory Cause of Action Multiple Publication Choice of Law Multiple Causes of Action

7 PUBLICATION 7.1 7.2 7.3 7.4 7.5

Introduction The Act of Publication When Published and For How Long Where Published Internet Publication

7.6 7.7 7.8 7.9 7.10

To Whom Published and to How Many About Whom Published (Identification) By Whom Published Form of the Publication — Libel and Slander Proof of Publication

8 IDENTIFICATION 8.1 8.2 8.3 8.4 8.5 8.6

Introduction The Understanding of the Ordinary Reasonable Recipient Identified Expressly or Implicitly from the Publication The Plaintiff as a Member of a Group Inference: Extrinsic Facts not in the Publication Extrinsic Facts: Prior or Subsequent Publications

9 MEANING 9.1 9.2 9.3 9.4 9.5 9.6 9.7 9.8 9.9 9.10 9.11 9.12 9.13 9.14 9.15 9.16

Introduction Interpretation Natural and Ordinary Meaning Reasonableness The Form of the Publication Inferences Context General Community Standards Particular Defamatory Meanings The Common Law — Pleading the Meaning New South Wales — The Pleaded Imputation The Form of the Imputation Uniform Approach to Pleading Meaning Separate and Distinct Meanings Extrinsic Meaning — True Innuendo Determination of Defamatory Meaning by Tribunal of Fact

10 DEFAMATION 10.1 10.2 10.3 10.4 10.5 10.6 10.7

Introduction The Leading Cases Guidance Free Form Community Standards Common Defamatory Accusations Reputation

11 PARTICULAR DEFAMATORY MEANINGS 11.1 11.2 11.3 11.4 11.5 11.6 11.7 11.8 11.9

Suspicion and Guilt Allegations and Rumours Contradictions — ‘Bane and Antidote’ Photographs and Juxtaposition Questions, Denials and Comparisons Abuse Humour and Ridicule Fiction Business Reputation

12 CAPACITY TO SUE — PLAINTIFFS 12.1 12.2 12.3 12.4 12.5 12.6 12.7 12.8 12.9 12.10

Introduction Bankrupts Companies Deceaseds Elected Institutions and Politicians Foreign Persons Groups Partnerships Strangers Unincorporated Associations

13 CAPACITY TO BE SUED — DEFENDANTS 13.1 13.2 13.3 13.4 13.5 13.6 13.7 13.8 13.9 13.10

Introduction Agents and Employees Anonymous Bloggers Bankrupts The Crown Deceaseds Foreign Persons Sources Strangers Unincorporated Associations

14 PRIVACY 14.1 14.2 14.3 14.4 14.5 14.6 14.7 14.8 14.9 14.10 14.11

Introduction Technological Change — Wireless Right to Privacy Recognised Causes of Action Freedom of Observation Misuse of Private Information Lenah Game Meats Invasion of Privacy A Common Law Tort A Statutory Tort Rights of Royal Confidence

15 OTHER CAUSES OF ACTION 15.1 15.2 15.3 15.4 15.5 15.6

Introduction Injurious Falsehood Misleading or Deceptive Conduct Negligence Contempt of Court Copyright

15.7

Anti-Discrimination

PART THREE — RESOLUTION OF CIVIL DISPUTES WITHOUT LITIGATION 16 ALTERNATIVE SOLUTIONS 16.1 16.2 16.3 16.4 16.5 16.6 16.7 16.8 16.9 16.10 16.11 16.12

Introduction Offer to Make Amends Content of the Offer Form of the Offer to Pay Compensation Time of the Offer Reasonableness of the Offer Acceptance of the Offer A Defence for the Plaintiff’s Failure to Accept the Offer Inadmissible Statements and Admissions Apologies Mediation Arbitration

PART FOUR — LITIGATION OF CIVIL DISPUTES — INCLUDING DEFENCES IN CIVIL PROCEEDINGS AND REMEDIES 17 ROLE OF JUDGE AND JURY 17.1 17.2 17.3

Use of Juries in Defamation Trials Section 7A Trials (NSW) Review of the Jury’s Determination by a Court of Appeal

18 THE DEFENCES 18.1 18.2

Common Law Defences Statutory Modification of Defences

18.3 18.4 18.5 18.6

Consent Illegality Release Time Limitation

19 TRUTH 19.1 19.2 19.3 19.4 19.5 19.6 19.7 19.8 19.9

Common Law Defence of Truth Statutory Defence of Justification Presumed Falsity of Defamatory Imputation Multiplicity of Imputations Truth of Defendant’s Imputations Truth of the Common Sting Different in Kind or Different in Substance Uniformity and Reform Public Interest

20 CONTEXTUAL TRUTH 20.1 20.2 20.3 20.4 20.5 20.6 20.7 20.8 20.9 20.10

Truth of Defamatory Matter Partial Truth Statutory Contextual Truth Defence Capacity of Contextual Imputations ‘In Addition’ Generality Adoption of the Contextual Imputations Historical Foundation Further Harm Split Result

21 ABSOLUTE PRIVILEGE 21.1 21.2 21.3

Common Law Defence of Absolute Privilege Statutory Defence of Absolute Privilege Other Statutory Defences of Absolute Privilege

22 THE PRIVILEGED OCCASION 22.1 22.2 22.3 22.4 22.5 22.6 22.7 22.8

Introduction Common Law Defence of Qualified Privilege Relationship of Publisher and Recipient Connection to the Occasion of Privilege Statements in Answer to Attacks or Requests for Information Volunteering Information Publication by the Media Protected Report

23 MALICE 23.1 23.2 23.3 23.4 23.5

Introduction Foreign Motive Political Motive Profit Motive Motive of Others

24 STATEMENTS TO THE WORLD AT LARGE 24.1 24.2 24.3 24.4 24.5 24.6 24.7

Public Interest Election Statements The Lange Defence Government or Political Matters Reasonable Conduct All the Circumstances Publication on a Matter of Public Interest

25 STATUTORY DEFENCE OF QUALIFIED PRIVILEGE 25.1 25.2 25.3 25.4 25.5

Defence for Provision of Certain Information Interest Reasonableness Strict Liability Circumstances of Publication

25.6 25.7 25.8 25.9 25.10

Pre-Publication Conduct Necessity Previous Statutory Defences Qualified Protection Negligent Publication

26 PROTECTED REPORTS 26.1 26.2 26.3 26.4 26.5 26.6 26.7 26.8 26.9 26.10 26.11 26.12 26.13 26.14

Common Law Defence of Fair and Accurate Report Statutory Defence of Fair Report of Proceedings of Public Concern Previous Statutory Defence of Protected Report Parliament Courts and Inquiries Council Meetings Public Meetings Statutory Authorities Proceedings of Particular Associations or Bodies International Bodies Statutory Defence of Public Documents Preservation of the Common Law Lack of Good Faith/Malice Fair and Accurate Reports on Matters of Public Interest

27 FAIR COMMENT 27.1 27.2 27.3 27.4 27.5 27.6 27.7 27.8 27.9

Common Law Defence of Fair Comment Comment Context Statement of Fact not Comment Material for Comment Factual Material Privileged Material Public Interest Fairness

27.10 Malice

28 HONEST OPINION 28.1 28.2 28.3 28.4 28.5 28.6 28.7 28.8 28.9 28.10

Statutory Defence of Honest Opinion Statutory Defence of Comment Whose Comment Comment in the Pleaded Imputations Comment of Servant or Agent Comment of a Stranger Partial Material Material Imputing Dishonest Motive Limitation of Statutory Defence of Comment Code Defence of Comment

29 INNOCENT DISSEMINATION 29.1 29.2 29.3

Common Law Defence of Innocent Dissemination Statutory Defence of Innocent Dissemination Statutory Defence for ISPs

30 CIRCUMSTANCES OF PUBLICATION 30.1

Statutory Defence of Triviality

31 DAMAGES AT COMMON LAW 31.1 31.2 31.3 31.4 31.5

General Principles Defamation Personal Injury Irreparable Harm Uniform Approach

32 GENERAL DAMAGES 32.1 32.2 32.3

Purpose Consolation — Injury to Feelings Reparation/Vindication — Harm to Reputation

33 AWARD OF DAMAGES 33.1 33.2 33.3 33.4

Value of Money Cap on Damages Calculation of Damages Personal Injury Awards

34 INCREASING DAMAGES — AGGRAVATION 34.1 34.2 34.3 34.4 34.5 34.6

Introduction Falsity of the Defamatory Imputations Manner and Extent of Publication Malice of the Defendant Towards the Plaintiff Failure or Refusal to Apologise Defendant’s Conduct of the Litigation

35 EXEMPLARY DAMAGES 35.1

Punishing the Defendant

36 REDUCING DAMAGES — MITIGATION 36.1 36.2 36.3 36.4 36.5 36.6 36.7 36.8 36.9

Introduction Conduct of the Plaintiff Plaintiff’s Bad Reputation Previous Publications Other Recoveries Defendant’s Lack of Malice Truth of the Plaintiff’s Imputations Apology Circumstances of Publication

37 SPECIAL DAMAGES 37.1

Economic Loss

38 OTHER ASPECTS OF DAMAGES 38.1

Taxation on Damages

38.2

Interest on Damages

39 ALTERNATIVE REMEDIES 39.1 39.2 39.3 39.4 39.5

Introduction Interlocutory and Final Injunctions Account of Profits Declarations Counter-Publicity/Crisis Management

40 NON-MONETARY REMEDIES 40.1 40.2 40.3 40.4 40.5

Introduction Right of Reply Correction Order Striking Out Proceedings Summary Judgment

41 COSTS 41.1 41.2 41.3 41.4

General Principles Conduct of Proceedings Offers of Compromise Nominal Damages

PART FIVE — MISCELLANEOUS 42 EVIDENCE/TRANSITIONAL 42.1 42.2 42.3 42.4 42.5 42.6

Evidence of Publication Evidence of Criminal Convictions Incriminating Evidence Giving of Notices and Other Documents Regulations for Defamation Repeal of Existing Legislation/Transitional Provisions

43 REFORM

43.1 43.2 43.3 43.4 43.5

Review of the Act Uniformity Defences Remedies Alternative Dispute Resolution

44 CRIMINAL LAW 44.1 44.2 44.3 44.4 44.5 44.6

Common Law Criminal Defamation Jury’s Role Defence of Lawful Excuse Other Jurisdictions Truth and Other Defences

APPENDIX I — DEFAMATION ACT 2005 (NSW VERSION) DEFAMATION ACT 2005 (NSW) Part 1 — Preliminary 1 2 3 4 5

Name of Act Commencement Objects of Act Definitions Act to bind Crown

Part 2 — General principles Division 1 — Defamation and the general law 6 Tort of defamation 7 Distinction between slander and libel abolished Division 2 — Causes of action for defamation 8 Single cause of action for multiple defamatory imputations in same

9 10

matter Certain corporations do not have cause of action for defamation No cause of action for defamation of, or against, deceased persons

Division 3 — Choice of law 11 Choice of law for defamation proceedings

Part 3 — Resolution of civil disputes without litigation Division 1 — offers to make amends 12 Application of Division 13 Publisher may make offer to make amends 14 When offer to make amends may be made 15 Content of offer to make amends 16 Withdrawal of offer to make amends 17 Effect of acceptance of offer to make amends 18 Effect of failure to accept reasonable offer to make amends 19 Inadmissibility of evidence of certain statements and admissions Division 2 — Apologies 20 Effect of apology on liability for defamation

Part 4 — Litigation of civil disputes Division 1 — General 21 Election for defamation proceedings to be tried by jury 22 Roles of judicial officers and juries in defamation proceedings 23 Leave required for further proceedings in relation to publication of same defamatory matter Division 2 — Defences 24 Scope of defences under general law and other law not limited 25 Defence of justification 26 Defence of contextual truth 27 Defence of absolute privilege 28 Defence for publication of public documents

29 30 31 32 33

Defences of fair report of proceedings of public concern Defence of qualified privilege for provision of certain information Defences of honest opinion Defence of innocent dissemination Defence of triviality

Division 3 — Remedies 34 Damages to bear rational relationship to harm 35 Damage for non-economic loss limited 36 State of mind of defendant generally not relevant to awarding damages 37 Exemplary or punitive damages cannot be awarded 38 Factors in mitigation of damages 39 Damages for multiple causes of action may be assessed as single sum Division 4 — Costs 40 Costs in defamation proceedings

Part 5 — Miscellaneous 41 Proof of publication 42 Proof of convictions for offences 43 Incriminating answers, documents or things 44 Giving of notices and other documents 45 Regulations 46 Repeal of Defamation Act 1974 No 18 47 Savings, transitional and other provisions 48 Amendment of other Acts 49 Review of Act Schedule 1 Additional publications to which absolute privilege applies Schedule 2 Additional kinds of public documents Schedule 3 Additional proceedings of public concern Schedule 4 Savings, transitional and other provisions

Schedule 5 Amendment of other Acts concerning criminal defamation and limitation periods Schedule 6 Consequential amendment of other Acts Comparable Table of States and Territories Acts

APPENDIX II — COMPARATIVE TABLES AUSTRALIAN DEFAMATION ACTS (REPEALED) LIMITATION ACTS CRIMINAL LAW ACTS

APPENDIX III — UNIFORM CIVIL PROCEDURE RULES 2005 (NSW) UNIFORM CIVIL PROCEDURE RULES 2005 (NSW) TABLE OF PROVISIONS Part 14 — Pleadings Division 6 — Pleadings Concerning Defamation 14.30 Allegations in Statements of Claim Generally 14.31 Defamation Defences Generally 14.32 Defence of Justification Generally 14.33 Defence of Contextual Truth 14.34 Defence of Absolute Privilege 14.35 Defences for Publication of Public and Official Documents 14.36 Defences of Fair Report of Proceedings of Public Concern 14.37 Defence of Qualified Privilege 14.38 Defences of Comment or Honest Opinion 14.39 Defence of Innocent Dissemination 14.40 Defence of Triviality

Part 15 — Particulars Division 1 — General 15.1 Pleadings must give all necessary particulars Division 4 — Defamation 15.19 Particulars in Relation to Statements of Claim for Defamation 15.20 Particulars in Relation to Statements of Claim by Corporations 15.21 Particulars of Defamation Defences Generally 15.22 Particulars in Relation to Defence of Justification 15.23 Particulars in Relation to the Defence of Contextual Truth 15.24 Particulars in Relation to Defence of Absolute Privilege 15.25 Particulars in Relation to Defences for Publication of Public and Official Documents 15.26 Particulars in Relation to Defences of Fair Report of Proceedings of Public Concern 15.27 Particulars in Relation to Defence of Qualified Privilege 15.28 Particulars in Relation to Defences of Comment and Honest Opinion 15.29 Particulars in Relation to Defence of Innocent Dissemination 15.30 Particulars in Relation to Defence of Triviality 15.31 Particulars Concerning Grounds That Defeat Defamation Defences 15.32 Particulars Concerning Damages

APPENDIX IV — DEFAMATION PRACTICE NOTES (NSW) NSW SUPREME COURT COMMON LAW DIVISION — DEFAMATION LIST NSW DISTRICT COURT — DEFAMATION LIST Index

PREFACE The third edition of this book comes more than 10 years after the introduction of the Defamation Act 2005 throughout Australia. With the benefit of time and the wisdom of hindsight, there are improvements that can and should be made to the Act to adjust the rights between those who publish and those who are defamed. The Act sets out its essential objectives in s 3 and it is timely to consider whether these objectives are being met — uniformity, reasonable limits on freedom of expression, effective and fair remedies to protect reputation, and speedy and non-litigious methods of resolving disputes. While the law strikes a fine balance between the protection of reputation and freedom of speech, simplicity and affordability should also be essential objectives in this area of law. The discussion on reform is contained in Chapter 43. Since the commencement of the Act, generally from 1 January 2006, social media has transformed the media landscape. It is an enormously powerful force. It has liberated many to speak freely, as they like and without restraint. The law has been challenged in these times to provide meaningful protection of reputation from defamatory, vicious and abusive material, often published anonymously and across jurisdictions. This uninhibited exercise of freedom of speech is in contrast to the relative restraint exercised by ‘traditional’ media where journalists have an ethical duty, and a heavy responsibility in furtherance of the public interest, to act truthfully and fairly. In this context, a respected journalist identified reputation as the measure by which he conducts himself: Reputation [is] all you own as a human in any situation but especially as a journalist, so I guard it closely. Every person you meet is judging you on what you have done before and whether they feel you have betrayed anybody or acted unprofessionally. I could not care less if people do not like me or my stories, but I do want people to believe in my word and my honesty.

(Mark Davis (SBS Dateline), Good Weekend, Sydney Morning Herald, 2 July 2011.)

The desire to be liked and respected is a basic human need. We seek to belong to the social groups in which we live, including our families, workplaces and communities. Being held up to ‘hatred, contempt and ridicule’ amongst these groups can have devastating reputational consequences that cannot be measured in money terms. Often the question is how long must one spend cast adrift as a result of false and defamatory accusations. For that time, lost or wasted, the law must provide an effective remedy. The chapters in this book have been arranged to reflect the Parts of the Defamation Act 2005, which is set out in Appendix I. The third edition states the law as at July 2017. One of the leading judges in Australia in stating and applying the principles of defamation law is the Honourable Justice Ruth McColl AO of the New South Wales Court of Appeal, who has again kindly written the Foreword to this edition, having done so for the first and second editions. I acknowledge and thank all those who were involved in the production of the third edition, particularly Fiona Young, Karen Monkerud and Kate Pitcairn for their contributions, and thank those involved in previous editions. I also thank Melanie Hastings who has worked so assiduously editing and formulating this edition. Finally, once again my thanks and love go to my wife, Norah, for her unselfish support, patience and companionship, and my children for their comments and musings. Patrick George Sydney July 2017

TABLE OF CASES References are to paragraph numbers

A A v B plc [2003] QB 195 …. 4.3, 5.6, 14.5, 14.6, 14.9 AAMAC Warehousing & Transport Pty Ltd v Fairfax Media Publications Pty Ltd [2009] NSWSC 1030 …. 39.2 AB Ltd v Facebook Ireland Ltd [2013] NIQB 14 …. 13.3 Abbott v TCN Channel Nine Pty Ltd (1987) Aust Torts Reports 80-138 …. 8.5, 8.6 Aboriginal Nations Pty Ltd v John Fairfax Publications Pty Ltd [1998] ACTSC 125 …. 9.10 Abou-Lokmeh v Harbour Radio Pty Ltd [2016] NSWCA 228 …. 20.3, 20.5, 20.6, 20.9 Adam v Ward [1917] AC 309 …. 2.13, 22.2–22.5, 23.2, 24.1 Adams v Coleridge (1884) 1 TLR 84 …. 22.6 — v Sunday Pictorial Newspapers (1920) Ltd & Champion [1951] 1 KB 354 …. 27.1, 27.10 Adeang v Australian Broadcasting Corporation [2016] FCA 1200 …. 20.6 Adler v District Court of New South Wales (1990) 19 NSWLR 317 …. 3.9 Advanced Hair Studio Pty Ltd v TVW Enterprises Ltd (1987) 18 FCR 1; 77 ALR 615 …. 15.3 Advertiser-News Weekend Publishing Co Ltd v Manock [2005] SASC 82 …. 9.10, 9.14, 19.5, 19.7 Agar v Hyde (2000) 201 CLR 552 …. 9.12 Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676 …. 18.6, 28.1 — v — [2013] NSWSC 1928 …. 33.3 — v John Fairfax Publications Pty Ltd [2006] NSWCA 6 …. 9.12, 11.3

— v Nationwide News Pty Ltd (DC (NSW) Bozic DCJ, 31 May 2012, unreported) …. 33.3 Ainsworth v Burden (2003) 56 NSWLR 620 …. 13.8 — v — [2005] NSWCA 174 …. 4.1, 36.7 — v Hanrahan (1991) 25 NSWLR 155 …. 13.8 Airways Corporation of NZ Ltd v Pricewaterhouse Coopers Legal [2002] NSWSC 138 …. 13.3 Aiton Australia Pty Ltd v Transfield Pty Ltd (1999) 153 FLR 236 …. 16.11 Aktas v Westpac Banking Corporation Ltd [2010] HCA 25 …. 22.2–22.4, 22.7, 23.1, 23.2, 24.1 Al Muderis v Duncan [2017] NSWSC 726 …. 31.4, 32.3, 33.2, 33.3 Aldridge v John Fairfax & Sons Ltd [1984] 2 NSWLR 544 …. 4.1 Alexander v North-Eastern Railway Company (1865) 6 B&S 340; 122 ER 1221 …. 19.1 Ali v Nationwide News Pty Ltd [2008] NSWCA 183 …. 31.2, 32.1–32.3, 33.4, 34.1, 34.5 Allbutt v General Council of Medical Education & Registration (1889) 23 QBD 400 …. 24.1, 26.1 Allen v John Fairfax & Sons Ltd [1971] 1 NSWLR 773 …. 26.14 Allsop v Church of England Newspaper Ltd [1972] 2 QB 161 …. 9.10 Allsopp v Incorporated Newsagencies Company Pty Ltd (1975) 26 FLR 238 …. 19.9 Allstate Life Insurance Co v Australia & New Zealand Banking Group Ltd (1995) 57 FCR 360 …. 13.8 Allworth v John Fairfax Group Pty Ltd (1993) 113 FLR 254 …. 19.9 Amaca Pty Ltd v Frost [2006] NSWCA 173 …. 6.4 Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 …. 6.2, 7.10, 9.3–9.6, 9.11–9.13, 17.2, 17.3 — v — [2002] NSWCA 419 …. 4.2, 19.1, 22.5, 31.2, 31.4, 32.1–32.3, 33.3, 33.4, 34.6, 35.1, 36.3, 36.5, 38.2, 41.3 — v — (No 2) (2003) 57 NSWLR 338; [2003] NSWCA 186 …. 16.11, 35.1 AMC v News Group Newspapers Ltd [2015] EWHC 2361 …. 14.5, 14.6

Ames v The Spamhaus Project Ltd [2015] EWHC 127 …. 19.8 AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 1395 …. 14.7, 15.2 Anderson v Mirror Newspapers Ltd (No 1) (1986) 6 NSWLR 99 …. 9.6, 9.14 — v — (No 2) (1986) 5 NSWLR 735 …. 4.2, 4.3, 9.11 — v Nationwide News Pty Ltd [1970] 1 NSWR 317 …. 26.1 Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 …. 8.3, 12.3, 34.4, 36.1, 37.1 Andreyevich v Kosovich (1947) 47 SR (NSW) 357 …. 22.6 Ange v Fairfax Media Publications Pty Ltd [2010] NSWSC 1383 …. 17.1, 19.8, 20.6 — v — [2011] NSWSC 204 …. 20.5 Annetts v Australian Stations Ltd (2002) 191 ALR 449 …. 15.4 Anon (1536) 27 Hen 8 f 14 p l4 …. 2.17 Anon (1565) B&M 637 …. 2.11 Anon (1652) Sty 392; 82 ER 804 …. 2.17, 2.18, 19.3 Anon (1706) 11 Mod Rep 99; 88 ER 921 …. 2.17, 15.2 Ansett Transport Industries (Operations) Pty Ltd v The Commonwealth (1977) 139 CLR 54 …. 3.11 Antoniadis v TCN Channel Nine Pty Ltd (SC (NSW), Levine J, 24 April 1997, unreported) …. 41.3 APLA Pty Ltd v Legal Services Commissioner [2005] HCA 44 …. 3.11, 24.4 Applause Store Productions Ltd and Matthew Firsht v Raphael [2008] EWHC 1781 …. 13.3 Application of Cojuangco, Re (1986) 4 NSWLR 513 …. 7.8, 13.8 Application of Eduardo Murphy Cojuangco (No 2) (SC (NSW), Hunt J, 6 January 1999, unreported) …. 13.8 Aqua Vital Australia Ltd v Swan Television and Radio Broadcasters Pty Ltd (1995) Aust Torts Reports 81-364 …. 9.10, 10.3 Argus Printing & Publishing Company Ltd v Inkatha Freedom Party [1992] 3 SA 579 …. 12.5 Armstrong Strategic Management and Marketing Pty Ltd v Expense Reduction

Analysts Group Pty Ltd [2012] NSWCA 430 …. 14.7 Ash v McKennitt [2007] 3 WLR 194 …. 14.1, 14.6 Ashby v Commonwealth of Australia [2012] FCA 766 …. 13.8 Askew v Morris [2005] WASCA 59 …. 9.10 Assaf v Skalkos [2000] NSWCA 935 …. 30.1 Associated Leisure v Associated Newspapers [1970] 2 QB 450 …. 27.4 Associated Newspapers Ltd v Dingle [1964] AC 371 …. 4.4, 36.3, 36.4, 36.8 — v Prince of Wales [2006] EWCA Civ 1776 …. 14.5, 14.6, 14.9, 14.11 Astaire v Campling [1966] 1 WLR 34 …. 8.6 Atkinson v John E Doherty & Co 121 Mich 372; 80 NW 285 (1899) …. 14.1 Attorney-General v Bailey (1917) 17 SR (NSW) 170 …. 15.5 — v Blake [2001] 1 AC 268 …. 39.3 — v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 …. 3.11, 14.5–14.7 — v MGN Ltd [2011] EWHC 2074 …. 15.5 Attorney-General (NSW) v John Fairfax & Sons Ltd (1985) 6 NSWLR 695 …. 15.5 — v Mirror Newspapers Ltd [1980] 1 NSWLR 374 …. 15.5 — v Mundey [1972] 2 NSWLR 887 …. 15.5 — v Radio 2UE Sydney Pty Ltd (CA (NSW), 16 October 1997, unreported) …. 11.1, 15.5 — v Stocks & Holdings (Constructors) Pty Ltd (1970) 124 CLR 262 …. 3.14 — v Time Inc Magazine Company Pty Ltd (CA (NSW), 7 June 1994 and 15 September 1994, unreported) …. 15.5 — v Willessee [1980] 2 NSWLR 143 …. 15.5 — v X (2000) 49 NSWLR 653 …. 15.5 Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (1987) 10 NSWLR 86 …. 39.3 Attrill v Christie [2007] NSWSC 1386 …. 33.2 Attwood v Chapman [1914] 3 KB 275 …. 21.1 Austin v Culpepper (1683) 2 Show KB 313; 89 ER 960 …. 2.13 — v Mirror Newspapers Ltd [1984] 2 NSWLR 383 …. 25.8

— v — (1985) 3 NSWLR 354 …. 23.2, 25.2, 25.3 Australand Holdings Ltd v Transparency & Accountability Council Incorporated [2008] NSWSC 669 …. 15.2 Australian Broadcasting Corporation v Chatterton (1986) 46 SASR 1 …. 21.1 — v Comalco (1986) 12 FCR 510; 68 ALR 259…. 12.3, 37.1 — v Hanson [1998] QCA 306 …. 11.7 — v Hodgkinson [2005] NSWCA 190 …. 20.4 — v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 …. 14.5, 14.7–14.9, 39.2, 39.3 — v McBride (2001) 53 NSWLR 430; [2001] NSWCA 322 …. 4.4, 9.11, 36.3 — v Obeid [2006] NSWCA 231 …. 9.5, 9.7 — v O’Neill (2006) 227 CLR 57; [2006] HCA 46 …. 15.2, 39.2 — v Reading [2004] NSWCA 411 …. 17.3 — v Waterhouse (1991) 25 NSWLR 519 …. 6.4 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 …. 21.3 Australian Capital Television Pty Ltd v Commonwealth (No 2) (1992) 177 CLR 106 …. 3.11, 12.5 Australian Competition and Consumer Commission v Channel Seven Brisbane Pty Ltd [2009] HCA 19 …. 15.3 Australian Consolidated Press v Driscoll (1988) Aust Tort Reports 80-175 …. 38.2 Australian Consolidated Press Ltd v Uren (1966) 117 CLR 185 …. 3.9, 19.3, 22.4, 34.2, 35.1 Australian Football League v The Age Company Ltd (2006) 15 VR 419 …. 14.7 Australian National University v Lewins (1996) 138 ALR 1 …. 21.3 Australian Newspaper Company Ltd v Bennett [1894] AC 284 …. 17.3 Australian Ocean Line Pty Ltd v West Australian Newspapers Ltd (1983) 66 FLR 453 …. 15.3 — v — (1985) 58 ALR 549 …. 27.6 Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 …. 3.9 AWA Ltd v Daniels (SC (NSW), Rolfe J, 18 March 1992, unreported) …. 16.11

Axel Springer AG v Germany [2012] ECHR 227 (No 39954/08) …. 14.5

B Baboolal v Fairfax Digital Australia and New Zealand Pty Ltd [2016] QSC 175 …. 19.8 Backwell v ‘AAA’ [1997] 1 VR 182 …. 35.1 Bacon v Automatic Inc [2011] EWHC 1072 …. 13.3 Bailey v Truth and Sportsman Ltd (1938) 60 CLR 700 …. 27.5, 27.7, 27.8 Baird v Wallace-James (1916) 85 LJPC 193 …. 22.3 Baker v Carrick [1894] 1 QB 838 …. 13.2, 22.6 Ballina Shire Council v Ringland (1994) 33 NSWLR 680 …. 3.9, 3.12, 12.3, 12.5, 15.2 Balnaves v Smith [2012] QSC 408 …. 41.2, 41.3 Baltinos v Foreign Language Publications Pty Ltd (1986) 6 NSWLR 85 …. 8.2, 8.6, 9.15 Bank of England v Vagliano Bros [1891] AC 107 …. 3.14 Barach v University of New South Wales [2011] NSWSC 431 …. 7.5, 7.8 Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 …. 8.5, 25.2 — v — (1989) 20 NSWLR 493 …. 25.3 Barclay v Cox [1968] VR 664 …. 9.10, 19.7 Bargold Pty Ltd v Mirror Newspapers Ltd [1981] 1 NSWLR 9 …. 9.6, 12.3 Barrett v Associated Newspapers Ltd (1907) 23 TLR 666 …. 15.2 — v TCN Channel Nine Pty Ltd [2016] NSWSC 1663 …. 18.6 Barron v Collins [2015] EWHC 1125 …. 19.8 — v Vines [2015] EWHC 1161 …. 24.7 Barrow v Bolt [2014] VSC 599 …. 16.5 — v — [2015] VSCA 107 …. 30.1 Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5 …. 18.2, 21.2, 22.2–22.8, 23.4, 25.2, 25.7, 26.1, 26.2 Bass v TCN Channel Nine Pty Ltd (2003) 60 NSWLR 251 …. 9.7, 22.5

Bateman v Fairfax Media Publications Pty Ltd [2014] NSWSC 400 …. 13.8 — v — (No 2) [2014] NSWSC 1380 …. 19.8 Bathurst City Council v Saban [1985] 2 NSWLR 704 …. 14.4 Beatson v Skene (1860) 5 H&N 838; 157 ER 1415 …. 22.5 Beauchamps v Croft (1569) 3 Dyer 285a; 73 ER 639 …. 2.17 Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 …. 39.2 Beechwood Homes (NSW) Pty Ltd v Camenzuli [2010] NSWSC 521 …. 15.2, 15.3, 39.2 Belbin v Lower Murray Urban & Rural Water Corp [2012] VSC 535 …. 32.3 — v McLean [2004] QCA 181 …. 7.8 Bell v Stone (1798) 1 Bos & P 331; 126 ER 993 …. 2.13 Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 …. 3.14, 6.2, 19.9, 22.4, 25.9, 27.8 Belt v Lawes (1882) 51 LJQB 359 …. 19.3 Bennett v Cohen [2005] NSWCA 341 …. 11.6 — v News Group Newspapers [2002] EMLR 39 …. 11.1 Bennette v Cohen [2009] NSWCA 60 …. 22.3, 22.4, 22.6 Benson v Flower (1629) WJo 215 …. 12.2 Beran v John Fairfax Publications Pty Ltd [2004] NSWCA 107 …. 17.3 Berkoff v Burchill [1996] 4 All ER 1008 …. 10.3, 10.4, 11.7 Bernstein of Leigh (Brown) v Skyviews & General Ltd [1978] QB 479 …. 14.4 Berry v British Transport Commission [1960] 3 All ER 322 …. 7.9 BHP Billiton Ltd v Schultz (2004) 211 ALR 523 …. 6.4, 7.5 Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474 …. 4.2, 4.3, 4.5, 27.2, 27.4, 27.9, 28.1, 28.3, 34.1, 34.6 Biddulph v Chamberlayne [1851] 17 QB 351; 117 ER 1314 …. 19.4 Bik v Mirror Newspapers Ltd [1979] 2 NSWLR 679 …. 7.8, 11.3 Bishop v State of New South Wales [2000] NSWSC 1042 …. 7.8, 17.2 Bjelke-Petersen v Burns [1988] 2 Qd R 129 …. 27.2, 27.5 — v Warburton [1987] 2 Qd R 465 …. 8.4 Blackshaw v Lord [1984] QB 1 …. 24.1, 26.14, 31.2

Blair and Perpetual Trustee Company Ltd v Curran (1939) 62 CLR 464 …. 7.5 Blake v John Fairfax Publications Pty Ltd [2001] NSWSC 885 …. 20.3 Blaney v Persons Unknown (EWHC ChD, Lewinson J, October 2009, unreported) …. 13.3 Bleyer v Google Inc [2014] NSWSC 897 …. 7.8, 43.2 Bloomsbury Publishing Group Plc v News Group Newspapers Ltd [2003] 1 WLR 1633 …. 13.3, 14.11 Bob Kay Real Estate Pty Ltd v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 505 …. 28.2, 28.4 Bognor Regis Urban District Council v Campion [1972] 2 QB 169 …. 12.3 Bond v Barry (2008) 173 FCR 106 …. 15.3 Boniface v SMEC Holdings Ltd [2006] NSWCA 351 …. 13.3 Bonnard v Perryman [1891] 2 Ch 269 …. 39.2 Bonnick v Morris [2002] UKPC 31 …. 24.7 — v — [2003] 1 AC 300 …. 24.6, 25.7 Born Brands Pty Ltd v Nine Network Australia Pty Ltd [2011] NSWSC 642 …. 15.2 — v — [2013] NSWSC 1651 …. 33.3 — v — [2014] NSWCA 369 …. 20.9, 20.10 Boston v W S Bagshaw & Sons [1966] 1 WLR 1126 …. 24.5 Bottomley v Broughan [1908] 1 KB 584 …. 21.1 Bourke v Warren (1826) 2 C&P 307; 172 ER 138 …. 2.21, 8.6 Bowen Investments Pty Ltd v Tabcorp Holdings Ltd [2008] FCAFC 107 …. 41.3 Bowles v Armstrong (1912) 32 NZLR 409 …. 21.1 Bowman v Secular Society Ltd [1917] AC 406 …. 5.5 Boyd v Angus & Robertson Ltd (1946) 63 WN (NSW) 189 …. 5.4 — v Mirror Newspapers Ltd [1980] 2 NSWLR 449 …. 10.4, 11.7 Braddock v Bevins [1948] 1 KB 580 …. 24.1, 24.2 Branson v Bower [2002] QB 737 …. 27.10 Bread Manufacturers Ltd, Ex parte; Truth and Sportsman Ltd, Re (1937) 37 SR

(NSW) 242 …. 15.5 Bremridge v Latimer (1864) 12 WR 878 …. 19.5 Brent Walker Group plc v Time Out Ltd [1991] 2 QB 33 …. 27.7 Bret Wilson LLP v Persons Unknown, responsible for the operation and publication of the website www.solicitorsfromhelluk.com [2015] EWHC 2628 …. 13.3 Brighten Pty Ltd v Nine Network Australia Pty Ltd [2009] NSWSC 319 …. 14.4, 39.2 Briginshaw v Briginshaw (1938) 60 CLR 336 …. 19.1 Bristow v Adams [2012] NSWCA 166 …. 32.3 British American Tobacco Company Australian Ltd v Gordon [2009] VSC 619 …. 14.7 British Railway Traffic & Electric Company v CRC Company and the London County Council [1922] 2 KB 260 …. 23.2 British Steel Corp v Granada Television Ltd [1981] AC 1096 …. 13.8 British Transport Commission v Gourley [1956] AC 185 …. 38.1 Brodie v Singleton Shire Council (2001) 206 CLR 512 …. 3.8, 26.2 Bromage v Prosser (1825) 4 B&C 247; 107 ER 1051 …. 2.17, 22.5 Brook v Montague (1606) Cro Jac 90; 79 ER 77 …. 2.17 Brooks v Blanshard (1833) 1 C&M 779; 149 ER 613 …. 22.6 Broome v Agar (1928) 138 LT 698 …. 2.13, 17.3 Bropho v Human Rights and Equal Opportunity Commission (2004) 204 ALR 761 …. 15.7 Brown v Australian Broadcasting Corporation (SC (NSW), Hunt J, 4 May 1987, unreported) …. 9.5 — v Members of the Classification Review Board (1998) 154 ALR 67 …. 5.4 Browne v Associated Newspapers Ltd [2008] QB 103 …. 14.6 Bruinsma v Menczer (1995) 40 NSWLR 716 …. 16.11 Brunsden v Humphrey (1884) 14 QBD 141 …. 31.1 Buck v Barone (1976) 135 CLR 110 …. 3.11 Buckeridge v Walter [2010] WASCA 134 …. 19.5 Buckley v Herald & Weekly Times Pty Ltd [2008] VSC 459 …. 27.2

— v — [2009] VSCA 118 …. 6.5 — v — (No 2) [2008] VSC 475 …. 6.5 — v Wood (1591) 4 Co Rep 14b; 76 ER 888 …. 2.17 Bugge v Brown (1919) 26 CLR 110 …. 29.1 Bunt v Tilley [2006] All ER (D) 142; [2006] EWHC 407 …. 7.8, 29.3 Burden v Ainsworth (2004) 59 NSWLR 506 …. 42.2 Burnie Port Authority v General Jones Pty Ltd (1992–1994) 179 CLR 520 …. 25.10, 26.2 Burns v Laws [2008] NSW ADTAP 32 …. 15.7 — v Ransley (1949) 79 CLR 101 …. 5.2 Burrows v Knightley (1987) 10 NSWLR 651 …. 9.12, 9.15 Burstein v Times Newspapers Ltd [2001] 1 WLR 579 …. 4.4, 19.3, 36.7 Burton v Crowell Pub Co 82F 2d 154 (1936) …. 10.4 Bushell’s Case (1670) 1 Freeman 1; 89 ER 2 …. 21.1 Business and Research Management Pty Ltd v Flude [2002] NSWSC 318 …. 9.14 Butler v John Fairfax Group Pty Ltd (1994) 1 MLR 106 …. 8.5, 11.1 Byrne v Deane [1937] 1 KB 818 …. 7.8, 10.5

C Cabassi v Villa (1940) 64 CLR 130 …. 21.1 Cairns v John Fairfax & Sons Ltd [1983] 2 NSWLR 708 …. 10.3, 10.5, 17.3 — v Modi [2012] EWHC 756 …. 2.23 — v —; C v MGN Ltd [2012] EWCA Civ 1382 …. 2.23, 31.4, 32.3 Calderbank v Calderbank [1975] 3 All ER 333 …. 16.11, 41.2, 41.3 Calman and John Fairfax & Sons Pty Ltd, Re (1954) 71 WN (NSW) 79 …. 13.8 Calwell v Ipec Australia Ltd (1975) 135 CLR 321 …. 3.14, 12.4, 23.2, 24.2 Cameron v McBain [1948] VLR 245 …. 6.5 Campbell v Frisbee [2002] EWHC 328 …. 39.3 — v John Fairfax & Sons Ltd (1935) 52 WN (NSW) 154 …. 13.8 — v Mirror Group Newspapers Ltd [2003] QB 633 …. 4.3, 14.6

— v — [2004] UKHL 22; [2004] 2 AC 457 …. 14.1, 14.5, 14.6, 14.9 — v Spottiswoode (1863) 3 B&S 769; 122 ER 288 …. 2.21, 27.1, 27.4, 28.8 Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd [2006] HCA 41 …. 12.9 Campomar Sociedad Limitada v Nike International Ltd (2000) 202 CLR 45 …. 9.6 Candy v Bauer Media Ltd [2013] NSWSC 979 …. 14.5, 14.8 Capital & Counties Bank Ltd v George Henty & Sons (1882) 7 App Cas 741 …. 2.13, 9.3, 10.2 Carey v Australian Broadcasting Corporation [2010] NSWSC 709 …. 6.5, 18.6 — v Nationwide News Pty Ltd [2014] NSWDC 73 …. 11.7 Carleton v Australian Broadcasting Corporation (2002) 172 FLR 398; (2003) Aust Torts Reports 81-685 …. 24.4, 27.1 Carlovers Carwash Ltd v Sahathevan [2000] NSWSC 947 …. 15.3 Carolan v Fairfax Media Publications Pty Ltd [2016] NSWSC 1091 …. 33.3 — v — [2017] NSWSC 351 …. 39.2 Carr v Hood (1808) 1 Campbell 355; 170 ER 983 …. 2.17 Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 …. 2.15, 3.11, 4.1, 4.4, 31.2, 31.3, 32.1–32.3, 33.4, 34.1, 34.5, 36.4, 36.8 Casey v Australian Broadcasting Commission [1981] 1 NSWLR 305 …. 18.1 Casley v Australian Broadcasting Corporation [2013] VSC 251 …. 18.6 — v — [2013] VSCA 182 …. 18.6 Cassell v Gold Coast Publications Pty Ltd [1984] 1 NSWLR 11 …. 26.6 Cassell & Co Ltd v Broome [1972] AC 1027 …. 3.12, 31.2, 32.2, 32.3, 35.1, 36.2 Cassidy v Daily Mirror Newspapers Ltd [1929] 2 KB 331 …. 2.21, 25.4 Catch the Fire Ministries Inc v Islamic Council of Victoria Inc (2006) 15 VR 207 …. 15.7 Cawley v Australian Consolidated Press Ltd [1981] 1 NSWLR 225 …. 27.9, 28.3, 28.10 Cerutti v Crestside Pty Ltd [2014] QCA 33 …. 32.1, 32.3, 38.2 Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; (1998) 193 CLR 519 …. 3.10, 9.10, 9.12, 9.14, 9.16, 10.1, 11.3, 18.1, 19.5, 19.8, 22.8, 26.1, 31.1, 36.7, 37.1

Chalmers v Payne (1835) 2 CM&R 156; 150 ER 67 …. 11.3 Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60 …. 6.1, 9.5, 27.1–27.6, 27.9, 28.1 — v S, DJ [2006] SASC 10 …. 11.1 — v — [2007] SASC 117 …. 11.1 Channel Seven Sydney Pty Ltd v Fierravanti-Wells [2011] NSWCA 246 …. 17.1 — v Mahommed [2010] NSWCA 335 …. 4.1, 4.2, 4.4, 19.1, 31.2, 32.1, 32.3, 36.1–36.3 — v Parras [2002] NSWCA 202 …. 8.4, 8.5, 17.3 Chapman v Australian Broadcasting Corporation (2000) 77 SASR 181 …. 9.10 — v Hearse (1961) 106 CLR 112 …. 31.1 — v Lord Ellesmere [1932] 2 KB 431 …. 18.3, 24.1, 25.8 Chappell v Mirror Newspapers Ltd (1984) Aust Torts Reports 80-691 …. 4.4, 20.4, 30.1, 36.3, 36.4 — v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153 …. 14.4, 19.9, 39.2 Charleston v News Group Newspapers Ltd [1995] 2 AC 65 …. 9.2, 11.3, 11.4, 19.8 Charlwood Industries Pty Ltd v Brent [2002] NSWCA 201 …. 10.3, 17.3 Charman v Orion Publishing Group Ltd [2005] EWHC 2187 …. 11.1, 11.3 — v — [2007] EWCA Civ 972 …. 24.6 Chase v News Group Newspapers Ltd [2003] EMLR 218 …. 11.1 Chatterton v Secretary of State for India in Council [1895] 2 QB 189 …. 21.1 Cheikho v Nationwide News Pty Ltd [2015] NSWSC 146 …. 17.1 — v — (No 5) [2016] NSWSC 29 …. 20.10, 22.4, 22.7, 24.1, 28.1, 33.3 Chel v Fairfax Media Publications Pty Ltd [2015] NSWCA 379 …. 17.1 — v — [2015] NSWSC 171 …. 20.7 — v — [2017] NSWSC 230 …. 20.10 — v — [2017] NSWSC 996 …. 33.3 Chenard & Co v Joachim Arissol [1949] AC 127 …. 21.1 Cheng v Tse Wai Chun [2000] 3 HKLRD 418 …. 27.10 Chesterton v Radio 2UE Sydney Pty Ltd [2010] NSWSC 47 …. 6.4

— v — [2010] NSWSC 982 …. 10.5 Chinatown Enterprises Pty Ltd v Maxims Entertainment Pty Ltd (SC (NSW), Levine J, 30 November 1995, unreported) …. 17.2 Chubb v Flannagan (1834) 6 C&P 431; 172 ER 1307 …. 29.1 Chulcough v Holley [1968] ALR 274 …. 31.2 Church of Scientology v Woodward (1982) 154 CLR 25 …. 14.6 Church of Scientology of California Inc v Department of Health & Social Security [1979] 1 WLR 723 …. 13.8 — v Reader’s Digest Services Pty Ltd [1980] 1 NSWLR 344 …. 12.3, 32.2, 39.2 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 …. 3.14 Cinevest Ltd v Yirandi Productions Ltd [1999] A Def R 53-050 …. 17.2 — v — [2001] NSWCA 68 …. 10.3 Citizens’ Life Assurance Company Ltd v Brown [1904] AC 423 …. 7.8 Civil Aviation Authority v Australian Broadcasting Corporation (1995) 39 NSWLR 540 …. 15.5 Clark v Ainsworth (1996) 40 NSWLR 463 …. 32.2, 34.5, 34.6 — v Ibrahim [2014] VSC 30 …. 18.6 — v Molyneux (1877) 3 QBD 237 …. 23.2, 25.3 Clarke v Norton [1910] VLR 494 …. 27.2, 27.4 — v Taylor (1836) 2 Bing NC 654; 132 ER 252 …. 19.4 Clay v Roberts (1863) 8 LT 397 …. 10.2 Clift v Clarke (2011) EWHC 18 February 2011, unreported …. 13.3 Clissold v Clissold (1787) 1 TR 647; 99 ER 1299 …. 2.21 Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86 …. 3.9 Clyne v NSW Bar Association (1960) 104 CLR 186 …. 21.1 Cockayne v Hodgkisson (1833) 5 C&P 543; 172 ER 1091 …. 22.5 Coco v AN Clark (Engineers) Ltd [1969] RPC 41 …. 14.6, 14.7 Cohen v Daily Telegraph Ltd [1968] 1 WLR 916 …. 27.6 — v Mirror Newspapers Ltd [1971] 1 NSWLR 623 …. 19.9 Cojuangco v John Fairfax & Sons Ltd (No 2) [1990] ADef R 51-005 …. 13.8 Colbeam Palmer Ltd v Stock Affiliates Pty Ltd (1968) 122 CLR 25 …. 39.3

Coleman v Power (2004) 209 ALR 182 …. 3.9–3.11, 3.14 Colgate-Palmolive Pty Ltd v Cussons (1993) 46 FCR 225 …. 41.2 Collins v Ryan (1991) 6 BR 229 …. 25.3 — v Wilcock [1984] 1 WLR 1172 …. 14.6 Colonial Mutual Life Assurance Society Ltd v Produce & Citizens Co-Operative Insurance Company of Australia Ltd (1931) 46 CLR 41 …. 7.8, 29.1 Comalco Ltd v Australian Broadcasting Corporation (1985) 64 ACTR 1 …. 27.2 Commercial Bank of Australia Ltd v Preston [1981] 2 NSWLR 554 …. 11.1, 15.5 Commissioner of Australian Federal Police v Razzi [1981] FCA 267 …. 41.3 Commissioner of Taxation v Sydney Refractive Surgery Centre Pty Ltd [2008] FCAFC 190 …. 12.3, 37.1, 38.1 Commonwealth v Bogle (1953) 89 CLR 229 …. 13.5 — v John Fairfax & Sons Ltd (1980) 147 CLR 39 …. 5.2 Commonwealth Bank of Australia v McConnell (SC (NSW), Rolfe J, 10 July 1997, unreported) …. 16.11 Commonwealth of Australia v State of Tasmania (1983) 158 CLR 1 …. 3.10 Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17 …. 15.3 Conlon v Advertiser News Weekend Publishing Company Pty Ltd [2008] SADC 91 …. 33.3 Consolidated Trust Company Ltd v Browne (1948) 49 SR (NSW) 86 …. 8.3, 8.5, 9.6 Consul Development Pty Ltd v DPC Estates Pty Ltd (1975) 132 CLR 373 …. 39.3 Control Risks Ltd v New English Library Ltd [1990] 1 WLR 183 …. 19.5 Cook v Alexander [1974] 1 QB 279 …. 26.1 — v Cook (1986) 162 CLR 376 …. 3.9 — v Field (1788) 3 Esp R 133; 170 ER 564 …. 2.17 — v Ward (1830) 6 Bing 409; 130 ER 1338 …. 10.4 Cooke v MGN Ltd [2014] EWHC 2831 …. 19.8 Cooper v Stuart (1889) 14 App Cas 286 …. 3.2 Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth)

(1981) 147 CLR 297 …. 3.14 Coote v Ford (1899) 2 Ch 93 …. 18.1 Co-Partnership Farms v Harvey-Smith [1918] 2 KB 405 …. 21.1 Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 …. 9.3, 9.13, 11.3 — v — (No 2) [2013] NSWSC 617 …. 11.3 Cornes v The Ten Group Pty Ltd [2011] SASC 141 …. 11.7, 33.3, 41.2 Cornwell v Channel Seven Sydney Pty Ltd [2015] NSWSC 1673 …. 20.6 — v — [2016] NSWCA 255 …. 20.4, 20.6 Coroneo v Kurri Kurri and South Maitland Amusement Company Ltd (1934) 51 CLR 328 …. 7.8 Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 14 FCR 434 …. 14.7 Costello v Random House Australia Pty Ltd (1999) 137 ACTR 1 …. 7.9, 10.3, 33.4 Cother v John Fairfax & Sons Pty Ltd (1947) 64 WN (NSW) 154 …. 12.10 Cotter v John Fairfax Publications Pty Ltd [2003] NSWSC 503 …. 19.1, 33.4, 34.5 Coulson v Coulson (1887) 3 TLR 846 …. 39.2 County Council v A [1985] 1 All ER 53 …. 14.9 Cowper v Fairfax Media Publications Pty Ltd [2016] NSWSC 1614 …. 13.8 Cox v English, Scottish and Australian Bank [1905] AC 168 …. 17.3 — v Feeney (1863) 4 F&F 13; 176 ER 445 …. 24.1, 26.14 — v Gray (1610) B & M 351 …. 2.15 Coxhead v Richards (1846) 2 CB 569; 135 ER 1069 …. 22.2, 22.6 Coyne v Citizen Finance Ltd (1991) 172 CLR 211 …. 31.2, 31.3, 34.6 Craftsman Homes Pty Ltd v TCN Channel Nine Pty Ltd [2006] NSWSC 519 …. 14.4 Crampton v Nugawela (1996) 41 NSWLR 176 …. 4.2, 9.12, 31.1, 31.3, 32.1–32.3, 33.1, 33.4, 35.1 Crawford v Amalgamated Television Services Pty Ltd [1989] A Def R 50-040 …. 16.13, 28.6 Creation Records Ltd v News Group Newspapers Ltd [1997] EMLR 444 ….

14.6 Creighton v Nationwide News Pty Ltd [2010] NSWDC 192 …. 43.3 Crest Homes Plc v Marks [1987] AC 829 …. 13.8 Cretazzo v Lombardi (1975) 13 SASR 4 …. 41.3 Crick v Butler (1891) XII NSWR 70 …. 30.1 Cripps v Vakras [2014] VSC 279 …. 33.2, 33.3 Crispin v Christian Audigier Inc (Case No CV 09-09509-MMM-JEMx, United States District Court, CD California, 26 May 2010) …. 13.3 Crofter Handwoven Harris Tweed Company Ltd v Veitch [1942] AC 435 …. 21.2 Crofts v Brown (1616) 3 Bulst 167; 81 ER 141 …. 2.11 Cropp v Tilney (1693) Holt KB 422; 90 ER 1132 …. 2.16 Crosby v Kelly [2013] FCA 1343 …. 20.1, 20.2, 20.5, 20.6, 20.8 Cross v Denley (1952) 52 SR (NSW) 112 …. 8.3, 8.5 Crowe v Graham (1968) 121 CLR 375 …. 5.4 Crowley v Glissan (No 2) (1905) 2 CLR 744 …. 19.9 Cruise v Express Newspapers Plc [1999] QB 931 …. 11.3, 19.5 Cruise and Kidman v Southdown Press Pty Ltd (1993) 26 IPR 125 …. 14.6, 14.9 Cullen v Trappell (1980) 146 CLR 1 …. 38.1 Cunliffe v The Commonwealth (1994) 182 CLR 272 …. 24.4 Curry v Walter (1796) 1 B&P 525; 126 ER 1046 …. 2.17, 2.21 Curtis Publishing Co v Butts 388 US 130 (1967) …. 5.6 Cush v Dillon [2011] HCA 30 …. 22.2–22.4, 23.1, 23.2 Cutler v Dixon (1585) Cro Eliz 230; 76 ER 886 …. 2.17

D Dakhyl v Labouchere [1908] 2 KB 325 …. 27.4, 28.8 Dalgleish v Lowther [1899] 2 QB 590 …. 2.18 Daniels v State of New South Wales [2015] NSWSC 1074 …. 17.1, 25.3 Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288 …. 7.8

— v Nationwide News Pty Ltd [2016] NSWSC 156 …. 20.2, 20.10 — v — [2016] NSWSC 295 …. 33.3, 36.1, 41.4 — v Whittaker [2013] NSWSC 1062 …. 7.8 — v — [2014] NSWSC 732 …. 33.2 Dare v Pulham (1982) 148 CLR 658 …. 9.12, 19.5 David v Abdishou [2007] NSWSC 1195 …. 9.4, 9.12, 9.13 — v — [2007] NSWSC 890 …. 41.2 David Syme & Co Ltd v Canavan (1918) 25 CLR 234 …. 8.3, 8.5, 11.8 — v Hore-Lacy (2000) 1 VR 667; [2000] VSCA 24 …. 9.10, 9.13, 18.1, 19.5, 19.8, 27.3 — v Lloyd [1984] 3 NSWLR 346 …. 8.2, 27.9, 28.4 Davies v Snead (1870) LR 5 QB 608 …. 22.6 Davis v Billing (1891) 8 TLR 48 …. 19.4 — v Gardener (1593) 4 Co Rep 16; 2 Salk 694 …. 2.15 — v Nationwide News Pty Ltd [2008] NSWSC 693 …. 6.5, 32.3, 33.2, 33.3, 34.1, 34.2, 34.5, 34.6 — v — [2008] NSWSC 699 …. 17.1, 25.3 — v — [2008] NSWSC 946 …. 38.2, 41.2, 41.3 — v Shepstone (1886) 11 App Cas 187 …. 27.5 Davison v Duncan (1857) 26 LJ QB 104; 119 ER 1233 …. 2.21, 26.1 Dawkins v Lord Paulet (1869) LR 5 QB 94 …. 21.1 — v Lord Rokeby (1873) LR 8 QB 255 …. 21.1 Dawson v Great Northern Railway [1904] 1 KB 277 …. 12.1 — v Radio Station 2UE Sydney Pty Ltd (SC (NSW), Hunt J, 24 August 1990, unreported) …. 8.5 Dawson Bloodstock Agency Pty Ltd v Mirror Newspapers Ltd [1979] 2 NSWLR 733 …. 8.5, 20.8 Day v Bream (1837) 2 M&Rob 54; 174 ER 212 …. 29.1 Daya v CNA Reinsurance Co Ltd [2004] NSWSC 795 …. 16.11 DDSA Pharmaceuticals Ltd v Times Newspapers Ltd [1973] QB 21 …. 6.5 De Poi v Advertiser-News Weekend Publishing Co Pty Ltd [2015] SADC 21

…. 33.3 — v — [2016] SASCFC 45 …. 41.2 Deatons Pty Ltd v Flew (1949) 79 CLR 370 …. 29.1 Defries v Milne [1913] 1 Ch 98 …. 12.1 Defteros v Google Inc LLC [2017] VSC 158 …. 7.8 Degiorgio v Dunn (No 2) [2005] NSWSC 3 …. 25.7 Delfino v Trevics (No 1) [1963] NSWR 191 …. 18.1 Delpin Pty Ltd v Nargol Holdings Pty Ltd (2002) Aust Contract R 90-147 …. 39.3 Denmark Productions Ltd v Boscobel Productions Ltd [1969] 1 QB 699 …. 39.3 Dennison v Refshauge [2003] NSWSC 78 …. 20.8 Derbyshire County Council v Times Newspapers Ltd [1993] AC 534 …. 12.3 Dering v Uris [1964] 2 QB 669 …. 19.4, 33.3, 36.1, 41.3, 41.4 Development and Environmental Professionals’ Association v John Fairfax Publications Pty Ltd [2004] NSWSC 92 …. 12.3, 37.1 DFT V TFD [2010] EWHC 2335 …. 14.6 Dibdin v Swan and Bostock (1793) 1 Espinasse 28; 170 ER 269 …. 2.17 Dickeson v Hilliard (1874) LR 9 Exch 79 …. 22.6 Die Spoorbond v South African Railways [1946] AD 999 …. 12.5 Digby v Financial News Ltd [1907] 1 KB 502 …. 27.5, 27.6, 28.2 Dillon v Cush [2010] NSWCA 165 …. 23.2 Dingle v Associated Newspapers Ltd [1961] 2 QB 162 …. 4.1, 4.4, 30.1 — v — [1964] AC 371 …. 36.4 Director of Public Prosecutions v Johnson & Yahoo!7 Pty Ltd [2016] VSC 699 …. 15.5 — v — (No 2) [2017] VSC 45 …. 15.5 — v Wran [1987] 7 NSWLR 616 …. 15.5 Director of Public Prosecutions (NSW) v Fordham [2010] NSWSC 795 …. 14.4 Docker v Somes (1834) 39 All ER 1094 …. 39.3 Dods v McDonald [2016] VSC 200 …. 7.3, 7.6 — v — [2016] VSC 201 …. 33.3

Doe v Australian Broadcasting Corporation [2007] VCC 281 …. 14.5, 14.8, 15.4 — v Yahoo!7 Pty Ltd; Wright v Pagett [2013] QDC 181 …. 14.8 Donnelly v Amalgamated Television Services Pty Ltd (1998) 45 NSWLR 570 …. 14.5, 14.6 Douglas v Hello! Ltd [2001] QB 967 …. 5.6, 14.1, 14.5–14.7 — v — [2003] EWHC 2629 …. 14.6, 14.9 — v — [2005] EWCA Civ 595 …. 14.6, 14.9, 39.2, 39.3 — v McLernon (No 3) [2016] WASC 319 …. 7.8 — v — (No 4) [2016] WASC 320 …. 7.6, 31.4, 33.3 Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317 …. 36.8 Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575 …. 2.15, 2.21, 2.23, 3.8, 3.10–3.12, 4.2, 5.7, 6.3, 6.4, 7.1–7.6, 12.6, 13.7, 25.4, 25.10 Dowds Family Investments Pty Ltd v Lane Industries Pty Ltd [1993] FCA 259 …. 41.3 Drummond-Jackson v British Medical Association [1970] 1 All ER 1094 …. 7.9, 10.3, 11.9 Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 …. 9.10, 9.11, 9.13, 19.7, 19.8 Duchess of Argyll v Duke of Argyll [1967] Ch 302 …. 14.4 Duchess of Kingston’s Case (1776) 2 Sm LC, 13 ed, 644; 168 ER 175 …. 42.2 Duffy v Google Inc [2011] SADC 178 …. 7.8 — v — [2015] SASC 170 …. 7.8 — v — [2016] SASC 1 …. 41.2 Dugan v Mirror Newspapers Ltd (1978) 142 CLR 583 …. 3.2, 3.12 Duke of Brunswick v Harmer (1849) 14 QB 185; 117 ER 75 …. 2.21, 3.12, 6.3, 7.3, 18.6 Duncombe v Daniell (1837) 8 C&P 222; 173 ER 470 …. 2.21, 24.1, 25.8 Dunlop Rubber Company Ltd v Dunlop [1921] 1 AC 367 …. 10.4 Dunnett v Railtrack plc [2002] 2 All ER 850 …. 16.11 Dyson v Attorney-General [1911] 1 KB 410 …. 39.3

E E Hulton & Co v Jones [1910] AC 20 …. 2.21, 7.9, 19.1, 25.4, 25.10 Earl of Peterborough v Mordant (1670) 1 Ven 160; 86 ER 42 …. 2.11 Earl of Sandwich v Miller (1773) Lofft 210; 98 ER 614 …. 2.13 Eatock v Bolt [2011] FCA 1103 …. 15.7 Ecclestone v Telegraph Media Pty Ltd [2009] EWHC 2779 …. 11.7 Echo Publications Pty Ltd v Tucker [2007] NSWCA 73 …. 22.5 — v — (No 3) [2007] NSWCA 320 …. 25.2, 25.3 Economou v De Freitas [2016] EWHC 1853 …. 24.7 Edmondson v Stephenson (1766) 1 Bull NP 3 …. 2.17 Edwards v Wooton (1607) 12 Co Rep 35; 77 ER 1316 …. 2.12 Egger v Viscount Chelmsford [1965] 1 QB 248 …. 13.2, 23.5, 27.10 El Azzi v Nationwide News Pty Ltd [2005] NSWSC 247 …. 25.7 Ell v Milne [2011] NSWSC 645 …. 11.5 Emcorp v Australian Broadcasting Corporation [1988] 2 Qd R 169 …. 14.4 Emmens v Pottle (1885) 16 QBD 354 …. 2.21, 29.1 Emmerton v University of Sydney [1970] 2 NSWR 633 …. 6.3 Enders & Erbas & Associates Pty Ltd [2014] NSWCA 70 …. 23.2, 25.3, 30.1 England v Bourke (1800) 3 Esp R 80; 170 ER 545 …. 2.17 Enron Australia Finance Pty Ltd (in liq) v Integral Energy Australia [2002] NSWSC 819 …. 41.2 Entick v Carrington (1765) 19 St Tr 1030; 95 ER 807 …. 2.13, 14.5 Erskine v John Fairfax Group Pty Ltd (1998) NSW Supreme Court …. 33.3 Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 …. 13.8 ETK v News Group Newspapers Ltd [2011] EWCA Civ 439 …. 14.5, 14.6 Ettingshausen v Australian Consolidated Press Ltd (1991) 23 NSWLR 443 …. 10.4, 11.7, 14.4 — v — (1993) 1 MLR 2 (CA (NSW), 13 October 1993) …. 14.6 — v — (1995) 38 NSWLR 404 …. 18.3, 41.3 Evans v Davies [1991] 2 Qd R 498 …. 9.10, 17.3 — v Harlow (1844) 5 QB 624 …. 10.3

Evatt v John Fairfax & Sons Ltd (SC (NSW), Hunt J, 20 June 1985, unreported) …. 25.3 — v Nationwide News Pty Ltd [1999] NSWCA 99 …. 25.3, 25.6 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46 …. 19.8

F Fairfax Media Publications Pty Ltd v Alex [2014] NSWCA 273 …. 9.13 — v Bateman [2015] NSWCA 154 …. 9.13, 19.8 — v Cummings [2012] ACTCA 36 …. 9.13 — v Kermode [2011] NSWCA 174 …. 9.13, 19.1, 19.4, 19.5, 19.9, 20.1–20.3, 20.5–20.10, 36.7 — v King [2015] NSWCA 172 …. 20.4 — v Pedavoli [2015] NSWCA 237 …. 8.3, 8.6, 31.4 — v Zeccola [2015] NSWCA 329 …. 20.4–20.6, 20.8 Falcke v Herald & Weekly Times Ltd [1925] VLR 56 …. 27.9, 28.3 Falkenberg v Nationwide News Pty Ltd (SC (NSW), 1994, unreported) …. 11.7 Fallon v MGN Ltd [2006] EWHC 783 …. 11.1 Farahbakht v Midas Australia Pty Ltd [2006] NSWSC 1322 …. 15.5 Farquhar v Bottom [1980] 2 NSWLR 380 …. 9.4, 9.6, 11.3 Fastway Couriers (Aust) Pty Ltd v Australian Broadcasting Corporation (FCA, Gummow J, 27 March 1995, unreported) …. 15.3 Favell v Queensland Newspapers Pty Ltd [2004] QCA 135 …. 9.13, 17.2 — v — [2005] HCA 52 …. 9.3, 9.4, 9.7, 9.12, 11.1, 19.8 Federal Press of Australia Pty Ltd v Balzola [2015] NSWCA 285 …. 20.10 Feo v Pioneer Concrete (Vic) Pty Ltd [1999] 3 VR 417 …. 12.3, 37.1 Fiduciary v Morning Star Research Pty Ltd [2002] NSWSC 432 …. 41.1 Fielding v Variety Inc [1967] 2 QB 841 …. 34.1 Findley v Morand [2014] QSC 297 …. 18.6 Finn v Hunter (1886) 12 VLR 656 …. 21.1 Fisher v Channel Seven Sydney Pty Ltd [2014] NSWSC 1616 …. 33.3

— v — [2014] NSWSC 1873 …. 38.2 Fitter v Veal (1701) 12 Mod Rep 542; 88 ER 1506 …. 31.1 Flegg v Hallett [2015] QFC 315 …. 41.2 — v — [2015] QSC 167 …. 25.3, 33.3, 37.1 Fleming v Advertiser News Weekend Publishing Company Pty Ltd [2016] SASC 26 …. 33.3 — v Dollar (1889) 23 QBD 388 …. 9.14 Flo Rida v Mothership Music Pty Ltd [2013] NSWCA 268 …. 13.3 Flood v Times Newspapers Ltd [2010] EWCA Civ 804 …. 24.6 — v — [2012] UKSC 11 …. 24.6 Floyd v Barker (1608) 12 Co Rep 23; 77 ER 1305 …. 2.17 Foreign Media Pty Ltd v Konstantinidis [2003] NSWCA 161 …. 7.10, 17.2 Forrest v Chlanda [2012] NTSC 14 …. 33.3 Fostif Pty Ltd v Campbells Cash and Carry Pty Ltd (2005) 218 ALR 166 …. 12.9 Fraser v Evans [1969] 1 QB 349 …. 39.2 French v Fraser [2015] NSWSC 1807 …. 32.3, 33.3 — v Herald & Weekly Times Ltd [2010] VSC 127 …. 17.1 — v Triple M Melbourne Pty Ltd [2008] VSC 553 …. 27.10 Frew v John Fairfax Publications Pty Ltd [2004] VSC 311 …. 18.3 Fullam v Newcastle Chronicle and Journal Ltd [1977] 1 WLR 651 …. 7.6, 7.10

G G and G v Wikimedia Foundation Inc [2009] EWHC 3148 …. 13.3 Gacic v John Fairfax Publications Pty Ltd [2006] NSWCA 175 …. 9.13 — v — [2014] NSWSC 738 …. 38.2 Galea v Amalgamated Television Services Pty Ltd (SC (NSW), Levine J, 20 February 1998, unreported) …. 10.2 Gallagher v Durack (1983) 152 CLR 238 …. 15.5 Galligan v Sun Printing & Publishing Association 54 NYS 471 (1898) …. 6.3, 7.5 Galloway v Telegraph Group Ltd [2004] EWHC 2786 QBD; [2006] EWCA CIV 17 …. 27.6

Garderen v Channel Seven Melbourne Pty Ltd [2016] VCC 953 …. 18.6 Gardiner v John Fairfax & Sons Pty Ltd (1942) 42 SR (NSW) 171 …. 27.6, 27.8 Garsec Pty Ltd v His Majesty Sultan of Brunei [2008] NSWCA 211 …. 6.4 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 …. 9.13, 20.4 General Television Corporation Pty Ltd v DPP [2008] VSCA 49 …. 15.5 Gentoo Group Ltd v Hanratty [2008] EWHC 627 …. 13.3 Gertz v Robert Welch Inc 418 US 323 (1974) …. 5.6 Ghosh v Google Australia Pty Ltd [2013] NSWDC 146 …. 7.8 — v Nine MSN Pty Ltd [2015] NSWCA 334 …. 43.2 Gianni Versace SpA v Monte [2002] 119 FCR 349 …. 15.3 Gibbons v Duffell (1932) 47 CLR 520 …. 21.1 Giller v Procopets [2008] VSCA 236 …. 14.4, 14.5, 14.8 Gillespie v Nationwide News Pty Ltd [2002] NSWSC 553 …. 9.12 Gipps v McElhone (1881) 2 LR (NSW) 18 …. 21.1 Gleaner Company Ltd v Abrahams [2004] 1 AC 628 …. 33.2, 43.4 Gleaves v Deakin [1980] AC 477 …. 5.3, 44.2 Glegg v Bromley [1912] 3 KB 474 …. 12.1 Global Sportsman Pty Ltd v Mirror Newspapers Ltd (1984) 2 FCR 82 …. 15.3 Gobbart v West Australian Newspapers [1968] WAR 113 …. 26.1 Godfrey v Demon Internet Ltd [2001] QB 201 …. 29.1, 29.3 — v Henderson (1944) 44 SR (NSW) 447 …. 23.2 Goldsbrough v John Fairfax & Sons Ltd (1934) 34 SR (NSW) 524 …. 27.5 Goldsmith v Pressdram Ltd [1977] QB 83 …. 5.3 — v Sperrings Ltd [1977] 1 WLR 478 …. 5.3, 29.1 Goldsworthy v Radio 2UE Sydney Pty Ltd [1999] NSWSC 290 …. 17.2 — v — [1999] NSWSC 547 …. 27.8, 27.9, 28.2–28.4 Gomersall v Davies (1898) 14 TLR 430 …. 29.1 Goodhew v Daniel Bros & Co Pty Ltd (1948) 65 WN (NSW) 133 …. 13.8 Goody v Odhams Press Pty Ltd [1967] 1 QB 333 …. 4.4, 19.1, 36.3 Google Inc v Trkulja [2016] VSCA 333 …. 7.8, 29.2, 29.3

— v Vidal-Hall [2015] EWCA Civ 311 …. 14.5, 14.6, 14.9 Gordon v Amalgamated Television Services Pty Ltd [1980] 2 NSWLR 410 …. 9.5, 9.7 Gore v Justice Corp Pty Ltd (2002) 189 ALR 712 …. 12.9 Gorton v Australian Broadcasting Commission (1973) 1 ACTR 6; 22 FLR 181 …. 7.4, 7.5, 9.5, 27.4 Grace v Grace [2014] NSWSC 1239 …. 38.2 Grappelli v Derek Block (Holdings) Ltd [1981] 1 WLR 822 …. 8.6, 9.15 Graves v West [2013] NSWSC 641 …. 13.3 Gray v Motor Accident Commission (1998) 196 CLR 1 …. 35.1 Grech v Odhams Press Ltd [1958] 1 QB 310 …. 27.5, 27.7 Greek Herald Pty Ltd v Nikolopolous (2002) 54 NSWLR 165 …. 9.6, 9.11, 9.12 Greek Orthodox Community of South Australia Inc v Pashalis [2015] SASC 122 …. 33.3 Green v Schneller [2000] NSWSC 548 …. 19.9 Greenlands Ltd v Wilmshurst and the London Association for Protection of Trade [1913] 3 KB 507 …. 22.5 Greenwood v Prick 14 Henry VI …. 2.17 Gregg v Fairfax Media Publications Pty Ltd [2016] FCA 1470 …. 17.1 Greig v WIN Television NSW Pty Ltd [2007] NSWSC 1118 …. 9.12, 11.2 — v — [2009] NSWSC 632 …. 11.1, 32.3, 33.3 — v — [2009] NSWSC 876 …. 17.1, 17.2 — v — [2009] NSWSC 877 …. 38.2 Griffith v Australian Broadcasting Corporation [2003] NSWSC 298 …. 17.2 — v — [2003] NSWSC 483 …. 7.10 — v — [2004] NSWSC 582 …. 15.4 — v — [2010] NSWCA 257 …. 25.2, 25.3, 25.7 — v — (No 2) [2011] NSWCA 145 …. 41.1 — v John Fairfax Publications Pty Ltd [2004] NSWCA 300 …. 9.4 Griffith University v Tang [2005] HCA 7 …. 21.3 Griffiths v Benn (1911) 27 TLR 346 …. 10.3

Grobbelaar v News Group Newspapers Ltd [2001] 2 All ER 437 …. 17.3 — v — [2002] 4 All ER 732 …. 36.1 Groom v Crocker [1939] 1 KB 194 …. 31.3 Gross v Weston [2007] NSWCA 1 …. 23.2 Grosse v Purvis (2003) Aust Torts Reports 81-706 …. 14.5, 14.8 Grove v Herald & Weekly Times Ltd (1991) A Def R 51-010 …. 13.8 Grubb v Bristol United Press Ltd [1963] 1 QB 309 …. 9.6, 9.15, 19.8 GS v News Ltd (1998) Aust Torts Reports 81-466 …. 15.4 — v — (SC (NSW), Levine J, 20 February 1998, unreported) …. 14.6 Guise v Kouvelis (1947) 74 CLR 102 …. 22.3, 22.4, 22.6 Gumina v Williams (No 2) [1990] 3 WAR 351 …. 9.10, 19.5 Gutnick v Dow Jones & Company Inc (No 4) (2004) 9 VR 369 …. 22.3 Gypsy Fire v Truth Newspapers Pty Ltd (1987) 9 NSWLR 382 …. 3.12, 5.3, 5.4, 42.3, 44.2

H Habib v Nationwide News Pty Ltd [2010] NSWSC 924 …. 31.2, 32.2, 34.6, 36.1, 36.3 — v Radio 2UE Pty Ltd [2011] NSWDC 52 …. 41.1 — v — [2009] NSWCA 231 …. 6.5, 7.8 — v — [2012] NSWDC 12 …. 38.2 Haddon v Forsyth (No 2) [2011] NSWSC 693 …. 41.2, 41.3 Hadzel v de Waldrof (1970) 16 FLR 174 …. 9.12 Haertsch v Channel Nine Pty Ltd [2010] NSWSC 182 …. 31.1, 32.3, 33.3, 34.2, 34.3, 34.5, 34.6, 38.2 Haines v Bendall (1991) 172 CLR 60 …. 31.1 Halabi v Westpac Banking Corporation (1989) 17 NSWLR 26 …. 3.12 Hall v Mostyn (SC (NSW), Hunt J, 18 March 1983, unreported) …. 9.15 Hall-Gibbs Mercantile Agency Ltd v Dun (1910) 12 CLR 84 …. 9.1, 15.2 Halsey v Milton Keynes General NHS Trust; Steel v Joy and Halliday [2004] 4 All ER 920 …. 16.11

Hamond v Kingsmill (1647) Style 22; 82 ER 499 …. 2.11 Han v Australian Kung Fu (Wu Shu) Federation Inc [2011] VSC 498 …. 18.6 Hancock Prospecting Pty Ltd v Hancock [2013] WASC 290 …. 13.8 Hanson-Young v Bauer Media Ltd [2013] NSWSC 1306 …. 11.7 — v — (No 2) [2013] NSWSC 2029 …. 11.7 Harbour Radio Pty Ltd v Ahmed [2015] NSWCA 290 …. 27.3, 27.5, 28.1 — v Tingle [2001] NSWCA 194 …. 34.6 — v Trad [2012] HCA 44 …. 22.5 Hardie v Herald & Weekly Times Pty Ltd [2015] VSC 364 …. 33.3 — v — [2016] VSCA 130 …. 38.2, 41.2, 41.3 Hargrave v Le Breton (1769) 4 Burr 2422; 98 ER 269 …. 2.17 Hargreaves v Bretherton [1959] 1 QB 45 …. 21.1 Harkianakis v Skalkos (1997) 42 NSWLR 22 …. 11.1, 15.5 — v — (1999) 47 NSWLR 302 …. 24.4 Harman v Delaney (1732) 2 Str 898; 93 ER 925 …. 2.13 — v Secretary of State for Home Department [1983] 1 AC 280 …. 13.8 Harrigan v Jones (2000) Aust Torts Reports 81-621 …. 30.1 Harris v 718932 Pty Ltd [2003] NSWCA 38 …. 7.3 — v Perkins (1993) A Def R 51-070 …. 10.3, 36.5 — v Warre (1879) 4 CPD 125 …. 2.18 Harrison v Mirror Newspapers Ltd [1981] 1 NSWLR 620 …. 9.6 — v Schipp [2002] NSWCA 27 …. 16.11 — v Thornborough (1714) B&M 645; 88 ER 691 …. 2.11 Hart v Wrenn (1995) 5 NTLR 17 …. 19.5 Harvey v John Fairfax Publications Pty Ltd [2003] NSWCA 70 …. 17.3 — v — [2005] NSWCA 255 …. 9.2, 9.10–9.12, 17.3 Hatfield v TCN Channel Nine Pty Ltd [2010] NSWCA 69 …. 11.8, 13.8 Hawke v Tamworth Newspapers Co Ltd [1983] 1 NSWLR 699 …. 17.1 Hawkesbury District Health Service Ltd v Chaker (No 2) [2011] NSWCA 30 …. 41.1 Hawkins v Clayton (1986) 5 NSWLR 109 …. 3.9

— v — (1988) 164 CLR 539 …. 10.3 Haynes v De Beck (1914) 31 TLR 115 …. 29.1 Haythorn v Lawson (1827) 3 C&P 195; 172 ER 384 …. 12.8 Hayward v Barratt [2001] NSWSC 8 …. 9.14, 17.2 — v Thompson [1982] 1 QB 47 …. 8.6 Hearn v O’Rourke [2003] FCAFC 78 …. 15.3 Hearne v Stowell (1840) 12 Ad & E 719; 113 ER 986 …. 10.5 — v Street (2008) 235 CLR 125 …. 13.8 Heartcheck Australia Pty Ltd v Channel Seven Sydney Pty Ltd [2007] NSWSC 555 …. 12.3 Hebditch v MacIllwaine [1894] 2 QB 54 …. 22.5 Hedley Byrne v Heller & Partners [1964] AC 465 …. 15.4 Hellewell v Chief Constable of Derbyshire [1995] 1 WLR 804 …. 14.7 Hellwig v Mitchell [1910] 1 KB 609 …. 7.9 Helsham v Blackwood (1851) 11 CB 111; 138 ER 412 …. 19.4 Hennessy v Wright (1890) 24 QBD 445 …. 13.8 Henwood v Harrison (1872) LR 7 CP 606 …. 22.6, 27.8 Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 664 …. 9.6, 9.8, 9.13, 11.7 — v — [1983] 2 NSWLR 682 …. 10.5 — v — [1984] 1 NSWLR 386 …. 9.14, 20.8 Herald & Weekly Times Ltd v Guard Dog Owners’ and Friends’ Association [1990] VR 451 …. 13.8 — v McGregor (1928) 41 CLR 254 …. 32.2 — v Popovic (2003) 9 VR 1 …. 6.1, 9.4, 9.10, 19.1, 19.3–19.6, 20.2, 22.3, 24.4, 24.5, 27.1, 27.5, 27.6, 27.10, 35.1 Herald & Weekly Times Pty Ltd v Buckley [2009] VSCA 75 …. 27.3, 28.1 Hercules v Phease [1994] 2 VR 411 …. 21.1 Higgins v Sinclair [2011] NSWSC 163 …. 15.3, 39.2 Hillier v Sheather (1995) 36 NSWLR 414 …. 41.3 Hinch v Attorney-General (Vic) (1987) 164 CLR 15 …. 15.5

Hinds v Sparks The Times, 28 and 30 July 1964 …. 42.2 Hitchcock v John Fairfax Publications Pty Ltd [2007] NSWSC 7 …. 19.9 — v TCN Channel Nine Pty Ltd (2000) Aust Torts Reports 81-550 …. 14.5, 14.6 — v — (No 2) (CA (NSW), 24 March 2000, unreported) …. 14.4 HL (a minor) by her father and next friend AL v Facebook Inc [2013] NIQB 25 …. 13.3 Hoare v Silverlock (1848) 12 QB 624 …. 10.5 Hobbs v CT Tinling & Co Ltd [1929] 2 KB 1 …. 4.2 Hockey v Fairfax Media Publication Pty Ltd [2015] FCA 652 …. 7.6, 9.5, 11.4, 19.8, 33.3 — v — (No 2) [2015] FCA 750 …. 19.8, 38.2, 39.2, 41.2, 41.3 Hocking v Bell (1945) 71 CLR 430 …. 17.3 Hodder v Queensland Newspapers Pty Ltd [1994] 1 Qd R 49 …. 13.8 Hodge v TCN Channel Nine Pty Ltd [2006] NSWSC 1272 …. 38.2, 41.1 Hodgson v Sidney (1866) LR 1 Ex 313 …. 12.2 Holiday Concepts Management Pty Ltd v General Television Corp Pty Ltd (1996) 3 MLR 62 …. 14.4 Holley v Smyth [1998] QB 726 …. 5.1 Hollingsworth v Hewitt (1911) 13 CLR 20 …. 13.8 Hollington v F Hewthorn & Co Ltd [1943] KB 587 …. 19.1, 42.2 Holmes v Goodyear Tyre & Rubber Co (Aust) Ltd (1984) 55 ALR 594 …. 12.2 — v TCN Channel Nine Ltd [2007] NSWDC 137 …. 9.13 Holmes à Court v Papaconstuntinos [2011] NSWCA 59 …. 22.2, 22.3, 22.6 Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576 …. 13.8 Holt v Astgrigg (1607) Cro Jac 184; 79 ER 161 …. 2.11 — v Scholefield (1796) 6 TR 691; 101 ER 775 …. 2.16 — v TCN Channel Nine Pty Ltd [2012] NSWSC 770 …. 33.3 — v — [2012] NSWSC 968 …. 41.2, 41.4 — v — (2014) 86 NSWLR 96; [2014] NSWCA 90 …. 20.7, 36.7 Hope v Brash (1897) 2 QB 188 …. 13.8

Hopman v Mirror Newspapers Ltd (1960) NSWR 559 …. 11.2 Hore-Lacy v Cleary [2007] VSCA 314 …. 20.1, 27.3 Horrocks v Lowe [1975] AC 135 …. 2.5, 22.2, 22.4, 23.1, 23.2, 24.3, 24.6, 25.3 Horwitz Grahame Books v Performance Publications (1987) ATPR 40-764 …. 15.3 Hosking v Runting [2005] 1 NZLR 1 …. 14.5, 14.6 Hospitality Group Pty Ltd v Australian Rugby Union Ltd (2001) 110 FCR 157 …. 39.3 Houatchanthara v Bednarczyk (CA (NSW), 14 October 1996, unreported) …. 41.3 Houda v State of New South Wales [2012] NSWSC 1036 …. 18.6 Hough v London Express Newspaper Ltd [1940] 2 KB 507 …. 9.6, 9.15 Howard v Crowther (1841) 8 M&W 601; 151 ER 1179 …. 12.2 — v Nationwide Publishing Services Pty Ltd (SC (NSW), Hunt J, 26 February 1987, unreported) …. 25.3 Howden v Truth and Sportsman Ltd (1937) 58 CLR 416 …. 19.1, 19.9 — v — (No 2) (1938) SR (NSW) 287 …. 19.4, 20.2 Howe & McColough v Lees (1910) 11 CLR 361 …. 22.3, 22.5, 22.6, 23.4 HRH Princess of Wales v Mirror Group Newspapers Ltd (1993) 1 MLR 21 …. 14.4, 14.11 Hughes v Mirror Newspapers Ltd (1985) 3 NSWLR 504 …. 7.6 — v Seven Network (SC (NSW), Levine J, 13 November 1998, unreported) …. 9.12 Hunt v Radio 2SM Pty Ltd [2010] NSWDC 43 …. 16.6, 17.1 — v Star Newspaper Co Ltd [1908] 2 KB 309 …. 27.4, 28.8 Hunter v Canary Wharf Ltd [1997] AC 655 …. 14.4 Hutcheson v News Group Newspapers Ltd [2011] EWCA Civ 808 …. 14.6 Huth v Huth [1915] 3 KB 32 …. 29.1 Hyndes v Nationwide News Pty Ltd [2011] NSWSC 1443 …. 41.2 — v — (SC (NSW) Hislop J, 16 September 2011, unreported) …. 33.3 — v — [2012] NSWCA 349 …. 41.1, 41.2

I Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 427 …. 16.11 Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd [2004] NSWSC 1091 …. 16.11 Investorshub Com Inc v Mina Ma Group Inc 2011 US DistLexis 87566 (MDFLA) 20 June 2011 …. 7.8 Issitch v Worrell (2000) 172 ALR 586 …. 18.1

J Jackson v Goldsmith (1950) 81 CLR 446 …. 7.5 — v John Fairfax & Sons Ltd [1981] 1 NSWLR 36 …. 20.8 — v TCN Channel Nine Pty Ltd [2002] NSWSC 1229 …. 33.4, 35.1 Jackson-Knaggs v Queensland Building Services Authority [2004] QSC 289 …. 3.14, 21.3 — v Queensland Newspapers Pty Ltd [2005] QCA 145 …. 3.14 Jaensch v Coffey (1984) 155 CLR 549 …. 10.3 Jakudo Pty Ltd v South Australian Telecasters Ltd (1997) 69 SASR 440 …. 39.2 Jameel v Dow Jones & Co Inc [2005] All ER (D) 43 …. 4.2, 7.2, 12.6 — v Times Newspapers Ltd [2004] EWCA Civ 983 …. 11.3 — v Wall Street Journal Europe SPRL [2005] All ER (D) 38 …. 11.1 — v — [2004] EWHC 37 …. 24.7 James v Robinson (1963) 109 CLR 593 …. 15.5 — v Surf Road Nominees Pty Ltd [2005] NSWCA 296 …. 41.3 Jamieson v Chiropractic Board of Australia [2011] QCA 56 …. 18.6 — v R (1993) 177 CLR 574 …. 21.1 Jane Doe 1 v Dowling [2016] NSWSC 1909; [2016] NSWSC 1910 …. 39.2 J’Anson v Stuart (1787) 1 TR 748; 99 ER 1357 …. 2.13, 2.17 Janvier v Sweeney [1919] 2 KB 316 …. 14.6 Jeynes v News Magazine Ltd [2008] EWCA Civ 130 …. 9.4, 19.8 John v Federal Commissioner of Taxation (1989) 166 CLR 417 …. 3.9 — v Mirror Group Newspapers Ltd [1996] 2 All ER 35 …. 31.3, 32.1, 32.3

— v — [1997] QB 586 …. 35.1, 39.3 John Fairfax & Sons Ltd v Cojuangco [1987] 8 NSWLR 145 …. 13.8 — v — (1988) 165 CLR 346 …. 13.8 — v Foord (1988) 12 NSWLR 706 …. 8.6, 9.6, 9.12, 9.13 — v Kelly (1987) 8 NSWLR 131 …. 32.1, 32.3, 38.2 — v Palmer (1987) 8 NSWLR 297 …. 41.4 — v Vilo (2001) 52 NSWLR 373; [2001] NSWCA 290 …. 3.9, 22.7, 24.4 John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351 …. 15.5 John Fairfax Publications Pty Ltd v Attorney-General (2000) 181 ALR 694 …. 24.4 — v Blake (2001) 53 NSWLR 541 …. 20.4 — v District Court of New South Wales (2004) 61 NSWLR 695 …. 15.5 — v Doe (1995) 37 NSWLR 81 …. 14.6, 15.5 — v Gacic (2007) 230 CLR 291; [2007] HCA 28 …. 9.13, 10.1 — v Hitchcock [2007] NSWCA 364 …. 20.8 — v Jones [2004] NSWCA 205 …. 9.12, 19.7, 20.6 — v Obeid [2005] NSWCA 60 …. 7.8, 9.4, 11.1, 11.2 — v O’Shane [2005] NSWCA 164 …. 24.4, 25.3, 27.2, 27.4, 27.9, 28.1 — v — (No 2) [2005] NSWCA 291 …. 33.4 — v Rivkin [1999] NSWCA 164 …. 9.12, 9.15 —v — [2003] HCA 50 …. 9.4, 9.5, 9.7, 9.12, 10.5, 11.3, 11.4, 17.2, 17.3, 19.8 — v Zunter [2006] NSWCA 227 …. 4.1, 4.2, 19.5, 20.9, 25.3, 36.7 John Holland Group Pty Ltd v John Fairfax Publications Pty Ltd [2006] ACTSC 108 …. 19.5 John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 …. 6.4, 7.5, 35.1 Johnson v Browning (1703) 6 Mod Rep 217; 87 ER 969 …. 2.17 Jones v Amalgamated Television Services Pty Ltd (1991) 23 NSWLR 364 …. 7.6, 7.8, 18.3 — v Bradley (No 2) [2003] NSWCA 258 …. 41.2, 41.3 — v Commonwealth of Australia (1987) 71 ALR 497 …. 3.9 — v Dunkel [1959] 101 CLR 298 …. 13.8

— v E Hulton & Co [1909] 2 KB 444 …. 8.2, 8.3 — v Givin (1713) Gilb Cas 185; 93 ER 300 …. 2.17 — v John Fairfax Publications Pty Ltd [2005] NSWSC 1133 …. 19.7, 20.8 — v Jones [1916] 2 AC 481 …. 7.9 — v Skelton [1964] NSWR 485; [1963] 1 WLR 1362 …. 9.2–9.4, 9.6, 27.8 — v Stevens (1822) 11 Price 234; 147 ER 458 …. 36.3 — v Sutton [2004] NSWCA 439 …. 7.6, 30.1 Jools v Mirror Newspapers Ltd (1984) 56 ACTR 1 …. 32.2 Joynt v Cycle Trade Publishing Company [1904] 2 KB 292 …. 28.8 Judd v Sun Newspapers (1930) 30 SR (NSW) 294 …. 36.3

K K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 …. 3.14 Kalaba v Commonwealth of Australia [2004] FCAFC 326 …. 14.8 Kaplan v Go Daddy Group [2005] NSWSC 636 …. 15.2, 39.2 Kasic v Australian Broadcasting Corporation [1964] VR 702 …. 8.3 Kaye v Robertson [1991] FSR 62 …. 14.6 Kazal v Fairfax Media Publications Pty Ltd [2017] NSWSC 44 …. 20.5, 20.10 Kearns v General Council of the Bar [2003] 2 All ER 534 …. 22.3, 22.7 Kelly v John Fairfax Publications Pty Ltd [2003] NSWSC 586 …. 10.3, 10.5, 11.7 Kelly v O’Malley (1889) 6 TLR 62 …. 2.21 Kemsley v Foot [1952] AC 345 …. 27.4, 27.5, 28.8 Kencian v Watney [2015] QCA 212 …. 17.1 Kendell v North Queensland Newspaper Co Ltd (1994) Aust Torts Reports 81272 …. 8.5 — v — (CA (Qld), 12 May 1994, unreported) …. 8.5 Kennett v Farmer [1988] VR 991 …. 22.5 Kenny v Australian Broadcasting Corporation [2014] NSWSC 190 …. 11.7 Keogh v Incorporated Dental Hospital of Ireland [1910] 2 IrR 577 …. 8.2, 9.4 Kermode v Fairfax Media Publications Pty Ltd [2009] NSWSC 1263 …. 9.7

— v — [2010] NSWSC 852 …. 20.5 Kerner v XY [2015] EWHC 178; [2015] EWHC 1247 …. 13.3 Kerney v Optimus Holdings [1976] VR 399 …. 9.10 Kerrisk v North Queensland Newspapers Company Pty Ltd [1992] 2 Qd R 398 …. 13.8 Kevin Clark t/a Elumina Iberica UK v Bain [2008] EWHC 2636 …. 6.4 Khashoggi v IPC Magazines [1986] 1 WLR 1412 …. 19.6 Khochaiche v Kamaleddine [2009] NSWSC 1219 …. 13.3 Khorasandjian v Bush [1993] QB 727 …. 14.4 Kiam v Mirror Group Newspapers Ltd (No 2) [2002] 2 All ER 242 …. 41.2 Kimber v Press Association Ltd [1893] 1 QB 65 …. 26.1 Kimberley Mineral Holdings Ltd (in liq) v McEwan [1980] 1 NSWLR 210 …. 13.8 Kine v Sewell (1838) 3 M&W 297; 150 ER 1157 …. 22.5 King v Lake (1672) Hardres 470; 145 ER 552 …. 2.13, 2.15, 7.9 — v Lewis [2005] EMLR 45 …. 7.4 — v Telegraph Group Ltd [2004] EWCA Civ 613 …. 11.1, 11.2 King & Mergen Holdings Pty Ltd v McKenzie (1991) 24 NSWLR 305 …. 3.9, 30.1 Kings Cross Whisper Pty Ltd v Ray (1970) 72 SR (NSW) 339 …. 18.4 Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd [2014] WASC 408 …. 17.1 Knight v FP Special Assets Ltd (1992) 174 CLR 178 …. 12.9 Knupffer v London Express Newspaper Ltd [1944] AC 116 …. 8.1, 8.4 Konidaris v Google Australia Pty Ltd [2015] NSWSC 1810 …. 7.8 Krahe v Freeman (1988) ATPR 40-871 …. 15.3 — v TCN Channel Nine Pty Ltd (1986) 4 NSWLR 536 …. 12.4, 17.2 Kunoth-Monks v Healy [2013] NTSC 74 …. 33.3

L Lachaux v Independent Print Ltd [2015] EWHC 2242 …. 19.8

— v — [2015] EWHC 620 …. 19.8 Lahoud v Lahoud [2006] NSWSC 126 …. 41.1 Lakaev v Denny [2010] NSWSC 1480 …. 18.6 Lake v King (1668) 1 Levinz 240; 83 ER 387 …. 2.17 — v — (1680) 1 WMS Saund 131; 85 ER 137 …. 21.1 Lamb v Cotogno (1987) 164 CLR 1 …. 35.1 Lamount v Dwyer [2008] ACTSC 125 …. 13.4 Lang v Australian Consolidated Press Ltd (1967) 1 NSWR 157 …. 17.1 — v — [1970] 2 NSWR 408 …. 9.4, 19.1, 20.8 — v Willis (1934) 52 CLR 637 …. 24.1, 24.2, 30.1 Lange v Atkinson [1998] 3 NZLR 424 …. 25.5 — v Australian Broadcasting Corporation (1997) 189 CLR 520 …. 3.8, 3.9, 3.11, 3.12, 5.6, 5.7, 12.5, 22.7, 24.1–24.5, 25.3, 25.5–25.7, 43.3 Latoudis v Casey [1990] 170 CLR 534 …. 41.1 Laughton v The Bishop of Sodor and Man (1872) LR 4 PC 495 …. 22.5 Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188 …. 7.6 Le Fanu v Malcolmson (1848) 1 HLC 637 …. 12.8 Lee v Wilson and MacKinnon (1934) 51 CLR 276 …. 2.21, 7.1, 8.3, 25.4, 25.10 Legat v Bull (1533) Spelman Rep 7 …. 2.17 Leicester Circuits Ltd v Coates Brothers plc (English Court of Appeal, 5 March 2003, unreported) …. 16.11 Leichhardt Municipal Council v Green [2004] NSWCA 341 …. 41.3 Leslie v Mirror Newspapers Ltd (1971) 125 CLR 332 …. 26.1, 26.2 Lever v Murray (CA (NSW), 5 November 1992, unreported) …. 8.4 Lewin v Thomson, Court of Civil Jurisdiction, 3 February 1800 (NSW Archives 1094) …. 3.2 Lewis v Daily Telegraph Ltd [1964] AC 234 …. 6.5, 9.2–9.4, 9.6, 9.7, 9.10, 9.12, 9.14, 9.16, 11.1, 12.3, 19.8, 27.2, 37.1, 38.1 — v King [2004] EWCA Civ 1329 …. 2.23, 6.4, 7.5 — v Page (SC (NSW), Hunt J, 14 July 1989, unreported) …. 27.9, 28.4 Ley v Hamilton (1935) 153 LT 384 …. 7.6, 31.2, 32.3

Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3 …. 13.8 Lilley v Roney (1892) 61 LJ (QB) 727 …. 21.1 Lim Poh Choo v Camden & Islington Area Health Authority [1980] AC 174 …. 31.1 Lincoln v Daniels [1962] 1 QB 237 …. 21.1 Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR 457 …. 14.4, 39.2 Lindholdt v Hyer [2008] NSWCA 264 …. 22.3, 22.4, 23.1, 23.2 Lingens v Austria (1986) 8 EHRR 407 …. 5.6 Liu v The Age Company Ltd [2012] NSWC 12 …. 13.8 — v — [2016] NSWCA 115 …. 13.8 Livingstone v Rawyards Coal Co (1880) 5 App Cas 25 …. 31.1 Livingstone-Thomas v Associated Newspapers [1969] 1 NSWR 771; (1969) 90 WN (Pt 1) (NSW) 223 …. 8.5, 9.15, 11.5, 12.4 Lloyd v David Syme & Co Ltd (1985) 3 NSWLR 728 …. 8.2, 9.3, 9.6, 18.1, 28.2–28.4 Lockhart v Harrison (1928) 139 LT 521 …. 17.3 London Artists Ltd v Littler [1969] 2 QB 375 …. 19.9, 27.6, 27.8 London Association for Protection of Trade v Greenlands Ltd [1916] 2 AC 15 …. 13.10, 22.3, 22.5 Lord Beauchamps v Sir Richard Croft (1569) 3 Dyer 285a …. 21.1 Lord Churchill v Hunt (1819) 2 B & ALD 685; 106 ER 515 …. 19.1 Lord McAlpine v Bercow [2013] EWHC 1342 …. 2.23, 7.8, 11.1 Lord Northampton’s case (1613) 12 Rep 132; 77 ER 1407 …. 2.21 Lord Townsend v Hughes (1677) 2 Mod 154; 86 ER 997 …. 2.11 Loughans v Odhams Press Ltd [1963] 1 QB 299 …. 19.8 Louise v Nationwide News Pty Ltd [2015] NSWDC 63 …. 16.6, 17.1 Loutchansky v Times Newspapers Ltd [2002] QB 321 …. 24.1 — v — [2002] QB 783 …. 7.4 Love v Mirror Newspapers Ltd [1980] 2 NSWLR 112 …. 17.2 Loveday v Sun Newspapers Ltd (1938) 59 CLR 503 …. 22.5, 22.7, 24.2 Lower Murray Urban & Rural Water Corporation v Di Masi [2014] VSCA 104

…. 25.3 Lucas-Box v News Group Newspapers Ltd [1986] 1 WLR 147 …. 6.1, 9.10, 9.14, 19.5, 19.8 Lukies v Ripley (No 2) (1994) 35 NSWLR 283 …. 16.11 LVMH Watch & Jewellery Australia Pty Ltd v Lassarch [2011] NSWCA 370 …. 25.3 Lyle-Samuel v Odhams Ltd (1920) 1 KB 135 …. 13.8 Lyon v Daily Telegraph Newspaper Ltd [1943] 1 KB 746 …. 27.1

M M v Secretary of State For Work & Pensions [2006] 2 AC 91 …. 14.6 M Isaacs & Sons Ltd v Cook [1925] 2 KB 391 …. 21.1 Ma Ching Kwan v John Fairfax Publications Pty Ltd (CA (NSW), 30 July 1998) …. 9.12 Mabo v The State of Queensland (No 2) (1992) 175 CLR 1 …. 3.2, 3.9, 3.10, 3.12 Macdougall v Knight (1889) 14 App Cas 194 …. 22.8 — v — (1890) 25 QBD 1 …. 6.5 Machado v Underwood [2016] SASCFC 123 …. 41.2 Macintosh v Dun (1908) 6 CLR 303 …. 23.4 Mackay v Walter W Bacon (1910) 11 CLR 530 …. 27.4 MacNamara v Australian Broadcasting Corporation (1993) A Def R 51-085 …. 13.8 Macquarie Bank v Berg [1999] NSWSC 526 …. 13.3 Macquarie Radio Network Pty Ltd v Dent [2007] NSWCA 261 …. 26.1, 26.2, 28.1 Madaferri v The Age Company Ltd [2015] VSC 687 …. 13.8 Mahommed v Channel Seven Sydney Pty Ltd [2006] NSWCA 213 …. 9.12 Maisel v Financial Times Ltd (1915) 112 LT 953 …. 19.1 Malcolm v Nationwide News Pty Ltd [2007] NSWCA 254 …. 9.4, 9.7, 9.13, 11.1, 11.3 Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 …. 31.1

Mallegowda v Sood (No 3) [2015] NSWDC 14 …. 20.7 Mallik v McGeown [2008] NSWSC 129 …. 17.1 Mallon v W H Smith & Sons (1893) 9 TLR 627 …. 29.1 Malone v Metropolitan Police Commissioner [1979] Ch 344 …. 14.2 Mangena v Wright [1909] 2 KB 958 …. 27.5, 27.7 Mann v O’Neill (1996) 191 CLR 204 …. 3.14, 21.1, 21.2 — v The Medicine Group Pty Ltd (1992) 38 FCR 400 …. 8.3, 8.4 Manock v Advertiser-News Weekend Publishing Co Ltd (2004) 88 SASR 495 …. 19.5 March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 …. 31.1 Markovic v White [2004] NSWSC 37 …. 32.3, 33.4, 34.5 Marrinan v Vibart [1963] 1 QB 528 …. 21.1 Marsden v Amalgamated Television Services Pty Ltd (CA (NSW), 2 May 1996, unreported) …. 39.2 — v — [2001] NSWSC 510 …. 4.2, 31.4 Marshall v Megna [2013] NSWCA 30 …. 22.2, 22.3, 24.1 Marshall Bell Hawkins Ltd, Re [2003] FCA 833 …. 13.8 Martin v British Museum Trustees No 2 (1894) 10 TLR 338 …. 29.1 Martindale v Allister (1994) 1 MLR 68 …. 7.6 Mather v Smith [2014] QCA 66 …. 38.2 Maunder v Ware (1535) YB Hil 26 Hen VIII fo 9 …. 2.15 Mawe v Pigott (1869) IR 4 CL 54 …. 4.4 May v Lane (1894) 64 LJ QB 236 …. 12.1 — v TCN Channel Nine Pty Ltd [2007] NSWSC 760 …. 28.3 Maynes v Casey [2011] NSWCA 156 …. 14.9 MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657 …. 38.2 McArthur v Williams (1936) 55 CLR 324 …. 3.8 McBride v John Fairfax Publications Pty Ltd [2009] NSWSC 10 …. 17.1 McCarey v Associated Newspapers Ltd (No 2) [1965] 2 QB 86 …. 4.2, 31.3, 32.2, 32.3, 36.2 McCloy v New South Wales [2015] HCA 34 …. 3.11

McCormick v John Fairfax & Sons Pty Ltd (1989) 16 NSWLR 485 …. 7.6, 8.4 McDonald v The North Queensland Newspaper Company Ltd [1996] QCA 115 …. 11.7 McFarlane v Nationwide News Pty Ltd [2014] NSWSC 1574 …. 9.5 McGaw v Channel Seven Sydney Pty Ltd [2006] NSWSC 1270 …. 38.2 McGlade v Lightfoot (2002) 124 FCR 106 …. 15.7 McGraw-Hinds (Aust) Pty Ltd v Smith (1979) 144 CLR 633 …. 3.11 McGregor v Gregory (1843) 11 M&W 287; 152 ER 811 …. 9.14 McGuinness v Attorney-General (Vic) (1940) 63 CLR 73 …. 13.8 McKennitt v Ash [2006] EWCA Civ 1714 …. 39.2 McKeogh v John Doe 1 (user name Daithii4U) [2012] IEHC 95 …. 13.3 McLean v David Syme & Co Ltd (1970) 72 SR (NSW) 513 …. 6.5, 7.5 McLeod v St Aubyn [1899] AC 549 …. 29.1 — v University of NSW (SC (NSW), Hunt J, 7 February 1992, unreported) …. 8.4 McMahon v Gould (1982) 7 ACLR 202 …. 42.3 — v John Fairfax Publications Pty Ltd [2013] NSWSC 933 …. 33.3 — v — [2014] NSWSC 673 …. 41.2 — v — (No 3) [2012] NSWSC 196 …. 20.9 — v Watkinson [2014] VSC 123 …. 18.6 McMillan v Singh (1984) 17 HLR 120 …. 39.3 McMullen v TCN Channel Nine Pty Ltd (2001) Aust Torts Reports 81-584 …. 30.1 McPhersons Ltd v Hickie (1995) Aust Torts Reports 81-348 …. 29.1 McQuire v Western Morning News Ltd [1903] 2 KB 100 …. 27.9 Mechanical and General Inventions Company and Lehwess v Austin and the Austin Motor Company [1935] AC 346 …. 17.3 Meckiff v Simpson [1968] VR 62 …. 6.5 Megna v Marshall [2010] NSWSC 686 …. 22.2, 22.4, 22.6, 22.7, 23.2, 24.1, 24.2 — v — (No 2) [2011] NSWSC 52 …. 41.1, 41.2 Meldrum v Australian Broadcasting Company [1932] VLR 425 …. 7.9

Melvin v Reid (1931) 112 Cal App 285 …. 19.9 Meriton Apartments Pty Ltd v SBS Corporation [2002] NSWSC 915 …. 39.2 Merivale v Carson (1887) 20 QBD 275 …. 2.21, 27.1 Meskenas v Capon (DC (NSW), Christie DCJ, 28 September 1993, unreported) …. 28.3 Metlej v Kavanagh [1981] 2 NSWLR 339 …. 3.9 Metropolitan International Schools Ltd v Designtechnica Corporation [2009] EWHC 1765 …. 7.6, 7.8, 29.3 Meyer v Humphries (1916) 33 WN (NSW) 126 …. 13.8 Mickelberg v 6 PR Southern Cross Radio Pty Ltd (2001) 24 WAR 187 …. 7.9 Mickle v Farley [2013] NSWDC 295 …. 31.4, 32.3, 33.3 Middendorp Electric Co Pty Ltd v Sonneveld [2001] VSC 312 …. 4.4, 36.1 Middleton v Persons Unknown [2016] EWHC 2354 …. 14.11 Miller v David (1874) LR 9 CP 118 …. 10.5 — v R L Polk & Co (Australia) Pty Ltd (SC (NSW), Hunt J, 4 July 1985, unreported) …. 13.8 — v TCN Channel 9 Pty Ltd [1986] HCA 60 …. 3.11 Minehan v Clarke [1970] 9 SCR 227 …. 41.4 Minister for Education v Bailey (2000) 23 WAR 149 …. 13.8 Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 …. 3.10 Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643 …. 29.2, 34.5 — v Harrison (1982) 149 CLR 293 …. 7.8, 9.6, 9.15, 9.16, 11.1, 11.2 — v World Hosts Pty Ltd (1979) 141 CLR 632 …. 8.3, 8.5, 9.5, 9.7, 9.15, 10.1, 11.4, 15.2 Mitsui Ltd v Nexen Petroleum Ltd [2005] EWHC 625 …. 13.3 Mizikovsky v Queensland Television Ltd [2013] QCA 68 …. 20.3, 20.9, 20.10 MKM Capital Pty Ltd v Corbo (SC (ACT), Master Harper, 12 December 2008, unreported) …. 13.3 Mobil Oil Australia Pty Ltd v Trendlen Pty Ltd [2006] HCA 42 …. 12.9 Mohareb v Fairfax Media Publications Pty Ltd [2017] NSWSC 288 …. 11.7

— v Harbour Radio Pty Ltd [2017] NSWSC 353 …. 7.8 Moit v Bristow [2005] NSWCA 322 …. 22.3, 33.4 Molan v Fairfax Media Publications Pty Ltd [2017] NSWSC 800 …. 11.2 Moloney v Moloney (1903) 20 WN (NSW) 267 …. 18.1 Monitor Patriot Company v Roy 401 US 265 (1971) …. 5.6 Monson v Tussauds Ltd [1894] 1 QB 671 …. 7.9, 18.3 Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663 …. 9.10 Mooney v Nationwide News Pty Ltd [2014] NSWSC 938 …. 9.14 Moore v Australian Broadcasting Commission (1985) A Def R 50-010 …. 7.6 — v Canadian Pacific Steamship Company [1945] 1 All ER 128 …. 23.2 — v Haynes [1881] 2 NSWR 327 …. 3.35 — v TWT Ltd (1991) 105 FLR 350 …. 19.5 Moorgate Tobacco Company Ltd v Philip Morris Ltd (No 2) (1984) 156 CLR 414 …. 14.7 More v Weaver [1928] 2 KB 520 …. 21.1 Morgan, Re (1887) 35 ChD 492 …. 18.1 Morgan v John Fairfax & Sons Ltd (No 2) (1991) 23 NSWLR 374 …. 8.3, 9.6, 9.14, 25.3, 25.6 — v Johnson (1998) 44 NSWLR 578 …. 41.3 — v Mallard (2001) 216 LSJS 143 …. 13.8 — v Odhams Press Ltd [1971] 1 WLR 1239 …. 8.2, 8.3, 8.5, 11.7 — v Steble (1872) LR 7 QB 611 …. 12.2 Morosi v Broadcasting Station 2GB Pty Ltd [1980] 2 NSWLR 418 …. 9.5, 11.3, 11.7 — v Mirror Newspapers Ltd [1977] 2 NSWLR 749 …. 4.4, 9.11, 9.14, 19.4, 22.7, 24.5, 25.2, 25.3, 26.1, 30.1 Morris v Newcastle Newspapers Pty Ltd (1985) 1 NSWLR 260 …. 9.11, 9.12 Morrison v Harmer (1837) 3 Bing NC 759; 132 ER 603 …. 19.4 Mosley v News Group Newspapers Ltd [2008] EWHC 1777 …. 14.5, 14.6, 31.4 — v United Kingdom [2011] 53 EHRR 30; [2011] ECHR 774 …. 14.5, 14.6 Mossimani by his tutor Karout v DailyMail.com Australia Pty Ltd [2016]

NSWDC 264 …. 11.7 — v — (No 2) [2016] NSWDC 357 …. 11.7 Motel Holdings Ltd v Bulletin Newspaper Company Pty Ltd (1963) SR (NSW) 208 …. 19.3 Mowlds v Fergusson (1939) 40 SR (NSW) 311 …. 22.4, 23.1, 23.2, 24.3 — v — (1940) 64 CLR 206 …. 22.3, 22.5 M’Pherson v Daniels (1829) 10 B&C 263; 109 ER 448 …. 2.21, 4.4 Mularczyk v John Fairfax Publications Pty Ltd [2001] NSWCA 467 …. 10.3, 17.3 Mummery v Irvings Pty Ltd (1956) 96 CLR 99 …. 19.5 Munday v Askin (1982) 2 NSWLR 369 …. 11.6 Mundine v Brad (No 6) [2010] NSWSC 1285 …. 11.7 — v Brown [2010] NSWSC 1285 …. 33.3 Munster v Lamb (1883) 11 QBD 588 …. 21.1 Murphy v Australian Consolidated Press Ltd [1968] 3 NSWR 200 …. 10.3 Murray v Big Pictures (UK) Ltd [2008] EWCA Civ 446 …. 14.5, 14.6 — v Express Newspapers plc [2007] EWHC 1908 …. 14.5, 14.6 — v — [2009] Ch 481 …. 14.6 — v Wishart [2014] NZCA 461 …. 7.8 Mutch v Sleeman (1928) 29 SR (NSW) 125 …. 19.9, 36.3, 36.7 My Kinda Town Ltd v Soll [1983] RPC 15 …. 39.3 Myroft v Sleight (1921) 125 LT 622 …. 10.5

N Nagle v Chulov [2001] NSWSC 9 …. 13.8 National Mutual Life Association of Australasia Ltd v General Television Corporation Pty Ltd [1989] VR 747 …. 6.5, 9.10, 19.5 Nationwide News Pty Ltd v Heggie [2001] NSWCA 257 …. 9.11 — v Hibbert [2015] NSWCA 13 …. 19.8 — v Moodie (2003) 28 WAR 314 …. 9.10, 19.5 — v Sleeman [2005] NSWCA 349 …. 28.6, 33.4

— v Warton [2002] NSWCA 377 …. 9.6, 9.14, 20.6 — v Weatherup [2017] QCA 70 …. 20.10, 41.2–41.4 — v Wills (1992) 177 CLR 1 …. 3.11, 5.6, 12.5, 24.4 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1993) 67 ALJR 17 …. 19.1 Network Ten Pty Ltd v TCN Channel Nine Pty Ltd (2004) 205 ALR 1 …. 3.14 New South Wales v Deren [1999] NSWCA 22 …. 20.6 New South Wales Aboriginal Land Council v Jones (1998) 43 NSWLR 300 …. 12.3, 37.1 — v Perkins (1998) 45 NSWLR 340 …. 28.4 New York Times Company v Sullivan 376 US 254 (1964) …. 5.6, 12.5 Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 …. 3.14 Newman, Re; Ex parte Brooke (1876) 3 Ch D 494 …. 13.4 Newnham v Davis [2010] VSC 94 …. 19.5, 27.3 Newstead v London Express Newspaper Ltd [1940] 1 KB 377 …. 8.3 Nguyen v Nguyen (1990) 169 CLR 245 …. 3.9 Nicholson v Seidler (1990) 5 BR 363 …. 9.15 Nielson v Overseas Projects Corp of Victoria Ltd [2005] HCA 54 …. 6.4 Nikolopoulos v Greek Herald Pty Ltd [2003] NSWSC 1060 …. 4.1, 33.4 Noonan v MacLennan [2010] QCA 50 …. 18.6 Norman v Future Publishing Ltd [1999] EMLR 325 …. 10.4 North Coast Children’s Home Inc v Martin [2014] NSWDC 125 …. 33.3 — v — [2014] NSWDC 142 …. 38.2 North-Eastern Railway Company v Martin (1848) 2 Ph 758; 41 ER 1136 …. 39.3 Norton v Hoare (No 1) (1913) 17 CLR 310 …. 22.5 Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133 …. 13.3 Nowak v Putland [2011] QDC 259 …. 33.3 NRMA Insurance Ltd v Amalgamated Television Services Pty Ltd [1989] A Def R 50-055 …. 19.5, 36.7 — v John Fairfax Publications Pty Ltd [2002] NSWSC 563 …. 14.8 NSW Country Press Cooperative Co Ltd v Stewart (1911) 12 CLR 481 …. 7.8,

13.2 Ntuli v Donald [2010] EWCA Civ 1276 …. 14.6 Nuclear Utility Technology & Environmental Corporation Inc (Nu-Tec) v Australian Broadcasting Corporation [2010] NSWSC 711 …. 8.3 Nu-Tec v Australian Broadcasting Corporation [2010] NSWSC 711 …. 7.10, 17.2

O Obeid v John Fairfax Publications Pty Ltd [2006] NSWSC 1059 …. 25.3 O’Brien v Australian Broadcasting Corporation [2016] NSWSC 1289 …. 20.9, 27.1, 27.3, 33.3 — v Marquis of Salisbury (1889) 6 TLR 133 …. 27.4 Ocala StarBanner Co v Damron 401 US 295 (1971) …. 5.6 O’Connor v Spaight (1804) 1 Sch & Lef 305 …. 39.3 — v Waldron [1935] AC 76 …. 21.1 O’Hagan v Nationwide News Pty Ltd (2001) 53 NSWLR 89 …. 4.2, 4.4 O’Hare v Sims [2009] QCA 186 …. 25.3 Oldfield v Keogh (1941) 41 SR (NSW) 206 …. 23.2, 25.3 Onslow v Horne (1771) 3 Wils KB 178; 95 ER 999 …. 2.16 Oriental Press Group v Fevaworks Solutions Pty Ltd [2013] HK CFA 47 …. 7.8 Orr v Isles [1965] NSWR 677 …. 18.3, 19.9, 27.5, 27.8 O’Shaughnessy v Mirror Newspapers Ltd [1969] 1 NSWR 422; (1970) 125 CLR 166 …. 17.1, 27.4, 27.8, 27.9, 28.4 — v — (1970) 72 SR (NSW) 347 …. 27.10, 28.2, 28.3 Oshlack v Richmond River Council (1998) 193 CLR 72 …. 41.1 Otto v Gold Coast Publications Pty Ltd [2017] NSWDC 101 …. 43.4 Owners of Strata Plan v Gray [2004] NSWCA 304 …. 31.3

P Packer v Australian Broadcasting Corporation (1993) 116 FLR 306 …. 32.2, 34.5 — v Mirror Newspapers Ltd (1969) 90 WN (Pt 1) NSW 308 …. 9.10

Padmore v Laurence (1840) 11 Ad & E 380; 113 ER 460 …. 21.1 Pahuja v TCN Channel Nine Pty Ltd …. 33.3 Pak v Korean Times (DC (NSW) Rolfe DCJ, 19 November 2010) …. 33.3 Palace Films Pty Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 962 …. 41.1 Palavi v Radio 2UE Sydney Pty Ltd (DC (NSW) Elkaim DCJ, 28 March 2012, unreported) …. 33.3 Palmer v Thorpe (1583) 4 Co Rep 20a; 76 ER 909 …. 2.7 Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; [2001] HCA 69 …. 7.6, 15.2, 32.3 Pamplin v Express Newspapers Ltd [1988] 1 WLR 116 …. 4.4, 36.1, 36.3, 36.7, 41.4 Pankhurst v Sowler (1886) 3 TLR 193 …. 2.21 Papaconstuntinos v Holmes à Court [2006] NSWSC 945 …. 13.8 — v — [2009] NSWSC 903 …. 33.2 — v — [2012] HCA 53 …. 22.3 Parker v Falkiner [1889] 10 NSWR 7 …. 9.6 — v Laws [2002] NSWSC 311 …. 9.14 Parkes v Prescott (1869) LR 4 Ex 169 …. 7.8 Parmiter v Coupland (1840) 6 M&W 105; 151 ER 340 …. 9.16, 10.2, 11.7 Pavy v John Fairfax Publications Pty Ltd [2002] NSWCA 46 …. 17.3 — v — [2004] NSWCA 177 …. 17.3 Pearson v Lord Mayor of Dublin [1907] AC 351 …. 13.2 Peat v Eley (1915) 32 WN (NSW) 96 …. 13.8 Peck v Email Ltd (1987) 8 NSWLR 430 …. 17.1 Pedavoli v Fairfax Media Publications Pty Ltd [2014] NSWSC 1674 …. 8.3, 16.6, 16.8, 31.4, 32.3, 33.3 Peek v Channel Seven Adelaide Pty Ltd [2006] SASC 63 …. 24.4 Pell v The Council of the Trustees of the National Gallery of Victoria [1998] 2 VR 391 …. 5.4, 5.5 Penfold v Higgins [2002] NTSC 65 …. 9.10

Penton v Calwell (1945) 70 CLR 219 …. 22.5 Perera v Peiris [1949] AC 1 …. 24.1, 26.1 Perkins v NSW Aboriginal Land Council (SC (NSW), Badgery Parker J, 15 August 1997, unreported) …. 30.1 Perre v Apand Pty Ltd (1999) 198 CLR 180 …. 15.4 Perry v Hoskings (1865) NSWR 124 …. 30.1 Pervan v North Queensland Newspaper Company Ltd (1993) 178 CLR 309 …. 27.1, 27.4–27.7, 27.10, 28.10 Peter Pan Manufacturing Corp v Corsets Silhouette Ltd [1963] 3 All ER 402 …. 39.3 Peter Walker & Son Ltd v Hodgson [1909] 1 KB 239 …. 27.5, 27.6 Peterson v Advertiser Newspapers Ltd (1995) 127 FLR 186 …. 27.10 Petritsis v Hellenic Herald Pty Ltd [1978] 2 NSWLR 174 …. 6.2, 9.11, 27.2, 28.2, 28.4 Petrov v Do [2012] NSWSC 1382 …. 33.3 Phelps v Nationwide News Pty Ltd [2001] NSWSC 130 …. 9.5 Pigot v Pigot (1638) 14 Car 1; 79 ER 1060 …. 2.17 Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 …. 16.5, 16.8, 18.6 Pinkney v Collins (1787) 1 TR 571; 99 ER 1257 …. 2.21 Pisani v Lawson (1839) 6 Bing NC 90; 133 ER 35 …. 12.6 Piscioneri v Brisciani [2015] ACTSC 106 …. 11.6 — v Reardon [2015] ACTSC 61 …. 18.6 PJS v News Group Newspapers Ltd [2016] EWCA Civ 100 …. 14.6 — v — [2016] UKSC 26 …. 14.5, 14.6, 14.9 Place v Searle [1932] 2 KB 497 …. 17.3 Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118 …. 31.3 Plato Films Ltd v Speidel [1961] AC 1090 …. 4.2, 4.4, 19.4, 19.7, 20.1, 32.3, 36.3, 36.7 Plenty v Dillon (1990) 171 CLR 635 …. 31.1 Plimer v Roberts (1997) 80 FCR 303 …. 15.3 Plymouth Mutual Co-Operative & Industrial Society Ltd v Traders Publishing

Association Ltd (1906) 1 KB 403 …. 13.8 Polias v Ryall [2013] NSWSC 1267 …. 11.6 — v — [2014] NSWSC 1692 …. 31.4, 33.3, 39.2 — v — [2015] NSWSC 1 …. 38.2 Pollack v Volpato [1973] 1 NSWLR 653 …. 35.1 — v Waterhouse [1999] NSWSC 1053 …. 21.2 Polly Peck (Holdings) plc v Trelford [1986] QB 1000 …. 2.8, 9.7, 9.10, 18.1, 19.5, 19.6, 19.8 Poniatowska v Channel Seven Sydney Pty Ltd [2016] SASC 137 …. 33.3 — v — [2017] SASC 32 …. 41.2 Pontigon v Lord 340 SW 3d315 (MoCtApp 2011) …. 7.8 Popham v Pickburn (1862) 7 H&N 891; 158 ER 730 …. 2.21 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 …. 7.5 Poseidon Ltd v Adelaide Petroleum NL (1994) 179 CLR 332 …. 31.1 Potter v Minahan (1908) 7 CLR 277 …. 4.1 Potts v Moran (1976) 16 SASR 284 …. 19.1, 19.4 Powell v Gelston [1916] 2 KB 615 …. 7.1, 29.1 Prager v Times Newspapers Ltd [1988] 1 WLR 77 …. 19.5 Price v Ikin [2004] NSWSC 706 …. 12.4 Prichard v Krantz (1984) 37 SASR 379 …. 9.12, 19.5 Prince v Malouf [2014] NSWCA 12 …. 11.8 Prince Albert v Strange [1849] EWHC ChJ 20 …. 14.4, 14.11 Prior v Queensland University of Technology [2016] FCCA 2853 …. 15.7 Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166 …. 3.9 Prowse v Harbour Radio Pty Ltd [2016] NSWSC 57 …. 27.9 Pryke v Advertising Newspapers Ltd (1984) 37 SASR 175 …. 27.6 Pugh v Morrison [2011] ACTSC 44 …. 6.4 Pullman v Hill & Co Ltd [1891] 1 QB 524 …. 7.1, 7.6, 29.1 Purcell v Cruising Yacht Club of Australia [2001] NSWSC 926 …. 7.10, 17.2 — v — [2003] NSWSC 245 …. 9.12, 9.14 — v Sowler (1877) 2 CPD 215 …. 2.21, 24.1

Purdy v Stacey (1771) 5 Burr 2698; 98 ER 417 …. 2.13

R R v Adams (1888) 22 QBD 66 …. 5.3, 44.1, 44.2 — v Anderson [1972] 1 QB 304 …. 5.4 — v Associated Northern Collieries (1910) 11 CLR 738 …. 9.12 — v Beare (1698) 12 Mod Rep 219 …. 2.4 — v Bell (CCA (NSW), Spigelman CJ, 8 October 1998, unreported) …. 17.1 — v Bland (1849) NSW Supreme Court cases, Legge’s Reports 534 …. 3.4 — v Burdett (1820) 4 B&Ald 95; 106 ER 873 …. 4.1 — v Carden (1879) 5 QBD 1 …. 5.3 — v Carr (1680) 7 St Tr 1111 …. 2.13 — v Chief Metropolitan Stipendiary Magistrate; Ex parte Choudhury [1991] 1 QB 429 …. 5.2, 5.5 — v Close [1948] VLR 445 …. 5.4 — v Crabbe (1985) 156 CLR 464 …. 23.2 — v Dunbabin; Ex parte Williams (1935) 53 CLR 434 …. 15.5 — v Ensor (1887) 3 TLR 366 …. 5.3 — v Glennon (1992) 173 CLR 592 …. 15.5, 17.1 — v Grassby (1988) 15 NSWLR 109 …. 7.1, 44.2 — v — (1992) 62A Crim R 351 …. 44.2 — v Hanson [2003] QCA 488 …. 15.5 — v Hardy [1951] VLR 454 …. 5.3 — v Harris (1680) 7 St Tr 926 …. 2.13 — v Harvey (1823) 2 B&C 257; 107 ER 379 …. 2.17 — v Hepburn (1889) 15 VLR 84 …. 5.3 — v Hicklin (1868) LR 3 QB 360 …. 5.4 — v Holbrook (1878) 4 QBD 42 …. 5.3, 44.1 — v Labouchere (1884) 12 QBD 320 …. 5.3 — v Langley (1704) 6 Mod Rep 125; 87 ER 882 …. 5.3 — v Lego’me SCNSW, 12 February 1835 …. 3.2

— v Lord Byron (1765) 19 St Tr 1178 …. 2.14 — v Martin Secker & Warburg Ltd [1954] 1 WLR 1138 …. 5.4, 10.5 — v Mary Carlile (1819) 3 B&A 167; 106 ER 624 …. 2.17 — v Munslow [1895] 1 QB 758 …. 2.17, 2.18, 19.3 — v National Post [2010] ISCR 477 …. 13.8 — v Nicholls (1911) 12 CLR 280 …. 15.5 — v Nutt (1729) 1 Barnard 306 …. 29.1 — v Penny (1697) 1 Ld Raym 153; 91 ER 999 …. 2.13 — v Prynn (1633) 3 St Tr 562 …. 2.12 — v Sharkey (1949) 79 CLR 121 …. 5.2 — v Shipley (Dean of St Asaph) (1784) 4 Dougl 73; 99 ER 774 …. 2.13 — v Sidley (1663) 1 Sid 168; 82 ER 1036 …. 5.4 — v Skinner (1772) Loft 55; 98 ER 529 …. 21.1 — v Taylor (1678) 1 Vent 293; 86 ER 189 …. 5.5 — v The Earl of Cardigan (1841) 4 St Tr 601 …. 2.14 — v Trade Practices Tribunal; Ex parte St George County Council (1974) 130 CLR 533 …. 12.5 — v Twyn (1663) 15 Charles II St Tr 513 …. 2.13 — v Walter (1799) 3 Esp 21; 170 ER 524 …. 5.3 — v Webb Court of Criminal Judicature, 25 September 1794 (NSW Archives) …. 3.2 — v West Australian Newspapers Ltd (1996) 16 WAR 518 …. 15.5 — v Wicks [1936] 1 All ER 384 …. 5.3 — v Williams (1686) 2 Show R 471; 89 ER 1048 …. 2.17 — v Woodfall (1770) 5 Burr 2661; 98 ER 398 …. 2.13 — v Woolston (1929) Fitzgibbons 64; 94 ER 655 …. 5.5 — v Wright (1799) 8 TR 293; 101 ER 1396 …. 2.17, 26.1 R Z Mines (Newcastle) Pty Ltd v Newcastle Newspapers Pty Ltd (SC (NSW), Hunt J, 16 November 1994, unreported) …. 17.2 Ra v Nationwide News Pty Ltd [2009] FCA 1308 …. 17.1 Raciti v Hughes (1996) 3 MLR 46 …. 14.4

Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 …. 4.1, 4.2, 9.15, 10.1–10.3, 10.5, 10.6, 11.9 — v Goldsworthy [2000] NSWCA 130 …. 27.9 — v Parker (1992) 29 NSWLR 448 …. 7.10, 9.7, 17.1, 17.2, 22.5, 24.1, 28.4 Rajski v Carson (1988) 15 NSWLR 84 …. 21.2 — v Tectran Corporation Pty Ltd [2003] NSWSC 476 …. 16.11 Rakhimov v Australian Broadcasting Corporation [2001] NSWSC 10 …. 11.1 Rana v Google Australia Pty Ltd [2013] FCA 60 …. 7.8 Random House Australia Pty Ltd v Abbott and Costello (1999) 167 ALR 224 …. 9.10 Randwick Labor Club Ltd v Amalgamated Television Services Pty Ltd [2000] NSWSC 1098 …. 41.2 Rantzen v Mirror Group Newspapers Ltd [1994] QB 670 …. 32.2, 34.5 Ratcliffe v Evans [1892] 2 QB 524 …. 4.2, 7.8, 15.2, 31.2, 32.3 Rayney v Pan MacMillan Australia Pty Ltd [2014] WASC 129 …. 9.6 — v State of Western Australia (No 3) [2010] WASC 83 …. 18.6 Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 …. 9.2, 9.3, 9.6, 9.8, 10.1, 10.5, 17.3, 19.5, 31.2, 32.2, 32.3 Reading v Australian Broadcasting Corporation [2003] NSWSC 716 …. 7.10, 9.12, 9.14, 11.4, 17.2 Redeemer Baptist School Ltd v Glossop [2006] NSWSC 1201 …. 12.3 Regie National Des Usines Renault SA v Zhang (2002) 210 CLR 491 …. 7.5 Registrar, Supreme Court of New South Wales v McPherson [1980] 1 NSWLR 688 …. 13.8 Reid v Dukic [2016] ACTSC 344 …. 33.3 Renouf v Federal Capital Press of Australia Pty Ltd (1977) 17 ACTR 35 …. 27.4, 27.8, 27.10 Representative Claimants v MGN Ltd [2015] EWCA Civ 1291 …. 14.5, 14.6 Restifa v Pallotta [2009] NSWSC 958 …. 7.6, 25.2, 25.3, 33.2, 33.3 Revis v Smith (1856) 18 CB 126; 139 ER 1314 …. 21.1 Reynolds v Clarke (1725) B & M 354 …. 2.15 — v Times Newspapers Ltd [2001] 2 AC 127 …. 4.1, 5.6, 22.3, 22.7, 24.1,

24.3–24.7, 25.3, 25.5, 25.7, 27.8, 27.10 Riddick v Thames Board Mills Ltd [1977] QB 881 …. 13.8 Rigby v Associated Newspapers Ltd [1969] 1 NSWLR 729 …. 34.2, 36.7 — v John Fairfax Group Pty Ltd (CA (NSW), 1 February 1996, unreported) …. 11.1 Rinaldi v Cobbittee Publications Pty Ltd [2006] NSWSC 1498 …. 13.8 Rinehart v Nine Entertainment Co Holdings Ltd [2015] NSWSC 239 …. 11.8 Riske v Oxley Insurance Brokers Pty Ltd [2014] NSWSC 1611 …. 18.6 Ritson v Gay & Lesbian Community Publishing Ltd [2012] NSWSC 483 …. 18.6 Rivkin v John Fairfax Publications Pty Ltd [2004] NSWSC 671 …. 41.2 Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57 …. 3.12, 13.2, 18.2, 22.3, 23.1, 23.2, 23.5, 24.2, 24.3, 24.6 — v Camden (1807) 9 East 93; 103 ER 508 …. 4.1, 19.3 — v Prendergast [2013] QCA 89 …. 41.2 Robinson v Laws [2003] 1 Qd R 81 …. 6.2, 9.10, 19.5 Robshaw v Smith (1878) 38 LT 423 …. 22.5 Rocca v Manhire [1992] 57 SASR 224 …. 27.2 Rochfort v John Fairfax & Sons Ltd [1972] 1 NSWLR 16 …. 4.4, 11.2 Rodgers v Nine Network Australia Pty Ltd [2008] NSWDC 275 …. 43.3 Rofe v Smith’s Newspapers Ltd (1924) 25 SR (NSW) 4 …. 19.1, 19.9 Rogers v Clifton (1803) 3 B&P 587; 127 ER 317 …. 2.17 — v Nationwide News Pty Ltd [2002] NSWCA 71 …. 33.4 — v — [2003] HCA 52 …. 4.1, 24.5, 25.4, 26.1, 26.2, 31.2, 31.3, 32.1, 32.3, 33.3, 33.4, 34.3, 34.5, 43.3, 43.4 — v TVNZ [2007] NZSC 91 …. 14.6 Ronald v Harper (1910) 11 CLR 63 …. 7.8 Rookes v Barnard [1964] AC 1129 …. 31.2, 35.1 Roozendaal v Fairfax Digital Australia and New Zealand Pty Ltd [2015] FCA 764 …. 17.1, 19.8 Rose v Allen & Unwin Pty Ltd [2015] NSWSC 991 …. 20.10 Rosenblatt v Baer 383 US 75 (1966) …. 5.6

Ross McConnel Kitchen & Co Pty Ltd v John Fairfax & Sons Pty Ltd [1980] 2 NSWLR 845 …. 7.8, 11.1 Rothe v Scott [2016] NSWDC 160 …. 33.3 Rowe v Roach (1813) 1 M&S 304; 105 ER 114 …. 2.18, 19.3 Royal Aquarium & Summer & Winter Garden Society Ltd v Parkinson [1892] 1 QB 431 …. 21.1, 23.2 Royal Bank of Scotland v Etridge [2002] 2 AC 773 …. 12.3 Royal Society for the Prevention of Cruelty to Animals v Davies [2011] NSWSC 1445 …. 39.2 Royal Society for the Prevention of Cruelty to Animals (NSW) v 2KY Broadcasters Pty Ltd (1988) A Def R 50-030 …. 12.3, 37.1 Russell v Stubbs Ltd [1913] 2 KB 100 …. 6.3 Ryan v Premachandran [2009] NSWSC 1186 …. 31.5, 33.1, 34.1 — v Random House Australia Pty Ltd [2015] NSWDC 31 …. 19.8 — v Ross (1916) 22 CLR 1 …. 9.10

S S (A Child) (Identification: Restrictions on Publication), Re [2005] 1 AC 593 …. 14.6 S, DJ v Channel Seven Adelaide Pty Ltd [2006] SASC 268 …. 11.1 Saad v Chubb Security Australia Pty Ltd [2012] NSWSC 1183 …. 14.5, 14.8 Sadgrove v Hole [1901] 2 KB 1 …. 8.1 Saffron v John Fairfax Publications Pty Ltd [2004] NSWCA 254 …. 17.3 Sands v Channel Seven Adelaide Pty Ltd [2005] SASC 182 …. 9.10, 11.1 — v State of South Australia [2015] SASCFC 36 …. 12.2, 22.4 Saravinovski v Fairfax Media Publications Pty Ltd [2014] NSWSC 919 …. 9.13 Sartor v John Fairfax Group Pty Ltd (SC (NSW), Levine J, 1 April 1993, unreported) …. 11.1 Sattin v Nationwide News Pty Ltd (1996) 39 NSWLR 32 …. 15.4, 32.2 Saunders v Jones (1877) 7 ChD 435 …. 9.12 — v Mills (1829) 6 Bing 213; 130 ER 1262 …. 36.4

Saville v Jardine (1795) 2 HBC 531; 126 ER 686 …. 2.13 Savvas v TCN Channel Nine Pty Ltd (1987) A Def R 50-020 …. 8.2 Scali v John Fairfax Group Pty Ltd (SC (NSW), Levine J, 15 April 1993, unreported) …. 11.7 Scarll v Dixon (1864) 4 F&F 250; 176 ER 552 …. 22.6 Scott v Sampson (1882) 8 QBD 491 …. 4.4, 36.3 — v Shepherd (1773) 2 WBL 892; 96 ER 525 …. 2.15 Seaman v Netherclift (1876) 2 CPD 53 …. 21.1 Searles v Scarlett [1892] 2 QB 56 …. 26.11 Seidler v John Fairfax & Sons Ltd [1983] 2 NSWLR 390 …. 28.3, 28.5 — v — (1986) Aust Torts Reports 80-002 …. 27.4 Select Pleas in Fair Courts (1908) 23 Selden Society 57–85 …. 2.6 Select Pleas in Manorial Courts (1888) 2 Selden Society 36–170 …. 2.6 Sergi v Australian Broadcasting Commission [1983] 2 NSWLR 669 …. 9.12, 9.13 — v Australian Broadcasting Corporation (1989) 4 BR 315 …. 11.3 Setka v Abbott [2014] VSCA 287 …. 9.13, 19.8 — v — [2015] HCA Trans 151 …. 19.8 Seton v Cokeside (1358) YB 30 Edw III Lib Ass pl 19 …. 2.11 Seven Network (Operations) Ltd v Australian Broadcasting Corporation [2007] NSWSC 1289 …. 14.8 Shaddock v Associates Pty Ltd v Parramatta City Council (1981) 150 CLR 225 …. 15.4 Shah v Standard Chartered Bank [1999] QB 241 …. 11.1 Sharp v Harbour Radio Pty Ltd [2016] NSWSC 223 …. 20.4 Shaw v DPP [1962] AC 220 …. 5.4 Sheales v The Age Company Pty Ltd [2017] VSC 380 …. 33.3 Shelley Films Ltd v Rex Features Ltd [1994] MLR 134 …. 14.6 Shevill v Presse Alliance SA [1996] AC 959 …. 6.3, 7.2 Sierocki v Klerck [2015] QSC 92 …. 33.3, 39.2 Silkin v Beaverbrook Newspapers Ltd [1958] 2 All ER 516 …. 27.9

Sim v Stretch [1936] 2 All ER 1237 …. 10.2, 10.4, 10.5 Simeone v Walker [2006] SASC 387 …. 6.4 Simmons v Mitchell (1880) 6 App Cas 156 …. 7.9 Simpson v MGN Ltd [2015] EWHC 77 …. 19.8 Sims v Jooste [2016] WASCA 83 …. 7.6 — v Wran [1984] 1 NSWLR 317 …. 7.8, 9.12, 27.6, 28.2 Singh v Singh [2002] NSWSC 852 …. 16.11 — v The Observer Ltd [1989] 2 All ER 751 …. 12.9 — v — [1989] 3 All ER 777 …. 12.9 Singleton v Ffrench (1986) 5 NSWLR 425 …. 4.1, 6.2, 9.11, 9.12, 9.14, 19.3, 19.8, 34.2, 36.7 — v John Fairfax & Sons Pty Ltd (SC (NSW), Hunt J, 20 February 1980, unreported) …. 9.14 Skalkos v Assaf [2002] NSWCA 14 …. 22.4 Skelton v Collins (1966) 115 CLR 94 …. 3.9 Slatyer v Daily Telegraph Newspaper Co Ltd (1908) 6 CLR 1 …. 9.4, 9.15, 10.2, 10.5 Sleeman v Nationwide News Pty Ltd (2004) Aust Torts Reports 81-773 …. 33.3 Slim v Daily Telegraph Ltd [1968] 2 QB 157 …. 9.2, 9.4, 9.6, 9.7, 9.10, 9.14, 19.5, 19.8, 27.1, 27.10 Smale v Hammon (1610) 1 Bulst 40; 80 ER 743 …. 2.16 Smith, Re (1884) 9 PD 68 …. 18.1 Smith v Harris [1996] 2 VR 335 …. 24.4, 26.1 — v Harrison (1856) 1 F&F 565 …. 36.6 — v Lucht [2015] QDC 289 …. 11.7 — v — [2016] QCA 267 …. 30.1 — v Richardson (1737) Willes 20; 125 ER 1034 …. 2.17 — v Streatfield [1913] 3 KB 764 …. 23.5 — v Unknown Defendant Pseudonym LikeICare [2016] EWHC 1775 …. 13.3 — v Williams [2006] EWHC 860 …. 13.3 Smith’s Newspapers Ltd v Becker (1932) 47 CLR 279 …. 18.4, 24.5, 27.2

Solomon v Lawson (1846) 8 QB 823; 115 ER 1084 …. 10.3 Sonda v Signorelli [2004] NSWCA 134 …. 17.2, 17.3 Soultanov v The Age Co Ltd [2009] VSC 145 …. 9.4, 19.5, 27.3 South Hetton Coal Company Ltd v North Eastern News Association Ltd [1894] 1 QB 133 …. 12.3, 19.9 Spautz v Butterworth (1996) 41 NSWLR 1 …. 34.6 — v Kirby (1989) 21 NSWLR 27 …. 6.5 — v Williams [1983] 2 NSWLR 506 …. 5.3, 23.1, 44.2–44.4, 44.6 Speight v Gosnay (1891) 60 LJQB 231 …. 7.8, 17.2 Spencer v Jeffrey, Australian, 6 May 1826 …. 3.2 — v Shory (1599) Cro Eliz 709; 78 ER 944 …. 7.9 Spiller v Joseph [2010] UKSC 53 …. 27.1, 27.4, 27.6 Spring v Guardian Assurance plc [1995] 2 AC 296 …. 15.4 Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 …. 13.8 St George Bank Ltd v Rabo Australia Ltd (2004) 211 ALR 147; [2004] FCA 1360 …. 13.8 Stace v Griffith (1869) LR 2 PC 420 …. 22.6 Stanhope v Blith (1585) 4 Co Rep 15a; 76 ER 891 …. 2.11 Star v Rookesby (1710) 1 Salk 335; 91 ER 295 …. 2.15 State Bank of New South Wales Ltd v Currabubula Holdings Pty Ltd (2001) 51 NSWLR 399 …. 7.6 State Government Insurance Commission v Trigwell (1979) 142 CLR 617 …. 3.12 State of New South Wales v Moss [2000] NSWCA 133 …. 31.1 State of Victoria v Australian Building Construction Employees’ & Builders’ Labourers Federation (1982) 152 CLR 25 …. 15.5 Stead v Foster (SC (NSW), 4 September 1998, unreported) …. 12.4 Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 …. 8.1, 8.2, 8.5, 32.3, 34.6 Steinberg v Pritchard Englefield [2005] EWCA Civ 288 …. 7.6 Steiner Wilson & Webster Pty Ltd t/as Abbey Bridal v Amalgamated Television Services Pty Ltd (2000) Aust Torts Reports 81-537 …. 37.1

Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211 …. 3.7, 3.11, 13.2, 22.7, 23.5, 24.1, 24.3, 24.5, 26.1 Stern v Piper [1997] QB 123 …. 19.1 Stevens v Head (1993) 176 CLR 433 …. 3.9 Stockdale v Hansard (1839) 9 A&E 1; 112 ER 1112 …. 2.20 — v — (1840) 11 AD&E 297; 113 ER 428 …. 21.2 Storey v Challands (1837) 8 C&P 234; 173 ER 475 …. 22.5 Streetscape Projects (Australia) Pty Ltd v City of Sydney [2013] NSWCA 2 …. 14.7 Stuart v Bell [1891] 2 QB 341 …. 22.2, 22.5, 22.6, 23.2 — v Lovell (1817) 2 Stark 93; 171 ER 583 …. 2.17 Stubbs Ltd v Russell [1913] AC 386 …. 11.3 Sullivan v Moody (2001) 207 CLR 562 …. 15.4 — v Sclanders (2000) 77 SASR 419 …. 14.7 Sun Earth Homes Pty Ltd v Australian Broadcasting Corporation (1993) 45 FCR 265 …. 15.3, 15.4 Sun Life Assurance Company of Canada v W H Smith & Son Ltd (1933) 150 LT 211 …. 29.1 Sungravure Pty Ltd v Middle East Airlines Airliban SA (1975) 134 CLR 1 …. 3.14, 9.1, 9.3, 9.10, 10.3, 11.8, 15.2, 19.5 Sutcliffe v Pressdram Ltd [1991] 1 QB 153 …. 31.2, 33.1 Sutherland v Australian Consolidated Press Publishing Pty Ltd [2000] NSWSC 1139 …. 9.12, 27.9, 28.4, 30.1 — v Stopes [1925] AC 47 …. 19.1, 19.4, 27.8 Swan v Williams (Demolition) Pty Ltd (1987) 9 NSWLR 172 …. 3.9 Swimsure (Laboratories) Pty Ltd v McDonald [1979] 2 NSWLR 796 …. 15.2 Sybron Corp v Barclays Bank plc [1985] Ch 299 …. 13.8 Sydney Refractive Eye Surgery Centre Pty Ltd v Beaumont [2004] NSWSC 164 …. 35.1, 38.1 Sydney Refractive Surgery Centre Pty Ltd v Commissioner of Taxation (2008) 247 ALR 313 …. 38.1 Szalatnay-Stacho v Fink [1947] KB 1 …. 21.1

Szanto v Melville [2011] VSC 574 …. 27.10

T T and Director of Youth and Community Services, Re [1980] 1 NSWLR 392 …. 4.2 Tabart v Tipper (1808) 1 Campbell 348; 170 ER 981 …. 2.17 Taff Vale Railway Company v Nixon (1847) 1 HL Cas 111; 9 ER 695 …. 39.3 Tame v New South Wales (2002) 211 CLR 317 …. 15.4 Tamiz v Google Inc [2013] EWCA Civ 68 …. 7.8, 29.3 Tang v Griffith University [2003] QCA 571 …. 21.3 Taylor v Jecks (1993) 10 WAR 309 …. 9.10, 9.12 TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333 …. 14.4 — v Ilvary Pty Ltd (2008) 71 NSWLR 323 …. 15.3 — v Mahony (1993) 32 NSWLR 397 …. 7.10, 17.2 Telegraph Newspaper Co Ltd v Bedford (1934) 50 CLR 632 …. 22.3, 22.5, 24.1, 24.3 Television New Zealand Ltd v Quinn [1996] 3 NZLR 24 …. 36.3 Telnikoff v Matusevitch [1991] 1 QB 102 …. 27.9 — v — [1992] 2 AC 343 …. 27.2, 27.10, 28.10 Telstra Corp Ltd v Cable & Wireless Optus Ltd [2001] FCA 1478 …. 9.6 Templar v Britton [2014] NSWSC 802 …. 41.1 — v Watt [2016] NSWSC 1230 …. 15.3 Tepko Pty Ltd v Water Board (2001) 206 CLR 1 …. 15.4 Terrill, Ex parte; Consolidated Press Ltd, Re (1937) 37 SR (NSW) 255 …. 15.5, 22.8 Terry v Persons Unknown [2010] EWHC 119 …. 13.3, 39.2, 14.6 The Age Company Ltd v Elliott [2006] VSCA 168 …. 36.7 — v Liu [2013] NSWCA 26 …. 13.3, 13.8 The Author of a Blog v Times Newspapers Ltd [2009] EWHC 1358 …. 13.3 The Case De Libellis Famosis, or of Scandalous Libels (1605) 5 Coke Rep 125a; 77 ER 250 …. 2.4, 2.12, 2.13

The Silver Fox Co Pty Ltd v Lenard’s Pty Ltd [2004] FCA 1570 …. 16.11 Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 …. 3.8, 3.11, 3.12, 4.1, 5.6, 24.4, 33.4 Thiess v TCN Channel Nine Pty Ltd (No 1) [1991] 2 Qd R 715 …. 13.8 Thom v Associated Newspapers Ltd (1964) 64 SR (NSW) 376 …. 22.8, 26.1, 26.2 Thomas v Bradbury Agnew & Co Ltd [1906] 2 KB 627 …. 23.5, 27.10 — v Moore [1918] 1 KB 555 …. 22.6 Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 …. 18.5, 29.1 — v — (1997) 129 ACTR 14 …. 32.2, 36.5 — v Australian Consolidated Press Ltd [1968] 3 NSWR 642 …. 19.1 — v Truth and Sportsman Ltd (1930) 31 SR (NSW) 292 …. 27.7 — v — (No 1) (1929) 31 SR (NSW) 129 …. 17.3 — v — (No 4) (1934) 34 SR (NSW) 21 …. 27.5 Thomson v Lambert [1938] 2 DLR 545 …. 6.5 Thorley v Kerry (1812) 4 Taunt 355; 128 ER 367 …. 2.13, 3.12 Thorn v Faithfull (1856) NSW Supreme Court cases, Legge’s Reports 966 …. 3.4 Thornton v Telegraph Media Group Ltd [2010] EWHC 1414 …. 10.4 — v — [2011] EWHC 1884 …. 23.2 Tillmanns Butcheries Pty Ltd v AMIEU (1979) 42 FLR 331 …. 30.1 Tinkler v Commissioner of Taxation (1979) 29 ALR 663 …. 38.1 Toben v Mathieson [2013] NSWSC 1530 …. 15.3 — v Milne [2014] NSWCA 200 …. 9.13 Todd v Hawkins (1837) 8 C&P 88; 173 ER 411 …. 22.6 — v Swan Television and Radio Pty Ltd [2001] 25 WAR 284 …. 12.8 Todorovic v Waller (1981) 150 CLR 402 …. 31.1 Tolley v JS Fry & Sons Ltd [1930] 1 KB 467 …. 10.5 Tolstoy Miloslavsky v United Kingdom [1996] EMLR 152 …. 31.2 Toms v Fuller [2009] QSC 232 …. 6.4 Toogood v Spyring (1834) 1 Cr M&R 181; 149 ER 1044 …. 22.2

Toomey v John Fairfax & Sons Ltd (1985) 1 NSWLR 291 …. 9.6 — v Mirror Newspapers Ltd (1985) 1 NSWLR 173 …. 7.4, 7.8 Toonen v Australia, United Nations Human Rights Committee (No 488/1992) adopted 31 March 1994 …. 3.10 Tory v Megna [2007] NSWCA 13 …. 11.6 Totalise plc v The Motley Fool Ltd [2001] EMLR 29 …. 13.3 Tournier v National Provincial & Union Bank of England Ltd [1924] 1 KB 461 …. 2.18, 10.2, 11.9 Towne v Eisner 245 US 418 (1918) …. 9.6 Toyne v Everingham (1993) 91 NTR 1 …. 28.10 Trad v Jones [2009] NSW ADT 318 …. 15.7 — v — (No 3) [2007] NSW ADT 318 …. 11.7 Trade Practices Commission v Allied Mills Industries Pty Ltd (1980) 32 ALR 570 …. 9.14 — v David Jones (Australia) Pty Ltd (1985) 7 FCR 109 …. 9.12 Trapp v Mackie [1979] 1 All ER 489 …. 21.1 Traztand Pty Ltd v Government Insurance Office of New South Wales [1984] 2 NSWLR 598 …. 7.6 Trident General Insurance Co Ltd v McNeice Bros Pty Ltd (1988) 165 CLR 107 …. 3.9 Triggell v Pheeney (1951) 82 CLR 497 …. 34.1, 34.6, 36.1 Trkulja v Google Inc LLC (No 5) [2012] VSC 533 …. 7.8, 17.2, 33.3 — v Yahoo Inc LLC [2010] VSC 215 …. 9.3, 9.6 — v — [2012] VSC 217 …. 41.2 — v — [2012] VSC 88 …. 7.6, 33.3 Truth (NZ) Ltd v Bowles [1966] NZLR 303 …. 11.5 — v — [1960] NZLR 69 …. 22.4 — v — [1960] 1 WLR 997 …. 7.8, 9.7 Tse Wai Chun Paul v Cheng [2001] EMLR 777 …. 27.1 Turnbull v Bird (1861) 2 F&F 508; 175 ER 1163 …. 2.21 Turner v Bulletin Newspaper Co Pty Ltd (1974) 131 CLR 69 …. 8.5

— v Metro-Goldwyn-Mayer Pictures Ltd [1950] 1 All ER 449 …. 27.4 Typing Centre of NSW v Northern Business College (1989) ATPR 40-943 …. 15.3

U Ultrasonic Slimming Pty Ltd v Fairfax Media Publications Pty Ltd [2013] NSWSC 547 …. 13.8 Underwood v Parks (1743) 2 Stra 1200; 93 ER 1127 …. 2.17, 19.3 Unilan Holdings Pty Ltd v Kerin [1992] FCA 211 …. 15.3 United Australia Ltd v Barclays Bank [1941] AC 1 …. 3.12 Uniting Church in Australia (NSW Synod) v Legge (2002) 55 NSWLR 293 …. 41.2 Universal Communication Network Inc v Chinese Media Group (Aust) Pty Ltd [2008] NSWCA 1 …. 8.1, 8.3, 8.5 Upsheer v Betts (1621) Cro J 578; 79 ER 495 …. 2.18 Urbanchich v Drummoyne Municipal Council (1991) Aust Torts Reports 81-127 …. 7.8 Uren v John Fairfax & Sons Pty Ltd (1965) 66 SR (NSW) 223 …. 36.5 — v — (1966) 117 CLR 118 …. 2.5, 4.1, 31.2, 32.1–32.3, 34.1, 35.1, 36.8

V Vacik Distributors Pty Ltd v Australian Broadcasting Corporation [1999] A Def R 53-045 …. 17.2 — v — [2000] NSWSC 732 …. 33.4 Van Doore v Mendez (No 2) (SC (NSW), Dunford J, 30 June 1997, unreported) …. 41.3 Van Garderen v Channel Seven Melbourne Pty Ltd [2016] VCC 953 …. 43.4 Van Ingen v Mail & Express Publishing Company (1898) 50 NE Rep 979 …. 8.6 Vanspike v Cleyson (1597) Cro Eliz 541; 78 ER 788 …. 2.17 Venables v News Group Newspapers Ltd [2001] 1 All ER 908 …. 14.9 Victoria v Australian Building Construction Employees’ & Builders’ Labourers Federation (1982) 152 CLR 25 …. 11.1, 15.5

Victoria Park Racing and Recreation Grounds Company Ltd v Taylor (1937) 58 CLR 479 …. 14.2, 14.6, 14.7, 14.9 Victorian Railway Commissioners v Coultas (1888) 13 App Cas 222 …. 14.6 Villers v Monsley (1769) 2 Wils KB 403; 95 ER 886 …. 2.13, 2.16 Vilo v John Fairfax & Sons Ltd [2000] NSWSC 1206 …. 38.2 Viney v TCN Channel Nine Pty Ltd [2006] NSWSC 1273 …. 9.14 Viro v R (1978) 141 CLR 88 …. 3.9 Viscount de L’Isle v Times Newspapers Ltd [1987] 3 All ER 499 …. 19.5 Visscher v Maritime Union of Australia [2014] NSWSC 350 …. 33.2 Vizetelly v Mudie’s Select Library Ltd [1900] 2 QB 170 …. 29.1 Voelte v Australian Broadcasting Corporation [2016] NSWSC 1012 …. 7.10, 17.1, 17.2 — v — (SC (NSW) McCallum J, 18 July 2016) …. 33.3 Von Hannover v Germany (2004) 40 EHRR 1 …. 14.5, 14.6 — v — (No 2) [2012] ECHR 228 …. 14.5 Von Marburg v Aldred [2015] VSC 467 …. 7.8 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 …. 6.4, 7.5, 13.7

W W A Brown & Sons Pty Ltd, Re [1964–65] NSWR 575 …. 13.4 Wacando v Commonwealth (1981) 148 CLR 1 …. 3.14, 3.17 Wade v State of Victoria [1999] 1 VR 121 …. 15.4 Wafawarova v Australian Broadcasting Corporation [2007] NSWSC 1212 …. 9.12 Wainer v Rippon [1980] VR 129 …. 7.9 Wainwright v Home Office [2002] 2 QB 1334 …. 14.9 — v — [2004] 2 AC 406 …. 14.6 Wake v John Fairfax & Sons Ltd [1973] 1 NSWLR 43 …. 7.8, 26.1, 26.14, 27.8 Wakim v Criniti [2016] NSWSC 1723 …. 13.3 Wall Street Journal Europe SPRL v Jameel [2006] UKHL 44 …. 5.6, 24.6, 25.7 Waller v Loch (1881) 7 QBD 619 …. 22.5

Walters v Mace (1819) 2 B&AL 756; 106 ER 541 …. 2.18 Ward v Lewis [1955] 1 WLR 9 …. 9.14 Ware v Associated Newspapers Ltd (1969) 90 WN (Pt 1) (NSW) 180 …. 8.6 Warne v Genex Corporation Pty Ltd (1996) 35 IPR 284 …. 14.6, 14.9 Wason v Walter (1868) LR 4 QB 73 …. 2.21, 22.7, 26.1, 26.2, 27.5, 27.7 Water Board v Moustakas (1988) 180 CLR 491 …. 19.5 Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 …. 26.1, 26.13, 34.1–34.3, 34.6 — v Gilmore (1988) 12 NSWLR 270 …. 44.2 — v Hickie (1995) Aust Torts Reports 81-347 …. 20.8, 36.7 — v Perkins [2001] NSWSC 13 …. 16.11 — v The Age Company Ltd [2011] NSWSC 159 …. 6.1 — v — [2012] NSWC 1349 …. 17.1 Waters v John Fairfax Publication Pty Ltd [2005] NSWSC 394 …. 36.5, 36.7 — v P C Henderson (Australia) Pty Ltd [1994] NSWCA 338 …. 41.3 Watkin v Hall (1868) LR 3 QB 396 …. 19.5 Watney v Kencian [2017] QCA 116 …. 43.2 Watson v M’Ewan [1905] AC 480 …. 21.1 Watson, Laidlaw & Co Ltd v Pott, Cassels and Williamson (1914) 31 RPC 104 …. 31.2 Watt v Longsdon [1930] 1 KB 130 …. 22.2, 22.3, 22.5, 23.2 Watts v Fraser (1837) 7 Ad & E 223; 112 ER 455 …. 36.2 Weatherston v Hawkins (1786) 1 TR 110; 99 ER 1001 …. 2.17 Weatherup v Nationwide News Pty Ltd [2016] QSC 266 …. 33.3 — v — [2016] QSC 301 …. 38.2, 41.2 Weaver v Lloyd (1824) 2 B&C 678; 107 ER 535 …. 19.1 Webb v Beavan (1883) 11 QBD 609 …. 7.9 — v Bloch (1928) 41 CLR 331 …. 7.1, 7.8, 13.1, 13.2, 15.3, 23.5, 29.1 — v Times Publishing Company Ltd [1960] 2 QB 535 …. 24.1, 26.14 Weldon v Times Book Company Ltd (1911) 28 TLR 143 …. 29.1 Weller v Associated Newspapers Ltd [2015] EWCA Civ 1176 …. 14.5, 14.6

Wenman v Ash (1853) 13 CB 836; 138 ER 1432 …. 22.6 WER v REW [2009] EWHC 1029 …. 13.3 West Australian Newspapers Ltd v Bond [2009] WASCA 127 …. 13.8 — v Bridge (1979) 141 CLR 535 …. 3.7, 42.6 — v Elliott [2008] WASCA 172 …. 11.1, 19.5 Western Australia v Armstrong [2007] WASCA 204 …. 15.5 Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148 …. 9.11–9.13, 11.1 — v John Fairfax Publications Pty Ltd (2002) 56 NSWLR 89 …. 19.4–19.6, 20.2 WhiskiSoda Pty Ltd v HSV Channel Seven Pty Ltd (1994) 1 MLR 59 …. 14.4 Whitbread v Rail Corporation NSW [2011] NSWCA 130 …. 35.1 White & Co v Credit Reform Association and Credit Index Ltd [1905] 1 KB 653 …. 13.8 Whitehouse v Lemon [1979] AC 617 …. 5.5 Whiteley v Adams (1863) 15 CB (NS) 392; 143 ER 838 …. 22.2 Wilkinson v Downton [1897] 2 QB 57 …. 14.6 — v Sporting Life Publications Ltd (1933) 49 CLR 365 …. 18.4 William Heinemann Ltd v Kyte-Powell (1960) 103 CLR 351 …. 5.4 Williams v John Fairfax & Sons Ltd [1994] A Def R 52-010 …. 24.4 — v John Fairfax Group Pty Ltd (1991) A Def R 51-035 …. 7.8 — v Radio 2UE Sydney Pty Ltd (1994) 1 MLR 33 …. 7.6 — v Spautz (1992) 174 CLR 509 …. 5.3, 44.2 Willmett v Harmer [1839] 173 ER 678 …. 20.6 Wilson v Bauer Media Pty Ltd [2017] VSC 521 …. 33.3 — v Ferguson [2015] WASC 15 …. 14.5, 14.8 — v Mutual Store [1899] 25 VLR 262 …. 19.4 — v Pringle [1987] QB 237 …. 14.6 — v Reed (1860) 2 F&F 149; 175 ER 1000 …. 2.21 — v Robinson (1845) 7 QB 68; 115 ER 413 …. 22.6 Wilson, Re; Ex parte Vine (1878) 8 Ch D 364 …. 12.2 Wishart v Doyle [1926] St R Qld 269 …. 21.3 — v Mirror Newspapers Ltd [1964] NSWR 231 …. 4.2

Wong v Aripin [2011] WASC 174 …. 6.4 Wood v Channel Seven Sydney Pty Ltd [2014] NSWSC 1527 …. 17.1 Woodger v Federal Capital Press of Australia Pty Ltd (1992) 107 ACTR 1 …. 19.5, 20.2 Woodham v John Fairfax Publications Pty Ltd [2005] NSWSC 1204 …. 19.7, 20.8 Woolmington v DPP [1935] AC 462 …. 44.4 Wran v Australian Broadcasting Commission [1984] 3 NSWLR 241 …. 13.8 Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697 …. 25.2, 25.3 — v Woodgate (1835) 2 Cr M&R 573; 150 ER 244 …. 22.6 Wyatt v Gore (1816) Holt 299; 171 ER 250 …. 22.6 Wynbergen v Hoyts Corporation Pty Ltd (1997) 149 ALR 25 …. 13.8

X X v Amalgamated Television Services Pty Ltd (No 2) (1987) 9 NSWLR 575 …. 3.9 — v Persons Unknown [2006] EWHC 2783 …. 13.3 XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448 …. 35.1

Y Y & Z v W [2007] NSWCA 329 …. 15.5 York v Morgan [2015] NSWDC 109 …. 18.6 Younan v Nationwide News Pty Ltd [2003] NSWSC 1211 …. 4.4 — v — [2004] NSWSC 740 …. 9.14 — v — [2013] NSWCA 335 …. 8.2, 20.4 Young v Munro (SC (NSW), Levine J, 12 May 1995, unreported) …. 9.12 Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581 …. 7.9, 10.2 — v — (1934) 50 TLR 669 …. 11.8

Z Zoef v Nationwide News Pty Ltd [2015] NSWDC 232 …. 33.3 — v — [2016] NSWCA 283 …. 8.1–8.3, 8.5, 16.3, 16.5, 16.6, 16.8 Zotovic v Dobel Boat Hire Pty Ltd (1985) 62 ACTR 29 …. 3.9 Zunter v John Fairfax Publications Pty Ltd [2005] NSWSC 759 …. 20.9 Zwambila v Wafawarova [2015] ACTSC 171 …. 33.3

TABLE OF STATUTES References are to paragraph numbers

UNIFORM SCHEME LAWS Association Incorporation Acts …. 12.10 Defamation Act 2005 …. 1.1, 3.7, 3.16, 4.1, 6.1–6.5, 7.5, 7.9, 9.10, 9.12, 9.13, 10.1, 10.3, 12.3, 13.5, 16.1, 16.3, 16.5, 16.7, 16.8, 17.1, 17.2, 18.2, 18.6, 19.3, 19.5, 19.7–19.9, 20.1, 20.8, 20.10, 21.3, 26.3, 26.12, 28.1, 29.2, 31.2, 31.5, 32.3, 33.2–33.4, 35.1, 36.5, 36.7, 36.8, 37.1, 40.3, 41.2, 42.1, 42.3, 42.6, 43.2, 43.3, 44.1, 44.4 Pt 5 Div 1 …. 16.1 Div 2 …. 18.2, 23.1, 43.5 s 3 …. 3.17, 43.2 s 3(a) …. 19.8, 43.2 s 3(b) …. 19.8, 43.3 s 3(c) …. 19.8, 43.4 s 3(d) …. 16.1, 43.5 s 4 …. 6.1, 7.9, 19.2, 21.2, 21.3 s 5 …. 13.5 s 6(2) …. 3.16, 6.1, 10.1 s 6(3) …. 3.16, 19.8 s 7 …. 6.1, 7.9 s 7(1) …. 30.1 s 7(2) …. 6.1, 9.13, 30.1 s 8 …. 6.1, 6.5, 9.13, 18.2, 19.1, 19.2, 19.8, 20.1, 33.3 s 9 …. 6.1, 12.3, 37.1, 43.4 s 9(1) …. 12.3

s 9(2) …. 12.3 s 9(2)(b) …. 12.3 s 9(5) …. 12.3 s 9(6) …. 12.3 s 10 …. 6.1, 12.4, 13.6 s 10(a) …. 12.4 s 10(b) …. 13.6 s 11 …. 7.4, 7.5 s 11(1) …. 6.4 s 11(2) …. 6.4, 19.8, 33.2 s 11(3) …. 6.4 s 11(4) …. 6.4 s 11(5) …. 6.3, 6.4 ss 12–19 …. 29.2 s 12(2) …. 16.1 s 12(3) …. 16.1 s 13(1) …. 16.2 s 13(2) …. 16.2 s 13(3) …. 16.2 s 13(4) …. 16.2, 16.8 s 14 …. 16.8 s 14(1) …. 16.5 s 14(2) …. 16.5, 16.7 s 14(3) …. 16.5 s 14(4) …. 16.5 s 14(5) …. 16.5 s 15 …. 16.3, 16.8 s 15(1)(a) …. 16.3 s 15(1)(a)–(g) …. 16.8 s 15(1)(b) …. 16.3 s 15(1)(c) …. 16.3

s 15(1)(d) …. 16.3 s 15(1)(e) …. 16.3 s 15(1)(f) …. 16.3 s 15(1)(g)(i) …. 16.3 s 15(1)(g)(ii) …. 16.3 s 15(1)(g)(iii) …. 16.3 s 15(2)(a) …. 16.4 s 15(2)(b) …. 16.4 s 15(2)(c) …. 16.4, 16.12 s 15(2)(d) …. 16.4 s 15(3) …. 16.7 s 15(3)(a) …. 16.7 s 15(3)(b) …. 16.7 s 15(4)(a) …. 16.7 s 15(4)(b) …. 16.7 s 16 …. 20.8 s 16(1) …. 16.5 s 16(2) …. 16.5 s 16(3) …. 16.5 s 16(4) …. 16.5 s 16(5) …. 16.5 s 17(1) …. 16.7 s 17(1)(a) …. 16.7 s 17(2)(b) …. 16.7 s 17(3) …. 16.7 s 18 …. 16.2, 16.8, 41.2 s 18(1) …. 16.8 s 18(1)(a) …. 16.8 s 18(2) …. 16.6, 16.8 s 18(2)(a) …. 16.6

s 18(2)(b) …. 16.6 s 19(1) …. 16.9 s 19(2) …. 16.2, 16.9 s 20 …. 16.8, 16.10, 36.8 s 20(1) …. 36.8 s 20(2) …. 16.10, 36.8 s 20(3) …. 16.10, 36.8 s 21 …. 19.8 s 21(1) …. 17.1, 19.8 s 21(2) …. 17.1 s 21(3) …. 17.1 s 21(3)(b) …. 17.1 s 22 …. 17.1, 19.8, 20.10, 25.3 s 22(2) …. 17.1 s 22(3) …. 17.1, 31.2, 33.3 s 22(4) …. 17.1, 33.2 s 22(5) …. 17.1 s 23 …. 6.1, 6.5, 33.2 s 24(1) …. 18.2, 22.8, 26.12, 28.1 s 24(2) …. 18.2, 23.1 s 25 …. 18.2, 19.2, 19.5, 19.8, 19.9, 20.1, 20.10, 26.3 s 26 …. 18.2, 19.4–19.6, 19.8, 20.1, 20.3, 20.5, 20.8, 20.10, 43.3 s 26(a) …. 20.10 s 26(b) …. 20.9 s 27 …. 18.2, 21.2, 26.3 s 27(1) …. 21.2 s 27(2) …. 21.2 s 27(2)(a) …. 21.3 s 27(2)(a)–(c) …. 21.2 s 27(2)(b) …. 21.3 s 27(2)(b)(iii) …. 21.3

s 28 …. 18.2, 26.11, 26.13, 28.1 s 28(1) …. 26.11 s 28(2) …. 26.11 s 28(3) …. 26.11, 26.13 s 28(4) …. 26.11 s 28(4)(a)–(f) …. 26.11 s 28(4)(a) …. 26.11 s 28(4)(b) …. 26.11 s 28(4)(d) …. 26.11 s 28(6) …. 26.11 s 29 …. 18.2, 26.4–26.10, 26.13, 28.1 s 29(1) …. 26.2 s 29(2) …. 26.2 s 29(3) …. 26.2, 26.13 s 29(4) …. 26.2 s 29(4)(a)–(p) …. 26.3 s 29(4)(a) …. 26.4 s 29(4)(b) …. 26.10 s 29(4)(c) …. 26.10 s 29(4)(d) …. 26.10 s 29(4)(e) …. 26.5 s 29(4)(f) …. 26.5 s 29(4)(g) …. 26.6 s 29(4)(h) …. 26.9 s 29(4)(i) …. 26.9 s 29(4)(j) …. 26.9 s 29(4)(k) …. 26.7 s 29(4)(l) …. 26.7 s 29(4)(m) …. 26.8 s 29(4)(n) …. 26.8

s 29(4)(o) …. 26.8 s 29(4)(p) …. 26.8 s 29(5) …. 26.8, 26.9 s 30 …. 17.1, 18.2, 22.1, 23.1, 24.3, 24.6, 25.1–25.4, 25.6, 43.3 s 30(1) …. 22.1, 25.1 s 30(1)(c) …. 25.3 s 30(3) …. 25.3, 25.5, 25.7 s 30(3)(h) …. 25.3 s 30(3)(j) …. 25.3 s 30(4) …. 23.1, 25.1, 25.3 s 30(5) …. 23.1, 25.1 s 31 …. 18.2, 28.1 s 31(1) …. 28.1 s 31(2) …. 28.1 s 31(3) …. 13.8, 28.1 s 31(4) …. 28.1 s 31(4)(b) …. 28.1, 43.3 s 31(5) …. 27.8, 28.1 s 31(6) …. 28.1 s 32 …. 7.8, 18.2, 29.2 s 32(1) …. 29.2 s 32(2) …. 29.2 s 32(3) …. 29.2, 43.3 s 33 …. 10.4, 18.2, 30.1, 43.3 s 34 …. 33.1 s 35 …. 6.5, 33.2 s 35(1) …. 31.4, 33.2, 33.4, 37.1 s 35(2) …. 34.1 s 35(3) …. 33.2 s 35(4) …. 33.2 s 35(5)–(8) …. 33.2

s 35(5) …. 33.2 s 36 …. 34.1, 34.4, 36.6 s 37 …. 35.1 s 38 …. 36.5, 36.8 s 38(1) …. 36.8 s 38(1)(a) …. 36.5 s 38(1)(b) …. 36.5 s 38(1)(c) …. 36.5 s 38(1)(d) …. 36.5 s 38(1)(e) …. 36.5 s 38(2) …. 36.5 s 39 …. 33.3, 41.2 s 40 …. 41.1–41.3, 43.5 s 40(1) …. 41.2 s 40(2) …. 41.2 s 40(2)(a) …. 41.2 s 40(2)(b) …. 41.2 s 40(3) …. 41.2 s 41 …. 7.8, 7.10 s 41(1) …. 42.1 s 42 …. 4.4, 19.1, 36.1, 36.3, 42.2 s 42(1) …. 36.3 s 42(1)(a) …. 42.2 s 42(1)(b) …. 42.2 s 42(2) …. 42.2 s 42(3) …. 42.2 s 42(4) …. 42.2 s 43(1) …. 42.3 s 43(2) …. 42.3 s 44 …. 42.4

s 44(1)(a) …. 42.4 s 44(1)(b) …. 42.4 s 44(2) …. 42.4 s 45 …. 42.5 s 46 …. 42.6 s 47 …. 42.6 s 49 …. 43.1, 43.2 Sch 1 …. 21.2, 26.3 Sch 1 cl 1 …. 21.2, 26.3 Sch 1 cl 2 …. 21.2, 26.3 Sch 1 cl 2A …. 21.2 Sch 1 cl 3 …. 21.2 Sch 1 cl 4 …. 21.2 Sch 1 cl 5 …. 21.2, 26.3 Sch 1 cl 6 …. 21.2, 21.3, 26.3 Sch 1 cl 7 …. 21.2, 21.3, 26.3 Sch 1 cl 8 …. 21.2, 26.3 Sch 1 cl 9 …. 21.2, 26.3 Sch 1 cl 10 …. 21.2, 26.3 Sch 1 cl 11 …. 21.2, 26.3 Sch 1 cl 12 …. 21.2 Sch 1 cl 13 …. 26.3 Sch 1 cl 14 …. 21.2 Sch 1 cl 15 …. 21.2 Sch 1 cl 16 …. 21.2 Sch 1 cl 17(a) …. 26.3 Sch 1 cl 17(b) …. 26.3 Sch 1 cl 17(c) …. 26.3 Sch 1 cl 17(d) …. 26.3 Sch 1 cl 17(e) …. 26.3 Sch 1 cl 17(f) …. 26.3

Sch 1 cl 17(g) …. 26.3 Sch 1 cl 18 …. 21.2, 26.3 Sch 1 cl 19 …. 21.2, 26.3 Sch 1 cl 20 …. 21.2 Sch 1 cl 21 …. 21.2 Sch 1 cl 22 …. 21.2 Sch 1 cl 24 …. 21.2 Sch 1 cl 25 …. 21.2 Sch 1 cl 26 …. 21.2 Sch 1 cl 27 …. 21.2 Sch 1 cl 28 …. 21.2 Sch 1 cl 32 …. 21.2 Sch 1 cl 33 …. 21.2 Sch 2 …. 26.3, 26.11 Sch 2 cl 1 …. 26.11 Sch 2 cl 2 …. 26.11 Sch 2 cl 3 …. 26.11 Sch 2 cl 7 …. 26.11 Sch 2 cl 8(a) …. 26.11 Sch 2 cl 8(b) …. 26.11 Sch 2 cl 8(c) …. 26.11 Sch 2 cl 8(d) …. 26.11 Sch 2 cl 8(e) …. 26.11 Sch 2 cl 8(f) …. 26.11 Sch 2 cl 8(g) …. 26.11 Sch 2 cl 9 …. 26.11 Sch 2 cl 10 …. 26.11 Sch 3 …. 26.2, 26.3, 26.8 Sch 4 …. 42.6 Sch 5 …. 42.6, 44.2

Sch 6 …. 42.6 Jurisdiction of Courts (Cross-Vesting) Act 1987 …. 6.4

COMMONWEALTH Anti-Terrorism Act (No 2) 2005 …. 5.2 Australia Act 1986 …. 3.9 Australian Capital Territory (Self-Government) Act 1988 s 24(3) …. 21.3 Australian Consumer Law …. 13.8 s 2 …. 15.3 s 18 …. 15.3 Australian Security Intelligence Organisation Act 1979 s 92 …. 5.2 Bankruptcy Act 1966 s 58(1) …. 12.2 s 60 …. 13.4 s 60(4) …. 12.2 s 82 …. 13.4 Broadcasting Services Act 1992 …. 7.8, 7.9 s 206 …. 7.9, 9.5, 17.2 Sch 2 …. 5.4 Sch 2 Pt 2 cl 5 …. 7.10 Sch 5 cl 88 …. 29.3 Sch 5 cl 91(1) …. 29.3 Sch 5 cl 91(1)(a) …. 29.3 Sch 5 cl 91(1)(b) …. 29.3 Sch 5 cl 91(1)(c) …. 29.3 Sch 5 cl 91(1)(d) …. 29.3 Classification (Publications, Films and Computer Games) Act 1995 …. 5.4 Commonwealth of Australia Constitution Act 1901 …. 3.11, 3.16, 5.2, 5.6, 6.4,

24.3, 24.4 s 51(i) …. 3.15 s 51(v) …. 3.15 s 51(xx) …. 3.15 s 51(xxxvii) …. 3.15 s 118 …. 7.5 s 122 …. 3.15 Competition and Consumer Act 2010 …. 9.6, 14.4, 39.2 Sch 2 s 18 …. 15.3 Sch 2 s 19 …. 15.3 Sch 2 s 19(5) …. 15.3 Sch 2 s 224(1)(c) …. 15.3 Sch 2 s 251 …. 15.3 Copyright Act 1968 …. 15.6 s 40 …. 15.6 s 41 …. 15.6 s 42 …. 15.6 s 43(1) …. 15.6 s 43(2) …. 15.6 s 103A …. 15.6 s 103B …. 15.6 s 103C …. 15.6 s 104(a) …. 15.6 s 104(b) …. 15.6 s 104(c) …. 15.6 s 195AO …. 15.6 s 195AQ …. 15.6 Corporations Act 2001 …. 12.3, 26.7 s 9(2)(b) …. 12.3 s 9(4) …. 12.3 s 46(a)(iii) …. 12.3

s 50 …. 12.3 Crimes Act 1914 ss 24A–24F …. 5.2 s 78 …. 5.2 s 79 …. 5.2 s 80 …. 5.2 Criminal Code Act 1995 …. 5.2 s 80.2 …. 5.2 s 80.3(1) …. 5.2 s 80.3(2) …. 5.2 s 80.3(3) …. 5.2 Evidence Act 1995 …. 42.3 s 126K …. 13.8 Federal Court of Australia Act 1976 s 39 …. 17.1 s 40 …. 17.1 Federal Court Rules 2011 r 7.22 …. 13.8 r 20.03 …. 13.8 Human Rights and Equal Opportunity Commission Act 1986 s 47 …. 14.6 Income Tax Assessment Act 1997 s 118.37 …. 38.1 Interpretation Act 1901 s 15AB …. 3.14 Judiciary Act 1903 s 64 …. 13.5 Parliamentary Papers Act 1908 …. 26.4 s 3(1) …. 21.3 s 4 …. 21.3

Parliamentary Privileges Act 1987 s 10 …. 26.4 s 16 …. 21.3 Parliamentary Proceedings Broadcasting Act 1946 …. 26.4 s 15 …. 21.3 Privacy Act 1988 …. 14.3, 14.4, 14.9, 14.10 s 6 …. 14.9 Racial Discrimination Act 1975 …. 15.7 s 9 …. 5.5 s 18C …. 15.7 s 18C(1)(a) …. 15.7 s 18D …. 15.7 Royal Commissions Act 1902 s 17 …. 21.3 Statute of Westminster Adoption Act 1942 …. 3.9 Telecommunications (Interception and Access) Act 1979 …. 14.4 Trade Practices Act 1974 …. 9.6, 14.4, 39.2 s 52 …. 15.3 s 65A(1) …. 15.3 s 75B …. 15.3 s 85(3) …. 15.3

AUSTRALIAN CAPITAL TERRITORY Civil Law (Wrongs) Act 2002 …. 3.7, 22.5 Ch 5 …. 42.6 Ch 9 …. 3.16 Pt 5.2 …. 16.8 s 16(2) …. 33.4 s 54(1) …. 16.8 s 54(2) …. 16.8

s 54(3) …. 16.8 s 54(4) …. 16.8 s 57 …. 7.9 s 58 …. 30.1 s 59 …. 19.9 s 60(3) …. 26.13 s 60(4)(a) …. 26.4 s 60(4)(e) …. 26.5 s 60(4)(f) …. 26.5 s 60(4)(j) …. 26.7 s 61 …. 26.11 s 61(1) …. 26.11 s 61(3) …. 26.13 s 61(4) …. 26.4, 26.5, 26.11 s 62 …. 22.5 s 63 …. 36.8 s 66 …. 25.10 s 67 …. 36.5 s 68 …. 33.4 s 69 …. 42.1 Commercial Arbitration Act 1986 …. 16.12 Court Procedure Rules 2006 r 650 …. 13.8 Crimes Act 1900 s 439 …. 44.1, 44.2 Defamation (Criminal Proceedings) Act 2001 …. 3.7, 44.1 s 33 …. 44.6 s 35 …. 44.6 Evidence Act 1971 s 78 …. 19.1, 42.2 Evidence Act 2011

s 126K …. 13.8 Limitation Act 1985 …. 43.4 s 21B …. 18.6 s 33 …. 18.6 Motor Accidents Compensation Act 1999 …. 33.4 Supreme Court Act 1933 s 22 …. 17.1

NEW SOUTH WALES Anti-Discrimination Act 1977 …. 21.2, 26.3 s 20C …. 5.5 s 20C(2) …. 5.5 s 49ZT …. 15.7 Casino Control Act 1992 …. 21.2 Civil and Administration Tribunal Act 2013 …. 21.2 Civil Liability Act 2002 s 16 …. 31.3 s 69 …. 36.8 Civil Procedure Act 2005 …. 19.8 Pt 5 Div 2 …. 16.12 s 26(1) …. 16.11 s 26(2) …. 16.11 s 27 …. 16.11 s 29(2) …. 16.11 s 30 …. 16.11 s 38 …. 16.12 s 40 …. 16.12 s 41 …. 16.12 s 42 …. 16.12 s 49 …. 16.12

s 56 …. 16.11 s 100(1) …. 38.2 s 101(4) …. 38.2 Coal Mines Regulation Act 1982 …. 21.2 Commercial Arbitration Act 2010 …. 16.12 Commission for Children and Young People Act 1998 …. 26.3, 26.11 Courts Legislation Amendment (Civil Juries) Act 2001 …. 17.1 Crimes Act 1900 s 529 …. 44.1, 44.2 s 529(1) …. 44.2 s 529(4) …. 44.4 s 529(5) …. 44.4 s 529(6) …. 44.3 s 529(7) …. 44.2 s 529(9) …. 44.2 s 529(11) …. 44.2 s 547C …. 14.5 s 574 …. 5.5 s 578C …. 5.4 Crimes (Administration of Sentences) Act 1999 …. 21.2 Crimes (Sentencing Procedure) Act 1999 s 15 …. 44.2 Custodial Services (Inspector General) Act …. 21.2 Defamation Act 1901 …. 3.6, 3.7 Defamation Act 1909 …. 3.7 Defamation Act 1912 …. 3.6 s 12 …. 13.8 Defamation Act 1958 …. 3.6, 3.14, 22.8 Defamation Act 1974 …. 3.6, 3.11, 3.14, 5.6, 7.1, 9.10–9.12, 18.2, 19.7–19.9, 21.2, 21.3, 22.8, 25.8, 26.13, 31.2, 31.4, 31.5, 33.4, 39.2, 42.6, 44.1 Pt 2A …. 16.8, 29.2

Pt 5 …. 44.1 Div 3 …. 21.2 Div 4 …. 19.9 Div 7 …. 28.4, 28.9 Div 8 …. 29.2 s 7(1)(b) …. 26.8 s 7(2) …. 19.9 s 7A …. 9.11, 9.12, 17.2, 17.3, 19.8, 28.4, 31.2 s 7A(1) …. 17.2 s 7A(3) …. 17.2 s 7A(4)(a) …. 17.2 s 7A(4)(b) …. 17.2 s 8 …. 7.9 s 8A …. 12.3 s 8A(1) …. 12.3 s 8A(2) …. 12.3 s 8A(3)(a) …. 12.3 s 8A(3)(b) …. 12.3 s 9(1) …. 6.2 s 9(2) …. 6.2, 6.5, 7.1, 9.11, 9.12 s 9(2)(a) …. 6.2 s 9(2)(b) …. 6.2 s 9(3) …. 6.5 s 9(4) …. 6.5 s 9(5) …. 6.5 s 9(5A) …. 6.5 ss 9D–9G …. 29.2 s 11 …. 18.2 s 13 …. 30.1 s 15 …. 19.3, 19.5, 19.9, 28.9 s 15(2) …. 9.11

s 15(2)(b) …. 19.9 s 16 …. 19.9, 20.8, 20.9 s 16(2) …. 9.11 s 17 …. 21.2, 21.3 s 17(1) …. 21.2 s 17(2) …. 21.2 s 17(3) …. 26.11 s 17(3)(a) …. 21.2 s 17(3)(b) …. 21.2 ss 17A–17U …. 21.2 s 18 …. 21.2, 21.3 s 19 …. 21.2, 21.3 s 20(1)(a) …. 25.8 s 20(2) …. 25.8 s 20(3) …. 24.3, 25.8 s 21 …. 19.8, 25.8 s 22 …. 19.8, 24.3, 25.1, 25.3, 25.8 s 22(2A) …. 25.5 s 24 …. 26.3–26.8, 28.9 s 24(2) …. 26.3 s 24(3) …. 26.3 s 24(4) …. 26.3 s 25 …. 26.4, 26.11 s 26 …. 26.13 s 27 …. 26.5 s 27(1) …. 26.5 s 27(2) …. 26.5 s 28 …. 26.11 s 28(1) …. 26.11 s 28(2) …. 26.11

s 28(3) …. 26.11 s 28(5) …. 26.11 s 29 …. 28.2 s 30 …. 28.2, 28.6 s 30(3) …. 28.7 s 30(3)(a) …. 28.2 s 30(3)(b) …. 28.2, 28.7 s 30(4) …. 28.8 s 31 …. 19.9, 28.2, 28.6 s 32 …. 9.11, 28.2, 28.3, 28.6 s 32(2) …. 28.2, 28.3 s 33 …. 28.1–28.3, 28.5, 28.6 s 34 …. 28.2, 28.3 s 34(2) …. 28.6 s 35 …. 28.9 s 36 …. 29.2 ss 37–45 …. 29.2 s 37 …. 29.2 s 40 …. 29.2 s 43 …. 29.2 s 46 …. 33.4 s 46(3)(b) …. 34.4 s 46A …. 31.2, 33.4 s 46A(2) …. 33.4 s 47 …. 19.3, 36.7 s 48 …. 36.5, 42.1 s 55 …. 42.2 s 55(2) …. 19.1 Sch 2 cl 2 …. 26.4 Sch 2 cl 2(1) …. 26.8 Sch 2 cl 2(4) …. 26.3

Sch 2 cl 2(5) …. 26.3 Sch 2 cl 2(6) …. 26.3, 26.5 Sch 2 cl 2(7) …. 26.3 Sch 2 cl 2(9) …. 26.3, 26.5–26.7 Sch 2 cl 3 …. 26.11 Sch 2 cl 3(2) …. 26.11 Sch 2 cl 3(3) …. 26.11 Defamation (Amendment) Act 1917 …. 3.6 Defamation (Amendment) Act 1940 …. 3.6 District Court Act 1973 s 76A …. 17.1 Evidence Act 1995 …. 13.8, 16.11, 42.3 s 55 …. 7.10 s 56 …. 7.10 s 91 …. 19.1 s 93(a) …. 42.2 s 126K …. 13.8 s 126K(1) …. 13.8 s 126K(2) …. 13.8 s 126K(3) …. 13.8 s 131 …. 16.11 s 131(2) …. 16.11 s 131(2)(h) …. 16.11 s 131A …. 13.8 s 135 …. 7.10 s 140(1) …. 19.1 s 140(2)(c) …. 19.1 Freedom of Information Act 1989 …. 13.8 s 64(1)(a) …. 13.8 s 64(1)(b) …. 13.8

Government Information (Information Commission) Act 2009 …. 21.2 Greyhound Racing Act 2009 …. 21.2 Harness Racing Act 2009 …. 21.2 Health Care Complaints Act 1993 …. 21.2, 26.3, 26.11 Health Practitioners Regulation National Law …. 21.2 Health Services Act 1997 …. 21.2 HomeFund Commissioner Act 1993 …. 26.3 Independent Commission Against Corruption Act 1988 …. 21.2, 26.3, 26.11 Independent Pricing and Regulatory Tribunal Act 1992 …. 21.2 Jury Act 1977 …. 17.1 s 20 …. 17.1 s 38(8) …. 17.1 Law Reform Commission Act 1967 …. 21.2 Law Reform (Miscellaneous Provisions) Act 1944 s 2(1) …. 12.4 Law Reform (Miscellaneous Provisions) Act 1946 s 5 …. 13.8 Legal Aid Commission Act 1979 …. 21.2 Legal Profession Uniform Law …. 21.2 Legal Profession Uniform Law Application Act 2014 …. 21.2 Legislation Review Act 1987 …. 26.3, 26.11 Limitation Act 1969 s 14B …. 18.6 s 56A …. 18.6 s 56C …. 18.6 s 56D …. 18.6 Local Government Act 1993 …. 21.2 Maintenance Champerty and Barratry Abolition Act 1993 s 4 …. 12.9 Motor Accidents Act 1981 …. 21.2

Motor Accidents Compensation Act 1999 …. 21.2 New South Wales Crime Commission Act 1985 …. 21.2 New South Wales Trustee and Guardian Act 2009 …. 21.2 Ombudsman Act 1974 …. 21.2, 26.3, 26.11 Police Act 1990 …. 21.2 Police Integrity Commission Act 1996 …. 21.2 Printing and Newspapers Act 1973 …. 3.3 s 4 …. 7.8 s 5 …. 7.8 Privacy and Personal Information Protection Act 1998 …. 21.2, 26.3 Public Finance and Audit Act 1983 …. 21.2, 26.3, 26.11 Public Interest Disclosures Act 1994 …. 21.2 Racing (Amendment) Act 1948 …. 3.6 Racing Appeals Tribunal Act 1983 …. 21.2, 26.3 Royal Commissions Act 1923 s 6 …. 21.3 s 7 …. 21.3 Special Commissions of Inquiry Act 1983 …. 26.11 Supreme Court Act 1970 …. 2.15 s 66 …. 39.2 s 75 …. 39.4 s 85 …. 17.1 s 89(2)(b) …. 17.2 s 102 …. 17.3 s 110L …. 16.11 Supreme Court Rules 1970 …. 9.12 Pt 15 r 26(1)(b) …. 9.12 Pt 31 r 2 …. 17.2 Surveying and Spatial Information Act 2002 …. 21.2 Sydney City Council (Disclosure of Allegations) Act 1953 …. 13.8

Thoroughbred Racing Act 1996 …. 21.2, 26.3 Uniform Civil Procedure Act 2005 s 98 …. 41.1 Uniform Civil Procedure Rules 2005 …. 19.8, 20.1 Pt 1 r 1.12 …. 17.1 Pt 5 r 5.2 …. 13.3, 13.8 Pt 5 r 5.2(2)(a) …. 13.3 Pt 5 r 5.3 …. 13.8 Pt 14 r 14.30 …. 9.13 Pt 14 r 14.30(3) …. 9.14 Pt 15 r 15.19(1)(d) …. 8.5 Pt 15 r 15.21(2)(b) …. 4.4 Pt 21 r 21.7 …. 13.8 Pt 28 r 28.2 …. 17.2, 19.8 Pt 29 r 29.15 …. 16.10 Pt 29 r 29.16 …. 16.7 Pt 29 r 29.2A …. 17.1 Pt 42 r 42.1 …. 41.1 Pt 42 r 42.2 …. 41.1 Pt 42 r 42.7 …. 41.1 Pt 42 r 42.14 …. 41.1, 41.3 Pt 42 r 42.15 …. 41.3 Pt 42 r 42.15A …. 41.3 Valuation of Land Act 1916 …. 26.3, 26.11 Windeyer’s Libel Act 1847 …. 3.7 Work Health & Safety (Mines and Petroleum Sites) Act 2013 …. 21.2, 26.3 Workers Compensation Act 1987 …. 21.2, 26.3, 26.11 Workplace Injury Management and Workers Compensation Act 1998 …. 21.2, 26.3, 26.11

NORTHERN TERRITORY Commercial Arbitration (National Uniform Legislation) Act 2011 …. 16.12 Criminal Code Act 1983 …. 44.1 Pt VI Div 7…. 44.1 s 204 …. 44.5 s 206 …. 44.6 s 208 …. 44.5 Defamation Act 1989 …. 3.7, 42.6 s 2 …. 7.9 s 5 …. 21.3 s 6 …. 26.12, 26.13 s 6(1)(a) …. 26.7 s 6(1)(b) …. 26.6, 26.8 s 6(1)(ba) …. 26.4 s 6(1)(d) …. 26.11 s 6A …. 28.10 s 6A(a) …. 28.10 s 6A(b) …. 28.10 s 6A(c) …. 28.10 s 6A(d) …. 28.10 s 6A(e) …. 28.10 s 6A(g) …. 28.10 s 8 …. 36.8 s 10 …. 36.5 s 11 …. 42.1 Evidence Act 1939 s 26A …. 19.1, 42.2 Juries Act 1980 s 6A …. 17.1 s 7 …. 17.1

Legislative Assembly (Powers & Privileges) Act 1992 s 11 …. 21.3 Limitation Act 1981 …. 43.4 s 12 …. 18.6 s 12(1A) …. 18.6 s 44 …. 18.6 s 44A …. 18.6 Printers and Newspapers Act 1984 …. 7.8 Supreme Court Rules 1987 O 32.03 …. 13.8 O 40.10 …. 4.4

QUEENSLAND Commercial Arbitration Act 2013 …. 16.12 Commissions of Inquiries Act 1950 s 12 …. 21.3 s 14(3) …. 21.3 Criminal Code 1899 s 365 …. 44.2 s 365(8) …. 44.6 Defamation Act 1889 …. 3.6, 42.6, 44.1 Pt 8 …. 44.1 s 2 …. 15.2 s 4 …. 10.3, 12.4 s 5 …. 7.9 s 5(2) …. 7.9 s 6 …. 26.12 s 7 …. 6.2 s 8 …. 44.1 s 9 …. 44.1

s 10 …. 21.3 s 11 …. 21.3 s 12 …. 21.3 s 13(1)(a) …. 26.4 s 13(1)(b) …. 26.4 s 13(1)(c) …. 26.5 s 13(1)(d) …. 26.5 s 13(1)(e) …. 26.11 s 13(1)(f) …. 26.6, 26.8 s 13(1)(g) …. 26.7 s 13(2) …. 26.13 s 13(3) …. 26.7 s 13(4) …. 26.13 s 14 …. 28.10 s 14(1)(a) …. 28.10 s 14(1)(b) …. 28.10 s 14(1)(c) …. 28.10 s 14(1)(d) …. 28.10 s 14(1)(e) …. 28.10 s 14(1)(f) …. 28.10 s 14(1)(g) …. 28.10 s 14(1)(h) …. 28.10 s 14(8) …. 28.10 s 15 …. 19.9, 44.6 s 16 …. 24.3 s 16(1)(a) …. 25.9 s 16(1)(b) …. 25.9 s 16(1)(c) …. 25.9 s 16(1)(d) …. 25.9 s 16(1)(e) …. 25.9 s 16(1)(f) …. 25.9

s 16(1)(g) …. 25.9 s 16(1)(h) …. 25.9 s 16(2) …. 25.9 s 20 …. 30.1 s 21 …. 36.8 s 23 …. 6.5 s 24 …. 36.5 s 25 …. 29.2 s 26 …. 29.2 s 28 …. 42.1 Evidence Act 1977 s 79 …. 19.1, 42.2 s 80 …. 19.1, 42.2 Juries Act 1927–1981 s 18 …. 17.1 Limitation of Actions Act 1974 s 10 …. 18.6 s 10AA …. 18.6 s 32A …. 18.6 Parliamentary Papers Act 1992 s 10(1) …. 21.3 Printing and Newspapers Act 1981 …. 7.8 Uniform Civil Procedure Rules 1999 r 7 …. 17.1 r 229 …. 13.8 r 472 …. 17.1

SOUTH AUSTRALIA Civil Liability Act 1936 …. 3.7 Pt 2 …. 42.6

s 5 …. 10.3 s 6 …. 21.3, 26.5 s 7 …. 26.13, 40.2 s 7(1) …. 26.11–26.13 s 7(1)(a) …. 26.7 s 7(1)(ab) …. 26.4 s 7(1)(b) …. 26.6 s 7(1)(c) …. 26.5 s 7(1)(d) …. 26.11 s 9 …. 36.8 s 11 …. 36.5 s 12 …. 21.3, 26.4 s 12(3) …. 26.11 s 13 …. 6.5 Commercial Arbitration Act 2011 …. 16.12 Criminal Law Consolidation Act 1935 s 11 …. 12.9 s 257 …. 44.1, 44.2 Evidence Act 1929 s 34A …. 19.1, 42.2 Juries Act 1927 s 5 …. 17.1 Limitation of Actions Act 1936 s 35 …. 18.6 s 37 …. 18.6 s 48 …. 18.6 Royal Commissions Act 1917 s 16 …. 21.3 Supreme Court Rules 1987 r 78.03 …. 4.4 Supreme Court Rules 2006

r 32 …. 13.6 Wrongs Act 1936 …. 3.7 s 5 …. 7.9 s 16 …. 42.1

TASMANIA Administration and Probate Act 1935 …. 12.4 s 27 …. 13.6 s 27(1) …. 12.4 s 27(2) …. 12.4 Commercial Arbitration Act 2011 …. 16.12 Criminal Code Act 1924 …. 44.1 Ch XXIII …. 44.1 s 196 …. 44.2 s 207 …. 44.6 Defamation Act 1957 …. 3.7, 42.6 s 4(a) …. 15.2 s 5 …. 12.4 s 7 …. 7.9 s 8 …. 26.11 s 9 …. 6.2 s 9(1) …. 7.9 s 9(2) …. 30.1 s 10 …. 21.3 s 11 …. 21.3 s 12 …. 21.3 s 13(1)(a) …. 26.4, 26.13 s 13(1)(b) …. 26.4, 26.13 s 13(1)(c) …. 26.5, 26.8 s 13(1)(d) …. 26.5

s 13(1)(f) …. 26.11 s 13(1)(g) …. 26.6 s 13(1)(h) …. 26.7 s 13(2)(a) …. 26.13 s 14 …. 28.10 s 14(1)(a) …. 28.10 s 14(1)(b) …. 28.10 s 14(1)(c) …. 28.10 s 14(1)(d) …. 28.10 s 14(1)(e) …. 28.10 s 14(1)(f) …. 28.10 s 14(1)(g) …. 28.10 s 14(1)(h) …. 28.10 s 15 …. 19.9 s 16 …. 24.3 s 16(1)(a) …. 25.9 s 16(1)(b) …. 25.9 s 16(1)(c) …. 25.9 s 16(1)(d) …. 25.9 s 16(1)(e) …. 25.9 s 16(1)(f) …. 25.9 s 16(1)(g) …. 25.9 s 16(1)(h) …. 25.9 s 16(2) …. 25.9 s 17 …. 16.8 s 18 …. 20.8 s 22 …. 36.8 s 24 …. 6.5 s 25 …. 36.5 s 26 …. 29.2 s 28 …. 42.1

Evidence Act 1910 s 18 …. 21.3 Juries Act 1899 s 38 …. 17.1 Jury Act 1834, 5 Will IV No 11 …. 17.1 Limitation Act 1974 …. 43.4 s 4 …. 18.6 Supreme Court Rules 2000 r 52 …. 17.1 r 403C …. 13.8 r 557 …. 17.1

VICTORIA Commercial Arbitration Act 2011 …. 16.12 Constitution Act 1975 ss 72–74 …. 21.3 Crimes Act 1958 s 320 …. 44.1 Defamation Act 2005 s 20A …. 18.6 Evidence Act 1958 s 21A …. 21.3 s 91 …. 19.1, 42.2 Evidence Act 2008 s 126K …. 13.8 Judicial Proceedings Reports Act 1958 …. 14.8, 15.4 Juries Act 1844, 7 No 29 …. 17.1 Juries Act 1957 s 29(2G) …. 17.1 Juries Act 1967

s 14(1)(a) …. 17.1 Limitation Act 1935 …. 43.4 Limitation of Actions Act 1958 s 5 …. 18.6 s 5(1AAA) …. 18.6 s 23B …. 18.6 Racial and Religious Tolerance Act 2001 s 8 …. 15.7 Supreme Court (General Civil Procedure) Rules 1996 O 32 …. 13.8 O 40 r 10 …. 4.4 Supreme Court (General Civil Procedure) Rules 2005 r 47.02 …. 17.1 r 63.14 …. 17.1 Wrongs Act 1958 …. 3.7 Pt 1 …. 42.6, 44.1 s 3A …. 26.13 s 3A(1) …. 26.4 s 3A(2) …. 26.5 s 3A(3) …. 26.12 s 4 …. 21.3, 26.5 s 5 …. 26.13, 40.2 s 5(1) …. 26.6 s 5(4) …. 26.12 s 5A …. 26.11 s 6 …. 26.4, 36.8 s 8 …. 7.9, 10.3 s 10(1) …. 44.5 s 10(2) …. 44.5 s 11 …. 44.6 s 11(1) …. 44.6

s 12 …. 36.5 s 13B …. 42.1 s 13C …. 42.1 s 32 …. 12.9

WESTERN AUSTRALIA Commercial Arbitration Act 2012 …. 16.12 Criminal Code Act 1913 …. 3.7, 25.9, 42.6, 44.1 Ch XXXV …. 44.1 s 5 …. 3.7, 26.12, 42.6 s 345 …. 44.2 s 351 …. 21.3 s 352 …. 21.3 s 353 …. 21.3 s 354 …. 3.7, 26.13 s 354(1) …. 26.4 s 354(2) …. 26.4 s 354(3) …. 26.5 s 354(4) …. 26.5 s 354(5) …. 26.11 s 354(6) …. 26.6 s 354(7) …. 26.7 s 355 …. 3.7, 28.10 s 355(1) …. 28.10 s 355(2) …. 28.10 s 355(3) …. 28.10 s 355(4) …. 28.10 s 355(5) …. 28.10 s 355(6) …. 28.10 s 355(7) …. 28.10

s 355(8) …. 28.10 s 356 …. 3.7, 44.6 s 357(8) …. 3.7 s 358 …. 26.13 Evidence Act 1906 s 20H …. 13.8 Libel and Registration Act 1884 …. 42.6 Limitation Act 1935 s 38(1)(a)(ii) …. 18.6 s 38(1)(c)(vi) …. 18.6 Limitation Act 2005 s 15 …. 18.6 s 40 …. 18.6 Newspaper Libel and Registration Act 1884 …. 18.6, 42.6 s 2 …. 40.2 s 9 …. 42.1 s 15 …. 42.1 Newspaper Libel and Registration Amendment Act 1888 …. 42.6 s 5 …. 18.6 s 6 …. 21.3 Parliamentary Papers Act 1891 s 1 …. 21.3 s 2 …. 21.3 Royal Commissions Act 1968 s 20 …. 21.3 s 31 …. 21.3 Rules of the Supreme Court 1971 O 3 r 5 …. 17.1 O 26A r 3 …. 13.8 O 32 r 3 …. 17.1 O 34 r 6 …. 4.4

GERMANY Civil Code 1900 …. 3.14

IMPERIAL 4 George IV c 96 (1823) …. 3.2 11 Victoria C 13 (1847) s 2 …. 30.1 13 Victoria c 16 (1849) …. 3.5 37 Victoria c 11 (1874) …. 3.5 50 Victoria c 26 (1886) …. 3.5 1 Edward VII c 22 (1901) …. 3.6 9 Edward VII c 22 (1909) …. 3.6 3 George V c 32 (1912) …. 3.6 Australian Courts Act 1828 …. 3.2 s 24 …. 3.2 New South Wales Act 1823 …. 3.2 Slander & Libel Act Or Injuries To Character Act 1847 (Windeyer’s Libel Act) …. 3.5

INDIA Penal Code 1860 …. 3.7

INTERNATIONAL European Convention on Human Rights and Fundamental Freedoms …. 5.6 Art 8 …. 2.22, 14.3, 14.6 Art 10 …. 2.22, 5.6, 14.6 International Covenant on Civil and Political Rights (ICCPR) 1966 …. 3.10, 5.6 Art 17 …. 1.1, 4.1, 14.3, 14.6, 14.10 Art 19 …. 1.1, 3.10

NEW ZEALAND Defamation Act 1992 s 2 …. 40.2 s 26(3) …. 40.2, 40.3 s 50 …. 40.4

UNITED KINGDOM Common Law Procedure Act 1852 …. 19.8 Common Law Procedure Act 1854, 17 & 18 Victoria c 125 …. 13.8 s 51 …. 13.8 Commonwealth of Australia Constitution Act 1900 …. 3.8 Defamation Act 1952 …. 2.22 Defamation Act 1996 …. 2.22, 29.1 s 1 …. 29.3 s 1(1)(c) …. 29.1 s 5 …. 7.8 ss 8–10 …. 40.5 Defamation Act 2013 …. 2.22, 5.6, 10.4, 19.8 s 1 …. 10.4, 43.3 s 4 …. 5.6, 24.1, 24.6, 24.7, 25.3, 25.5, 25.7 s 4(1)(a) …. 25.5 s 4(1)(b) …. 25.5 s 4(2) …. 24.7, 25.5 s 4(3) …. 24.7, 25.5, 25.7 s 4(4) …. 24.7, 25.5 s 4(5) …. 24.7 s 4(6) …. 24.7, 25.5 s 5 …. 29.3 s 8 …. 6.3, 7.3, 43.4 s 11 …. 17.1, 19.8, 43.2

s 14(1) …. 7.9 s 14(2) …. 7.9 Ecclesiastical Courts Act 1855 …. 2.20 Education Act 1870 …. 25.4 Fox’s Libel Act 1792 …. 2.13, 17.1, 44.3 Human Rights Act 1998 …. 2.22, 5.6, 14.3, 14.5, 14.6 s 10 …. 10.4 s 12(3) …. 14.6 Judicature Act 1873 …. 2.15 Law of Libel Amendment Act 1888 …. 2.21 s 6 …. 36.5 Libel Act 1843 (Lord Campbell’s Act) …. 2.20, 2.21, 5.3, 42.6 s 1 …. 36.8 s 6 …. 44.6 Libel Act 1845 …. 2.21 s 6 …. 5.3 Mutiny Act and Articles of War Art 101 …. 2.14 Newspaper Libel & Registration Act 1881 …. 2.21 Parliamentary Papers Act 1840 …. 2.20 Slander of Women Act 1891 …. 2.20, 7.9 Star Chamber Act 1487, 3 Henry VII c 1 …. 2.12 Statute of Law Revision Act 1887 …. 2.9, 2.13 Statute of Westminster 1275 …. 2.9, 2.21 Statute of Westminster 1931 …. 3.9 Transportation Act 1784, 24 George III c 56 …. 3.2 Treason Act 1495, 11 Henry VII c 1 …. 2.7

UNITED STATES Communications Decency Act 1996

s 230 …. 7.8 Constitution 1st Amendment 5.6, 7.8 Speech Act 2010 …. 7.8 Stored Communications Act …. 13.3

[page 1]

PART ONE HISTORY AND CONCEPTS

[page 3]

CHAPTER 1 INTRODUCTION INTRODUCTION

1.1

INTRODUCTION 1.1 There is no general right in Australia to publish statements freely and without inhibition. The law of defamation does, and is intended to, inhibit freedom of speech. At the same time, the law of defamation does, and is intended to, provide a justification or a ‘privilege’ to speak freely in certain circumstances. The publication of defamatory matter gives rise to a cause of action exposing the publisher to the risk of payment of compensation to the person harmed. That risk may be avoided, where the defamatory matter is true (under the defences of truth or contextual truth) or where it is an expression of opinion (under the defences of honest opinion or fair comment). The law recognises that there are occasions when there is an absolute right to publish defamatory statements, regardless of their truth or falsity, under the defence of absolute privilege (leaving the issue of truth to the governance of the body concerned, such as parliament or court). The law extends the right to publish defamatory statements for the ‘common convenience and welfare of society’, but this right or privilege is qualified by whether the occasion is used for an improper purpose to injure the person concerned, in which case the privilege is lost. The law of defamation is uniform throughout Australia. The common law of defamation applies, except to the extent that the Uniform Defamation Act 20051 (as enacted in each state and territory with minor provincial differences)

modifies the common law. This change generally took effect on and from 1 January 2006. [page 4] Prior to the Defamation Act 2005, separate laws of defamation operated in each state and territory. This created confusion and complexity. It was an unacceptable state of affairs in a country where people communicate across state and territory borders. Some believe that the choice of different laws between jurisdictions was not the problem but that the law itself protecting reputation was outdated and should have no application to our modern way of life and communication. Instead, there should be freedom of speech without the chilling inhibition of a defamation law. Others believe that the law of defamation has unjustly protected criminals, rogues and villains and prevented the exposure of their true characters and misdeeds. Publishers complain that it is a harsh law imposing liability strictly, without fault, resulting in damages being awarded for trivial or accidental defamations. These views have merit, but a defamation is likely to damage the reputation of each and every person at some stage in their lives. It can, without justification or excuse, damage a good reputation forever, depriving a person of relationships and opportunities to which he or she would otherwise be entitled. Consequently, the protection from unlawful or unjustified attack on reputation is recognised as a fundamental human right.2 In times past, a defamatory statement could be a matter of life or death. The impulsive reaction to an attack on reputation, often with violence, challenged law and order. The merest slight could initiate a duel, feud or vendetta which saw blood shed to restore honour, and revenge met with retaliation in a vicious circle over many years. To discourage people from taking matters into their own hands, the law dealt with defamers severely. If found guilty, a person could expect the worst of punishments. Over time, tolerance of others’ opinions and freedom of the press brought

monumental changes to society’s attitude towards such matters. Consistent with those changes, the common law adapted to bring about a fairer balance between these competing rights. It is now accepted in Australia that while protection from unjustified attack on reputation is a fundamental human right, it is not absolute and must be balanced with other fundamental human rights including freedom of speech.3 Australia inherited the common law of England in 1788. At that time, defamation law was part of the common law. Its principles reached back through the ages and reflected ancient law. In Australia, the common law of defamation has, in the relatively short time since, continued to be refined by judges and modified by statute. Understanding the law of defamation as it has existed in Australia, with eight separate laws that applied across the states and territories, and as it operates now under a uniform law, must necessarily start with the tracing of its origins to the law of England. ____________________ 1. 2. 3.

Referred to in the text as the Defamation Act 2005. See Appendix I where the Act is set out in full with differences between jurisdictions noted. International Covenant on Civil and Political Rights 1966, Article 17. International Covenant on Civil and Political Rights 1966, Article 19.

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CHAPTER 2 HISTORY OF DEFAMATION LAW IN ENGLAND INTRODUCTION THE ANCIENTS THE ROMANS EARLY ENGLAND THE CHURCH THE MANOR THE COMMON LAW SLANDEROUS WORDS CENSORSHIP SHAKESPEARE STEMMING THE TIDE THE STAR CHAMBER WAR AND REVOLUTION DUELLING THE TORTS OF LIBEL AND SLANDER THE MEANING OF DEFAMATION THE EMERGENCE OF THE DEFENCES PLEADING THE ACTION THE PUBLIC INTEREST THE VICTORIAN AGE THE WORLD AT LARGE THE HOUSE OF WINDSOR THE SOCIAL NETWORK SOURCES

2.1 2.2 2.3 2.4 2.5 2.6 2.7 2.8 2.9 2.10 2.11 2.12 2.13 2.14 2.15 2.16 2.17 2.18 2.19 2.20 2.21 2.22 2.23 2.24

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INTRODUCTION 2.1 The law of defamation is an essential part of the history of England. This law has preserved the majesty of kings and queens. It has upheld the authority of governments and ministers of the Crown. It has protected the reputations of ‘Great Men of the Realm’, the status of those who pursue a profession or business, and the good names of ordinary people from everyday gossip and scandal. The law has been enforced particularly at times of political instability and unrest, applied as part of the criminal law as well as the civil law. Its use has been a measure of the sophistication, tolerance and freedom of people through the ages. The changing nature of the law of defamation also provides a measure of the growth in knowledge and education of the English people — from the time communication was by word of mouth alone, to the time of writing and then the electronic forms of radio, television and the internet. In recent times, with faster and more efficient means of communication available, it has become possible to inflict the greatest damage to reputation instantaneously and extensively. In order to understand the context in which the law of defamation is applied in our time, it is instructive to follow its development from the small local communities of ancient times to the vast global community of today. The law has adapted to these changing circumstances, but the concept of defamation itself has remained remarkably similar since the very earliest times. A false accusation causing a person’s exclusion from the community was and remains one of the most basic wrongs since we became communal, social beings.

THE ANCIENTS 2.2 The law of defamation can be traced back to the laws of the earliest civilisations. The Code of Ur-Nammu (ca 2100–2050 BC), written in the

Sumerian language, is one of the oldest surviving legal codes and provided a fine of 15 shekels of silver for bearing false witness against another. Some centuries later, the Code of Hammurabi (ca 1800 BC) applied the law in Babylon of ‘an eye for an eye, a tooth for a tooth’ — lex talionis — imposing retribution identical to the offence, relevantly, ‘If a citizen brings an accusation of a crime before the elders, and does not prove what he has charged, he shall, if the charge warrants the death penalty, be put to death’.1 The rationale for these laws was that they put a limit on the extent of revenge or retribution for wrongful accusations. Without them, retaliation was often much worse than the wrong itself and spread to involve others, carried on by and against family and relatives as feuds or vendettas over generations. [page 7] The Bible recorded the tradition of retribution.2 A false witness was seen as particularly evil: … if a man has accused his brother falsely of that which is wrong, then you shall do unto him as he had intended to do to his brother. Thus you shall purge the evil from amongst you. The rest will hear and be afraid, and will never again do such an evil thing amongst you. Thus you shall not show pity: life for life, eye for eye, tooth for tooth, hand for hand, foot for foot.3

The Ten Commandments required, as a religious and moral imperative from God to Moses, that there be no false witness against one’s neighbour.4 This Commandment achieved a broad meaning, requiring people to be truthful about others and uphold a neighbour’s good name. Laws of defamation became more refined in Greek and Roman times. The first written law of Athens was set down by Draco in about 620 BC and death was the Draconian punishment for most offences. Under later Athenian law, a fine of 500 drachmas was imposed for imputing that a soldier had lacked bravery or thrown away his sword in battle. The fine was conditional on whether the charge was true.5 A distinction was drawn between seditious insults of public men and private calumny. The former if publicly stated was punished by death, imprisonment or fine; the latter provided a right of action. A special immunity was accorded to Athenian comedy playwrights who

criticised the political conduct and even private character of public men. For example, Aristophanes’ play The Frogs satirised the comparative literary merits of Aeschylus and Euripides. This liberty was exercised subject to some special conditions including not identifying the target by name (to enable those ridiculed to save face), not attacking the existing head of state and not attacking the dead.6

THE ROMANS 2.3 The earliest codification of Roman law was contained in the law of the Twelve Tables (Lex XII Tabularum) which dated from about 450 BC. A public chant or song affecting another’s reputation (carmina) was a criminal offence for its propensity to be widely disseminated. Anonymous or pseudonymous publications by epigram, book or otherwise made publicly in writing were criminal — libellus famosus — and were punished severely, whether true or false. Defamatory statements made in public (convicium contra bonos mores) were criminal because of the publication made before [page 8] one’s fellow citizens. Truth was no defence for the unnecessary public and insulting manner in which they were disseminated.7 A distinction was drawn between ‘ordinary’ and ‘extraordinary’ acts of defamation. If the place, the time of publication or the position and rank of the defamed person, was such as to make the defamation ‘extraordinary’, then a fine was imposed with punishment either by imprisonment, exile or ‘degradation’.8 The imposition of a mere fine proved insufficient to inhibit a Roman citizen by the name Veratius. He took great delight insulting those he met as he walked through the streets of Rome. A servant followed close behind carrying money, instructed by Veratius to pay those insulted with the appointed fine.9 Defamatory statements made in private could be defended as true. The criminal offence lay in the imputation itself (if not true) not the extent of publication.

An insult made to the party defamed alone, whether oral or in writing, was sufficient to amount to a publication in Roman law, even if not made to a third party. An act calculated to injure the ‘fama’ of a Roman citizen was a serious matter. The word ‘fama’ meant not only reputation or the estimation in which a person was held by others, but also the person’s own estimation of himself and sense of personal identity and dignity. It was defamatory to impute that a person was a spy, a murderer, a father of children who were slaves, or a descendant of a female slave.10 The complainant also had to show that the act was intended to be injurious to his ‘fama’, being the evil purpose or intent of the wrongdoer. The law had regard to what the wrongdoer meant by the words used, not to the meaning conveyed to bystanders. Roman law was eventually collected and recorded in the Emperor Justinian’s Digest of 533 AD and contained a defamation action for publication ‘infamandi causa’. By this time, a defence existed if the imputation was true but only if its publication was for the public benefit — that society would benefit from the exposure of evildoers. Another defence existed for a person who acted pursuant to their official or legal duty, such as a magistrate, and the publication was necessary for that purpose, made in good faith and was not improper or excessive or otherwise unlawful.11 [page 9]

EARLY ENGLAND 2.4 Roman law was introduced to the province of ‘Britannia’ following the Roman invasion of 43 AD. The Roman occupation lasted almost four hundred years and Roman laws and customs became common place in the territories of Britain which the Romans occupied. Over a thousand years later, the Roman law of defamation was revived as a

reference point under English law: The Case De Libellis Famosis.12 The English common law of defamation is considered to be derived from Roman law.13 After the Roman legions withdrew from Britain in about 410 AD, the land became divided into a number of small kingdoms and tribes. War and devastation caused by conflicts between the Celts and the invading Germanic tribes — Angles, Saxons and Jutes — overrode the rule of law for some considerable time. The Anglo-Saxons thrived at the expense of the RomanoBritish people. There is no written record of these times which identifies the Anglo-Saxon approach to defamation but it is probable that the Anglo-Saxons, who were known as a race of warriors, dealt with it violently: It is a mistaken idea … to suppose that the primitive Teuton could feel only blows, and treated hard words of no account. Many forms of expression which in a civilized community would be regarded as violent abuse doubtless passed for common pleasantry, but reputation was dear to him and shame was keenly felt. Indeed, a good reputation was a defence to almost every crime.14

Germanic laws and customs (known as leges barbarorum — the laws of the barbarians) began to be recorded in writing during this period. Much of the law up to this time had been memorised and handed down from one generation to the next by word of mouth and tradition. Oral law was, however, open to abuse and self-serving change if circumstances required. In 410 AD, Rome was sacked by the invading Visigoths who were not as lawless as often perceived. The Visigothic Code (ca 471 AD), written and influenced by Roman law, had an advanced approach separating the law against false accusations from false witnesses under oath.15 The Code provided retribution for a false accusation made against another16 where it was evident that the accusation was ‘made out of hatred’, so that the person falsely accused might suffer death, bodily injury or the loss of property. The accuser would be delivered to the falsely accused to decide at his discretion whether the accuser ‘may himself suffer the penalty which he endeavoured to inflict upon an innocent person’. [page 10] The Code identified the kinds of false accusations which might offend,

including accusations that the accused had plotted against the king, the people or his country, or had committed some act to their prejudice; or had been guilty of some fraudulent act against the authority of the Crown or of those exercising judicial functions; or had executed or published a forged document; or had coined spurious money; or had been guilty of giving poison or practising witchcraft or of committing adultery with the wife of another; or of similar crimes, the punishment for which was the loss of life or property. However, if the accuser could establish the truth of the charges he would be free of censure. Other Germanic codes, such as Lex Salica (ca 500 AD) reflected a movement away from retribution to financial penalty, ‘the wergeld’, based upon the value placed on a person’s life from their social status or the value fixed by custom. For example, it provided that anyone who called a man a ‘wolf’ or ‘hare’ was liable to a penalty of 3 shillings, while the penalty for calling a woman a ‘harlot’ was 45 shillings.17 From the early 600s, England began to convert to Christianity following the persistence of the Celtic monasteries of Northumbria and the arrival of the papal mission in Kent led by Augustine. At the time, Pope Gregory I had formulated a simple list of cardinal sins based on the ‘seven deadly sins’ from the Book of Proverbs,18 to lead Christians away from ‘temptation’ — lust, gluttony, greed, sloth (acedia), wrath, envy and pride. Ethelbert, the ruler of the small kingdom of Kent, was attracted to this faith and became the first English King to be baptised a Christian. Christianity provided a long established moral code which proceeded to influence the development of English law from this period onwards. In the first decade of 600, Ethelbert issued a set of ‘dooms’ or declarations of the law. These are not only the oldest surviving written English laws but also the oldest surviving document written in the English language. These dooms provided the punishment or financial penalty required for a breach of the law and reflected the standards of conduct expected of that community at that time. For example, ‘If a freeborn woman with long hair, misconducts herself, she shall pay 30 shillings’.19 There is no discernible law of defamation amongst Ethelbert’s dooms. It is possible that defamation was regulated by ancient custom, as not all laws were recorded and some were left to tradition, passed by word of mouth.20

In 664, at the Whitby Synod the various Anglo-Saxon kingdoms embraced the Catholic Church of Western Christendom with its centre in Rome21 by agreeing to accept uniformity for the date of Easter. [page 11] In about 890, the Wessex King, Alfred the Great, issued a set of dooms. Alfred’s dooms recorded a law to protect a person’s reputation and provided that anyone who uttered a public slander would have his tongue removed, unless he paid for it with the price of his ‘wergeld’.22 These dooms were not new law but a collection of laws of Alfred’s predecessors, which ‘he deemed just to continue’.23 During Alfred’s time, Wessex became the predominant Anglo-Saxon kingdom after Alfred defeated the Vikings in battle. He reached a treaty with the Danes (who occupied much of England) in which he described himself as the King ‘of all the English nation’. He established the ‘Anglo-Saxon Chronicle’ and set about recording the history of the Anglo-Saxon people in their own language, promoting the idea of a nation of English people. The later Kings of Wessex brought the country under the one ruler and the land became known as Anglecynn, later Engla land (the Old English word for ‘land of the Angles’). The name Engla land first appeared in the Anglo-Saxon Chronicle in about 1014, recording the resistance of the local people to the latest Danish invasion at that time. The resistance failed and the Danish King Cnut sought to bring peace and unity to the Danes and the English, declaring a comprehensive law code in 1018. Cnut’s Code was emphatically based on the Christian faith and urged the forgiveness of those that trespassed against the people as they asked God to forgive them for their trespasses. This reflected a major shift in thinking to scale down punishment for breach of the law, so that Christian men would not be condemned to death ‘and the handiwork of God and what he dearly bought for himself be not destroyed for trivial offences’24 and that ‘the souls which Christ bought with his own life should not be destroyed’.25 It was a compassionate law rather than one of retribution, guided by Christ’s

essential teaching of ‘Do unto others as you would have them do unto you’26 rather than the talionic principle of ‘Do unto others as they have done unto you’.27 The law was laid down to be merciful and forgiving, not simply to punish those who did wrong. It gave those who had already committed wrongs the opportunity to mend their ways or face banishment. Accordingly, murderers, prostitutes, wizards and sorcerers were to be ‘driven out of the land’ unless they ceased and made amends; relevantly, perjurers, hypocrites and liars would be required, unless they ceased and made amends, to ‘leave their native land with their sins … [and] incur the wrath of God’28 and suffer ‘the raging fire that blazes in hell’.29 [page 12] In these times, banishment or exile was not just a social death. It placed the person in real danger by having to take the open roads without protection or live in the forests without adequate food or water.

THE CHURCH 2.5 From the time of the Norman Conquest in 1066, the law of defamation in England was substantially developed in the Ecclesiastical Courts. William the Conqueror established these courts to deal with matters concerning the soul and separated these ‘spiritual’ courts from the ‘temporal’ courts. The ecclesiastical law of defamation derived its moral and spiritual force from the Old Testament and The Ten Commandments.30 The Ninth Commandment declared: ‘Thou shalt not bear false witness against thy neighbour’.31 This Commandment prohibited the sin of lying about another person, a mortal sin under the Catholic religion. Notably it was a deliberate act. The sinner was morally bound to confess this sin and seek the Church’s absolution, without which the sinner would be denied entry to heaven and banished to a fiery hell.

Likewise, the Ecclesiastical Courts viewed the act of defamation as a sin for which penance was required. The usual ecclesiastical penance for the offence of ‘diffimation’ was an acknowledgment of the baselessness of the imputation by the sinner.32 Wrapped in a white shroud and holding a lighted candle while kneeling, the sinner would make the acknowledgment in the vestry room in the presence of the clergyman and church wardens of the parish. The sinner would also apologise to the person defamed, who as a Christian was obliged to forgive.33 If the words were spoken in a public place, the penance was usually required to be performed in public, such as during divine service in the church of the parish where the person defamed lived. The defamer publicly confessed stating that he had defamed the plaintiff, apologising ‘from the verrey bottome of my harte’34 and begging pardon and forgiveness, of God, his Majesty the King, and the person defamed.35 [page 13] The Constitution of the Council of Oxford (1222) declared that any person who maliciously imputed a crime to another would be excommunicated: By the authority of Almighty God, we excommunicate all those who, for the sake of hatred, profit, or favour, or for whatsoever other cause, maliciously impute a crime to any person who is not of ill fame among good and serious persons, by reason of which he is at the least put to purgation, or he is harmed in some other manner.36

Canonical purgation required the person to make an oath that he was innocent of the charge and be supported by the oath of 12 ‘compurgators’ who swore they believed he spoke the truth. This Constitution, known as Auctoritate Dei Patris, was adopted throughout the dioceses of England and established the medieval Church Court practice for such matters.37 It also provided a formula which laid the foundation for the cause of action for defamation today. It was, however, quite specific and required the imputation of a crime, against a person of good reputation, by a person with intent to cause harm to the person accused of the crime. Mere insults or imputations of a ‘defect’ in a person, such as being a lunatic, bastard or incompetent, were not sufficient. Crimes of a

spiritual nature included adultery, fornication, sacrilege and heresy. The nature of the crimes in this jurisdiction was not limited to ecclesiastical matters but included imputations of secular crimes which crimes were tried in the King’s Courts.38 Many cases involved imputations of theft.39 The text of Auctoritate Dei Patris was well known amongst the people as it was read out to congregations in parish churches carrying the warning that they would be excommunicated if they slandered their neighbours.40 This form of punishment was not always used, with more moderate sanctions imposed if circumstances permitted.41 The Ecclesiastical Courts’ jurisdiction for defamation was declared by statute in 1286 by Edward I whereby the ‘cause of defamation … hath been granted already that [page 14] it shall be tried in a spiritual court where money is not demanded and proceedings [confined to] the correction of sins’.42 The ecclesiastical action for spoken words accounted for the great majority of the cases that came before the Church Courts during the later Middle Ages up to the early sixteenth century.43 However, by later statute in 1316 it was enacted that corporal penance in defamation might be commuted for a money payment ‘the King’s prohibition notwithstanding’.44

THE MANOR 2.6 The Church did not exercise jurisdiction exclusively over defamation law in these times. There were, at the time of William I, ‘Local Courts’ which heard complaints of defamation. This practice continued until the fourteenth century at least. One kind of Local Court was the ‘Fair’ or ‘Market’ Court that heard disputes between traders and in this context, concerned mainly imputations about their trade which caused damage.45

Actions were also commonly brought before the Local Courts of the Manors, providing compensation for defamation to the tenants of the Manors under the feudal system. From the available records, the Local Manor Courts heard many cases of slander, imputing dishonesty or theft.46 The pleading of the action can be observed from a book of precedents for pleading in the Manorial Courts (at the beginning of the fourteenth century): Sir Steward, William of Weston, complaineth of John of M … that against the lord’s peace hath he defamed him in divers places to divers good folk of the country and his free lawfulness hath (been) blemished insomuch that he called him thief and lawless man … by reason whereof he is deemed such as he ought not and not wont to be, to his damages of 40 shillings and shame of 20 shillings.47

The action bore substantial similarities to the ecclesiastical action under Auctoritate Dei Patris. Later in the fourteenth century, Local Courts began to lose their influence due to the growth of a more centrally controlled court system with the development of the Royal or King’s Courts (Curia Regis) and the received wisdom in those courts of the ‘common law’ of England. [page 15]

THE COMMON LAW 2.7 During his reign (1154–1189), Henry II established a court of professional judges to administer the common law, ‘common to all the people of England’. The King’s Courts introduced a system of commencing an action in the court by issuing the King’s Writ, which by royal command called upon the defendant to appear and answer the claim made against him. The claim, however, needed to conform with the forms of writ recorded in the Register of Writs as an action at common law. The action for slander or defamation was not a writ recognised by the Register as the action was granted to the Church Courts. If money was demanded, the action was brought in the Local Courts. This remained the position until the decline of feudalism and the Local Courts in the fifteenth century.

The records of the cases in the King’s Courts were kept in ‘Year Books’, the earliest now in existence being 1289. There were instances of cases resembling an action for slanderous words recorded in the Year Books before the end of the fifteenth century but such actions were usually struck out as being within the jurisdiction of the Church Courts not the King’s Courts. The earliest plea of defamation in the King’s Courts was struck out in 1295 as not within its jurisdiction. From that time until Henry VIII’s reign, there were five such cases in the King’s Courts recorded in the Year Books.48 The King’s Courts developed into a number of common law courts based on the system of writs. The King’s Courts included the court which heard disputes between (or pleas of) commoners known as the Court of Common Pleas. Disputes involving the King himself or relating to royal interests were heard by the Court of King’s Bench. Disputes involving the royal revenue were heard by the Court of Exchequer. Shortly before or after Henry VIII took the throne, common law judges decided to relax the writ system and allow a new form of writ for slanderous words. The first writ of this kind that has been found is on the plea rolls for 1507 and the first judgment in 1517.49 It appears that one reason for this development was the expansion of the jurisdiction of the common law courts at the expense of the Church Courts. Spiritual matters, such as heresy, schism, adultery or fornication,50 remained within the jurisdiction of [page 16] the Church, while temporal matters, such as crime, disease or money, were claimed by the jurisdiction of the common law courts.51 The common law courts could (unlike the Church Courts) award a plaintiff damages, which was perhaps more satisfying to a plaintiff than being required to forgive a defendant for confession of the sin. Another reason might have been the growing challenge to the authority of the Church, culminating with the Reformation which began in 1517 with Martin

Luther’s declaration against indulgences. This raised fundamental issues about the Church as the governing body of people’s lives and souls. In 1521, Henry VIII published a royal treatise against Luther in strong support of the Church’s teaching and the authority of the Pope. As a result, Pope Leo X conferred upon the King the title ‘Defender of the Faith’ (which the English monarch retains to the present day). However, 10 years later, Henry was rebuffed by the new Pope, Paul III, when he requested an annulment of his marriage to Catherine of Aragon. In 1531, Henry VIII declared himself to be the Supreme Head of the Church of England. This allowed him to proceed to divorce Catherine and marry Anne Boleyn. The spoken word was still the most common form of communication at this time. Two of Henry’s closest advisers lost their heads for the words they spoke, however doubtful the proof of those words might have been. In 1535, Sir Thomas More, his former Lord Chancellor, was tried for treason based on (it is thought) the perjured testimony of the Solicitor General who claimed that More had said to him that the King was not the legitimate head of the Church. More was convicted and sentenced to execution by decapitation under the Treason Act 1495.52 Likewise, Bishop John Fisher was convicted and beheaded for the same offence, having allegedly told the Solicitor General ‘that the King was not nor could be by the Law of God, Supreme Head on earth of the Church of England’. The executions took place within two weeks of each other and their heads were fixed upon pikes on Tower Bridge as was customary for traitors. Henry VIII was later excommunicated from the Church of Rome. The Church of England pursued its independence as part of the Protestant movement. These tumultuous events not only changed the course of English history but had a profound impact on the fate of the Roman Catholic Church and its followers in England for centuries to come and diminished the authority of the Church generally. The jurisdiction of the Ecclesiastical Courts also diminished during this period but defamation cases continued to be heard from 1475 to 1610 as evidenced by Archdeacon Hale’s Precedents. The vast majority related to an imputation of sexual immorality and conveyed by spoken words.53

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SLANDEROUS WORDS 2.8 By 1528, the ‘action on the case’ for slander was recorded as a cause of action at common law.54 Many of these actions concerned allegations of theft and were pleaded in the form: … whereas the plaintiff was of good name and fame and so reputed among honest men, the defendant (scheming to harm his good name) publicly spoke the words set out, whereby the plaintiff was harmed in his dealings with honest persons.55

Where the plaintiff was not named (in the words complained of), the plaintiff could plead an innuendo clause to explain the indefinite pronoun in the words, for example, ‘he (innuendo, the plaintiff) is a thief’.56 No distinction existed between an action based on spoken words and an action based on written words. Most cases involved spoken words as few could read or write. A defendant who sought to justify the words was required to ‘confess and avoid’ by proving the truth of the words published. It was, however, quite common for the defendant to confess to different words spoken to those pleaded in the plaintiff’s declaration and in defence say that those words were either not slanderous or were true.57 As a matter of common law principle, damage was the gist of the cause of action ‘on the case’. Conceptually, the common law courts had to address the difficulty of what proof was required of damage to such an intangible thing as a person’s reputation. In due course, the common law courts developed the principle that certain words were damaging in themselves without proof of any actual loss. These included words alleging ‘infamous’ crime which if true placed the plaintiff’s liberty at risk (theft, forgery or witchcraft) or life at risk (murder, treason or perjury); words alleging occupational incompetence which had the tendency to cause pecuniary loss; or words imputing contagious or infectious diseases such as the ‘French Pox’ (syphilis), the plague or leprosy, which had the tendency to cut a person off from society. The jury was required to determine the amount of damage and award the monetary payment.

During Elizabeth I’s reign, the action on the case for slanderous words multiplied in number and generally concerned an imputation of a (nonreligious) crime. It was not necessary that the imputation be of a specific criminal act but it was good pleading practice to be as specific as possible.58 An imputation of theft remained the [page 18] most common complaint but there were also imputations of perjury, forgery, treason and murder.59 Imputations of leprosy, the plague and the French Pox were also actionable, the reasons emphasised in pleadings of the time being that the words suggested a corrupt and criminal life, the words could cut the plaintiff off from society just as a criminal would be, or the words caused actual loss.60 Words imputing non-criminal conduct which had the tendency to harm the plaintiff in their profession or trade may not have been accepted as actionable until after Elizabeth I’s time. However, cases involving lawyers or government officials appear to be exceptions and were the only cases in which the office of the plaintiff was regularly pleaded during her reign.61

CENSORSHIP 2.9 In 1275, Edward I had introduced legislation to prevent subversion and sedition, creating a criminal offence for a person spreading false news or gossip about ‘Great Men of the Realm’: Statute De Scandalis Magnatum.62 Persons who spread such news or gossip, ‘causing discord or slander to grow between the King and his people or the Great Men of the Realm’, were to be imprisoned until the originators of the news or gossip could be found. The originators would then be punished according to the seriousness of the charge — to be hung, drawn and quartered; forehead burnt; right hand severed in the case of writing; ears removed or nose removed or sliced in the case of speaking. Acts which threatened the authority of the King would amount to the crime of treason for which Edward I is attributed to have developed the punishment of

‘hanging, drawing and quartering’. This was a particularly gruesome and public form of torture and execution, recognised for its cruelty to the prisoner and its deterrent effect on others. The offence of Scandalum Magnatum sought to stop ‘devisers of false news’ and of ‘horrible and false lies, of prelates, dukes, earls, barons and other noble and great men of the realm’. It was directed against sedition, initially at the time of the Peasants’ [page 19] Revolt in 1381 and the political songs such as the Lollard rhymes current in the Plantagenet society, rather than defamation cases.63 There were, however, only four cases brought under the Statute until the late sixteenth century, when it appears to have developed into an action for damages, relied upon by peers to protect their status. The number of cases then multiplied. In 1403, the Corporation of London had approved the formation of a Guild of Stationers known as the Worshipful Company of Stationers and Newspaper Makers, which became the Stationers Company. In 1476, William Caxton set up the first printing press in England at Westminster and printing replaced manuscript production. It was feared, by the time of Elizabeth I, that unrestricted printing could pose a threat to the Crown, as more people became literate and multiple publications or pamphlets could be printed and disseminated with ease. The troubled issues of the time concerning Elizabeth’s legitimacy as Queen and the division between the Church of England and the Roman Catholic Church led to a period of severe censorship, by Crown proclamation or statute. In 1557, a Royal Charter of Queen Mary established the Stationers Company of London under which its 97 members were exclusively licensed to print (‘the imprimatur’), and those printing without a licence could be imprisoned and their books and presses forfeited to the Crown. The Stationers’ Charter established a monopoly on book production and the ownership of a text or ‘copy’ was recorded in the ‘entry book of copies’ or the Register of the Stationers Company. No other member then had the right to publish the text, giving rise to

the term ‘copyright’. The Stationers Company was empowered under the licence to seize unlicensed books or ‘offending books’ and bring the offenders before the Bishop of London or the Archbishop of Canterbury. In 1559, shortly after her accession to the throne, Elizabeth required all books to be read by loyal bishops or privy councillors before being approved for publication. She decreed that those who had books which were ‘wicked and seditious … shall without delay be executed’. In 1586, all books were required to be approved in manuscript and licensed by the Archbishop of Canterbury or the Bishop of London, except law books which were to be read and licensed by the Chief Justice or the Lord Chief Baron. In 1579, John Stubbs published a pamphlet entitled The Discovery of a Gaping Gulf Where into England is Likely to be Swallowed by Another French Marriage, in which he criticised the proposed marriage of Elizabeth to the Duke of Anjou from France. Stubbs objected to the fact that the Duke was a Catholic and claimed that the French were ‘unreliable and duplicitous’. He suggested that Elizabeth was too old at 46 to have children and did not need to marry. Stubbs was found guilty of seditious libel and ordered to have his right hand removed. An eyewitness at the Tower of London recorded that when Stubbs’ right hand was cut off with a cleaver: [page 20] He took off his hat with his left and cried aloud ‘God Save the Queen’; the people round about stood mute, either stricken with fear at the first sight of this kind of punishment, or for commiseration of the man whom they reputed honest.64

SHAKESPEARE 2.10 Shakespeare lived in these Elizabethan times. The common law action for slanderous words became the most popular cause of action of the period and Elizabeth protected her Crown with the crime of seditious libel. Shakespeare’s works demonstrate that he well understood the insidious

nature of defamation. He used slander as a device in his plays to change the course of events65 or provide the defining moment leading to catastrophe.66 Shakespeare’s characters spoke about the high value to be placed on reputation: Good name in man and woman, dear my lord, Is the immediate jewel of their souls: Who steals my purse steals trash; ‘tis something, [‘tis] nothing; ‘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.67

The person who Shakespeare chose to speak these eloquent words about reputation is malice personified — Iago. Deliberately and dishonestly, Iago tells Othello that his wife Desdemona has been unfaithful. Othello questions the truth of it and condemns Iago to the worst damnation if it be a slander: Othello:

Iago: Othello:

Make me to see’t; or, at the least, so prove it, That the probation bear no hinge nor loop To hang a doubt on; or woe upon thy life! My noble lord,— If thou dost slander her and torture me, Never pray more; abandon all remorse; On horror’s head horrors accumulate; Do deeds to make heaven weep, all earth amazed; [page 21] For nothing canst thou to damnation add Greater than that.68

Other Shakespearean characters speak about the rage of dishonour. In the opening scene of Richard II,69 Bolingbroke accuses Mowbray, in the presence of the King, of being a traitor. Mowbray responds that it is a lie and challenges him to a duel. Mowbray’s statement of the ‘treasure’ of reputation has often been quoted to juries in defamation trials:

King Richard:

Mowbray:

King Richard: Mowbray:

Wrath-kindled gentlemen, be ruled by me; Let’s purge this choler without letting blood: This we prescribe, though no physician; Deep malice makes too deep incision; Forget, forgive; conclude and be agreed; Our doctors say this is no month to bleed … My life thou shalt command, but not my shame: The one my duty owes; but my fair name, Despite of death that lives upon my grave, To dark dishonour’s use thou shalt not have. I am disgraced, impeach’d and baffled here, Pierced to the soul with slander’s venom’d spear, The which no balm can cure but his heart-blood Which breathed this poison. Rage must be withstood: Give me his gage: lions make leopards tame. Yea, but not change his spots: take but my shame. And I resign my gage. My dear dear lord, The purest treasure mortal times afford Is spotless reputation: that away, Men are but gilded loam or painted clay. A jewel in a ten-times-barr’d-up chest Is a bold spirit in a loyal breast. Mine honour is my life; both grow in one: Take honour from me, and my life is done: Then, dear my liege, mine honour let me try; In that I live and for that I will die. [page 22]

STEMMING THE TIDE 2.11

The rulings of the common law courts were collected in 1647 by John

March, barrister of Gray’s Inn, in his book Actions for Slaunder (sic). From the rulings, he formulated the action on the case for slander, where words were actionable of themselves without proof of ‘particular damage’, in these terms: … scandalous words which touch or concerne a man in life, liberty or Member, or any corporall punishment, or which scandall a man in his office or place of trust, or in his calling or function, by which he gaines his living, or which charge him with any great infectious disease, by reason of which hee ought to separate himself, or to be separated by the Law, from the society of Men; all such words will beare an Action, without averring or alledging of any particular damage by the speaking of them. Yet I do not deny, but that it is best to alledge a particular damage, if the case will beare it; and it is usuall so to doe in these cases, for the increase of damages.70

March reviewed the cases recorded in the Year Books. He noted that he could not find that any action for scandalous words had been brought before Edward III’s time (1327–1377) in which only one was brought by Sir Thomas Seton for being called a ‘traitor, felon and robber’.71 He observed that during the reigns of Queens Mary and Elizabeth, the number of actions began to increase significantly. This continued under James I and Charles I up to the time of publication of the book in 1647. March said: … in truth that which caused mee to enter upon this labour, was the frequency of these actions; for I may with confidence affirme that they doe at this day bring as much Gryse to the Mill, if not more than any one branch of the Law whatsoever.72

The number of actions for slanderous words had become a matter of judicial concern by 1616, when Lord Chief Justice Coke observed: We will not give more favour unto actions upon the case for words, than of necessity we ought to, where the words are not apparently scandalous, these actions being now too frequent.73

In 1624, James I enacted legislation that if a plaintiff was awarded damages of less than 40 shillings, he would not be awarded more than 40 shillings costs.74 In order to reduce the number of these actions, the judges developed rules of construction or interpretation of the words complained of that would make them not [page 23] actionable. March summarised these rules in these terms — words are not actionable where they are too general or not positively affirmative, or of a double or indifferent meaning or doubtful in sense, or they are uncertain in themselves

or the person of whom they are spoken, or else by reason of the subsequent qualification of the words or because they do not import an act but an intent or inclination only, or that they are impossible or because it appears that the speaking of them can be no damage to the plaintiff.75 These rules were applied with such strictness that the results became ridiculous. The most notorious rule of interpretation was the doctrine of Sensus Mitior (the milder sense). Under this doctrine, the words would not be construed as defamatory if they were ambiguous and an innocent meaning could be read into them. For example, the statement ‘Southwold hath been in bed with Dorchester’s wife’ could be construed in mitori sensu as not defamatory because Southwold might have been a child or Lord Dorchester might have been in bed between his wife and Southwold.76 The classic case, cited as an example of this method, is Holt v Astgrigg77 where it was held that it was not defamatory to say that ‘Sir Thomas Holt struck his cook on the head with a cleaver and cleaved his head; the one part lay on one shoulder and the other part on the other’ because it had not been pleaded that Sir Thomas Holt had killed his cook. The statement was ambiguous and could mean that, notwithstanding such wound, the cook was still alive. In that case the allegation was only of trespass, and no crime imputed. The doctrine flourished for about a century but languished and died ‘for men’s tongues growing more virulent, and irreparable damage arising from words, it has been by experience found that, unless men get satisfaction by law, they will be apt to take it upon themselves’.78 A different rule was developed so that words were to be understood in their most natural and obvious sense.79 An alternative route was also used to avoid the doctrine in actions by the aristocracy. The statute of Scandalum Magnatum was available to ‘Great Men of the Realm’ and the doctrine of mitior sensus was held not to apply and instead the words were to be taken ‘in the worst sense against the speaker’ so that the ‘honour of such great persons may be preserved’.80 There was also no requirement for proof of damage but these actions were later seen to be brought for political purposes.81 [page 24]

THE STAR CHAMBER 2.12 While the common law courts took control of the action on the case for slander, the Royal Court of Star Chamber, established in 1487, applied the criminal law to seditious publications (later enforcing the system of licensing created by Elizabeth I). During the period of the Stuarts in the seventeenth century (James I and Charles I), the mere composition or possession of defamatory writing (that is, libel), without publication or even intention to publish, became a criminal offence. The gist of the crime was the insult made or intended. By this time the licensing of printing presses had become ineffective to stop dissent and presses were often used to circulate anonymous pamphlets, far and wide, critical of royal prerogatives or the King. It was the function of the Star Chamber to protect the King and maintain peace and order82 which it did by prosecuting those with dissenting views. The Star Chamber ordered the punishment by death or torture of those found guilty of circulating material that was seditious or libellous of the King or of the government. It extended its jurisdiction to non-political libels and awarded damages but on principles different to the common law action on the case. It disregarded forms and writs, it was not bound by rules of evidence, and it appointed and heard only its own counsel.83 In 1605 the Star Chamber established the following rules for criminal libel (as recorded by Lord Chief Justice Coke) in The Case De Libellis Famosis, or of Scandalous Libels84 in which the late Archbishop of Canterbury and the then Bishop of London were defamed by an anonymous ‘infamous libel in verse’: 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 made 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; for what greater scandal of Government can there be than to have corrupt or wicked magistrates to be appointed and constituted by the King to govern his subjects under him? … A libeller … shall be punished … by fine or imprisonment; and if the case be exorbitant, by pillory and loss of his ears. It is not material whether the libel be true, or whether the party against whom it is made, be of

good or ill fame; … he who kills a man with his sword in a fight is a great offender, but he is a greater offender who poisons another; for in the one case he, who is openly assaulted, may defend himself, and knows his adversary, and may endeavour to prevent it: but poisoning may be done so secretly that none can defend

[page 25] himself against it; for which cause the offence is the more dangerous, because the offender cannot easily be known; and of such a nature is libelling, it is secret, and robs a man of his good name, which ought to be more precious to him than his life, … and therefore when the offender is known, he ought to be severely punished.85

This case is seen as the first authoritative formulation of the English law of libel (distinct from slander) which by publication in written form was a criminal offence in itself.86 The Star Chamber was known for the ferocity of the punishment it imposed. The classic example was R v Prynn.87 John Prynn was prosecuted for seditious libel against ‘the King, Queen and State’ for publishing a book, Historio — Mastix. Prynn was a barrister of Lincoln’s Inn and a Puritan. His book criticised the immorality and frivolity of stage plays, comedies, dancing, hunting, public festivals, Christmas, bonfires and maypoles. Prynn was found guilty in the following terms: Mr Prynn, I do declare … to be a Schism-Maker in the Church, a Sedition-Sower in the Common-wealth, a wolf in sheep’s cloathing … he is fit to live in dens with such beasts of prey, as wolves and tygers, like himself: Therefore I do condemn him to perpetual Imprisonment, as those monsters, that are no longer fit to live among men, nor to see light … have him branded in the forehead, slit in the nose, and his ears cropt too.88

In addition, all copies of the book were ordered to be burnt (‘for if they fell into wise men’s hands, or good men’s hands, that were no fear; but if among the common sort, and into weak men’s hands, then tenderness of conscience will work something’).89 Prynn was also fined £10,000, stripped of his degrees by the University of Oxford and expelled from Lincoln’s Inn.

WAR AND REVOLUTION 2.13

The suppression of Puritan publications was a contributing cause to the

English Civil War. It was suggested that ‘had not Prynn lost his Ears, K[ing] Charles would never have lost his Head’.90 In 1641, the Star Chamber was abolished by the Long Parliament91 and its jurisdiction over defamation absorbed by the common law courts. Thus began a period of reconciliation of the civil action for slander with the criminal law of libel as developed by the Star Chamber. [page 26] In 1644, at the height of the Civil War (1642–1651), John Milton distributed a pamphlet condemning the censorship of unlicensed printing in ‘Areopagitica’. In doing so, he defied the law he opposed, the 1643 Parliamentary Ordinance for the Regulation of Printing, and argued for freedom of speech. He said that the licensing system was abused by the subjective and arbitrary judgement of the licenser. Instead he argued that written words should be published without prior restraint. He did not advocate unrestricted freedom of the press, however, and accepted that if the work was blasphemous or libelous, it should be destroyed by the ‘fire and the executioner’ as the ‘timeliest and more effectual remedy’. After Cromwell and the period of the Interregnum, Charles II was restored to the throne. In the early days of his return, when his authority as King was still uncertain, a book entitled A Treatise of the Execution of Justice was published anonymously arguing that the King was accountable to the people for his actions. The printer of the book, John Twyn, was prosecuted for seditious libel.92 He represented himself at the trial and pleaded his own defence — asserting that he did not know that the book was scandalous or seditious, and in mitigation that he was a poor man and that he had three small children. Twyn was found guilty and sentenced to be hanged, drawn and quartered as follows: … you shall be hanged by the neck, and being alive, shall be cut down, and your privy-members shall be cut off, your entrails shall be taken out of your body, and you living, the same to be burnt before your eyes; your head to be cut off, your body to be divided into four quarters and your head and quarters to be disposed of at the pleasure of the King’s Majesty. And the Lord have mercy upon your soul.93

Before execution, the prison chaplain sought to persuade Twyn to admit the

offence and disclose the author of the book for which he had been sentenced to die for merely printing. Twyn refused to confess saying: ‘Better one suffer, than many’.94 He was executed and his body cut into four pieces, each nailed to a different gate of the City of London as a warning to other printers or writers. From the case of De Libellis Famosis two rules emerged. The first, libel became an action separate from slander; second, that truth was no defence to criminal libel. During the Restoration, the first rule was established in a common law court for the publication of a petition to members of the House of Commons that publication in writing (that is, libel) was actionable as a tort without proof of special damage because a written publication was permanent and the words contained ‘more malice, than if they had but been once spoken’. However, Chief Baron Hale observed that had the words been spoken, they would not be actionable in the absence of special damage and not fitting within the exception of being actionable per se.95 [page 27] This created a distinction between libel and slander which was finally settled as law in 1812, when Lord Mansfield considered himself bound by precedent which he said went back as far as Charles II’s time.96 Libel was therefore actionable without proof of special damage. The second rule emerged from the perception that libels tended to lead to breaches of the peace for which men would avenge themselves by duel, sanctioned as the ‘Code of Honour’, without seeking the assistance of the law. From this sprang the phrase, ‘The greater the truth, the greater the libel’, because it was thought that breaches of the peace were more likely caused by truthful statements than not. The example traditionally given was: ‘for as the woman said she would never grieve to have been told of her red nose if she had not one indeed’.97 Once a ‘scandal’ appeared in writing, whether it was true or false, it was a crime and ‘past justification’ — the problem was the permanence of the

publication, which required the burning of the libel as part of the punishment. It was considered that the manner of publication in writing evidenced thought and contemplation before it was created and was therefore malicious in itself. By contrast, the spoken word did not and could not amount to a criminal offence.98 Yet it could do as much if not more damage than the written word: Slander, Sir? You should not ignore it … At first, it is a mere whisper, skimming the ground like a swallow before the storm; pianissimo (very softly), it is a murmur emerging and spreading the poisonous word. It reaches one’s lips and piano, piano (softly, softly), it insinuates itself into another’s ear. The evil is born, it hatches, it creeps, it crawls, it multiplies and then rinforzando (growing stronger), from one mouth to another, it spreads like wildfire. Suddenly, you do not know how, but you see the slander rise, whistling, puffing and swelling. It takes off, spreading its wings, it swirls, it sweeps, in and out, it takes everything before it and then bursts forth like a roar of thunder to become the public cry, building to a crescendo and a universal chorus of hatred and contempt.99

The common law judges, after the abolition of the Star Chamber, exercised jurisdiction over the crimes of libel and sedition (and developed the criminal law applicable to the other ‘abuses’ of blasphemy and obscenity). The judges were also called upon to determine actions brought under the statute Scandalum Magnatum, notoriously used by the then Duke of York. Between 1682 and 1684, he brought [page 28] 10 actions for Scandalum Magnatum relating to claims about his Catholicism or support for it and was awarded damages in the sum of £100,000 in each instance.100 In 1684, James brought an action against Sir Francis Drake who ‘thought fit to abscond’ and had ‘since gone beyond sea, and … dispos’d of his estate, thinking it better to have his liberty in a foreign country than be laid up in his own for £100,000.’101 In the same year, James brought proceedings against Titus Oates who was alleged to have described him as a ‘rascal, a papist, and a traitor, and I hope to live to see him hanged’. Oates made no defence and was ordered to pay damages of £100,000 and 20 shillings costs.102 James acceded to the throne in 1685 and as King could rely upon seditious

libel over Scandalum Magnatum. In 1680, Chief Justice Scroggs declared that the printing or publishing of any newspaper or pamphlet of news whatsoever was illegal as a manifest intent to breach the peace and that printers and booksellers should not print books or pamphlets of news without licence or authority.103 Licensing of printers ceased in 1694, following the Glorious Revolution in 1688 and the overthrow of James II, but this doctrine continued until 1765 when it was ruled to be invalid by Lord Camden in Entick v Carrington.104 Proceedings for Scandalum Magnatum reduced in number during the eighteenth century with the last reported case in 1773.105 The offence was repealed by the Statute Law Revision Act 1887 (UK). By the late eighteenth century the right of the ‘common man’ to question government was established through revolution. First there was the revolt in the American colonies leading to the Declaration of Independence in 1776, and then the French Revolution in 1789. The freedom of thought and speech which stimulated these revolutions is attributed to Thomas Paine’s book Common Sense, published to ‘rescue man from tyranny and false systems and false principles of government, and enable him to be free’. In 1790 Paine returned to England from America and wrote The Rights of Man. He endorsed the French Declaration of 1789, on the rights of man and the citizen, that ‘Free communication of ideas and opinions is one of the most precious of the rights of man’. He was charged with seditious libel but escaped to France where he published The Age of Reason in 1793. In England itself, severe criticism of the government had been contained in anonymous letters signed under the pseudonym ‘Junius’ and distributed in the period [page 29] 1769 to 1771. A Junius letter criticising King George III was published in the Public Advertiser and the London Evening Post. Prosecutions were brought for seditious libel against the newspaper publishers. In the first trial, Lord Mansfield directed the jury that it was a question of law for the judge to determine

whether the matter was seditious or not and the only question for the jury was whether the accused had published it. As he considered the Junius letter was seditious, he directed the jury that if they found that the accused had published it, they were obliged to find him guilty. The jury returned a verdict of ‘guilty of printing and publishing only’.106 In the trial against the other publisher, the jury returned a verdict of ‘not guilty’, despite the judge’s determination that the matter was seditious.107 As a result, the need for liberty of the press was debated in the House of Commons, without resolution. This was followed by the case of R v Shipley (Dean of St Asaph)108 in which Lord Mansfield again ruled that the question of seditious libel was for the judge and not for the jury.109 In the circumstances of the criticisms of the government and the King, the prosecutions for seditious libel and the revolutionary atmosphere abroad, a bill was proposed in 1792 by Charles James Fox in the House of Commons to declare the law that it was for the jury to determine ‘the making or publishing of any libel’, not merely the question of publication. In the House of Lords, Lord Camden persuaded the House to pass the bill (by 57:32) with these words: ‘I ask your Lordships to say, who shall have the care of the liberty of the press? The judges or the people of England? The jury are the people of England.’110 Fox’s Libel Act111 of 1792 therefore declared that it was the jury’s role to determine whether the words complained of were defamatory. Fox’s Libel Act applied to criminal prosecutions for defamation and seditious libel. It was later accepted that the Act also declared the position at common law in civil cases for defamation.112

DUELLING 2.14 During the eighteenth century the common law of defamation had continued to develop in accordance with the customs and social change of the times. However, insults or slurs upon reputations were often still resolved by duel. It was a practice which had become common in the fifteenth century when it was fashionable to wear a sword.

[page 30] A gentleman who considered that he had been dishonoured (insulted) could only restore his honour by issuing a ‘challenge’ and fighting the man who had dishonoured him. This was the ‘Code of Honour’. An ‘unforgivable’ insult could take many forms, such as a slur on reputation or a slur on a wife’s or daughter’s reputation. A slap or a blow was also considered a mortal offence. However, the most serious provocation was ‘giving the lie’. It was regarded as so shameful to be called a liar that there was no other way of restoring one’s honour than by duel.113 On any day, the Code of Honour posed the possibility of violent death, swift and sudden: He lay quite still and past all feeling; his languid brow looked strange at rest. The steaming blood poured forth, revealing the gaping wound beneath his breast. One moment back — a breath’s duration — this heart still throbbed with inspiration; its hatreds, hopes and loves still beat, its blood ran hot with life’s own heat. But now as in a house deserted, inside it — all is hushed and stark, gone silent and forever dark. The window boards have been inserted, the panes chalked white. The owner’s fled; but where, God knows. All trace is dead.114

There were strict rules that applied to the sending of a challenge and selection of weapons. A person dishonoured would choose a friend to deliver the challenge and act as a ‘second’. A discreet second could settle the dispute by negotiation and acceptance that there had been a misunderstanding. If the insult had only been slight, honour might be satisfied by an exchange of shots or the first wound. If the insult was serious, the duel was fought until one of the duellists was killed or seriously wounded. Often the second would be the type of person who would not only propel his friend into the duel, but also challenge the opponent’s second as part of the affair.

In England, the choice of weapon lay with the challenged party. The sword was mostly used, initially heavy swords where the edge was used to cut, until the art of fencing emerged and a lighter sword, the rapier, emphasising speed rather than force, [page 31] used the point of the sword rather than the edge. A dagger or cloak was used in defence. By the mid-eighteenth century, the duelling pistol had begun to replace the sword and was accepted as a fairer weapon with neither duellist having a physical advantage over the other. At first pistols were notoriously inaccurate and could not shoot straight, leaving many duels resolved without mortal injury. In 1614 James I had made duelling illegal under the Proclamation Against Private Challenges and Combats.115 In its stead, either a prosecution for criminal libel could be brought or an action for defamation to provide damages for consolation and vindication to the plaintiff. These were heard in the Star Chamber until 1641. Despite this, duelling maintained its popularity, with Covent Garden and Lincoln’s Inn Fields in London being popular duelling grounds. Duels were fought at dawn or dusk to avoid detection. However, at times they were public spectacles. In Paris in 1808, the duellists agreed to fight in balloons and took off in a field near the Tuileries. With a great crowd in attendance, the balloons ascended. When the duellists reached a height of ‘about 900 yards’ and were within ‘about 80 yards’ of each other, one fired a blunderbuss at the other without result. The other fired his piece which penetrated his opponent’s balloon. It quickly fell and crashed, killing both the duellist and his second.116 The law had difficulty dealing with the custom. In the reign of George III, there were 172 duels fought, in which 91 people were killed and only two were convicted of the killings.117 In 1803, Captain MacNamara of the Royal Navy shot Lieutenant Colonel Montgomery of the Ninth Regiment of Foot in a duel. The duel arose after an incident on 6 April 1803 when both were horse riding in Hyde Park, followed by their dogs. As their paths crossed, their dogs set upon each other. Colonel Montgomery separated them saying: ‘Whose dog is that? I

will knock him down!’ Captain MacNamara responded: ‘Have you the arrogance to say you will knock my dog down?’ After words were exchanged, Colonel Montgomery said: ‘This is not a proper place to argue the matter. If you feel yourself injured and seek satisfaction, you know where to find me.’ Their seconds made arrangements for the duel. Two hours later they met at Primrose Hill and fired at each other less than 10 paces apart. Colonel Montgomery was shot through the heart and died. Captain MacNamara was wounded in the hip. Within days, a coronial inquest was held to determine whether Captain MacNamara should stand trial for murder. The jury was directed that where two persons meet to fight without having had sufficient time to ‘cool upon their quarrel’, in the event of the death of one, the crime of murder cannot be charged against the other. The jury returned a verdict that Captain MacNamara should stand trial for manslaughter and the trial was held on 22 April 1803. Lord Nelson, and other Lords of the Admiralty, gave evidence of the defendant’s reputation as a ‘Gentleman’. [page 32] Captain MacNamara was allowed to sit due to the pain of his wound and addressed the jury ‘in so low and tremulous a tone as scarcely to be heard’: Gentlemen, I am a Captain in the British Navy. My character you can hear only from others; but to maintain any character, in that station, I must be respected. When called upon to lead others into honourable danger, I must not be supposed to be a man who had sought safety by submitting to what custom has taught others to consider as a disgrace … It is impossible to define in terms, the proper feelings of a Gentleman; but their existence have supported this happy country for many ages, and she might perish if they were lost.

The jury returned a verdict of not guilty after 20 minutes’ deliberation.118 During this period two duels involved English Prime Ministers, William Pitt (in 1798) and the Duke of Wellington (in 1829). In both duels, the opponents fired at each other without effect and accepted that honour had been satisfied. Duelling gradually fell out of favour by the mid-nineteenth century, due in part to enforcement of the law by a newly established police force which could keep the peace and maintain order. It was also due to a change in fashion, as trousers replaced breeches, and swords or pistols were no longer worn as part of dress.

Public opinion also played a major part. The duel had come to be perceived as a licence for the aristocracy to maim or murder and escape penalty. In 1841, an advertisement was placed in the Morning Chronicle by a Captain Tuckett who accused Lord Cardigan of insulting officers in his regiment and then claiming privilege as commanding officer when called upon for redress. By this dishonour, Lord Cardigan challenged the Captain to a duel. Captain Tuckett was seriously wounded. Lord Cardigan was charged with ‘shooting with intent to maim’, a felony which carried a sentence of transportation for the term of his natural life. However, Lord Cardigan elected, as was his right, to be tried by his peers in the House of Lords. In the course of evidence, the Crown failed to prove Captain Tuckett’s Christian name, as set out in the charge. Their Lordships returned a unanimous verdict of not guilty.119 The public were outraged by the injustice of the process and the practice of duelling in general. Lord Cardigan endured public contempt for some time, but redeemed himself more than 10 years later by his courage in leading the Charge of the Light Brigade. In 1844, a resolution was put to the House of Commons: That Duelling is immoral in its tendency; that it brings into contempt the laws of the country; is contrary to divine command; and ought to be abolished.120

The proposed resolution did not become legislation. However, Queen Victoria expressed her disapproval of the practice of duelling amongst her officers to the Duke of Wellington (then Commander of Her Majesty’s forces) and to the Prime Minister, Sir Robert Peel. As a result, Article 101 of the Mutiny Act and Articles of [page 33] War, which had required officers to redeem their honour by duel, was repealed.121 During this same period, parliament undertook a major review of the common law of defamation.

THE TORTS OF LIBEL AND SLANDER

2.15 The common law courts developed the actions for libel and slander through ‘the action on the case’. The essence of such an action was damage, distinct from the action for trespass, the essence of which was forcible injury. In the course of the thirteenth century, writs of trespass were limited to wrongs committed vi et armis (with force and arms) and contra pacem regis (against the King’s peace).122 As the common law developed, writs of action on the case were permitted, and were required to set out the damage suffered and the circumstances of the plaintiff’s ‘special case’ by which tort (the Norman French word for ‘wrong’) the plaintiff was entitled to damages. The facts supporting the special case usually added aggravation or explanation or special cause to the writ. By the late fourteenth century these actions on the case were recognised in actions for negligence, breach of contract, damage caused by dangerous animals and the loss of goods. They were characterised by proving damage caused by a wrong or a trespass super casum.123 By the eighteenth century, the distinction between trespass and case was made by the directness of the wrong — between a person who threw a log onto the highway and hit someone (trespass: direct forcible injury), and one who left a log on the highway and someone tripped over it (case: consequential damage).124 The distinction was based on the causative purpose or effect of the defendant’s conduct with the harm suffered by the plaintiff. Trespass was actionable per se without proof of actual damage, whereas damage was the gist of the action on the case, consequent upon the defendant’s wrongful act or omission. Initially, the essence of the action for slander was the untruth of the particular statement and not the damage it caused.125 Later, in accordance with the rule of common law that the gist of the action on the case was damage, it was accepted that the gist of the action for slander was the damage to the reputation of the plaintiff, which had to be proven.126 However, exceptions grew as damage was presumed in cases where [page 34] slanderous words alleged crime, occupational incompetence or contagious disease. Damage was also presumed in actions for libel. These exceptions

applied upon proof of publication of the defamatory meaning. There needed only to be shown a tendency to damage reputation in these particular categories, without the need to prove actual damage. Once presumed, damages were ‘at large’ for the jury to determine. Nominal damages were awarded even if damage to reputation was minimal. Had the action for defamation (slander and libel) remained true to principle as an action on the case, the action could not have succeeded unless the plaintiff proved actual damage caused by the defamation. The cause of action for defamation was more suited to be an action for trespass.127 That form of action was designed to prevent breaches of the peace where intentional acts were carried out against the personal or property rights of the plaintiff. Trespass was prima facie wrongful, damage was presumed and a defendant strictly liable unless the act was justified or excused at law. In an action on the case it was for the plaintiff to prove that the damage was caused by the defendant’s fault or neglect. The reason the tort of defamation became an anomaly as an action on the case is partly conceptual and partly historical. The common law judges had difficulty with the concept of damage to reputation being valued in money when in society that damage was keenly felt and acted upon by way of duel, revenge or breach of the peace. Accordingly, slanderous statements in the nature of the exceptions set out above were regarded as acts wrongful in themselves without proof of actual damage. The plaintiff’s right to reputation was absolute. In addition, historically the Royal Court of Star Chamber developed the criminal law of libel distinguishing a written statement from an oral statement. This distinction became part of the civil law once the Star Chamber was abolished and the common law courts came to apply the principles of criminal libel to the tort of libel.128 The effect was to transform the action on the case for written statements (previously subject to the rules of the action for slander) to a form of action in the nature of trespass where the publication of a written statement gave rise to a right of action for nominal damages or from which general damage could be presumed.129 It is also relevant that criminal libel continued to be a common law misdemeanour which suggested that the act was tortious in itself without proof of damage. This allowed the cause of action to focus upon the insult rather than the damage and, like the action for trespass,

once the libel was proved, the defendant was found to be a wrongdoer and the plaintiff could recover damages because the commission of such a wrong implied damage. [page 35] The forms of action, the writs of trespass and case, were abolished in England by the Judicature Act 1873 (UK)130 and were replaced by a pleading of the material facts which disclose the cause of action. The issue of whether the cause of action for defamation is an action on the case or should be an action in trespass is now academic, but whether damage is the gist of the cause of action remains relevant.131

THE MEANING OF DEFAMATION 2.16 By the time the cause of action for slander was established at common law (at least by 1528), the plaintiff pleaded that he was reputed amongst good and serious men to be of good name and fame and that the words spoken harmed the plaintiff in his dealings with honest persons.132 This appears to reflect the formulation under Auctoritate Dei Patris of 1222 for excommunication from the Church. Traditionally, an imputation of a crime was actionable. The common law courts expanded the categories of slanderous imputations to those where damage was presumed in cases of occupational incompetence or contagious disease. In 1610, it was held that spoken words were actionable where they ‘tend to infamy, discredit or disgrace’ the plaintiff.133 In Holt v Scholefield134 the court considered this test was too general, and in actions for slander the court referred for guidance to the categories of words that were actionable in themselves.135 Libel was the written form of the cause of action and came to be distinguished from slander, the oral form. In Cropp v Tilney136 Chief Justice Holt held that a libel was scandalous matter or matter that induced an ill opinion to be had of the plaintiff or made him contemptible or ridiculous. In the eighteenth century, criminal libel was defined to be words which

exposed the victim to ‘publick Hatred Contempt or Ridicule’.137 This formula was adopted for the tort of libel138 and became the traditional formula in pleading, still in use today. In Villers v Monsley139 the defendant had published a poem suggesting the plaintiff stunk of brimstone and had ‘the itch’: [page 36] Old Villers, so strong of brimstone you smell, As if not long since you had got out of hell; But this damnable smell I no longer can bear, Therefore I desire you would come no more here; You old stinking, old nasty, old itchy old toad, If you come any more, you shall pay for your board, You’ll therefore take this as a warning from me, And never more enter the doors, while they belong to J.P.

This would not be actionable as a slander in the absence of special damage. The court held that if any person deliberately or maliciously published anything in writing concerning another which rendered them ridiculous, or tended to hinder people from associating or having intercourse with them, an action would lie against the publisher. The court noted that if the words that the plaintiff had the itch were spoken, without more, an action would not lie; whereas writing and publishing maliciously that a person has the itch and stinks of brimstone, cuts that person off from society. This confirmed that the publishing in writing of anything that renders anyone ridiculous is a libel and actionable.

THE EMERGENCE OF THE DEFENCES Truth 2.17 As the common law courts developed the rules relating to the action for slanderous words, limitations or exceptions to the action also arose. Two important limitations were that the slanderous words must be false, ‘for if the

thing be true, let the words bee what they will, the party that speaks them may justifie them’,140 and that the slanderous words ‘must be malicious, and purposely; and intentionally to slander and defame’.141 It was initially thought that falsity and malice were part of the action necessary to be shown by the plaintiff.142 It was common pleading for the plaintiff to allege that the words were spoken ‘falsè et malitiosè’.143 While this was the usual form of pleading the action, it was held that these matters were not necessary for the plaintiff’s case.144 After the establishment of the tort of libel, separate from slander, it was thought that, in line with the principles of the criminal law of libel, truth was not a defence, [page 37] but could only be shown in mitigation of damages.145 However, it was held there should be no distinction between the civil action for slander and for libel, and truth was a complete defence to both actions. The defendant was obliged to state the particular facts by which the defendant intended to support the justification because the plaintiff was not required to come to trial ‘prepared to justify his whole life’.146 Where the defamatory statement was true, it was considered that the defendant’s publication was not a ‘tort’ because it was damnum absque injuria, indicating that the act of the defendant did not constitute a wrong in its legal sense and an exemption applied for having warned the public against the evil practices of a delinquent.147 Another view was that if the plaintiff was guilty of the conduct imputed, the plaintiff did not come before the court as a blameless party seeking a remedy for a malicious mischief, and the misconduct precluded him or her from recovering compensation which an innocent person would otherwise be entitled to receive.148 The plaintiff who sued upon the accusation of a criminal act carried the risk of double jeopardy. If the defendant could justify the words, which amounted to a felony, the plaintiff could be convicted by the trial judge without the need for a further trial by jury.149 In one case, a son-in-law had indicted his stepmother for poisoning her husband, his father. After being acquitted she brought an action

for malicious prosecution against the son-in-law. He successfully persuaded the jury that she had, in fact, poisoned his father. Upon this verdict she was convicted by the trial judge of the murder and burnt at the stake.150 Another case in about 1700 concerned an action by a plaintiff for slander that he was a ‘highwayman’. It was found on the evidence to be true. He was arrested and convicted and duly hung.151 The defence of ‘justification’ was extended to apply to the circumstance where a barrister spoke defamatory words ‘in the legal and necessary exercise of his profession’.152 The court held that a barrister had a ‘privilege’ to speak such matters in court on instructions from his client, it being relevant to the matter in question, and the barrister was not required to examine whether the matter was true or false. [page 38] Lord Chief Justice Coke cited Greenwood v Prick153 in support. Parson Prick had, in a sermon on perjury, recited a story from Foxe’s Book of Martyrs that a man called Greenwood had perjured himself in testifying before a bishop against a martyr in the time of Queen Mary. He preached that after Greenwood returned to his house, his ‘bowels rotted out of his belly’ and he died ‘by the hand of God’ as punishment for his perjury. However, the parson had only recently joined the parish and did not know his parishioners well. Greenwood lived in the parish and was present during the sermon. Greenwood brought an action against the parson for calling him a perjurer. Chief Justice Wray directed the jury that the words were delivered as a story and not with any malice or intention to slander and the parson was found not guilty of stating the words maliciously. The term ‘justification’ in defence was used in the sense of just cause. Other publications came to be protected where the party was called upon to execute a public duty, such as a judge, juror or witness in a court of justice or such as a member speaking in the Houses of Parliament.

Privilege/Protected reports In 1585, it was ruled that no action would lie for a statement made in the course

of judicial proceedings, as an obvious and necessary incident in the administration of justice.154 Similarly, it was ruled that no action would lie for statements made in the course of debates in parliament.155 It was initially held that there was no privilege for those who published documents reporting parliamentary proceedings to the world at large. In 1686, during the reign of James II, the speaker of the House of Commons, Sir William Williams, published a report of the votes and Acts of the House which included a document, Dangerfield’s Narrative. Dangerfield had participated in the Popish Plot of 1678 with Titus Oates (in which they alleged that the Catholics were plotting to kill Charles II). Dangerfield’s Narrative accused the Catholic Duke of York of similar intentions. However, the Duke acceded to the throne on the death of Charles II, and as James II, had Dangerfield prosecuted for criminal libel. Sir W Williams was likewise prosecuted for criminal libel and sought to defend it on the basis that the document was published as part of parliamentary proceedings. The court held that the publication was by a private individual without sanction of the House and no defence was available.156 James II abdicated the throne two years later, and in 1689 parliament legislated the Bill of Rights (Article 9) which protected members for statements made [page 39] in parliament. In R v Wright157 the court accepted that a report of the House of Commons, being a true account of the proceedings for the use of its members, was not actionable. Reports of what occurred in judicial proceedings were not recognised as just cause or as occasions on which defamatory statements could be repeated to the world at large. In 1796 it was held that a true report of what passed in court was not actionable, but the defendant would be held to very strict proof that the report as published contained precisely the substance of what was stated in court ‘otherwise a publication pretending to be such a report might be made a vehicle of slander’.158 It was later held that if in the course of a trial it became necessary for the purposes of justice that matter of a defamatory nature should be publicly read, it

did not follow that it was competent to any person under pretence of publishing a report of that trial to recite the defamatory matter. Thomas Paine’s The Age of Reason was read to the court in the trial of Richard Carlile. His wife was prosecuted for publishing a report of the trial which included a repetition of passages from Paine’s book. Even though her report was accurate, the court held that it was no defence because of the effect it may have on the minds of the ‘young and unwary’.159

Qualified privilege In 1674, Sheppard recognised that where the ‘cause or occasion of the speaking of the words’ showed that there was no malicious intent in speaking the words, no action would lie unless the words were a cloak for the defendant’s malice. Accordingly, the rule was that, where there was no other cause for the speaking of the words, the publication would be taken to be malicious. However, if the defendant could provide a just cause, the words would be considered in the circumstances as to whether the defendant spoke them with malice or not.160 The cases cited in support of this rule were Brook v Montague,161 Greenwood v Prick162 and Vanspike v Cleyson163 in which it was held that it was not actionable to speak in confidence (to a friend) by way of good counsel. The General Abridgment of Law and Equity by Charles Viner,164 which summarised the law as at 1742 contained no further instances of this rule. The concept of ‘qualified privileges’ was established, however, under ecclesiastical law where a person was privileged to speak words that would otherwise be actionable. The privileged circumstances were narrow and confined to statements made for a legitimate public purpose such as court proceedings, as a result of [page 40] provocation by the plaintiff, or as a private statement and not intended for public dissemination.165 The defence of qualified privilege emerged at common law in 1766 when Lord Mansfield in Edmondson v Stephenson166 held that an action for defamation would not succeed for certain publications if malice did not exist. A servant had

brought an action against her former employer over a character reference. In response to an inquiry from a potential employer, the defendant had said ‘she was saucy and impertinent, and often lay out of her own bed; but was a clean girl, and could do her work well …’. Lord Mansfield ruled that the reference was confidential and ought not to have been disclosed. He considered it was not a sufficient action for defamation, as ‘the gist of it must be malice’, which was not implied from the occasion of speaking, but should be directly proved. Accordingly, he held that a proper ground for action would exist if, without any basis and purely with the purpose of defaming, a false character reference was given.167 In 1786, Lord Mansfield followed this ruling in another action by a servant against his former master for words spoken by him in giving a character reference: … to every libel there may be a necessary or implied justification from the occasion, so that what, taken abstractedly, would be a publication may from the occasion prove to be none, as if it were read in a judicial proceeding. Words may also be justified on account of the subject matter or other circumstances …168

Justice Buller added: This is an exception to the general rule, on account of the occasion of writing the letter. Then it is incumbent on the plaintiff to prove the falsehood of it: and in actions of this kind, unless he can prove the words to be malicious as well as false, they are not actionable.169

Fair comment An extension of justified circumstances led to the protection of criticism of public events. In 1793, Lord Kenyon ruled that a public newspaper may fairly and candidly comment on any place or species of public entertainment but it must be done ‘fairly and without malice’ or without intention to injure or prejudice the person in the eyes of the public. If the comment were ‘malevolent, or exceeding the bounds of fair opinion’, it would be actionable.170 This class of privilege was acknowledged as necessary for the information of the public. [page 41]

Malice The term ‘malice’ came to be distinguished between what was called ‘legal

malice’ (malice implied by law) and ‘actual malice’ (malice in fact). In 1713, the legal sense of malice was described as being without just cause or excuse distinct from malice in fact arising from a desire of revenge or anger against a person.171 This distinction was followed in R v Harvey172 in relation to criminal libel (where a newspaper had suggested on good ‘authority’ and ‘with the deepest concern’ that King George IV was suffering from insanity) and in Bromage v Prosser173 in relation to the torts of slander and libel where malice ‘in common acceptation means ill will against a person, but in its legal sense it means a wrongful act, done intentionally, without just cause or excuse’.174 It was accepted that malice in either sense ‘legal’ or ‘actual’ was not an essential element of the plaintiff’s case, and therefore need not be pleaded in criminal or civil cases of defamation.175 It may be observed that conceptually the defences concerned two broad themes — the first, that the defence of truth defeated the action because the reputation deserved to be harmed and brought down to its proper level; the second, that the defences of privilege in its various forms — absolute, qualified, fair comment and fair and accurate report — were developed as necessary to permit the infringement of the plaintiff’s right to reputation in the circumstances of the particular publication. The concept of necessity as a defence at common law is drawn from the defences to actions for trespass, or intentional torts. No such concept applied to the action on the case because the negligent act was unintended and it would amount to a contradiction in terms to say that the negligent act was necessary. This demonstrates once again that the action for defamation was more suited to an action for trespass than an action on the case. This is important in the context of the modern development of the defences, and the remedies such as damages awarded for an action for defamation compared with an action for negligence.

PLEADING THE ACTION 2.18 The dispute between the parties was traditionally defined at common law by ‘pleadings’. By the early nineteenth century the special forms of pleading became the focus of the action and were crucial to the success of the plaintiff’s case:

A very large portion of the time of the courts is occupied in discussing points of this nature, and the success of a suit depends greatly upon the regularity and accuracy of the pleadings; and when the delay, the expense, and even the failure of justice,

[page 42] which frequently takes place from inattention to these particulars, are considered, a favourable reception of this work is anticipated.176

Decisions were made on the basis of the form of the pleadings, without regard to the facts or to justice. The plaintiff in a defamation action at this time pleaded the action on the case by slanderous words or by libel. It was common to frame the action to allege that the defendant published the words ‘falsely and maliciously’, but these were not elements of the plaintiff’s case.177 Plaintiffs constantly failed as a result of small and unimportant variations between the words of the libel or slander set out in the pleadings and the proof of them.178 In one case, a plaintiff complained of the following words in his pleading: ‘This is my umbrella, and he stole it from my back door’. However, at the trial he proved that the following words were said: ‘It is my umbrella, and he stole it from my back door’. The plaintiff failed on the basis that the evidence showed that the umbrella was not in the presence of the speaker.179 The word ‘this’ referred to an umbrella which was present, but the word ‘it’ referred to one which was absent, therefore the evidence was considered to be completely different to the pleading. The practice of pleading changed in England in the mid-nineteenth century so that it was enough to prove the substance of the words alleged or words to that effect although not exactly the same.180 If the words proved made a materially different allegation to that pleaded, amendment would be necessary if that allegation were to be relied upon; but the jury would be directed that if they thought the defendant used, in substance, the words, or a material and defamatory part of the words complained of, they should so find and the defendant would be liable.181 While the pleading rules have since changed, the form of the pleadings in

defamation cases is often still a matter of great complexity and controversy, and to some extent the old pleading rules remain relevant. Under the old pleading rules, the defendant had the option of pleading: (a) a ‘general traverse’ amounting to a denial of all the facts and placing them all in issue; (b) a ‘special traverse’ amounting to a denial of a material fact specifically put in issue; [page 43] (c)

a ‘demurrer’ which amounted to an admission of the facts but a denial that they amounted to a case in law, producing an issue for determination of the law without the facts being in dispute; or (d) a ‘confession and avoidance’ amounting to an admission of the facts but introducing new facts to justify or excuse the conduct complained of and make out one of the available defences. If therefore the defendant sought to deny the material facts proving the plaintiff’s cause of action for defamation, he pleaded a general or special traverse of the facts but, if the facts were proved, it would lead to liability. If there was an issue of law to be determined, the defendant pleaded a demurrer and through that process issues of law were determined by the judges. If the defence pleaded matters which raised issues of law, the plaintiff would then plead a ‘rejoinder’ for that issue to be determined. Significantly, the defences to the defamation action recognised at common law were pleaded by way of confession and avoidance, admitting the factual elements of the plaintiff’s case but seeking to justify or excuse the publication on the basis of the available defences. The plea of justification or truth in a defence was required to confess the publication as pleaded, otherwise it was liable to be struck out. This was in accordance with the ‘great rule of pleading’ which required the defendant either to confess the matter alleged and avoid it, or to traverse it. If the defendant pleaded a general traverse and also a special plea in justification in which the defendant was required to confess the speaking of the words, the special plea

could be used upon the trial of the general issue as evidence to prove the speaking of the words.182 It was also necessary, if the plea of justification was to be established, that the matter alleged to be true had to correspond in every respect with the imputation complained of in the plaintiff’s declaration. For example, a plaintiff complained that the defendant had said that the plaintiff was bankrupt on the first day of April in the seventeenth year of James I. The defendant pleaded that the plaintiff was a bankrupt on the first day of April in the fifteenth year of the same reign and that therefore he published the words and that the matter was true. The court struck out the defence because the defendant did not also plead that the plaintiff continued to be a bankrupt to the time of publishing the words, namely in the seventeenth year of the reign of James I, even if he had been a bankrupt in the fifteenth year.183

THE PUBLIC INTEREST 2.19 The applicable common law principles as at 1830 were recorded by Thomas Starkie in a two-volume Treatise on the Law of Slander and Libel.184 These principles [page 44] reflected the development of the common law to that time and form the basis of the modern law of defamation as it is known today. His ‘Preliminary Discourse’ on publications made in the public interest is relevant to the then developing concept of freedom of the press. Starkie recorded that it was accepted law that there should be restraint for ‘securing the interests of the public’. The reason for the restraint was that the security of the state may be endangered, not only by direct and immediate attempts to subvert it, but by bringing its establishments, civil and religious, or its ministers and officers, into disgrace and contempt. He noted that the press was a ‘mighty instrument for the diffusion of knowledge capable of being applied to the best or perverted to the worst of

purposes’. In general it was thought that public security would be safeguarded either by imposing previous restraints or allowing a general right to publish, but punishing those who abused the privilege. Previous restraints could be either absolute or qualified. Absolute restraint, where it would be assumed that every criticism of the state was illegal, he considered was too extreme. A qualified restraint such as subjecting the press to the control of a public licenser was regarded as an unnecessary sacrifice of the liberty of the press. As a result the law made freedom the general rule and penal restraint the exception. Liberty of the press was founded therefore simply upon the absence of a prohibiting law.185 Starkie observed that when the art of printing was discovered it was feared that it would prove an instrument of mighty force in its operation on public opinion in all matters of great and common interest. Initially, the great mass of people most likely to be influenced by newspapers were unable to read so that its effect was necessarily restrained. However, by extending the means of knowledge to the lowest classes and opening the sources of knowledge through education as well as the great increase of wealth and population in the country, newspapers, the principal vehicles for the communication of public measures and events, and of the various opinions and comments to which they gave rise, multiplied.186 Despite the fear that an unrestrained press might have threatened the security of the state, ‘peace, tranquillity, and religion’ still survived so that no evil consequences had resulted compared to the ‘splendid advantages of an open and free press’.187 Starkie thought that public confidence should rest on public opinion and that public opinion could not be manifested or even exist unless the measures of government were known and were subject to free discussion and comment. Every subject in England not only had a right to present petitions to the King or the Houses of Parliament, but had a right to lay complaints and observations before the public by means of an open press: [page 45] The advantage of free and unrestricted communication, on all political subjects is great and reciprocal; if the people have thus an opportunity of forming and expressing their opinion on

public measures, those who administer affairs have also the means afforded them of becoming acquainted with the disposition, sentiments, and wishes of the people, … of affording explanation and redress where complaints are well founded; in short, of securing that esteem, respect and confidence on the part of the people, which are essential to a vigorous and useful administration.188

It had come to be recognised that force and violence in the suppression of public opinion had given way to reason. The strong and speedy expression of public opinion often produced greater results than could formerly have been obtained by appeal to arms. If the public press should become ‘venal, corrupt, and licentious’, the very condition of society would be tainted and unsound. But if such be the disposition or apathy of the public in regard to the morals of the press to encourage or tolerate such conduct, the public in fact are the ‘arbiters, directors, and movers’ of the press and are, by means of the trial by jury, the salutary and constitutional means of control. If a man patronises a series of licentious publications by purchasing them or even contributing towards the purchase, what right can he have to complain of the impurity of the public press or the immorality of the age?189 Starkie concluded that the liberty of the press, consisting of the liberty which every subject possesses of publishing what he will, without previous restraint, subject however to penal censures if he should publish what is malicious and illegal, constitutes the ‘great excellence of the British Constitution’.190 Accordingly, the limits to the abuse from liberty of the press depended upon penal restraint — ‘where so wide a range of freedom is permitted, it is for the person to take care at his peril that he not use his freedom for the injury of others’.191

THE VICTORIAN AGE 2.20 During the Victorian period, the law of defamation continued to be shaped by judges, but also became defined by statute. There was serious concern that judges were bound by precedent and could not overcome common law rules that were out of date or simply unjust. In 1834, a Select Committee of the House of Commons reviewed the common law of defamation and made recommendations to the House, but the review did not lead to any change in the law at the time.

[page 46] During the 1820s, English society was treated to the revelations of a prostitute, Harriette Wilson. Her Memoirs identified a long list of members of the English aristocracy who had ‘called upon her’. She sent these Dukes and Lords the particular chapter which concerned them and sought money in return for not publishing the contents. One such recipient, the Duke of Wellington, returned her letter with the words ‘Publish and be damned’. The publisher of Wilson’s book was a John Stockdale. He was sued for libel by two relatively insignificant figures, a stonemason and an Oxford Street haberdasher, and was found liable in the first case for £300 and in the second, for £700. Unable to pay, Stockdale was sent to the debtors’ prison where he remained for a short time until he agreed to pay by instalments.192 He subsequently published a book described as a ‘physiological and anatomical book written by a learned physician on the generative system, illustrated by anatomical plates’. A report by the Inspectors of Prisons, presented to parliament, described the book as obscene and ‘intended to take young men in by inducing them to pay an exorbitant price for an indecent work’. This was reported by Hansard, the official printers of parliamentary proceedings. Stockdale sued Hansard for libel.193 The court was confronted with the position that the official reporter of proceedings in parliament was not protected at common law either by absolute privilege or by a form of qualified privilege, as there was no privilege recognised which necessitated the reporting of parliamentary proceedings to the public. Stockdale was awarded £600 damages. As a consequence, parliament introduced a statutory defence of absolute privilege for reports of the Houses of Parliament under the Parliamentary Papers Act 1840.194 In 1843, a Select Committee of the House of Lords chaired by Lord Campbell reported on ‘the law of defamation and libel’. The Select Committee confined the report to the common law and refrained from reporting on the offences against the state by publications ‘prejudicial to good order, morals and religion’. The Select Committee received evidence from various witnesses experienced with the defamation laws, including judges, barristers, newspaper publishers and authors. The Select Committee was of the opinion that a number of

alterations were immediately required to the common law both for the protection of reputation and the protection from ‘vexatious proceedings of those engaged in communicating useful information to the public’. The Select Committee noted that the law gave a remedy for words reduced to writing even though they were communicated to only one individual. Yet, no remedy was given without proof of actual damage for words not reduced to writing unless they came within the defined categories of slander. It was not actionable to impute falsely and maliciously in the coarsest terms and on the most public occasion the want of [page 47] chastity to a woman of high station and unspotted character, or the want of veracity or courage to a gentleman of undoubted honesty and honour. However, it was actionable to say orally that a cobbler was not skilful in mending shoes. The Select Committee considered these distinctions were arbitrary and did not rest upon solid foundation. As a result, Lord Campbell’s Libel Act 1843195 was passed, which modified the common law of defamation in England. Yet not all of the Select Committee’s recommendations were accepted (for example, the abolition of the distinction between libel and slander identified above). There were other legislative changes. Those relating to newspapers are referred to below.196 The jurisdiction of the Ecclesiastical Courts over defamation was finally terminated under the Ecclesiastical Courts Act 1855.197 Legislation was introduced in 1891 with the Slander of Women Act198 which provided a cause of action for slanderous words imputing unchastity or adultery to a woman or a girl. It was no longer necessary in such cases to prove actual damage. Following Lord Campbell’s Libel Act 1843, truth was a defence to a criminal libel provided it was also for the public benefit. In 1895, the Marquess of Queensberry attended a London Gentlemen’s Club, of which Oscar Wilde was a member and which Wilde frequented with the Marquess’ son. Queensberry delivered a card to the porter of the club which stated: ‘To Oscar Wilde Posing

Somdomite (sic)’. Queensberry was charged with criminal libel. He pleaded justification and public benefit. The trial took place in the Old Bailey, then a small court. The courtroom was full more than an hour before the hearing commenced and the joke was made about ‘the importance of being early’.199 Wilde was cross-examined by Sir Edward Carson QC, for Queensberry, and was asked about his association with various young men. Wilde entertained the court with his amusing answers up to the point when Carson questioned him about a young man, Walter Grainger: [Wilde:]

… Grainger was a servant at a certain house in High Street, Oxford … [I] had stayed there several times, and Grainger had waited at table … I never dined with him. If it is one’s duty to serve, it is one’s duty to serve; and if it is one’s pleasure to dine, it is one’s pleasure to dine.

[Carson:] Did you ever kiss him? [Wilde:]

Oh dear no! He was a peculiarly plain boy. He was, unfortunately, extremely ugly. I pitied him for it.

[Carson:] Was that the reason why you did not kiss him? [Wilde:]

Oh! Mr Carson: you are pertinently insolent.200 [page 48]

This was seen as the turning point of the trial. The jury returned a verdict of not guilty, finding that the plea of justification had been proved. Wilde was subsequently prosecuted and imprisoned for committing acts of gross indecency with various young men. He learned, as many have done before and since, the double jeopardy of a defamation trial. In gaol, he lamented ‘If this is the way Queen Victoria treats her convicts, she doesn’t deserve to have any.’

THE WORLD AT LARGE

2.21 The Victorian era also featured the extraordinary growth of public interest in newspapers and periodicals and, through improvements in transport, the rapid dissemination of news. The press enjoyed a freedom of sorts, unrestricted by licence, but still at risk of criminal libel. The common law had to be adapted to the multiple publications of a defamation by the one edition of a newspaper. It was held that there was a separate publication for the sale of each newspaper.201 It was reasonably settled that the place of publication was not only where the newspaper had been printed but also where it had been circulated and sold. Accordingly, the venue of the action for libel was not limited to either where it was sold or where it was printed.202 It was also firmly established that every publication of a libel was a distinct and separate act, and a distinct and separate cause of action. In contrast, the speaking of a slander was one act and one cause of action, whether one person or 100 persons heard the words. It had been accepted that the repetition of a slander could be defended provided the defendant at the time of the repetition declared the name of the person from whom he or she heard it.203 The defence could be rebutted by proof that the defendant knew at the time of publication that the slander was without foundation. The defence originated from the statute of Scandalum Magnatum.204 However, this defence was expressly overruled in M’Pherson v Daniels.205 Accordingly, every repetition of a slander would give rise to a separate cause of action for slander while the repetition of a slander in writing would give rise to a cause of action for a libel. Accordingly, the proprietor of a newspaper would be liable for what was published in the newspaper and it was no excuse for the proprietor to plead that it was mere repetition of a statement from a named source or plead ignorance that the material was libellous. [page 49] During this period, it was settled that a faithful report in a newspaper of a debate in the Houses of Parliament was not actionable for defamation, as the advantage of publicity to the community at large outweighed any private injury resulting from the publication. The occasion was privileged in the absence of

malice.206 It had, of course, been recognised for some time that a fair account of what took place in a court of justice was privileged.207 It was also well established by the Victorian period that newspapers could comment on the conduct and intentions of public men and on government ministers and members of Houses of Parliament, on judges and other public servants.208 To do so at the beginning of the nineteenth century would have been a criminal libel. In Merivale v Carson,209 The Stage published the review of a play: The Whip Hand, the joint production of Mr and Mrs Herman Merivale, gives us nothing but a hash-up of ingredients which have been used ad nauseam, until one rises in protestation against the loving, confiding, fatuous husband with the naughty wife and her double existence, the good male genius, the limp aristocrat, and the villainous foreigner.210

The Merivales complained that the article imputed that they had written a play founded upon adultery, that is, an immoral play. The court held that criticism upon a written published work was not technically a ‘privileged occasion’, being an ‘occasion on which the privileged person [is] entitled to do something which no one who [is] not within the privilege [is] entitled to do on that occasion’.211 Instead, in the case of criticism upon a published work, the defence is not limited to privileged persons but to every person within the country: Nothing is more important than that fair and full latitude of discussion should be allowed to writers upon any public matter, whether it be the conduct of public men, or the proceedings in Courts of Justice, or in Parliament, or the publication of a scheme or a literary work.212

The question to be asked was whether any fair person, however prejudiced they may be, however exaggerated or obstinate their views, would have said that which the defendant said of the work which was criticised.213 The jury awarded the Merivales one shilling damages. On appeal, the court refused to interfere with the verdict, finding that the defence could not be established because the imputation of an [page 50] immoral or obscene play was a complete misdescription of the plaintiffs’ work, and no fair person could have said that.

In reporting news, such as speeches at public meetings, the press had no defence at common law if the speech was defamatory. The fact that the report was fair and accurate did not provide a defence of qualified privilege but would only be relevant to mitigation of damages. The view taken was that the republication of the defamatory words in the newspaper to the world at large was substantially more damaging than the speech to the limited number of persons at the public meeting.214 The publication in the newspaper was indiscriminate and beyond the bounds of any privilege. Even where the plaintiff was standing for election, there was no privilege for the newspaper to publish to ‘all the world’ matter injurious of the candidate’s reputation.215 Parliament intervened to provide a statutory defence for newspapers if they could establish that the matter was published without actual malice and without gross negligence and that before the commencement of the action a full apology had been inserted or at least offered: Lord Campbell’s Libel Act 1843.216 This Act was amended by the Libel Act 1845217 which required a payment of money into court by way of amends if a newspaper entered a plea of without malice and negligence. The courts developed a defence in relation to those persons involved in the sale or distribution of newspapers or books, such as a news vendor, where they did not know or had no reason to know that what was contained in the newspaper or book was libellous. In such cases, the defendant would be deemed not to have published the libel which he had innocently disseminated.218 Newspapers, however, continued to be at risk in reporting matters of public interest from public meetings. In Purcell v Sowler219 the defendant newspaper (the Manchester Courier) established that it had published an accurate report of a matter of public interest which had been discussed at a public meeting, but the court held that it was unfair to publish it because the plaintiff was absent from the meeting and had had no notice of the allegations made against him. Following this case, a Select Committee of the House of Commons was established in 1879 to inquire into the law of newspaper libel and recommended that legislation be introduced to provide a statutory defence of qualified privilege for any report published in a newspaper of proceedings of a public meeting. Accordingly, the Newspaper Libel & Registration Act 1881220 was introduced and required a newspaper defendant to prove that the meeting was a public

meeting, lawfully convened for a lawful purpose, and open to the public; that the report was fair and accurate and published without malice, and that the publication of the matter [page 51] complained of was for the public benefit. The defence was subject to whether the plaintiff could show that the newspaper defendant had refused, when asked, to insert a reasonable letter of explanation or contradiction. Within a few years, the Manchester Courier was again sued for libel, this time for publishing a report of an allegation made against a candidate for election not in Manchester, but in a constituency 200 miles away. The court held that the defendant could claim no privilege unless it proved that the matter published was for the public benefit.221 It was a self-defeating proposition because, if anything defamatory was contained in the report to be published, the editor had to make a decision before going to press whether any attack was fair or unfair and there was usually not enough time or information for the editor to make that decision. Accordingly, the matter went back to parliament and the Law of Libel Amendment Act 1888222 was passed which provided a simplified statutory defence of fair and accurate report of proceedings of a public meeting or of meetings relating to matters of public interest. This defence could be defeated by proof of actual malice or the defendant’s failure to insert the plaintiff’s statement by way of contradiction or explanation. The Act also provided a statutory defence of absolute privilege for fair and accurate reports of proceedings in any court. These events confirmed that without statutory intervention newspapers could not publish defamatory material to the world at large. There was no privilege to do so at common law. The wide dissemination of newspapers carried another risk. The common law did not recognise that the defendant had to be negligent or at fault in order to be liable for publishing defamatory material. If the defendant’s words had injured the plaintiff’s reputation, it was no defence that the defendant intended them to refer to someone else. The newspaper (or any other publisher) could be

liable for defamation even though the newspaper did not intend to injure the plaintiff’s reputation and had acted with reasonable care.223 This could occur where the newspaper had no reasonable anticipation that the matter was defamatory (for example, where it was defamatory of the plaintiff to a select group of people amongst the public) or the newspaper had no reasonable anticipation that the matter identified a particular person. At common law, it does not matter if the plaintiff is one of a number of persons of the same name, or is a real person when the defendant intended to portray a fictitious person, as the defendant will be liable if the plaintiff can prove that the defamatory words were understood as referring to him by persons who knew him or if the words are such that when understood would apply to the plaintiff.224 In such cases, it is not necessary that all the world should understand the libel, as it is sufficient if those who know the plaintiff can make out [page 52] that the plaintiff is the person meant or targeted.225 In this sense, defamation is a tort of strict liability and concerns the effect upon the recipient of the publication, not the intention or lack of intention of the defendant.

THE HOUSE OF WINDSOR 2.22 The common law in England continued to be developed by judges throughout the twentieth century, dealing with new issues, assisted by legislation where necessary. The law of defamation was substantially reviewed by Lord Porter’s Committee, which was established in 1939, but due to the Second World War did not report until 1948. Its recommendations were incorporated in the Defamation Act 1952 (UK) and sought to modify a number of principles at common law. This was followed by a comprehensive review in 1975 by the Faulks Committee report, but brought no change to the law. The law of defamation in England is now governed by the Defamation Act 2013 (UK) by which a number of further modifications to the common law have

been made. The Defamation Act 1996 (UK), which made earlier modifications, remains in place. The Human Rights Act 1998 (UK) has incorporated the European Convention on Human Rights and Fundamental Freedoms into English law with the guarantees of privacy pursuant to Article 8 and freedom of expression and the protection of reputation pursuant to Article 10. This has had a significant impact on the development of the common law in England. The twentieth century was an extraordinary time of change as advances in communication — the telephone, the camera, the phonograph, the wireless, the telex, the motion picture, the television, the facsimile, the mobile phone, the computer, the World Wide Web — all moved from invention to everyday use. The common law absorbed these new forms of communication and applied its longstanding principles of publication to them. The increasing availability and use of digital cameras and electronic equipment for recording and filming has given the public access to the lives of the rich and famous. The capacity of the defamation laws to adapt to these technological developments has often been questioned, with repeated calls for the introduction of a tort of invasion of privacy. The phenomenon of the worldwide popularity of Diana, Princess of Wales, and the intrusion into her privacy by the media through the use of cameras and listening devices raised the issue particularly. Her death in a tragic car accident in 1997 was initially reported to be caused by a white Fiat Uno, driven by a member of the paparazzi in pursuit. Earl Spencer in his eulogy to Diana referred to the treatment by the media that she had received: It is a point to remember that, of all the ironies about Diana, perhaps the greatest was this: a girl given the name of the ancient goddess of hunting was, in the end, the most hunted person of the modern age.

[page 53] Almost as great an irony was the discovery after Diana’s death that she was the main source for the Andrew Morton book Diana: Her True Story.226 The book exposed in great detail the state of her unhappy marriage and caused intense media scrutiny of the royal couple’s relationship. Unaware of Diana’s involvement, the Chairman of the English Press Complaints Commission issued

a statement saying that a newspaper’s serialisation of the book was ‘an odious exhibition of journalists dabbling their fingers in the stuff of other people’s souls …’. The cat and mouse game ended abruptly with Diana’s death, and in the outpouring of public grief, the media’s remorse was evident in the Independent editorial: If we are not all sadder and wiser, we damned well ought to be. The hunt became a blood sport. The quarry dead, let us find gentler pursuits.

THE SOCIAL NETWORK 2.23 By the turn of the millennium, the internet had become a common means of communication, with a vast resource of information stored and exchanged within its network. … The internet is essentially a decentralised, self-maintained telecommunications network. It is made up of inter-linking small networks from all parts of the world. It is ubiquitous, borderless, global and ambient in its nature. Hence the term ‘cyberspace’. This is a word that recognises that the interrelationships created by the internet exist outside the conventional geographic boundaries and comprise a single interconnected body of data, potentially amounting to a single body of knowledge. The internet is accessible in virtually all places on Earth where access can be obtained either by wire connection or by wireless (including satellite) links. Effectively, the only constraint on access to the internet is possession of the means of securing connection to a telecommunications system and possession of the basic hardware.227

It was argued that the internet involved a quantum leap of technological capacity which demanded a ‘root and branch revision’ of the common law rules of defamation. English courts and Australian courts declined to undertake such a revision, accepting that the internet was merely the latest of many technologies that had enhanced the spread of information.228 Its capacity to influence and change people’s lives is seen most clearly through social media, such as Facebook (established in 2004) and Twitter (2006), with many adopting virtual alternative lives under false names or anonymously. In social media, people have embraced the liberty found in truly free speech. Some have enthusiastically taken to spreading malicious rumours with ease and saying the unsayable without restraint. The new media has allowed people to disseminate information instantaneously and at minimum cost, providing a threat to the ethical

[page 54] and economic model of traditional media, which is subject to more defined legal restrictions, in competition for news. Tweets can deliver the news instantly while newspapers and broadcasters are still checking their facts. Social media is therefore often the source of breaking news. The thrill of the moment overtakes the need for truth. The availability of social media at any time of day has meant that some people post or tweet material without any attempt to check facts. Typically, on social media they show no restraint. If a defamatory allegation is published, there are many who will join in naming and shaming the victim without caring whether the information is true or false. A lynch mob mentality grows, evidencing ‘hatred, contempt and ridicule’, and can intensify the harm with devastating consequences. It is here, in the public interest, that freedom of speech must operate within the rule of law. The potential for significant damage caused by social media has been recognised by the courts. In one of the first cases, Cairns v Modi,229 the court awarded the claimant the sum of £90,000 for a publication on Twitter suggesting that he had fixed cricket matches, as an international cricketer who had represented New Zealand on many occasions. The tweet was received by only 65 followers within England and Wales. While that was accepted as the number of people who were the immediate recipients of the tweet, the court said that allegations of such a scandalous nature were likely to ‘percolate’ by way of the internet and have the capacity to ‘go viral’ more widely and more quickly than ever before. In the Court of Appeal, it was held that with the ready availability of the World Wide Web and of social networking sites, the scale of the problem had been immeasurably enhanced, especially for libel claimants who were already, for whatever reason, in the public eye. The ‘percolation phenomenon’ was therefore a legitimate factor to be taken into account in the assessment of damages.230 Those who repeat the accusations of others on their Twitter feed are also exposed to liability. In Lord McAlpine v Bercow,231 the defendant tweeted ‘Why is Lord McAlpine trending? *innocent face*’. The defendant was held liable based on the repetition rule that where a defendant repeats a defamatory

allegation made by another, the defendant is treated as if he or she made the allegation, even if the defendant attempted to distance himself or herself from the allegation. The viral tendency of social media has led to another phenomenon, the dissemination of ‘fake news’, intentionally or knowingly false statements of fact, a deception or fraud. Arguably, the term also includes reckless dissemination by persons who have no knowledge or no care for whether the material they disseminate is true or false. People have become suspicious and distrustful of the news, as the world confronts this new reality. Politicians can use the term to cast doubt on negative news stories about themselves. Memorably, newly elected United States President Donald Trump [page 55] challenged the media focus on the connection of his election campaign with Russian officials by tweeting: The FAKE NEWS media (failing @nytimes, @NBCNews, @ABC, @CBS, @CNN) is not my enemy, it is the enemy of the American People!

The old offence of Scandalum Magnatum for ‘false news’ about ‘Great Men of the Realm’ may yet be revived.

SOURCES 2.24 Sources for the history of defamation law in England: Bacon M, A New Abridgment of the Law, Vol III, Nutt and Gosling, London, 1740. Baker J H and Milsom S F C, Sources of English Legal History, Butterworths, London, 1986. Baker J H (ed), The Reports of Sir John Spelman, Vol II, Selden Society, London, 1978. Baker J H, An Introduction to English Legal History, 4th ed, Butterworths,

LexisNexis, London, 2002. Baker J H, The Oxford History of the Laws of England (1483–1558), Vol VI, Oxford University Press, Oxford, 2003. Baldick R, The Duel — A History of Duelling, Spring Books, London, 1965. Blackstone W, Commentaries on the Laws of England, 5th ed, Clarendon Press, Oxford, 1769. Brown R E, The Law of Defamation in Canada, 2nd ed, Carswell Thomson Professional Publishing, Ontario, 1994. Buller’s Nisi Prius, Injuries Affecting the Person, Book 1, 1812. Carr F, ‘The English Law of Defamation’ (1902) 18 Law Quarterly Review 255. Carter-Ruck P F and Starte H N A, Libel & Slander, 5th ed, Butterworths, London, 1997. Coke E, Institutes of the Laws of England, W Rawlins, London, 1680. Comyns J, A Digest of the Laws of England, 5th ed, A Strahan, London, 1822. Cooke G W, A Treatise on the Law of Defamation, Owen Richards, London, 1844. Denning Lord, Landmarks in the Law, Butterworths, London, 1984. Donnelly R C, ‘History of Defamation’ (1949) January Wisconsin Law Review 99–126. Fifoot C H S, History and Sources of the Common Law — Tort and Contract, Stevens & Sons, London, 1949. Folkard H C, Folkard’s Starkie on Libel and Slander, 4th ed, Banks & Brothers, New York, 1877. Hargrave F, Collectanea juridica, E and R Brooke, London, 1791–1792. Hawkins W, A Treatise of the Pleas of the Crown, Book 1, 2nd ed, Nutt and Gosling, London, 1724. Helmholz R H (ed), Select Cases on Defamation to 1600, Selden Society, London, 1985. [page 56]

Helmholz R H, The Oxford History of the Laws of England (The Canon Law and the Ecclesiastical Jurisdiction from 597 to the 1640s), Vol 1, Oxford University Press, Oxford, 2004. Holdsworth W S, A History of English Law, Methuen, London, 1903. Holdsworth W S, ‘Defamation in the 16th and 17th Centuries’ (1925) 41 Law Quarterly Review 13–31. Hough W, Precedents in Military Law, W M H Allen & Co, London, 1855. Kaye J M, ‘Libel and Slander — Two Torts or One?’ (1975) 91 Law Quarterly Review 542. Kiralfy A K, The Action on the Case, Sweet & Maxwell, London, 1951. Kiralfy A K, Potter’s Historical Introduction to English Law, 4th ed, Sweet & Maxwell, London, 1968. Lassiter J C, ‘Defamation of Peers: The Rise and Decline of the Action for Scandalum Magnatum, 1497–1773’ (1978) 22 American Journal of Legal History 216. Lee S, Dictionary of National Biography, Vol LV, Smith, Elder & Co, London, 1898. Lovell C R, ‘The “Reception” of Defamation by the Common Law’ (1962) 15(4) Vanderbilt Law Review 1051–71. March J, Actions for Slaunder [sic], M Walbank and R Best, London, 1647. McNamara L, Reputation and Defamation, Oxford University Press, Oxford, 2007. Milsom S F C, Historical Foundations of the Common Law, 2nd ed, Butterworths, London, 1981. Mitchell P, The Making of the Modern Law of Defamation, Hart Publishing, Oregon, 2005. Odgers B W and Ritson R, A Digest of the Law of Libel and Slander, 6th ed, Stevens & Sons, London, 1929. Plucknett T F T, A Concise History of the Common Law, 5th ed, Butterworths, London, 1956, pp 483–502. Rolph D, ‘The Sources of Defamation Law’, Historical Foundations of Australian Law, Vol II, ch 5, Federation Press, Sydney, 2013. Sheppard W, Actions Upon the Case for Slander, 2nd ed, J Starkey et al, London,

1674. Smith J A, Painters and Press Freedom: The Ideology of Early American Journalism, Oxford University Press, New York, 1988. Spencer Bower G, The Law of Actionable Defamation, 2nd ed, Legal Books, Redfern, NSW, 1990 (originally published by Butterworths, London, 1923). Starkey D, Crown and Country, A History of England through Monarchy, Harper Press, London, 2010. Starkie T, A Treatise on the Law of Slander and Libel, Vol 1, 2nd ed, J and W T Clarke, London, 1830. Starkie T, Law of Slander, Libel, Scandalum Magnatum and False Rumours, Collins and Hannay, New York, 1832. [page 57] Stephen S, A Treatise on the Principles of Pleading in Civil Actions, Abraham Small, Philadelphia, 1824. Veeder V V, ‘The History and Theory of the Law of Defamation’ (1903) 3 Columbia Law Review 546–73. Veeder V V, ‘The History of the Law of Defamation’, 3 Select Essays in (1909) Anglo-American Legal History 446. Viner C, A General Abridgement of Law and Equity, Robinson et al, London, 1742. ____________________ 1. 2. 3. 4. 5. 6. 7.

Article 3. Exodus 21:22–27. Deuteronomy 19:16–21. Deuteronomy 5:20; Exodus 20:16. T Starkie, A Treatise on the Law of Slander and Libel, Vol 1, 2nd ed, J & W T Clarke, London, 1830, pp vii and xxxv. G Spencer Bower, The Law of Actionable Defamation, 2nd ed, Legal Books, Redfern, NSW, 1990, p 444 (originally published by Butterworths, London, 1923). V V Veeder, ‘The History of the Law of Defamation’, 3 Select Essays in (1909) Anglo-American Legal History 446 at 465.

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G Spencer Bower, The Law of Actionable Defamation, 2nd ed, Legal Books, Redfern, NSW, 1990, pp 440–5 (originally published by Butterworths, London, 1923). T Starkie, A Treatise on the Law of Slander and Libel, Vol 1, 2nd ed, J & W T Clarke, London, 1830, p xxiv. G Spencer Bower, The Law of Actionable Defamation, 2nd ed, Legal Books, Redfern, NSW, 1990, p 442 (originally published by Butterworths, London, 1923). M De Villiers, ‘The Roman Law of Defamation’ (1918) 34 Law Quarterly Review 412 at 414–15. (1605) 5 Coke Rep 125a; 77 ER 250 at 251. R v Beare (1698) 12 Mod Rep 219. See also the comparison of the principles of Roman and English law of defamation in G Spencer Bower, The Law of Actionable Defamation, 2nd ed, Legal Books, Redfern, NSW, 1990, pp 439–45 (originally published by Butterworths, London, 1923). V V Veeder, ‘The History and Theory of the Law of Defamation’ (1903) 3 Columbia Law Review 546 at 548–9. The Visigothic Code, Book II Title IV Article III. The Visigothic Code, Book VI Title V Article V. F W Maitland, ‘Slander in the Middle Ages’ (1890) 2 Green Bag 4 at 5. 6:16–19: ‘These six things the Lord hates, and the seventh His soul detests: a proud look, a lying tongue, hands that shed innocent blood, a heart that devises wicked plots, feet that are swift to run into mischief, a false witness that utters lies, and he that soweth discord among his brethren.’ F L Attenborough, The Laws of the Earliest English Kings, Cambridge University Press, Cambridge, 1922, p 15 (Ethelbert – 73). W J V Windeyer, Lectures on Legal History, 2nd ed, Law Book Company, Sydney, 1957, p 6. W J V Windeyer, Lectures on Legal History, 2nd ed, Law Book Company, Sydney, 1957, pp 2–3. F L Attenborough, The Laws of the Earliest English Kings, Cambridge University Press, Cambridge, 1922, p 77 (Alfred – 32). The ‘Quadripartitus’ collected the Anglo-Saxon laws pre the Norman Conquest and were produced in Latin translation during the reign of Henry I (1100–1135). See V V Veeder, ‘The History of the Law of Defamation’, 3 Select Essays in (1909) Anglo-American Legal History 446 at 449. Cnut’s Code [5]. Cnut’s Code [6]. See Matthew 7:12; Luke 6:31; compare Leviticus 19:18, 19:34. See Matthew 5:38–9, 5:43–4. Cnut’s Code [9]–[10]. Cnut’s Code [11.1]. Exodus 20:1–17 at 16; Deuteronomy 5:6–21 at 20. See Horrocks v Lowe [1975] AC 135 at 149; Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 151. V V Veeder, ‘The History and Theory of the Law of Defamation’ (1903) 3 Columbia Law Review 546 at 551. V V Veeder, ‘The History of the Law of Defamation’, 3 Select Essays in (1909) Anglo-American Legal History 446 at 451; C R Lovell, ‘The “Reception” of Defamation by the Common Law’ (1962) 15(4) Vanderbilt Law Review 1051 at 1055. See, generally, R H Helmholz, The Oxford History of the Laws of England (The Canon Law and Ecclesiastical Jurisdiction from 597 to the 1640s), Vol 1, Oxford University

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Press, Oxford, 2004, pp 587–90. ‘The Personal Answer of Charles Shawe to the Libel of Bartram Mytford’ set out in A Cleveland, ‘Defamation in the Local and Ecclesiastical Courts’ (1914–1915) 40 Law Mag & Rev Quart Rev Juris 271 at 277–9. R C Donnelly, ‘History of Defamation’ (1949) January Wisconsin Law Review 99 at 104. R H Helmholz, The Oxford History of the Laws of England (The Canon Law and Ecclesiastical Jurisdiction from 597 to the 1640s), Vol 1, Oxford University Press, Oxford, 2004, p 572. R H Helmholz (ed), Select Cases on Defamation to 1600, Selden Society, London, 1985, p xiv. R H Helmholz, The Oxford History of the Laws of England (The Canon Law and Ecclesiastical Jurisdiction from 597 to the 1640s), Vol 1, Oxford University Press, Oxford, 2004, p 575. R H Helmholz, The Oxford History of the Laws of England (The Canon Law and Ecclesiastical Jurisdiction from 597 to the 1640s), Vol 1, Oxford University Press, Oxford, 2004, p 575; A Cleveland, ‘Defamation in the Local and Ecclesiastical Courts’ (1914–1915) 40 Law Mag & Rev Quart Rev Juris 271 at 281; D Rolph, ‘The Sources of Defamation Law’, Historical Foundations of Australian Law, Vol II, Federation Press, Sydney, 2013, p 108. R H Helmholz, The Oxford History of the Laws of England (The Canon Law and Ecclesiastical Jurisdiction from 597 to the 1640s), Vol 1, Oxford University Press, Oxford, 2004, p 573. D Rolph, ‘The Sources of Defamation Law’, Historical Foundations of Australian Law, Vol II, Federation Press, Sydney, 2013, p 109. R H Helmholz, The Oxford History of the Laws of England (The Canon Law and Ecclesiastical Jurisdiction from 597 to the 1640s), Vol 1, Oxford University Press, Oxford, 2004, p 587. R H Helmholz, The Oxford History of the Laws of England (The Canon Law and Ecclesiastical Jurisdiction from 597 to the 1640s), Vol 1, Oxford University Press, Oxford, 2004, p 565. 9 Edward II c 4. Select Pleas in Fair Courts (1908) 23 Selden Society 57–85 — cases of the Fair Court of St Ives. Select Pleas in Manorial Courts (1888) 2 Selden Society 36–170. F W Maitland, ‘Slander in the Middle Ages’ (1890) 2 Green Bag 4 at 6. V V Veeder, ‘The History of the Law of Defamation’, 3 Select Essays in (1909) Anglo-American Legal History 446 at 457. J H Baker, An Introduction to English Legal History, 4th ed, Butterworths, London, 2002, p 438; J H Baker, The Oxford History of the Laws of England (1438–1558), Vol VI, Oxford University Press, Oxford, 2003, p 783; see also F W Maitland, ‘Slander in the Middle Ages’ (1890) 2 Green Bag 4 at 7. Palmer v Thorpe (1583) 4 Co Rep 20a; 76 ER 909. G Spencer Bower, The Law of Actionable Defamation, 2nd ed, Legal Books, Redfern, NSW, 1990, pp 282–5 (originally published by Butterworths, London, 1923). 11 Henry VII c 1. V V Veeder, ‘The History of the Law of Defamation’, 3 Select Essays in (1909) Anglo-American Legal History 446 at 453. Old Natura Brevium, cited in J H Baker and S F C Milsom, Sources of English Legal History, Butterworths, London, 1986, p 625. J H Baker (ed), The Reports of Sir John Spelman, Vol II, Selden Society, London, 1978, p 243. See also J H Baker, The Oxford History of the Laws of England (1438–1558), Vol VI, Oxford University Press, Oxford, 2003, p 784. J H Baker (ed), The Reports of Sir John Spelman, Vol II, Selden Society, London, 1978, p 246.

57. J H Baker (ed), The Reports of Sir John Spelman, Vol II, Selden Society, London, 1978, pp 245–6. See also J H Baker, The Oxford History of the Laws of England (1438–1558), Vol VI, Oxford University Press, Oxford, 2003, p 796. Compare the ‘Polly Peck’ defence in Polly Peck (Holdings) plc v Trelford [1986] QB 1000. 58. R H Helmholz (ed), Select Cases on Defamation to 1600, Selden Society, London, 1985, p lxxxviii. 59. J H Baker, The Oxford History of the Laws of England (1438–1558), Vol VI, Oxford University Press, Oxford, 2003, pp 783–6. 60. R H Helmholz (ed), Select Cases on Defamation to 1600, Selden Society, London, 1985, p xcvi; J H Baker, The Oxford History of the Laws of England (1438–1558), Vol VI, Oxford University Press, Oxford, 2003, p 788. 61. R H Helmholz (ed), Select Cases on Defamation to 1600, Selden Society, London, 1985, p xcviii; J H Baker, The Oxford History of the Laws of England (1438–1558), Vol VI, Oxford University Press, Oxford, 2003, pp 786–7. 62. 3 Edward I, Statute of Westminster I c 34 (1275); 2 Richard II c 5 (1378); 12 Richard II c 11 (1388); 1 & 2 P&M c 3 (1554); 1 Elizabeth c 6 (1559); repealed under the Statute Law Revision Act, 50 & 51 Victoria c 59 (1887). 63. V V Veeder, ‘The History of the Law of Defamation’, 3 Select Essays in (1909) Anglo-American Legal History 446 at 454. 64. John Stow cited by S Lee, Dictionary of National Biography, Vol LV, Smith, Elder & Co, London, 1898, pp 118–19. 65. W Shakespeare, Romeo and Juliet, Act III, Scene I: Tybalt; W Shakespeare, Julius Caesar, Act I, Scene II: Cassius, and Act III, Scene II: Mark Antony; W Shakespeare, Othello, Act II, Scene III: Iago. 66. W Shakespeare, Othello, Act III, Scene III: Iago; W Shakespeare, King Lear, Act I, Scene I: Cordelia. 67. W Shakespeare, Othello, Act III, Scene III: Iago. 68. W Shakespeare, Othello, Act III, Scene III. 69. W Shakespeare, Richard II, Act I, Scene I: Mowbray. 70. J March, Actions for Slaunder, M Walbank and R Best, London, 1647, pp 96–7. 71. The statement was made in court to a judge so the action was more akin to contempt of court than slander. See Seton v Cokeside (1358) YB 30 Edw III Lib Ass pl 19; see also Vesey v FitzThomas, Rolls of Parliament, 1294–1295, i. 127, 132, cited in F W Maitland, ‘Slander in the Middle Ages’ (1890) 2 Green Bag 4. 72. J March, Actions for Slaunder, M Walbank and R Best, London, 1647, p 2. See R H Helmholz (ed), Select Cases on Defamation to 1600, Selden Society, London, 1985, for a modern review of the cases in the Ecclesiastical Courts, Local Courts and Royal Courts. 73. Crofts v Brown (1616) 3 Bulst 167; 81 ER 141. See also Anon (1565) B&M 637; Stanhope v Blith (1585) 4 Co Rep 15a; 76 ER 891. 74. 21 James I c 16. 75. J March, Actions for Slaunder, M Walbank and R Best, London, 1647, p 23. 76. G Spencer Bower, The Law of Actionable Defamation, 2nd ed, Legal Books, Redfern, NSW, 1990, p 303 (originally published by Butterworths, London, 1923). 77. (1607) Cro Jac 184; 79 ER 161. 78. Harrison v Thornborough (1714) B&M 645 at 646; 88 ER 691 at 691. 79. Hamond v Kingsmill (1647) Style 22 at 23; 82 ER 499 at 500; Harrison v Thornborough (1714) B&M 645 at 646; 88 ER 691 at 691–2.

80. 81. 82. 83. 84. 85. 86. 87. 88. 89. 90. 91. 92. 93. 94. 95.

96. 97. 98. 99. 100. 101. 102. 103. 104. 105. 106. 107. 108. 109. 110. 111. 112.

Earl of Peterborough v Mordant (1670) 1 Ven 160; 86 ER 42. Lord Townsend v Hughes (1677) 2 Mod 154; 86 ER 997. Star Chamber Act 1487, 3 Henry VII c 1. V V Veeder, ‘The History of the Law of Defamation’, 3 Select Essays in (1909) Anglo-American Legal History 446 at 463–4. (1605) 5 Coke Rep 125a; 77 ER 250. The Case De Libellis Famosis, or of Scandalous Libels (1605) 5 Coke Rep 125a; 77 ER 250 at 251. Edwards v Wooton (1607) 12 Co Rep 35; 77 ER 1316. (1633) 3 St Tr 562. R v Prynn (1633) 3 St Tr 562 at 584–5. R v Prynn (1633) 3 St Tr 562 at 585. Boston Gazette, 2 June 1755, cited in J A Smith, Printers and Press Freedom: The Ideology of Early American Journalism, Oxford University Press, New York, 1988, p 21. 16 Car I c 10. R v Twyn (1663) 15 Charles II St Tr 513. R v Twyn (1663) 15 Charles II St Tr 513 at 536. R v Twyn (1663) 15 Charles II St Tr 513 at 536. King v Lake (1672) Hardres 470; 145 ER 552 at 553; and followed in Austin v Culpepper (1683) 2 Show KB 313; 89 ER 960; Harman v Delaney (1732) 2 Str 898; 93 ER 925; Villers v Monsley (1769) 2 Wils KB 403; 95 ER 886; J’Anson v Stuart (1787) 1 TR 748; 99 ER 1357; Saville v Jardine (1795) 2 HBC 531; 126 ER 686; Bell v Stone (1798) 1 Bos & P 331; 126 ER 993. Thorley v Kerry (1812) 4 Taunt 355; 128 ER 367. W Hudson, A Treatise on the Court of Star Chamber, Vol 2, contained in F Hargrave, Collectanea juridica, E and R Brooke, London, 1791–1792. R v Penny (1697) 1 Ld Raym 153; 91 ER 999. P A Beaumarchais, The Barber of Seville, Act II, Scene VIII, 1775 (author’s translation): used by Lord Russell in addresses to the jury in the nineteenth century. J C 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. J C 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. 10 St Tr 125–148. R v Carr (1680) 7 St Tr 1111; R v Harris (1680) 7 St Tr 926. (1765) 19 St Tr 1030; 95 ER 807. Earl of Sandwich v Miller (1773) Lofft 210; 98 ER 614. R v Woodfall (1770) 5 Burr 2661 at 2661; 98 ER 398 at 398. See also Purdy v Stacey (1771) 5 Burr 2698; 98 ER 417. (1784) 4 Dougl 73; 99 ER 774. See also Capital & Counties Bank Ltd v George Henty & Sons (1882) 7 App Cas 741 at 772–5. Lord Denning, Landmarks in the Law, Butterworths, London, 1984, pp 292–3. 32 George III c 60. Adam v Ward [1917] AC 309 at 329; Broome v Agar (1928) 138 LT 698.

113. Touchstone advocated the use of the word ‘if’ to avoid ‘giving the lie’: W Shakespeare, As You Like It, Act V, Scene IV. 114. Onegin shoots Lensky in a duel — Alexander Pushkin, Eugene Onegin, trans. James E Falen, Oxford University Press, Oxford, 1998. 115. 16 James I c 12. See also 1 William c 35; 59 George III c 70. 116. W Hough, Precedents in Military Law, W M H Allen & Co, London, 1855, p 15. 117. Great Britain, Hansard, House of Commons, 14 March 1844, p 1023. See also R v Lord Byron (1765) 19 St Tr 1178. 118. ‘Old Bailey’, The Times, 23 April 1803, pp 2–3. 119. R v The Earl of Cardigan (1841) 4 St Tr 601. 120. Great Britain, Hansard, House of Commons, 14 March 1844, p 1015. 121. Queen Victoria’s Journal, 11 March 1844, The Royal Archives, Windsor Castle; R Baldick, The Duel — A History of Duelling, Spring Books, London, 1965, pp 113–14; T F Simmons, Remarks on the Constitution and Practice of Courts Martial, 4th revised ed, Parker, Furnivall and Parker, London, 1852. 122. J H Baker, An Introduction to English Legal History, 3rd ed, Butterworths, London, 1990, p 72. 123. Cox v Gray (1610) B & M 351. 124. Reynolds v Clarke (1725) B & M 354; Scott v Shepherd (1773) 2 WBL 892; 96 ER 525. See also Star v Rookesby (1710) 1 Salk 335; 91 ER 295. 125. Maunder v Ware (1535) YB Hil 26 Hen VIII fo 9; J H Baker, The Oxford History of the Laws of England (1483–1558), Vol VI, Oxford University Press, Oxford, 2003, p 794. 126. Davis v Gardener (1593) 4 Co Rep 16; 2 Salk 694. 127. Historically, before the formulation of the action for slander in the common law courts, there is evidence of such actions brought in the Local Courts between the thirteenth and fifteenth centuries as actions for trespass and ‘contra pacem’: see D Rolph, ‘The Sources of Defamation Law’, Historical Foundations of Australian Law, Vol II, Federation Press, Sydney, 2013, ch 5, p 121. 128. King v Lake (1672) Hardres 470; 145 ER 552. 129. W S Holdsworth, ‘Defamation in the 16th and 17th Centuries’ (1925) 41 Law Quarterly Review 13 at 15. 130. Not abolished in New South Wales until 1970. See Supreme Court Act 1970 (NSW). 131. Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 102 (McHugh J); Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575 at [25]. 132. J H Baker (ed), The Reports of Sir John Spelman, Vol II, Selden Society, London, 1978, p 243. See also J H Baker, The Oxford History of the Laws of England (1438–1558), Vol VI, Oxford University Press, Oxford, 2003, p 784. 133. Smale v Hammon (1610) 1 Bulst 40; 80 ER 743. 134. (1796) 6 TR 691 at 694; 101 ER 775 at 776. 135. Onslow v Horne (1771) 3 Wils KB 178; 95 ER 999. 136. (1693) Holt KB 422; 90 ER 1132. 137. W Hawkins, A Treatise of the Pleas of the Crown, 2nd ed, Nutt and Gosling, London, 1724, p 193. 138. M Bacon, A New Abridgment of the Law, Vol III, Nutt and Gosling, London, 1740, p 490. 139. (1769) 2 Wils KB 403; 95 ER 886. 140. W Sheppard, Actions Upon the Case for Slander, 2nd ed, J Starkey et al, London, 1674, p 15. See also Legat v Bull (1533) Spelman Rep 7; Anon (1536) 27 Hen 8 f 14 p l4.

141. 142. 143. 144. 145. 146. 147. 148. 149. 150. 151.

152. 153. 154. 155. 156. 157. 158. 159. 160. 161. 162. 163. 164. 165. 166. 167. 168. 169. 170.

W Sheppard, Actions Upon the Case for Slander, 2nd ed, J Starkey et al, London, 1674, p 15. J March, Actions for Slaunder, M Walbank and R Best, London, 1647, p 122. Smith v Richardson (1737) Willes 20 at 24; 125 ER 1034. Anon (1652) Sty 392; 82 ER 804. Smith v Richardson (1737) Willes 20; 125 ER 1034; Underwood v Parks (1743) 2 Stra 1200; 93 ER 1127. J’Anson v Stuart (1787) 1 TR 748 at 753; 99 ER 1357 at 1359; Anon (1706) 11 Mod Rep 99; 88 ER 921. W Blackstone, Commentaries on the Laws of England, 5th ed, Book 3, Clarendon Press, Oxford, 1769, pp 175–6. T Starkie, A Treatise on the Law of Slander and Libel, Vol 1, 2nd ed, J & W T Clarke, London, 1830, pp 126–7. Cook v Field (1788) 3 Esp R 133; 170 ER 564; England v Bourke (1800) 3 Esp R 80; 170 ER 545. Pigot v Pigot (1638) 14 Car 1 at 531; 79 ER 1060. See Johnson v Browning (1703) 6 Mod Rep 217; 87 ER 969. This appears to have become known anecdotally as a case where the plaintiff sued his partner in equity for his share of the profits of the joint enterprise as highwaymen. The parties were arrested when the case came to court, convicted of the crime and hanged. Counsel were also arrested for having advised their respective clients to take and defend such action, the plaintiff’s counsel also hanged and the defendant’s counsel imprisoned. Brook v Montague (1606) Cro Jac 90 at 90; 79 ER 77 at 77. 14 Henry VI (Note: this is the citation referred to in the judgment, but the author was unable to locate primary source). Cutler v Dixon (1585) Cro Eliz 230; 76 ER 886; Beauchamps v Croft (1569) 3 Dyer 285a; 73 ER 639; Buckley v Wood (1591) 4 Co Rep 14b; 76 ER 888; Floyd v Barker (1608) 12 Co Rep 23; 77 ER 1305. Lake v King (1668) 1 Levinz 240; 83 ER 387. R v Williams (1686) 2 Show R 471; 89 ER 1048. (1799) 8 TR 293; 101 ER 1396. Curry v Walter (1796) 1 B&P 525; 126 ER 1046. R v Mary Carlile (1819) 3 B&A 167; 106 ER 624. W Sheppard, Actions Upon the Case for Slander, 2nd ed, J Starkey et al, London, 1674, pp 18–19. (1606) Cro Jac 90; 79 ER 77. 14 Henry VI (Note: this is the citation referred to in the judgment, but the author was unable to locate primary source). (1597) Cro Eliz 541; 78 ER 788. C Viner, A General Abridgment of Law and Equity, Robinson, London, 1742. R H Helmholz, The Oxford History of the Laws of England (The Canon Law and Ecclesiastical Jurisdiction from 597 to the 1640s), Vol 1, Oxford University Press, Oxford, 2004, pp 579–81. (1766) 1 Bull NP 3. Edmondson v Stephenson (1766) 1 Bull NP 3 at 8. See also Hargrave v Le Breton (1769) 4 Burr 2422 at 2425; 98 ER 269 at 271. Weatherston v Hawkins (1786) 1 TR 110; 99 ER 1001. Weatherston v Hawkins (1786) 1 TR 110; 99 ER 1001. See also Rogers v Clifton (1803) 3 B&P 587; 127 ER 317. Dibdin v Swan and Bostock (1793) 1 Espinasse 28; 170 ER 269. See also Tabart v Tipper (1808) 1 Campbell 348; 170 ER 981; Carr v Hood (1808) 1 Campbell 355; 170 ER 983; Stuart v Lovell (1817) 2

171. 172. 173. 174. 175. 176. 177. 178. 179. 180. 181. 182. 183. 184. 185. 186. 187. 188. 189. 190. 191. 192. 193. 194. 195. 196. 197. 198. 199. 200. 201.

Stark 93 at 96; 171 ER 583 at 584. Jones v Givin (1713) Gilb Cas 185 at 190–3; 93 ER 300 at 301–2. (1823) 2 B&C 257 at 267–8; 107 ER 379 at 383–4. (1825) 4 B&C 247; 107 ER 1051. Bromage v Prosser (1825) 4 B&C 247 at 255; 107 ER 1051 at 1054. R v Munslow [1895] 1 QB 758. Serjeant Stephen, A Treatise on the Principles of Pleading in Civil Actions, Abraham Small, Philadelphia, 1824. Anon (1652) Sty 392; 82 ER 804; Rowe v Roach (1813) 1 M&S 304; 105 ER 114; R v Munslow [1895] 1 QB 758. Harris v Warre (1879) 4 CPD 125 at 128. Walters v Mace (1819) 2 B&AL 756; 106 ER 541. Dalgleish v Lowther [1899] 2 QB 590. Tournier v National Provincial & Union Bank of England Ltd [1924] 1 KB 461 at 478. T Starkie, A Treatise on the Law of Slander and Libel, Vol 1, 2nd ed, J & W T Clarke, London, 1830, pp 248–9. Upsheer v Betts (1621) Cro J 578; 79 ER 495. T Starkie, A Treatise on the Law of Slander and Libel, Vol 1, 2nd ed, J & W T Clarke, London, 1830. T Starkie, A Treatise on the Law of Slander and Libel, Vol 1, 2nd ed, J & W T Clarke, London, 1830, p xcvii. T Starkie, A Treatise on the Law of Slander and Libel, Vol 1, 2nd ed, J & W T Clarke, London, 1830, p xcxix. T Starkie, A Treatise on the Law of Slander and Libel, Vol 1, 2nd ed, J & W T Clarke, London, 1830, p xcviii. T Starkie, A Treatise on the Law of Slander and Libel, Vol 1, 2nd ed, J & W T Clarke, London, 1830, pp c, ci. T Starkie, A Treatise on the Law of Slander and Libel, Vol 1, 2nd ed, J & W T Clarke, London, 1830, pp cix, cx. T Starkie, A Treatise on the Law of Slander and Libel, Vol 1, 2nd ed, J & W T Clarke, London, 1830, p ci. T Starkie, A Treatise on the Law of Slander and Libel, Vol 1, 2nd ed, J & W T Clarke, London, 1830, p ci. F Wilson, The Courtesan’s Revenge, Faber & Faber, London, 2003, pp 234–6. Stockdale v Hansard (1839) 9 A&E 1; 112 ER 1112. 3 & 4 Victoria c 9. 6 & 7 Victoria c 96. See 2.21. 18 & 19 Victoria c 41. 54 & 55 Victoria c 51. H Montgomery Hyde (ed), Famous Trials — Oscar Wilde, Penguin Books, London, 1962, pp 97–8. H Montgomery Hyde (ed), Famous Trials — Oscar Wilde, Penguin Books, London, 1962, pp 133–4. Duke of Brunswick v Harmer (1849) 14 QB 185; 117 ER 75.

202. 203. 204. 205. 206. 207. 208.

209. 210. 211. 212. 213. 214. 215. 216. 217. 218. 219. 220. 221. 222. 223. 224. 225. 226. 227. 228. 229. 230. 231.

Pinkney v Collins (1787) 1 TR 571; 99 ER 1257; Clissold v Clissold (1787) 1 TR 647; 99 ER 1299. Lord Northampton’s case (1613) 12 Rep 132; 77 ER 1407. 3 Edward I, Statute of Westminster I c 34 (1275). See 2.9. (1829) 10 B&C 263; 109 ER 448. Wason v Walter (1868) LR 4 QB 73. Curry v Walter (1796) 1 B&P 525; 126 ER 1046; Davison v Duncan (1857) 26 LJ QB 104; 119 ER 1233. Wason v Walter (1868) LR 4 QB 73 at 93–4; Turnbull v Bird (1861) 2 F&F 508 at 523–4; 175 ER 1163 at 1170; Wilson v Reed (1860) 2 F&F 149 at 151; 175 ER 1000 at 1001; Popham v Pickburn (1862) 7 H&N 891 at 898; 158 ER 730 at 733. (1887) 20 QBD 275. Merivale v Carson (1887) 20 QBD 275 at 276. Merivale v Carson (1887) 20 QBD 275 at 280. See also Campbell v Spottiswoode (1863) 3 B&S 769; 122 ER 288. Campbell v Spottiswoode (1863) 3 B&S 769 at 777; 122 ER 288 at 291. Merivale v Carson (1887) 20 QBD 275 at 281. Kelly v O’Malley (1889) 6 TLR 62 at 64. Duncombe v Daniell (1837) 8 C&P 222; 173 ER 470. 6 & 7 Victoria c 96. 8 & 9 Victoria c 75. Emmens v Pottle (1885) 16 QBD 354. (1877) 2 CPD 215. 44 & 45 Victoria c 60. Pankhurst v Sowler (1886) 3 TLR 193. 51 & 52 Victoria c 64. E Hulton & Co v Jones [1910] AC 20; Lee v Wilson and MacKinnon (1934) 51 CLR 276; Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575 at [25]. E Hulton & Co v Jones [1910] AC 20; Cassidy v Daily Mirror Newspapers Ltd [1929] 2 KB 331. Bourke v Warren (1826) 2 C&P 307; 172 ER 138. A Morton, Diana: Her True Story, Michael O’Mara Books, London, 1992. Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575 at [80] (Kirby J). Lewis v King [2004] EWCA Civ 1329 at [31]; Dow Jones & Company Inc v Gutnick [2002] 210 CLR 575. See 7.5. [2012] EWHC 756; on appeal [2012] EWCA Civ 1382. [2012] EWCA Civ 1382 at [27]. [2013] EWHC 1342.

[page 59]

CHAPTER 3 HISTORY OF DEFAMATION LAW IN AUSTRALIA INTRODUCTION PENAL COLONY REGULATION OF THE PRESS SELF-GOVERNMENT WINDEYER’S LIBEL ACT CHANGES TO NEW SOUTH WALES LAW OTHER STATES AND TERRITORIES THE AUSTRALIAN CONSTITUTION THE COMMON LAW OF AUSTRALIA INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS GOVERNMENT OR POLITICAL MATTERS DEVELOPMENT OF THE COMMON LAW DEFAMATION LAW REFORM A DEFAMATION CODE NATIONAL OR UNIFORM LAW COMMON LAW PRINCIPLES AND STATUTORY MODIFICATION PURPOSE OF THE DEFAMATION ACT SOURCES

3.1 3.2 3.3 3.4 3.5 3.6 3.7 3.8 3.9 3.10 3.11 3.12 3.13 3.14 3.15 3.16 3.17 3.18

INTRODUCTION 3.1 Defamation law in Australia should be understood as having emerged from its origins in the law of England. Australia inherited that law on first

settlement of the Colony of New South Wales in 1788 and has by and large followed it or been influenced by it since. At the time of that inheritance, England had experienced the American Declaration of Independence in 1776 and was shortly to witness the French Revolution in 1789. These revolutions concerned the freedom of the ‘common man’. [page 60] Australia was born of necessity — the need to find a place to contain the everincreasing number of convicts who might previously have been sent to the American Colonies, but who now remained imprisoned in the hulks on the Thames and at ports in England. It is in that context that the history of law in Australia began.

PENAL COLONY 3.2 In April 1770, Captain James Cook had sailed to Terra Australis Incognito, the unknown Southern Land. He found land sailing west from New Zealand and went ashore at a place he named Sting Ray Harbour, later changing it to Botany Bay. Cook sailed north and on 22 August 1770, landed at the ‘Possession Islands’. He ‘hoisted English Colours and in the name of His Majesty King George the Third took possession of the whole Eastern Coast … by the name of New South Wales’.1 This was the northern passage from the Eastern to the Western Coast and in his journal, Cook acknowledged that he could make no new discovery on the Western Coast, known as New Holland, as ‘the honour belonged to the Dutch Navigators’. In 1786, the Privy Council designated2 New South Wales as a place ‘for the effectual transportation of felons and other offenders’ pursuant to the Transportation Act 1784.3 The Colony of New South Wales was defined to extend to all territory east of the 135th Meridian of East Longitude and the adjacent Pacific Islands, north to Cape York and south to Van Diemen’s Land

(South Cape).4 In today’s terms, this incorporated every Australian state and territory, except Western Australia and half of South Australia and the Northern Territory. Approximately 1,000 people, three quarters of whom were convicts,5 arrived in January 1788 on the First Fleet, raising the British flag at Sydney Cove in Port Jackson. At its establishment, New South Wales was a Crown colony under the supreme authority of the Governor.6 In the early years of the colony, the law of defamation was used to enforce the authority of the Governor through prosecution for seditious words. In one of the first recorded cases, a convict, John Callaghan, was prosecuted for having: … devise[d] and utter[ed] an Untruth and Falsehood to the Prejudice of His Honour Robert Ross Esqr Lieut-Governor … and against the peace of our Lord the King, his Crown and Dignity.7

[page 61] At the time of the arrival of the First Fleet, a number of convicts had already served a substantial period of their sentences and had only a short time before their sentences expired. Unfortunately, records of the sentences of the convicts were left behind in England by the ship owners of the First Fleet. On 9 July 1788, Governor Phillip sent the following private letter to Home Under Secretary Nepean noting the situation: The masters of the transports having left with the agents the bonds and whatever papers they received that related to the convicts, I have no account of the time for which the convicts are sentenced, or the dates of their convictions; some of them, by their own account, have little more than a year to remain, and, I am told, will apply for permission to return to England, or to go to India, in such ships as may be willing to receive them. If lands are granted them, Government will be obliged to support them for two years; and it is more than probable that one half of them, after that time is expired, will still want support. Until I receive instructions on this head, of course none will be permitted to leave the settlement; but if, when the time for which they are sentenced expires, the most abandoned and useless were permitted to go to China, in any ships that may stop here, it would be a great advantage to the settlement.8

The right to support for two years was not publicly known and the colony was extremely short of supplies. In July 1789, Callaghan, on behalf of a number of convicts and himself, petitioned the colony’s Judge Advocate, claiming that

their sentences had expired and that they should be permitted to draw rations from the public store and should not have to continue to work as convicts. The Judge Advocate told him that the records of their sentences had by an ‘unaccountable oversight’ not been brought out to the colony and there was no way of officially checking their claims. They would therefore have to wait until their records arrived and continue to work as convicts and draw their rations as they had in the past. Governor Phillip decided to question Callaghan (in the presence of the Principal Surgeon) about whom had given him the information concerning the right to draw rations from the public store for convicts whose sentences had expired. Callaghan said that he had been told by an officer. The Governor asked for the name of the officer, threatening Callaghan that he would be punished if he did not supply the name. Callaghan named the Second in Charge of the colony, the Lieutenant Governor, Major Ross, as the source. Callaghan was convicted of seditious words and sentenced to ‘600 lashes on his bare back with a Cat of Nine Tails and to work in irons for the space of six months’.9 Those convicted in England of seditious libel at this time, such as the five ‘Scottish Martyrs’ in 1792–1793, were sentenced to transportation to New South Wales. This was seen as an effective exile for political dissenters to a place where their opposition would be, and was, irrelevant. Those who came to the colony as ‘free settlers’ were afforded privileges such as land grants and free convict labour. Honour and dignity were essential to their social positions. A slur on reputation could affect their status or acceptance in such a [page 62] structured and small community. John Macarthur, who arrived on the Second Fleet, resorted to duelling to protect his honour and fought three duels with those who crossed him (and he challenged for more). The voyage from England by ship was a long one, taking the best part of a year. Naturally things would develop. In a case which attracted much publicity

at the time, Maria Lewin sailed from England to Sydney on a different ship to her husband. On her arrival she was accused of being a whore and having acted improperly with crew members on board the ship HMS Buffalo. Lewin sued for defamation. Being a married woman, the action had to be brought in the name of her husband. The defence sought to justify the accusations with evidence that Lewin had been seen ‘criminally connected’ with a crew member on the steps leading to the Captain’s door and that another crew member had gone ashore with her in Rio de Janeiro ‘at a great many of the bawdy houses’.10 Her case succeeded and she was awarded £30 damages. A similar case was heard some years later.11 Statistics indicate that 18 civil defamation cases were brought in the Court of Civil Jurisdiction between 1788 and 1809.12 The Governors remained anxious about the possibility of ‘rebellion’. They had reason to be. Governor Bligh was imprisoned by his own officers and sent back to England in 1808. He was replaced by Governor Macquarie who restored order. Macquarie’s administration produced rapid expansion of the colony and constructed many fine buildings which remain standing today. These buildings were usually inscribed with Macquarie’s name. He felt compelled to have criminal libel proceedings brought in 1818 against a Dr William Bland. A handwritten poem, On Perusing Lavater, was found on the roadside in Parramatta Road. The handwriting was Dr Bland’s. He had been a surgeon in the Royal Navy in India and was transported to the colony in 1814 for killing a ship’s purser in a duel. Shortly after his arrival, he was emancipated by Governor Macquarie so that his skills as a surgeon could be utilised. Bland was prosecuted for the poem addressed to ‘His Excellency Lachlan Macquarie Esquire’ which read: Thanks, great Lavater, bright immortal sage; The light and wonder of our present age, Stript of its idle veil hypocrisy, Thy puerile, weak ambition here I see, That prompted thee to mark thy name on stone, And bids thee sigh and languish to be Known; Like the rude younker, who with Charcoal Scrawls And marks his name upon his School-room-walls: Though better far for thee that name to die, Than live our scoff and lasting mockery.13

[page 63] Bland was convicted of criminal libel despite the virtually non-existent publication. The New South Wales Act of 182314 established the New South Wales Legislative Council and the New South Wales Supreme Court (and the Supreme Court of Van Diemen’s Land). The Legislative Council, which consisted of five to seven members nominated by the Governor, could not initiate legislation — this remained exclusively vested in the Governor. The Chief Justice of the Supreme Court, however, had the right to refuse to certify any proposed law presented to or passed by the Legislative Council if it was inconsistent with the laws of England. By this time the Colony was changing, with many convicts becoming free citizens while others immigrated as free settlers. The population had increased from approximately 1,000 at the establishment of the colony to approximately 31,000. As part of the reform of judicial administration, the New South Wales Act 1823 allowed parties in civil actions to request a jury. The chief qualification of a juror was the possession of 50 acres or more of cleared land or a dwelling worth £300 or more. Criminal trials had been and continued to be conducted before a judge and seven military officers. The reason behind these provisions was the concern that ex-convicts would be sympathetic to the accused and unsuitable as jurors. The free settlers and their descendants regarded themselves as socially and morally superior to those who had arrived in New South Wales as convicts or whose parents had been convicts (transportation to New South Wales continued until 1840). They referred to themselves as ‘pure merinos’ or ‘exclusives’ to distinguish themselves from the ‘emancipists’ or ‘currency lads or lasses’ who were, or whose parents were, former convicts. Because of the stain on their reputations, the emancipists did not enjoy the same privileges as the exclusives, particularly in relation to land grants. One of the leaders of the emancipists was William Charles Wentworth, born aboard a ship with the Second Fleet, the son of an assistant surgeon and a convict woman. After Wentworth returned to England to study law at

Cambridge, an English MP distributed a pamphlet that suggested Wentworth’s father had been transported as a convict. Wentworth demanded and obtained a public apology, but the libel led him to sympathise with the emancipists upon his return to Sydney. Besides those under the stigma of being or having been a convict, another group with inferior status were the Aborigines, or the ‘Australians’ as they were then known. They were without citizenship and known by names such as Devil Devil, Jackass, Long Dick and Lego’me, crudely given them by the new masters of the land.15 In the case of R v Lego’me,16 for example, the defendant was found guilty of stealing a tobacco pipe and sentenced to seven years’ transportation to another penal colony. [page 64] The New South Wales Act of 1823 was repealed and replaced by the Australian Courts Act (1828).17 It was accepted law that: … if an uninhabited country be discovered and planted by English subjects, all the English laws then in being, which are the birthright of every [English] subject, are immediately there in force. But this must be understood with very many and great restrictions. Such colonists carry with them only so much of the English Law, as is applicable to their own situation and the condition of an infant colony.18

Therefore, English law was adopted in the ‘settled’ colony of New South Wales in 1788.19 The position was confirmed by legislation under s 24 of the Australian Courts Act 1828, where it was expressly enacted that all laws and statutes in force in England at the time of the Act should apply in New South Wales (so far as they could be applied within the colony). The common law of England as it applied in 1828 (if not replaced or modified by statute) may still be relevant to the current law of New South Wales. In 1950, Darcy Dugan was convicted in New South Wales of wounding with intent to murder and was sentenced to death. The sentence was commuted to penal servitude for life. Dugan was later released on licence and committed an assault

and robbery, for which he was convicted and sentenced to 14 years’ imprisonment with hard labour. The Daily Mirror published an article about Dugan’s life of crime. Still in prison, he brought proceedings for defamation against the newspaper. His action was struck out on the basis that it had been the common law in 1828 that a person convicted of a capital felony was ‘attainted’ and was incapable of suing in the courts until he had served his sentence or was in receipt of a pardon. Under attainder, if a convict was sentenced to death, his legal rights were extinguished as though he had in fact suffered the penalty of death. Although the death penalty was abolished in New South Wales by statute in 1955, and therefore attainder became obsolete at that time, Dugan remained attainted for the conviction in 1950 under the common law as it applied in 1828.20

REGULATION OF THE PRESS 3.3 Governor Phillip brought a small wooden screw press with the First Fleet to be used for official printing. No one had the skill to operate it until ‘Happy’ George Howe, a convict sentenced for shoplifting, arrived in 1800. Howe was the son of the West Indian government printer and was appointed the colony’s printer. [page 65] In 1803 he obtained Governor King’s permission to publish the first newspaper in New South Wales, known as the Sydney Gazette and New South Wales Advertiser. Each newspaper, however, had to be approved by the Secretary to the Governor. The print run was limited and the press was only capable of producing 100 copies per issue. In 1817, Reverend Marsden complained that the Sydney Gazette had published an anonymous letter titled Philo Free, which libelled him. He asserted that the Governor’s Secretary, Mr Campbell, had not only approved the insertion of it in the newspaper, but was in fact the author of the anonymous letter. Marsden was one of the founders of a society for the protection of natives

of the South Sea Islands against the ‘outrages’ committed by the crews of European or colonial vessels. The letter suggested that Marsden had misused funds of the missionary societies. Marsden brought proceedings against Campbell in the civil courts as well as requesting that the Judge Advocate bring a criminal prosecution against Campbell. The conduct of the criminal proceedings in which the Governor’s Secretary was found not guilty led to serious criticism by the Colonial Office of the Judge Advocate in his conflicting roles as Public Prosecutor, member of the criminal court and law adviser to the Governor.21 In 1824, Governor Brisbane permitted a second newspaper titled The Australian to be published and no longer required the newspapers to be approved by the Governor’s Secretary. In 1826, a third newspaper titled The Monitor was established. The Australian and The Monitor became openly critical of the government administration and were seen to carry the emancipist cause. In 1826 the new Governor, Ralph Darling, was urged by prominent exclusives such as Macarthur to prosecute the editors for criminal libel. He initially declined to do so. The Attorney-General commenced a prosecution against the editor of The Monitor for a number of alleged seditious libels, one of which was to the effect that the restricted licensing hours of the colony was ‘a great invasion of the best and most sacred rights of Englishmen’. Governor Darling persuaded the Attorney-General to discontinue the prosecution. The exclusives used their influence in the mother country. Darling soon received instructions from the Secretary of State for the Colonies, Lord Bathurst, to enact a law to impose restrictions on the freedom of the press ‘in accordance with the Laws of England’. The then (and first) New South Wales Supreme Court Chief Justice Forbes wrote to Home Under-Secretary Horton on the issue of freedom of the press in the colony: I have already given you my opinion … that a free press is not quite fitted to a servile population; it is excellent, indispensable, in a free state, because of its tendency to counteract that eternal propensity of our social natures to make slaves or dupes of one another; but for that reason perhaps, it is not suited to a state of society, where half of the community are worked in chains by the other; the direct tendency of the press is, in short, to equalize mankind; and the direct policy of our little state is only an enlarged prison discipline; the first is to set all free; the last, to hold half in servitude

[page 66] … an unrestrained press is not politic or perhaps safe in a land where one half of the people are convicts, … without doubt I am a friend to a defined limitation upon the press in the present state of the Colony.22

Within a short time the Governor found himself criticised by The Australian and The Monitor over the legality and harshness of the sentence of two soldiers convicted of petty theft. One of the soldiers had died within days of being placed in irons to work on the roads.23 In 1827 Governor Darling’s answer to Lord Bathurst’s instruction was to propose legislation which would license the printing and publishing of newspapers and restrain the publication of blasphemous and seditious libels. However, the Chief Justice refused to certify the licensing provisions of the proposed legislation (licensing having lapsed in England in 1694), relying upon Blackstone’s Commentaries: To subject the press to the restrictive power of a licenser, as was formerly done, both before and since the revolution, is to subject all freedom of sentiment to the prejudices of one man, and to make him the arbitrary and infallible judge of all controverted points in learning, religion and government … [I]t is clear that the freedom of the press is a constitutional right of the subject, and that this freedom essentially consists in an entire exemption from previous restraint; … By the laws of England, then, every free man has the right of using the common trade of printing and publishing newspapers; by the proposed bill, this right is confined to such persons only as the Governor may deem proper. By the laws of England, the liberty of the press is to be regarded as a constitutional privilege, which liberty consists in exemption from previous restraint; by the proposed bill, a preliminary licence is required, which is to destroy the freedom of the press, and place it at the discretion of the government.24

The bill, with the licensing provisions removed, was passed as the ‘Act for preventing the mischief arising from the printing and publishing of newspapers and for the restraint of abuses arising from the publication of blasphemous and seditious libels’.25 This Act required the printer or publisher of a newspaper to provide an affidavit to the Colonial Secretary identifying the names and addresses of the editors, printers, publishers and proprietors of the newspaper. Each person was required to enter into ‘a recognisance’ in the sum of £300 in the event of the imposition of any fine or penalty for conviction of blasphemous or seditious libel.26

[page 67] Editing newspapers in these times required a fearless disposition. In 1827, the editor of The Australian, who was also a barrister, Robert Wardell, fought a duel against the Governor’s Personal Assistant/brother-in-law. Having each fired three shots at the other at a distance of 30 paces and all missing, Wardell was persuaded by his second (and co-publisher W C Wentworth) to apologise. Six months earlier, Wardell had challenged the Attorney-General to a duel over the remark that he was ‘the scum of London’. Each fired a shot which missed. Honour having been satisfied, the duellists shook hands and departed. Following the passage of the 1827 Act, Wardell was the first prosecuted for seditious libel for an article in The Australian which had been critical of the Chairman of the Court of Quarter Sessions. The charge was dismissed on technical grounds, but soon after a second prosecution for seditious libel was issued against Wardell for criticism of the Governor himself. Wardell was acquitted as the jury was unable to reach a unanimous verdict. Wardell was prosecuted for a third time three months later as a result of publishing a letter critical of the Governor. Wardell was again acquitted by reason of a hung jury. Wardell sold The Australian to Edwin Hayes. Hayes too was soon prosecuted for seditious libel, but he was not so fortunate and was convicted and sentenced to six months’ imprisonment. During the same period the editor of The Monitor, Edward Hall, was found guilty on six separate charges of either seditious libel or criminal libel and sentenced to prison. He continued to edit The Monitor from within prison and published an illustration in the newspaper of a coffin bearing the following inscription (in Latin): Under the Government of Sir Thomas Brisbane, Knight, Liberty of the Press was born. Under the Government of Ralph Darling, Esquire, it was strangled on the 29th day of January 1830. It shall rise again.27

The caption underneath stated that editorials would not be published ‘until it shall please His Majesty the King to direct the Governor of this Colony to restore it to its lawful freedom’. The Secretary of State for the Colonies wrote to Governor Darling instructing him that proceedings against the press should only be taken under

‘the pressure of extreme necessity’. Governor Darling left Sydney on completing his term in 1831.

SELF-GOVERNMENT 3.4 In 1842, the colony achieved self-government with the right to elected representatives. The first election was held on 15 June 1843. Dr Bland, the former convict,28 was one of the first elected representatives of the Legislative Council. He was [page 68] defeated, however, in the second election of 1848 by Robert Lowe. The new member made a speech in the Legislative Council objecting to a bill to establish Australia’s first university, the University of Sydney. The bill put forward the names of several persons to be members of the University Senate, including Dr Bland. Lowe objected to the bill on the basis that persons who had been transported to the colony as convicts might be eligible to become members of the Senate and in time people of this class might form the majority of the Senate. He argued that no person of honour and character would consent to sit as a professor in the University with any person who had been transported and, considering the nature of a University in which not only learning but morals and virtue were taught, it was inappropriate to have former convicts sitting as members of the Senate. On hearing of the speech, Bland sent Lowe a letter in these terms: Sir, — I have this moment read the report of your speech of yesterday evening in the Sydney Morning Herald of today, and I feel no doubt that you have used your position in the Council to vent your private malignity against me. I am, however, recommended not to call upon you for the satisfaction of a gentleman, because you have on more occasions than one (where the claim for reparation was, from the nature of the insult inflicted, even stronger than in this case) in a manner most cowardly evaded it. I shall, therefore content myself with merely expressing my opinion, that you are a coward and a scoundrel, but which opinion I shall be happy to retract, if it is in your nature to give me an opportunity.29

Lowe applied to the Supreme Court to have criminal proceedings brought against Bland. The court considered that, while the letter was calculated to intimidate Lowe in the discharge of his duty as a member of the Legislative Council, Bland had not intended to incite Lowe to commit a breach of the peace (by duel) as Bland on oath had denied that that was his intention.30 Bland, it was well known, was transported for killing a ship’s purser in a duel.31 As occurred in England at this time, public opinion turned against duelling and the courts reinforced this view, describing duels as ‘selfish, savage and unmeaning’: Selfish, because the duellist sought gratification of his own vengeful feelings without regard to the fact that it was not only upon the object of these feelings, but upon an innocent widow and orphans that punishment would fall. Savage, because, aiming at homicide, it sought to inflict a penalty disproportionate to any offence for which challenges were ordinarily given. Unmeaning, because the result of a duel, whatever it might be, left wholly undecided the questions at issue between the two antagonists.32

[page 69]

WINDEYER’S LIBEL ACT 3.5 The first New South Wales Act amending the common law of defamation was proposed by Richard Windeyer in 1847 (Slander & Libel Act or Injuries to Character Act 1847),33 and became known as Windeyer’s Libel Act. It modified the common law, but did not wholly replace it. The purpose of the Act was ‘the better protection of private character and for the more effectually securing the liberty of the press and for better preventing abuses in exercising the said liberty’. The Act was based on the 1843 House of Lords Select Committee Report on Defamation. The Sydney Morning Herald commented on the Act: Perhaps there is no part of the law, which … had fallen so far behind the wants of society, as the law of Libel, and Slander. In a country which possesses a constitution giving the people at large a control over the actions of those who administer public affairs; — and where indeed power, and responsibility for its exercise is the rule, or supposed rule prevailing throughout all the ramifications of society, it is absolutely necessary that there should be freedom of the Press, commensurate with the calls which must always in such a state of things, be made for its expression. To a certain extent, and of necessity, the law, even before the passing of the Act in question, was

approximated to the circumstances of society, by the decisions of Judges, or what BENTHAM called ‘Judge made law’. Thus what has in many cases been called reasonable and temperate strictures upon public men and measures, bona fide statements made by masters and mistresses of the characters of domestic servants, words spoken in their place by members of Parliament, and bona fide complaints of public officials, were for the good of the public privileged, and could not expose parties to any legal liability. So far so good. But this being granted, there were still, until the passing of the Act we have mentioned, absurdities, inconsistencies, and other imperfections of the law of libel and slander, which deservedly drew down upon it the ridicule and contempt of every intelligent and enlightened man.34

This was a significant Act, abolishing the distinction between slander and libel, making all actions for defamation actionable without proof of loss; providing a defence of unlikelihood of harm; introducing a defence of truth to prosecutions and civil actions for defamation where the publication was for the public benefit; and allowing a newspaper to mitigate damage where the publication was made ‘without actual malice and without gross negligence’ and by publishing a full apology.35 These historical amendments to the common law are referred to elsewhere in the text where relevant to the present law. Of particular importance in Windeyer’s Libel Act was the requirement that a defence of truth needed to be published ‘for the public benefit’. It was considered that the law [page 70] was defective ‘in permitting veritas convicii by itself to be an absolute bar to a civil action’. The Select Committee to the House of Lords of 1843 had recommended that, where the defamation referred to some private personal defect or an error of conduct ‘long atoned for or forgotten’, a defence of justification ought not to be complete without showing to the satisfaction of a jury that the community had an interest in the truth being made known. The story of the reformed convict unable to escape his past became a popular theme in the literature of the nineteenth century: Madgwick in Great Expectations by Charles Dickens (1860); Jean Valjean in Les Miserables by Victor Hugo (1862); and Rufus Dawes in His Natural Life by Marcus Clarke (1870). In New South Wales, this amendment was particularly supported by the emancipists who had long suffered the connection with their convict past, even

if it was only through their family history.36 It appears that another rationale for the ‘public benefit’ element was an attempt to set a standard for the press of the time, particularly as a result of a journal known as The Satirist and Sporting Chronicle which had lasted three months in 184337 and was described as publishing: … the lowest filth, scraped together by morally debased characters, and amassed obviously by those whose depraved habits lead them to the lowest haunts of vice and infamy.38

On the issue of ‘public benefit’ under this defence, the character of the newspaper and the motives of the proprietor were relevant considerations.39 The 1847 Act was amended in 1849,40 187441 and 1886.42

CHANGES TO NEW SOUTH WALES LAW 3.6 In 1901, the 1847 Act and subsequent amending Acts were consolidated in the New South Wales Defamation Act 1901 (NSW).43 The 1901 Act was amended in 190944 and these Acts were consolidated in the Defamation Act 1912 (NSW).45 [page 71] The Act of 1912 was amended on three occasions before 195846 when the law in New South Wales was codified under the Defamation Act 1958 (NSW). This legislation was primarily based upon the Defamation Act 1889 (Qld) which sought to state the law of defamation exclusively by statute. Controversy surrounded the 1958 Act from the beginning. It was widely perceived that the Act permitted an action for defaming the dead brought by living relatives. At the time the bill was drafted, a book known as Wild Men of Sydney by Cyril Pearl47 was about to be released. The book commenced in this way: Some day someone will write the full story of Australian roguery, from the rum racketeers of the First Fleet to the beer racketeers of the Second World War, from land swindlers to mine swindlers, from William Wentworth to Claude de Bernales. The dramatis personae will be well assorted — red-coated English officers and wide-hatted Australian squatters; Tories and

Socialists; knights and nobodies; politicians, policemen, aldermen; racing-men and brewers; and every State will provide a scene or two, though, unquestionably, New South Wales will steal the show.48

The book was highly defamatory of the late John Norton, the proprietor of the Daily Mirror newspaper in New South Wales until 1916. His son, Ezra Norton, who was the proprietor at the time of the introduction of the 1958 Act, threatened to sue the author as a result of the statements concerning his late father. There was exchange of correspondence between solicitors, but the book was published without action being taken. Instead Ezra Norton sold the Daily Mirror to Fairfax interests which in turn sold the newspaper in 1960 to a young proprietor from Adelaide, Rupert Murdoch. The New South Wales Law Reform Commission Report on Defamation (No 11) (1971) considered that codification was unsuitable because the risks of ‘inadvertent injustice’ inherent in codification were too great. The report recommended that the 1958 Act be replaced by the Defamation Act 1974 (NSW), which returned New South Wales to the common law subject to statutory modification. This Act has been repealed and replaced by the uniform legislation enacted throughout Australia. The provisions of the Defamation Act 2005 are substantially modelled on the Defamation Act 1974 (NSW).49

OTHER STATES AND TERRITORIES 3.7 At the time in 1847 of Windeyer’s Libel Act in New South Wales, the Colony of New South Wales extended throughout Eastern Australia (except for Tasmania which [page 72] had become a separate colony in 1825, and South Australia in 1836). Western Australia was founded as an independent colony in 1829 and never formed part of New South Wales. After the creation of the separate colony of Victoria in 1850, the Victorian Parliament repealed the 1847 Act and reinstated the common law, subject to

statutory amendments50 which were later substantially contained in the Wrongs Act 1958 (Vic). South Australia applied the common law, subject to statutory modification in the Wrongs Act 1936, known as the Civil Liability Act 1936 (SA). Queensland became a separate colony in 1859. In the latter part of the nineteenth century, Queensland (1889 and 1899) and Tasmania (1895) introduced statutory codifications of the law of defamation (based on the Indian Penal Code 1860) which replaced the common law. Sir Samuel Griffith, then leader of the Opposition in Queensland, later Chief Justice of the High Court, formulated the Queensland Code. He did so because there was a general belief that the law relating to defamation was not easy to discover and there was general ignorance of what the law was.51 Queensland and Tasmania were the only states to have a codified law of defamation upon the enactment of the Defamation Act 2005.52 The Australian Capital Territory, which had formed part of New South Wales, and the Northern Territory, which had formed part of South Australia, were surrendered to the Commonwealth Government as Commonwealth Territories in 1911 and were subject to federal law. The Australian Capital Territory continued to apply the common law as modified by the Defamation Act 1901 (NSW), and amended by the 1909 Act (NSW). More recently, the common law applied as modified by the Civil Law (Wrongs) Act 2002 (ACT) and the Defamation (Criminal Proceedings) Act 2001 (ACT). Similarly, the Northern Territory continued to apply the common law until modified by the Defamation Ordinance 1938, which was revised by further ordinances until the modifications were incorporated in the Defamation Amendment Act 1989, known as the Defamation Act (NT). In summary, prior to the Defamation Act 2005, the common law was the major source of the (civil) law of defamation in Victoria, South Australia, the Northern Territory and the Australian Capital Territory. Each of these jurisdictions had partially modified the common law by the following statutes — Wrongs Act 1958 (Vic); Civil Liability Act 1936 (SA); Defamation Act 1989 (NT); Civil Law (Wrongs) Act 2002 (ACT). Western Australia was peculiar because it adopted the Queensland Criminal Code for the purposes of criminal libel, but by virtue of s 5 of the Criminal Code Act 1913 (WA) applied the common law, subject to partial codification, to the

civil action. The Criminal Code of Western Australia was contained in a schedule to the Criminal Code Act 1913 (WA). The High Court had held (by a majority of 3:2) that in Western Australia the Criminal Code Act provided defences for civil actions in ss 354 (fair reports), 355 (fair comment) and [page 73] 356 (truth), which specifically declared these publications to be ‘lawful’ for the purposes of the Code, while s 357(8) (qualified protection) did not, merely providing a defence of ‘lawful excuse’ to a criminal action not a civil action.53 The common law defence of truth applied, notwithstanding s 356 (which required truth and public benefit).54 There were therefore eight separate laws of defamation operating throughout the states and territories of Australia prior to 1 January 2006, when uniform legislation known as the Defamation Act 2005 came into operation in most jurisdictions. There is no Commonwealth defamation law other than the common law of Australia (although there are Commonwealth statutes that affect the laws of defamation in one way or another). The previous codifications of Queensland and Tasmania, and the statutory modifications of the common law in the other states and territories that had existed were repealed under the Defamation Act 2005 and are referred to in the text where relevant.

THE AUSTRALIAN CONSTITUTION 3.8 In 1901, the Commonwealth of Australia was established by the Constitution55 which embodied the federal system of government. On the formation of the Commonwealth, the common law as it existed in the states and territories theoretically became one common law throughout Australia. ‘We act every day on the unexpressed assumption that the one common law surrounds us and applies where it has not been superseded by statute.’56 This was in contrast to the position in the United States, where the common law was

fragmented into different systems of jurisprudence, possessing different content and subject to different authoritative interpretations in each state or territory.57 The Constitution displaced, or rendered inapplicable, the English common law doctrine of the general competence and unqualified supremacy of the legislature (Parliament). It placed upon the federal judicature (the High Court) the responsibility of deciding the limits of the respective powers of state and Commonwealth governments. The Constitution, the federal, state and territorial laws, and the common law in Australia together constitute the law of Australia and form ‘one system of jurisprudence’.58 Of necessity, the common law must conform with the Constitution.59 Likewise, the common law must be consistent with valid applicable legislation, whether federal, state [page 74] or territory.60 Statutes which purport to define the law of defamation are construed, if possible, conformably with the Constitution. But if their provisions are inconsistent with the Constitution, ‘they must yield to the constitutional norm’.61 Therefore, within the Australian legal system, communications are free only to the extent that they are left unburdened by laws that must for their validity comply with the Constitution.

THE COMMON LAW OF AUSTRALIA 3.9 The Australia Act 1986 (Cth) formally released the law of Australia from the law of England.62 However, the common law of Australia had prior to that developed independently of English common law.63 The High Court of Australia has ultimate authority to develop the common law of Australia. As a matter of precedent, decisions of the High Court are binding on the courts of each state and territory.64 The High Court is not bound by its own previous decisions, but will only depart from those decisions with great caution.65 The High Court may provide

‘further consideration’ of the reasoning of earlier judgments and has done so where, for example, there was an almost even division of opinion among the High Court judges (in relation to whether a Constitutional Guarantee existed to protect freedom of speech in Australia).66 If a previous judgment of the High Court enjoys majority support of that court, there is a view that an individual member of the court should treat the judgment as binding on him or her as it is on the members of every other Australian court.67 Since the abolition of appeals to the Privy Council in 1975, opinions of the Privy Council are no longer binding on Australian courts, but are highly persuasive.68 Decisions of the House of Lords are not binding on Australian courts, but they too [page 75] are highly persuasive.69 The same position applies to the Supreme Court of the United Kingdom which assumed the judicial functions of the House of Lords in 2009. The New South Wales Court of Appeal does not regard itself as bound by its previous decisions70 nor by decisions of Courts of Appeal of other states, but in both cases the decisions are highly persuasive and should be followed unless the court is satisfied they are clearly wrong.71 Decisions of the New South Wales Court of Appeal are binding on judges of the court sitting at first instance.72 However, a single judge of a state Supreme Court is not bound by a decision of a fellow single judge, but should follow that decision unless there is a clear reason for not doing so.73 Within this hierarchy, the common law is developed by judges, following precedents and refining the principles to the current day. Justice Brennan expressed his view, in Mabo v The State of Queensland (No 2),74 as to how the common law of Australia should be developed by the High Court: Although our law is the prisoner of its history, it is not now bound by decisions of courts in the hierarchy of an Empire then concerned with the development of its colonies … Although this Court is free to depart from English precedent which was earlier followed as stating the common law of this country, it cannot do so where the departure would fracture what I have called the

skeleton of principle … The peace and order of Australian society is built on the legal system. It can be modified to bring it into conformity with contemporary notions of justice and human rights, but it cannot be destroyed … [N]o case can command unquestioning adherence if the rule it expresses seriously offends the values of justice and human rights … which are aspirations of the contemporary Australian legal system. If a postulated rule of the common law expressed in earlier cases seriously offends those contemporary values, the question arises whether the rule should be maintained and applied. Whenever such a question arises, it is necessary to assess whether the particular rule is an essential doctrine of our legal system and whether, if the rule were to be overturned, the disturbance to be apprehended would be disproportionate to the benefit flowing from the overturning.75

See ‘Development of the Common Law’ at 3.12 below. [page 76]

INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS 3.10 In 1980 the Commonwealth Government ratified the International Covenant on Civil and Political Rights 1966 (ICCPR) and in 1991 ratified the First Optional Protocol of the ICCPR. Article 17 of the ICCPR provides: (1) (2)

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. Everyone has the right to the protection of the law against such interference or attacks.

The development of the common law of Australia consistent with such principles should provide effective legal protection for the honour, reputation and personal privacy of individuals.76 Article 19 of the ICCPR provides: (2)

(3)

Everyone shall have the right to freedom of expression; this right shall include 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 exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or public order, … or of public health or morals.

The High Court has said that ratification brings the ‘powerful’ influence of the ICCPR and the international standards it imports to bear upon the development of the common law of Australia.77 The ICCPR will also influence the interpretation of a statute, at least where it was enacted after or in contemplation of the ratification of the international obligations.78 To the extent that Australian law does not enforce or protect the legally binding obligations under the ICCPR, Australia may be referred to the relevant treaty body for such default.79 An application to the United Nations was made by the Dow Jones journalist, after the High Court decision in the Gutnick case,80 alleging a violation by [page 77] Australia of the rights to freedom of speech under the Articles of the ICCPR, before that case settled. While the United Nations Human Rights Committee’s view has no legally binding status, it could influence Australian legislation by its decision.

GOVERNMENT OR POLITICAL MATTERS 3.11 During the 1960s and 1970s, government incompetence and corruption in Australia had become a matter of serious public concern. While these matters may have often been discussed privately, the media had to be more careful as it was common for Ministers of the Crown and Members of Parliament to sue for defamation and recover tax-free gains. The media’s confidential sources were often not prepared to give evidence for fear of reprisal. The connections between politicians and organised crime were real and justified that fear. Often, the evidence available may not have been admissible or sufficient to prove the truth of the matter although the passage of time would later confirm the truth of the defamatory material. Royal Commissions in the 1980s81 revealed the widespread nature of corruption in politics in different states of Australia and the call was made for a

change in the defamation laws to allow media criticism of politicians without the threat or likelihood of a defamation action. Suspicions were raised at the highest levels, reaching into the High Court, when the Chief Magistrate of New South Wales accused a High Court judge of attempting to pervert the course of justice. That judge, Lionel Murphy, was later acquitted but significantly was one of the first to refer to implied constitutional freedoms.82 He suggested that there were certain freedoms which were assumed or implied by the Constitution and were necessary for the proper operation of the system of representative government. He referred to an implied freedom of speech and an implied freedom from slavery. While one would not question the latter, there is nothing in the Constitution preventing slavery or guaranteeing freedom from it. In the judgment released on the day he died in 1986, Murphy J declared that the Constitution contained an implied guarantee of freedom of speech.83 In the meantime, defamation verdicts reached their highest levels in Australia and particularly in New South Wales. The award of $600,000 in Carson v John Fairfax & Sons Ltd was made in 1989 (later increased to $1.3 m after a retrial in 1994). The newspaper abandoned the defence of qualified privilege (pleaded on the basis of public interest) at the trial. More generally, there was no defensible basis on which the media [page 78] could publish defamatory statements which they believed were true but did not have the evidence to prove were true. In 1990, the Attorneys-General for Queensland, Victoria and New South Wales released a joint discussion paper on defamation law reform which included discussion about a widened qualified privilege defence for the media. In 1992 a majority of the High Court distilled from the provisions and structure of the Constitution, particularly from the concept of representative government which is enshrined in the Constitution, an implication of freedom of communication.84 As a result, defences in defamation actions pleaded a new defence, the

constitutional defence of freedom of speech. In 1994, a majority (4:3) of the High Court found in the context of a defamation action an implied freedom of communication or ‘guarantee’ in the Constitution to publish material discussing government and political matters Theophanous v Herald & Weekly Times Ltd (‘Theophanous’).85 The High Court made this finding in the context of discussion about members of parliament relating to their suitability and performance as members of parliament. The court held that the publication of such matters would not be actionable under the law of defamation if the defendant established that it was unaware of the falsity of the material published, it did not publish the material recklessly and that the publication was reasonable in the circumstances. In Stephens v West Australian Newspapers Ltd86 the High Court held that the constitutional guarantee was a good defence to a defamation action brought by a state member of parliament in relation to the discussion of state government or political matters. The use of the Constitution in this way was explained by Deane J in Theophanous: Since 1901, a variety of important developments have combined to transform the nature and extent of political communication and discussion in this country and to do much to translate the Constitution’s theoretical doctrine of representative government with its thesis of popular sovereignty into practical reality. The more important of those developments include: the introduction of both universal adult franchise and compulsory voting; the extraordinary development and increased utilization of the means of mass communication; advances in general education; and, the increasing appreciation and assertion of the intrinsic equality of all human beings. These developments have greatly enhanced the need to ensure that there be unrestricted public access to political information and to all political points of view. Yet, in the same period, the use of defamation proceedings in relation to political communication and discussion has expanded to the stage where there is a widespread public perception that such proceedings represent a valued source of taxfree profit for the holder of high public office who is defamed and an effective way to ‘stop’ political criticism, particularly at election times. That widespread perception may well be

[page 79] exaggerated or unjustified. Its effect is, however to intensify the chilling effect of a threat or perceived risk of defamation proceedings. In the context of those dramatic changes since 1901, there is manifest wisdom in Inglis Clark’s instruction that, in its application to contemporary

conditions and exigencies, the Constitution must be treated as ‘a living force’ and not as ‘a declaration of the will and intentions of men long since dead’.87

The majority of four in Theophanous88 was formed by the joint judgment of Mason CJ, Toohey and Gaudron JJ and a separate judgment by Deane J who lent his support to the conclusions of the other three judges but not to their reasoning. Chief Justice Mason and Deane J soon after left the Bench, Mason for retirement and Deane for Governor-General, reducing the Theophanous majority to two. There was much anticipation as to whether the replacements (Gummow and Kirby JJ) would support the remaining two of the Theophanous majority. At the time, High Court judges were being criticised by politicians for ‘judicial activism’, the Theophanous and Wik judgments cited as the most common examples. It was said that judges should not make law but should only apply it, and that they should leave it to parliament to make the law. Judges, however, not just High Court judges, have been making the common law for centuries. Chief Justice Brennan took the unusual step of writing to the Deputy Prime Minister in January 1997 to ask him to stop criticising the High Court’s decisions and its judges. The former Chief Justice, Sir Anthony Mason, observed that continued political attacks on the High Court could lead to a more timid judiciary and that it was absolutely essential to its independence that the Attorney-General defend the court. Subsequently, in July 1997, with the changes to the Bench, and a challenge to the constitutional defence, the High Court delivered judgment in Lange v Australian Broadcasting Corporation89 (‘Lange’). David Lange was the Prime Minister of New Zealand in 1989 when the Australian Broadcasting Corporation (ABC) broadcast a Four Corners television program throughout Australia. Lange commenced defamation proceedings against the ABC in the Supreme Court of New South Wales, alleging that the matter conveyed imputations that he was guilty of abuse of public office and was unfit to hold public office. The ABC pleaded in its defence that the broadcast was published pursuant to the freedom guaranteed by the Commonwealth Constitution to publish matter in the course of discussion of government and political matters (notwithstanding that the matters concerned the fitness for office of the Prime Minister of New Zealand).

The High Court, in a rare unanimous judgment of all seven judges, considered that the constitutional guarantee of freedom of speech did not have sufficiently binding authority on the court. The court was careful not to overrule the judgment in Theophanous, as Toohey and Gaudron JJ had participated in the joint judgment of the majority. The court held that Theophanous should be accepted as deciding [page 80] that the common law rules of defamation must conform to the requirements of the Constitution but the Constitution did not provide a personal right or guarantee and did not provide a constitutional defence to a defamation action. Notably, in the three years of the constitutional defence’s existence, there was a significant fall off in the number of complaints and actions by politicians against the media for defamation and of those that were made, many were withdrawn or compromised after attention was drawn to Theophanous which had provided the constitutional guarantee. The High Court unanimously declared that there was no implied constitutional guarantee of a right to freedom of speech, but held that the common law defence of qualified privilege should be extended to protect discussion of political and governmental matters.90 The High Court echoed Deane J’s observations of the Constitution in Theophanous, above, but this time in relation to the development of the common law: Since 1901, the common law … has had to be developed in response to changing conditions. The expansion of the franchise, the increase in literacy, the growth of modern political structures operating at both federal and State levels and the modern development in mass communications, especially the electronic media, now demand the striking of a different balance from that which was struck in 1901.91

Under a legal system based on the common law, ‘everybody is free to do anything, subject only to the provisions of the law’, so that one proceeds ‘upon an assumption of freedom of speech’ and turns to the law ‘to discover the established exceptions to it’.92 The common law torts of libel and slander are such exceptions. However, these torts do not inhibit the publication of

defamatory matter unless the publication is unlawful — that is to say, not justified, protected or excused by any of the various defences to the publication of defamatory matter, including qualified privilege.93 ‘The common convenience and welfare of society’94 is the criterion of the protection given to communications by the common law defence of qualified privilege: see 22.2. The content of the freedom to discuss government and political matters must be ascertained according to what is for the common convenience and welfare of society. That requires an examination of changing circumstances and the need to strike a balance in those circumstances between absolute freedom of discussion of government and politics and the reasonable protection of the persons who may be involved, directly or incidentally, in the activities of government or politics.95 [page 81] The court held that the common law of libel and slander must be consistent with the Constitution, for the common law’s protection of personal reputation must be an exception to the qualified freedom to discuss government and politics which is required by the Constitution.96 If the common law or a statute diminishes the rights or remedies of persons defamed and correspondingly enlarges the freedom to discuss government and political matters, such law would not be contrary to the constitutional implication. Conversely, the common law or statute rights of persons defamed may not be enlarged so as to restrict the freedom required by the Constitution. ‘Statutes which purport to define the law of defamation are construed, if possible, conformably with the Constitution. But, if their provisions are intractably inconsistent with the Constitution, they must yield to the constitutional norm.’97 When a law of a state or federal parliament or a territory legislature, or the common law, is alleged to infringe the requirement of freedom of communication imposed by the Constitution, the following two questions must be answered before the validity of the law can be determined: (a) Does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect?

(b) If the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of the system of government prescribed by the Constitution?98 The court considered that, in so far as the law of defamation requires electors and others to pay damages for the publication of communications concerning government or political matters, the law effectively burdens the freedom of communication about those matters. On that basis it is a matter of whether the law is reasonably appropriate and adapted to serving the legitimate end of protecting personal reputation without unnecessarily or unreasonably impairing the freedom of communication about government and political matters protected by the Constitution.99 The constitutionally prescribed system of government does not require an unqualified freedom to publish defamatory matter damaging the reputations of individuals involved in government or politics.100 It is not a general freedom of communication of the kind protected by the First Amendment to the United States Constitution.101 The High Court held that, with the development of the extended defence of qualified privilege in relation to communications concerning government and political matters, the common law of defamation, as traditionally understood, and [page 82] the Defamation Act 1974 (NSW), then regulating the publication of defamatory matter in New South Wales, were reasonably appropriate and adapted to the protection of reputation, having regard to the requirement of freedom of communication about government and political matters required by the Constitution. The then law of New South Wales went no further than was reasonably appropriate and adapted to achieve the protection of reputation once the High Court provided for the extended application of the law of qualified privilege.102 Further consideration of the development of the common law defences may be necessary to take into account the law of the place where the defendant’s conduct occurred.103 The Defamation Act 2005 contains substantially the same statutory provision

as was under consideration by the High Court. While the legislation burdens freedom of communication about government or political matters, it is nevertheless reasonably appropriate and adapted to serve the legitimate purpose of protection of reputation having regard to the constitutional requirement of freedom of communication about such matters.

DEVELOPMENT OF THE COMMON LAW 3.12 The development of the law in Lange v Australian Broadcasting Corporation104 was a classic example of the judicial reconsideration of earlier judgments in order to provide a change to the law in the interests of justice. In this way, both in Australia and in England, the common law has been reshaped and developed in accordance with the changing norms and values of society. As Lord Diplock said in Cassell & Co Ltd v Broome: [The common law] has survived because the common law subsumes a power in judges to adapt its rules to the changing needs of contemporary society — to discard those which have outlived their usefulness, to develop new rules to meet new situations.105

There is much debate about whether judges should be so ‘active’ and there are strong differences of opinion amongst judges about the issue, as observed by Brennan J in Theophanous v Herald & Weekly Times Ltd:106 Common law is amenable to development by judicial decision, subject to the Constitution and to statute. What is permissible development of the common law by the courts and what amounts to impermissible change is an issue on which minds differ most sharply. Respect for precedent in the general structure of law, assessment of the justice and efficiency of existing rules, their conformity with underlying principle, appreciation of contemporary values, the implications of change, the capacity of the legal system and of society to absorb change and, importantly, the just resolution of the instant case, all have a part to play when a proposition of the common law

[page 83] is reviewed by a court in which (to adopt the words of Barwick CJ) ‘no authority binds or current or acceptable decision compels’. Some judges find unanswerable the approach of Judge Learned Hand: The respect all men feel in some measure for customary law lies deep in their nature; we accept the verdict of the past until the need for change cries out loudly enough to

force upon us a choice between the comforts of further inertia and the irksomeness of action.107 Other judges find the call to reform more urgent.108

If a rule of the common law is settled, it has been held that judges have no authority to ignore it or to treat it as no longer representing the law.109 There is a need to provide predictability in the law and certainty of the legal rules which may then be applied to new cases. Any changes to those rules are seen to be matters for parliament.110 Precedent is important but not absolute: … each new decision follows syllogistically from existing precedents. But just as the clavicle in the cat only tells of the existence of some earlier creature to which a collar-bone was useful, precedents survive in the law long after the use they once served is at an end and the reason for them has been forgotten. The result of following them must often be failure and confusion from the merely logical point of view. … Every important principle which is developed by litigation is in fact and at bottom the result of more or less definitely understood views of public policy … [and as] the law is administered by able and experienced men, who know too much to sacrifice good sense to a syllogism, it will be found that, when ancient rules maintain themselves in the way that has been … new reasons more fitted to the time have been found for them, and that they gradually receive a new content, and at last a new form, from the grounds to which they have been transplanted.111

The rigid approach applied by some judges to the development of the common law can be seen in Mansfield CJ’s judgment in 1812 (not Lord Mansfield who died in 1793) when asked to consider the distinction between libel and slander: … the distinction has been made between written and spoken slander as far back as Charles the Second’s time [1660] … I do not now recapitulate the cases, but we cannot, in opposition to them, venture to lay down at this day, that no action can be maintained for words written, for which an action could not be maintained if they were spoken … If the matter were for the first time to be decided at this day, I should have no

[page 84] hesitation in saying, that no action could be maintained for written scandal which could not be maintained for the words if they had been spoken.112

In Dow Jones & Company Inc v Gutnick113 the appellant urged the High Court to re-express the common law so as to abolish the ‘primitive’ rule that every

publication of defamatory material consists of a new and separate tort,114 at least in respect of publications appearing on the internet. Justice Kirby noted: Sometimes, asked to reformulate an established principle of the common law, this Court will decline the invitation, considering that any alteration of the law should be left to the legislature. Factors relevant to such decisions have included the effect on competing interests that should be consulted before any alteration of the law; the existence of significant economic implications of any change; the enactment of legislation evidencing parliamentary attention to the subject; the perceived undesirability of imposing retrospective liability, especially criminal liability, on persons; and the desirability, in particular cases, of not making any change until after intensive analysis of social data and public consultation, facilities typically unavailable to a court. The fundamental restraint upon substantial judicial innovation in the expression of the law is imposed by the character of a court’s functions as such and an acceptance that, under the Constitution, major legal changes in the Australian Commonwealth are the responsibility of the other branches of Government, not of the courts.115 The genius of the common law derives from its capacity to adapt the principles of past decisions, by analogical reasoning, to the resolution of entirely new and unforeseen problems.116

The High Court declined to reformulate the principles of publication generally or in relation to publication on the internet. The development of the common law of defamation has been confused by the purposes which the law has served at different times in history: … the consequence is that English jurisprudence, … is left with a series of artificial and unscientific distinctions stamped upon it by a succession of historical events, and that principles adopted by judicial opportunists to satisfy temporary requirements and exigencies now form part of the substantive law of defamation, though those requirements and exigencies have long ceased to exist. And these principles are accepted as the outcome of deliberate forethought and elaborate theory, whereas in reality nothing was further from the minds of those under whose authority they gradually developed.117

[page 85] Joel D Eaton in the American Law of Defamation118 described the result this way: From those seeds the English common law of defamation slowly grew into a forest of complexities, overgrown with anomalies, inconsistencies and perverse rigidities. It became thicketed with brambled traps for innocent defendants, crisscrossed with circuitous paths and dead ends for seriously wronged plaintiffs, and enshrouded in a ‘fog of fictions, inferences, and presumptions’.

With all its complexities and illogicalities, the law of defamation has necessarily been the subject of intense scrutiny and legislative reform.

Justice Murphy’s comments in Dugan v Mirror Newspapers Ltd119 remain apt: The common law is law made by judges in the area left to them by constitutions and legislation; for this reason, it is often more accurately described as judge-made law or decisional law. Australian courts (especially [the High Court]) should, while taking into account the advantages of predictability, evolve the common law so that it will be as rational, humane and just as judges can make it. The present condition of the common law is the responsibility of the present judges. If this were not so, we would still be deciding cases by following the decisions of medieval judges.

Some principles of common law have become so deeply embedded or enshrined, such as the distinction between slander and libel, that they cannot be removed, however much they may offend common sense or logic, and may only then be removed by statute.120

DEFAMATION LAW REFORM 3.13 The law of defamation is controversial. Most defamation actions are brought against the media, usually by people in the public eye, the rich and the famous. Because of the nature of the parties involved, the action is newsworthy.121 The defamation law in Australia has, in many quarters, been criticised and become notorious as restrictive on freedom of speech. If judges refrain from developing the law, change must be effected by statute. Consequently, numerous references have been made to Law Reform Commission bodies to report on the statutory reform of the law of defamation.122 [page 86]

A DEFAMATION CODE 3.14 In all jurisdictions in Australia prior to 2006 there had been some modification to the common law of defamation by statute. In some states, there had been a complete restatement of the law by code. In 1979, the Australian Law Reform Commission produced a report recommending a national (codified) law of defamation in Unfair Publication:

Defamation and Privacy (No 11) for reform of the law uniformly Australia-wide. It was never implemented. A code is a complete statement of a body of law, such as the Code Napoleon of France and the German Civil Code of 1900. These codes set out a body of law in terms of principles, leaving scope for development by judicial decision.123 A code in common law countries refers to a statement of the whole of the law upon a particular topic. The advantages are the accessibility of the code to the ordinary person, setting out the law in the statute without the need to roam ‘over a vast number of authorities in order to discover what the law was, extracting it by minute critical examination of the prior decisions’.124 Under the Defamation Act 1958, New South Wales codified the law of defamation, but returned to the common law under the Defamation Act 1974 (NSW) with statutory modification in certain areas. The disadvantages of codification are seen as the inability to anticipate the many situations relating to defamation which will not be stated in a code and therefore give rise to the risk of ‘inadvertent injustice’.125 A code can become frozen in time and, without parliamentary intervention, unable to adapt to social and legal change.126 It lacks the flexibility of the common law. The Australian Law Reform Commission submitted that this risk could be mitigated by framing the legislation in terms of [page 87] principle so as to permit sensitive application to the unforeseen case and by having as many informed people as possible discuss the legislation before enactment.127 A code depends upon its expression for interpretation. Any ambiguity, omission or contradiction contained in the code will have to be determined by the courts by reference to the language of the code rather than prior judicial decisions. Codifying statutes are to be construed according to their terms and, except for ambiguities or technical terms, not by reference to the pre-existing law.128 The proper course is to examine the language of the statute and ask what is its

natural meaning, uninfluenced by any consideration derived from the previous state of law. If, however, a provision is of doubtful meaning, resort to the previous law is perfectly legitimate and if words in a code have previously acquired a technical meaning or been used in a sense other than their ordinary meaning, the same interpretation may be put upon them in the code.129 However, it is not the common law as it stands at the date when judgment is given to which resort may be had, but the common law as it stood at the date when the code was enacted.130 The continuation of this rule has, however, been questioned.131 These principles should be understood within the settled principles of statutory interpretation. A court may have regard to the words used in a statute in their legal and historical context and in appropriate cases give them a meaning that will give effect to the purpose of the statute deduced from that context.132 It is well settled at common law that the court may not only rely on s 15AB of the Acts Interpretation Act 1901 (Cth), but also have regard to reports of law reform bodies to establish the mischief which a statute is intended to cure.133 The modern approach to statutory interpretation enables the context to be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and uses context in its wider sense to include such things as the then existing state of [page 88] the law and the mischief which, by legitimate means, one may discern the statute was intended to remedy.134 General words in a statute are often construed by their context and the apparently plain words of a provision, read in light of the mischief the statute was designed to overcome and the objects of the legislation, may produce a different result. Inconvenience or improbability of result may assist the court in preferring an alternative construction to the literal meaning if that construction is reasonably open and more closely conforms to the legislative intent.135 A codification of defamation law by statute was one alternative. Another alternative was to repeal all existing statutory defamation law and, by agreement

amongst the states and territories, return Australia to the common law with modification by uniform statute to correct inconsistencies and historical anomalies.

NATIONAL OR UNIFORM LAW 3.15 In July 2004 the Commonwealth Government released a draft bill for a national Defamation Law based on existing constitutional powers, in the absence of a reference of power from the states to the Commonwealth. The bill was to be a code for defamation limited to matters within Commonwealth constitutional powers concerning primarily defamatory publications made: (a) in a territory or by persons or corporations resident in a territory;136 (b) in the course of trade and commerce among the states;137 (c) by the use of postal, telegraphic, telephonic and like services (to be defined to include radio, television and the internet);138 (d) by a trading or financial corporation formed within the limits of the Commonwealth, or a foreign corporation;139 or (e) in relation to the activities of a trading or a financial corporation formed within the limits of the Commonwealth, or a foreign corporation.140 The proposed Commonwealth law would have been a code for most defamation proceedings, particularly for the national media and the internet. The proposal was that the only significant areas that would remain within state jurisdiction would involve [page 89] some defamatory publications made by one individual against another. A reference of power from the states to the Commonwealth Parliament under s 51(xxxvii) of the Constitution would have removed even these limitations. The draft bill was circulated with an outline of a possible National

Defamation Law by the Attorney-General’s Department.141 A Commonwealth statute enacted without the agreement of the states and territories was likely to give rise to a constitutional challenge and its validity would have ultimately depended upon the views of the High Court judges (of the time). The High Court had done much in that period to settle the common law of defamation and determine the balance between reputation and free speech in a number of important decisions. In July 2004 the Attorneys-General of the states and territories released a discussion paper of their proposal for Uniform Defamation Laws.142 The basis for this proposal was that state and territory defamation laws should return to the common law, supplemented by statutory provisions. Each state and territory would enact textually uniform ‘core provisions’ to complement the common law with the capacity, without detracting from uniformity, to accommodate local procedures and institutions.143 In November 2004 the states and territories released a draft uniform Model Bill which was refined and later enacted in each state and territory as the Defamation Act 2005, taking effect in most jurisdictions on 1 January 2006. (The Australian Capital Territory and the Northern Territory were later.)

COMMON LAW PRINCIPLES AND STATUTORY MODIFICATION 3.16 The common law of defamation applies in each state and territory of Australia, unless modified or replaced by statute or inconsistent with the Commonwealth Constitution. The common law has been modified by the Defamation Act 2005, enacted with minor provincial differences in each jurisdiction.144 Uniformity will be maintained by intergovernmental agreement. The Act is set out in full in Appendix I (with differences between jurisdictions noted). Under s 6(2) of the Defamation Act 2005, the operation of the general law (that is, common law or equity) in relation to the tort of defamation is not affected by the Act, except to the extent that the Act provides otherwise (whether expressly or by

[page 90] necessary implication). The general law applies for the purposes of the Act as if the legislation existing in each jurisdiction prior to the Act had never been enacted: s 6(3). A comparative table of Australian Defamation Acts is set out in Appendix II. It compares the Defamation Act 2005 with the legislation existing in each jurisdiction prior to the Act.

PURPOSE OF THE DEFAMATION ACT 3.17 Section 3 of the Defamation Act 2005 expressly states the purpose or objects of the legislation are: (a)

to enact provisions to promote uniform laws of defamation in Australia; (b) to ensure that the law of defamation does not place unreasonable limits on freedom of expression and, in particular, on the publication and discussion of matters of public interest and importance; (c) to provide effective and fair remedies for persons whose reputations are harmed by the publication of defamatory matter; and (d) to promote speedy and non-litigious methods of resolving disputes about the publication of defamatory matter. The objects clause is intended to draw attention to the principal objectives to be achieved by the legislation, and to be expressed in simple, non-technical language so that they may be readily understood. Objects provisions assist with the interpretation of legislation where the legislation is ambiguous, but cannot do so when the legislation is expressed in clear and unambiguous language.145 The Explanatory Note to the Act identified its principal features as follows: (a)

the retention (with some modifications) of the common law of defamation to determine civil liability for defamation; (b) the abolition of the distinction at common law between slander and

libel; (c) the creation of a statutory cap on the amount of damages for noneconomic loss that may be awarded in civil proceedings for defamation; (d) the enactment of provisions to facilitate the resolution of civil disputes about the publication of defamatory matter without litigation; (e) the delineation of the respective roles of juries and judicial officers in the jury trial of civil proceedings for defamation by limiting the role of juries to the determination of whether a person has been defamed and leaving the award of damages to judicial officers; (f) the abolition of exemplary and punitive damages in civil proceedings for defamation; [page 91] (g) the establishment of truth alone as a defence to a civil action for defamation; and (h) the imposition of a limitation period for civil actions for defamation of one year, subject to an extension (in limited circumstances) to a period of up to three years following publication.

SOURCES 3.18 Sources for the history of defamation law in Australia: Bennett J M (ed), Some papers of Sir Francis Forbes, First Chief Justice in Australia, Parliament of New South Wales, Sydney, 1998. The Bigge Reports, 1823. Castles A C, ‘The transgressions of the “Satirist” and uniform defamation law in Australia’ (1992) 66 Australian Law Journal 167–73. Chadwick P and Mulally J, Privacy and the Media, Communications Law Centre, Sydney and Melbourne, 1997, No 4.

Curry C H, Sir Francis Forbes: The First Chief Justice of the Supreme Court of New South Wales, Angus & Robertson, Sydney, 1968. Dixon Hon J, ‘The Common Law as an Ultimate Constitutional Foundation’ (1957) 31 Australian Law Journal 240–54. Eaton J D, ‘American Law of Defamation’ (1975) 61(7) Virginia Law Review 1349. Edgeworth B, ‘Defamation Law and the Emergence of a Critical Press in Colonial New South Wales (1824–1831)’ (1990) 6 Australian Journal of Law in Society 50. Evatt H V, ‘The Legal Foundations of New South Wales’ (1938) 11 Australian Law Journal 409–24. Governor Phillip’s First and Second Commissions, Historical Records of Australia, Series 1. Heydon D, ‘Judicial Activism and the Death of the Rule of Law’ (2003) 47 Quadrant 9–22. Holmes O W Jnr, The Common Law, Macmillan, London, 1882. Kercher B, Debt, Seduction and Other Disasters, Federation Press, Sydney, 1996. Kercher Case Reports: . Mitchell P, ‘The Foundations of Australian Defamation Law’ 28 Sydney Law Review 477–504. Nagle J F, Collins, the Courts and the Colony, University of New South Wales Press, Sydney, 1996. New South Wales Governor’s Despatches, Vol 3. Pollak M, Sense and Censorship, Reed Books, Sydney, 1990. Pullan R, Guilty Secrets, Pascal Press, Sydney, 1994. [page 92] Spigelman Hon CJ, ‘Foundations of the Freedom of the Press in Australia’ (2003) 23 Australian Bar Review 89. Watson J A, Historical Foundations of Australian Law, Federation Press, Sydney, 2013.

Windeyer W J V, ‘The Truth of a Libel’ (1934–1935) 8 Australian Law Journal 319–25. Windeyer W J V, Lectures on Legal History, 2nd ed, Law Book Company, Sydney, 1957. Woods G D, A History of Criminal Law in New South Wales, Federation Press, Sydney, 2002. ____________________ 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23.

Cook’s Journal: Daily Entries: , transcription of National Library of Australia, Manuscript 1, p 287, 2004, published by South Seas. Historical Records of New South Wales, Vol I, Pt 2, pp 30–1. 24 George III c 56. Historical Records of Australia, Series 1, Vol I, pp 1–2. 717 convicts, 290 free persons. Governor Phillip’s First and Second Commissions, Historical Records of Australia, Series 1, Vol I, pp 1– 8. Court of Criminal Judicature, 31 July 1789 (NSW Archives). Historical Records of Australia, Series 1, Vol I, p 57. Court of Criminal Judicature, 31 July 1789 (NSW Archives). See also R v Webb, Court of Criminal Judicature, 25 September 1794 (NSW Archives). Lewin v Thomson, Court of Civil Jurisdiction, 3 February 1800 (NSW Archives 1094). Spencer v Jeffrey, Australian, 6 May 1826. B Kercher, Debt, Seduction and Other Disasters, Federation Press, Sydney, 1996, Table 4.2, p 96. New South Wales Governor’s Despatches, Vol 3, pp 495 ff (W Bland to Lord Bathurst, 14 July 1819). 4 George IV c 96. These names are recorded in the Kercher case reports, available at . SCNSW, 12 February 1835, Forbes CJ, available at . 9 George IV c 83. W Blackstone, Commentaries on the Laws of England, 5th ed, Book I, Chapter 4, Clarendon Press, Oxford, 1769, p 107. See also Mabo v The State of Queensland (No 2) (1992) 175 CLR 1 at 34. Cooper v Stuart (1889) 14 App Cas 286 at 291; Mabo v The State of Queensland (No 2) (1992) 175 CLR 1 at 38. Dugan v Mirror Newspapers Ltd (1978) 142 CLR 583. The Bigge Reports, 1823, pp 20–3. Historical Records of Australia, Series 4, Vol I, pp 681–4. Joseph Sudds and Patrick Thompson: see Historical Records of Australia, Series 1, Vol XII, pp 715 and 766.

24. Historical Records of Australia, Series 1, Vol XIII, pp 292–4. See also W Blackstone, Commentaries on the Laws of England, 5th ed, Book 4, Chapter 2, Clarendon Press, Oxford, 1769, pp 151–2. 25. 8 George IV No 2 (1827). See also 8 George IV No 3 (1827): ‘An Act for imposing a Duty upon Newspapers’; 8 George IV No 5 (1827): ‘An Act for preventing the printing and publishing of books and papers by persons not known’. 26. The current form of this legislation (without the recognisance) is the Printing and Newspapers Act 1973 (NSW). 27. C H Curry, Sir Francis Forbes: The First Chief Justice of the Supreme Court of New South Wales, Angus & Robertson, Sydney, 1968, p 371. 28. See 3.2. 29. R v Bland (1849) NSW Supreme Court cases, Legge’s Reports 534. 30. R v Bland (1849) NSW Supreme Court cases, Legge’s Reports 534. 31. See 3.2. Bland was a brilliant and eccentric character. After this case, he designed ‘The Atomic Ship’, a gas-filled balloon powered by steam to do the journey between Sydney and London in less than a week. The model was exhibited in 1854 at the Crystal Palace in London but was never built. 32. Thorn v Faithfull (1856) NSW Supreme Court cases, Legge’s Reports 966 at 967 (Therry J). 33. 11 Victoria c 13. 34. ‘Mr Windeyer’s Libel Act’, Sydney Morning Herald, 3 July 1847, p 2. 35. P Mitchell, ‘The Foundations of Australian Defamation Law’ 28 Sydney Law Review 477–504. 36. See W J V Windeyer, ‘The Truth of a Libel’ (1935) 8 Australian Law Journal 319–25 at 323. 37. A C Castles, ‘The transgressions of the “Satirist” and uniform defamation law in Australia’ (1992) 66 Australian Law Journal 167–73 at 167. 38. A C Castles, ‘The transgressions of the “Satirist” and uniform defamation law in Australia’ (1992) 66 Australian Law Journal 167–73 at 170 (Australasian Chronicle, 25 April 1843). 39. Moore v Haynes [1881] 2 NSWR 327. 40. 13 Victoria c 16. 41. 37 Victoria c 11. 42. 50 Victoria c 26. 43. 1 Edward VII c 22. 44. 9 Edward VII c 22. 45. 3 George V c 32. 46. Defamation (Amendment) Act 1917 (NSW); Defamation (Amendment) Act 1940 (NSW); Racing (Amendment) Act 1948 (NSW). 47. C Pearl, Wild Men Of Sydney, W H Allen, London, 1958 (reprinted in 1980 by Angus & Robertson, which in 1989 was amalgamated with Harper and Row (USA) and William Collins (UK) to found HarperCollins Australia). 48. C Pearl, Wild Men Of Sydney, W H Allen, London, 1958 (reprinted in 1980 by Angus & Robertson), p 7. 49. See Comparative Table of Australian Defamation Acts, Appendix II. 50. 19 Victoria c 4. 51. Queensland Hansard, Parliamentary Debates, 13 November 1889, p 734. 52. Defamation Act 1889 (Qld); Defamation Act 1957 (Tas). 53. West Australian Newspapers Ltd v Bridge (1979) 141 CLR 535 at 540; Stephens v West Australian

54. 55. 56. 57. 58. 59.

60. 61. 62. 63. 64.

65.

66. 67. 68. 69.

70. 71.

72. 73. 74. 75. 76. 77.

Newspapers Ltd (1994) 182 CLR 211 at 236. West Australian Newspapers Ltd v Bridge (1979) 141 CLR 535 at 544. Commonwealth of Australia Constitution Act 1900, 63 & 64 Victoria c 12. Sir O Dixon, ‘The Common Law as an Ultimate Constitutional Foundation’ (1957) 31 Australian Law Journal 240–54 at 241. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 563. McArthur v Williams (1936) 55 CLR 324 at 347. See also Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 564. Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 126. See also Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 564; Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575 at [75]. Brodie v Singleton Shire Council (2001) 206 CLR 512 at 602; Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575 at [75]. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 566. See also Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 126. See also Statute of Westminster 1931 (UK), 22 & 23 George 5 c 4; Statute of Westminster Adoption Act 1942 (Cth). Australian Consolidated Press Ltd v Uren (1967) 117 CLR 221 at 238, 241. Viro v R (1978) 141 CLR 88 at 121, 137; Adler v District Court of New South Wales (1990) 19 NSWLR 317; Trident General Insurance Co Ltd v McNeice Bros Pty Ltd (1988) 165 CLR 107 at 129–30; Swan v Williams (Demolition) Pty Ltd (1987) 9 NSWLR 172. Jones v Commonwealth of Australia (1987) 71 ALR 497 at 498; John v Federal Commissioner of Taxation (1989) 166 CLR 417 at 439–40; Stevens v Head (1993) 176 CLR 433; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 554. See 3.11. Stevens v Head (1993) 176 CLR 433 at 461–2; Coleman v Power (2004) 209 ALR 182 at [301]. Cook v Cook (1986) 162 CLR 376 at 390; Hawkins v Clayton (1986) 5 NSWLR 109 at 137; X v Amalgamated Television Services Pty Ltd (No 2) (1987) 9 NSWLR 575 at 585. Viro v R (1978) 141 CLR 88 at 121; Skelton v Collins (1966) 115 CLR 94 at 104; Cook v Cook (1986) 162 CLR 376 at 390; Ballina Shire Council v Ringland (1994) 33 NSWLR 680 at 699–700; John Fairfax & Sons Pty Ltd v Vilo (2001) 52 NSWLR 373 at [111]. Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86 at 100. Cook v Cook (1986) 162 CLR 376; Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485; King & Mergen Holdings Pty Ltd v McKenzie (1991) 24 NSWLR 305; Nguyen v Nguyen (1990) 169 CLR 245 at 269. Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166; Metlej v Kavanagh [1981] 2 NSWLR 339. Zotovic v Dobel Boat Hire Pty Ltd (1985) 62 ACTR 29 at 32. (1992) 175 CLR 1. Mabo v The State of Queensland (No 2) (1992) 175 CLR 1 at 29–30. Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575 at [116]; Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; (1998) 193 CLR 519 at 575. Mabo v The State of Queensland (No 2) (1992) 175 CLR 1 at 42. See also Commonwealth of Australia v State of Tasmania (1983) 158 CLR 1; Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 286–8.

78. Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287; Coleman v Power (2004) 209 ALR 182 at [19] (Gleeson C J), [241]–[249] (Kirby J). 79. Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575 at [116] (and see Toonen v Australia, United Nations Human Rights Committee (No 488/1992) adopted 31 March 1994). 80. Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575. See 7.5. 81. Costigan Royal Commission (Vic) (1980–1982); Street Royal Commission (NSW) (1983); Fitzgerald Royal Commission (Qld) (1987–1989); WA Inc Royal Commission (1990–1992). 82. Buck v Barone (1976) 135 CLR 110 at 137; Ansett Transport Industries (Operations) Pty Ltd v The Commonwealth (1977) 139 CLR 54; McGraw-Hinds (Aust) Pty Ltd v Smith (1979) 144 CLR 633. 83. Miller v TCN Channel 9 Pty Ltd [1986] HCA 60 at [7]–[18] (Murphy J). 84. Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; Australian Capital Television Pty Ltd v Commonwealth (No 2) (1992) 177 CLR 106. 85. (1994) 182 CLR 104. 86. (1994) 182 CLR 211. 87. (1994) 182 CLR 104 at 173–4. 88. (1994) 182 CLR 104. 89. (1997) 189 CLR 520. 90. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. 91. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 565. 92. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 564–5. See also Attorney-General v Guardian Newspapers Ltd [1990] 1 AC 109 at 283. 93. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 564–5. 94. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 542. 95. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 565–6. 96. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 566. 97. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 566. 98. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 567; Coleman v Power (2004) 209 ALR 182 at [93] (McHugh J); APLA Pty Ltd v Legal Services Commissioner [2005] HCA 44; McCloy v New South Wales [2015] HCA 34 at [2]. 99. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 568. 100. Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 192; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 568. 101. APLA Pty Ltd v Legal Services Commissioner [2005] HCA 44 at [27]. 102. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 575. 103. Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575 at [51]. 104. (1997) 189 CLR 520. 105. Cassell & Co Ltd v Broome [1972] AC 1027 at 1127. 106. (1994) 182 CLR 104 at 142. 107. ‘The Contribution of an Independent Judiciary to Civilisation’, reproduced in Winters (ed), Handbook for Judges, 1975, p 44. 108. See also State Government Insurance Commission v Trigwell (1979) 142 CLR 617 at 633–4; Mabo v The State of Queensland (No 2) (1992) 175 CLR 1 at 29–30; Roberts v Bass (2002) 212 CLR 1 at 55.

109. Halabi v Westpac Banking Corporation (1989) 17 NSWLR 26 at 45, 57 ff. 110. See D Heydon, ‘Judicial Activism and the Death of the Rule of Law’ (2003) 44 Quadrant 9–22 at 9. 111. O W Holmes Jnr, The Common Law, Macmillan, London, 1882, pp 35–6, referred to in Ballina Shire Council v Ringland (1994) 33 NSWLR 680 at 704, 731–2. 112. Thorley v Kerry (1812) 4 Taunt 355; 128 ER 367. This distinction was abolished in New South Wales by parliament in the 1847 Act — 11 Victoria c 13. 113. (2002) 210 CLR 575. 114. Duke of Brunswick v Harmer (1849) 14 QB 185; 117 ER 75. 115. Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575 at [76] (authorities omitted). 116. Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575 at [92]. 117. G Spencer Bower, The Law of Actionable Defamation, 2nd ed, Legal Books, Redfern, NSW, 1990, p 285 (originally published by Butterworths, London, 1923). 118. (1975) 61(7) Virginia Law Review 1350. 119. (1978) 142 CLR 583. See also United Australia Ltd v Barclays Bank [1941] AC 1 at 29. 120. Gypsy Fire v Truth Newspapers Pty Ltd (1987) 9 NSWLR 382 at 385. 121. New South Wales Law Reform Commission, Defamation, Discussion Paper 32, August 1993, p 1. 122. New South Wales, Report of the Law Reform Commission on Defamation, LRC 11 (1971); South Australia, 15th Report of the Law Reform Committee of South Australia relating to the reform of the law of libel and slander (1972); Commonwealth, Australian Law Reform Commission, Unfair Publication, Defamation and Privacy, Report No 11 (1979); Western Australia, The Law Reform Commission of Western Australia, Project 8 Report on Defamation (1979); Commonwealth, Final Report of the Constitutional Commission (1988); Attorneys-General of New South Wales, Queensland and Victoria, Discussion Paper on reform of defamation law (1990); Attorneys-General of New South Wales, Queensland and Victoria, Reform of Defamation Laws, Discussion Paper No 2 (1991); New South Wales, Legislative Assembly, Legislation Committee, Report on the Defamation Bill 1992 (October 1992); New South Wales Law Reform Commission, Defamation, Discussion Paper 32 (August 1993); New South Wales Law Reform Commission Report No 75, Defamation (September 1995); Australian Capital Territory Community Law Reform Committee, Defamation Report No 10 (1995); New South Wales, Report of Attorney-General’s Taskforce on Defamation Law Reform, Defamation Law: Proposals for Reform in New South Wales (April 2002); Western Australia, Committee Report on reform to the law of defamation in Western Australia (September 2003); Commonwealth Attorney-General’s Department, Outline of a possible National Defamation Law (March 2004); Commonwealth AttorneyGeneral’s Department, Revised outline of a possible National Defamation Law (July 2004); Standing Committee Attorneys-General, Proposal for Uniform Defamation Laws (July 2004); SCAG, States and Territories Model Provisions (November 2004). 123. Australian Law Reform Commission Report, Unfair Publication: Defamation and Privacy, No 11, 1979, p 36, [65]. 124. Bank of England v Vagliano Bros [1891] AC 107 at 145. See, for example, Mann v O’Neill (1997) 191 CLR 204 at 257. 125. New South Wales, Report of the Law Reform Commission on Defamation, LRC 11 (1971), [18]. 126. See, for example, Jackson-Knaggs v Queensland Building Services Authority [2004] QSC 289. 127. Australian Law Reform Commission Report, Unfair Publication: Defamation and Privacy, No 11, 1979, p 37, [68]. 128. Bank of England v Vagliano Bros [1891] AC 107 at 144–5; Sungravure Pty Ltd v Middle East Airlines

129. 130. 131. 132. 133. 134.

135.

136. 137. 138. 139. 140. 141. 142. 143. 144. 145.

Airliban SA (1975) 134 CLR 1 at 22; Calwell v Ipec Australia Ltd (1975) 135 CLR 321 at 330; Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 220, 240. Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 220; Sungravure Pty Ltd v Middle East Airlines Airliban SA (1975) 134 CLR 1 at 22. Jackson-Knaggs v Queensland Building Services Authority [2004] QSC 289 at [12]. See also JacksonKnaggs v Queensland Newspapers Pty Ltd [2005] QCA 145 at [18]. Coleman v Power (2004) 209 ALR 182 at [245] (Kirby J). Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 at 112 (McHugh J); Attorney-General (NSW) v Stocks & Holdings (Constructors) Pty Ltd (1970) 124 CLR 262 at 283. Wacando v Commonwealth (1981) 148 CLR 1 at 25–6. CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; Network Ten Pty Ltd v TCN Channel Nine Pty Ltd (2004) 205 ALR 1 at [11]; K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 312, 315. CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 at 320–1; Network Ten Pty Ltd v TCN Channel Nine Pty Ltd (2004) 205 ALR 1 at [11]. Commonwealth of Australia Constitution s 122. Commonwealth of Australia Constitution s 51(i). Commonwealth of Australia Constitution s 51(v). Commonwealth of Australia Constitution s 51(xx). Commonwealth of Australia Constitution s 51(xx). Australian Government, Attorney-General’s Department, Revised Outline of a possible National Defamation Law, July 2004. Standing Committee Attorneys-General, Proposal for Uniform Defamation Laws, July 2004. Standing Committee Attorneys-General, Proposal for Uniform Defamation Laws, July 2004, p 8. The Australian Capital Territory included the provisions of the Act in the Civil Law (Wrongs) Act 2002 (ACT) Ch 9, rather than enact the Defamation Act itself. Wacando v Commonwealth (1981) 148 CLR 1 at 15–16, 23.

[page 93]

CHAPTER 4 REPUTATION INTRODUCTION GOOD REPUTATION FAME BAD REPUTATION SCANDAL NARCISSISM OSTRACISM COMPETING INTERESTS

4.1 4.2 4.3 4.4 4.5 4.6 4.7 4.8

INTRODUCTION 4.1 The law of defamation protects a person from an attack on reputation. Reputation is reflected by the esteem in which a person is held, the goodwill provided to him or her, or the confidence placed in him or her by other persons, whether in respect of personal, private or domestic life, public, social, professional or business life or status or financial credit.1 Reputation is the plaintiff’s general standing or image over the period of his or her life preceding the defamatory publication. ‘A man’s reputation … 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.’2 It has also been said about reputation that: One of the most refined conclusions at which a refined state of society can arrive, is, that a man should have a solid property in his reputation. It is one of the greatest privileges that belong to the nature of man, that he possesses a sensibility to fame and a love of glory, and that the individual, by the combination of opinion and the force of character, begets in his own reputation a property more valuable than the mere materials to which the crude notions of property are first applied.3

[page 94] It is not the law, however, that reputation is regarded as property, or a tangible thing, the loss of which can be measured4 or a commodity having market value.5 Damages therefore are not quantified by reference to a depreciation in the value of a plaintiff’s reputation.6 Every award must be unique and comparison between awards is particularly difficult.7 The loss of reputation may be understood in the same sense as the loss of life or limb. The loss of these things cannot be measured in any monetary sense but, nevertheless, the law provides compensation for the loss through a monetary award. Inherent in the notion of compensation is that it cannot totally restore a person’s reputation to what it was before the defamatory publication and that damages are an imperfect, although generally adequate, remedy. Throughout history, people have used physical force when they have seen it necessary to defend their right to life or limb. They have also done so when they have seen it necessary to defend their right to reputation. A good name is the source of fame, wealth and power. People have resorted to physical force to seek revenge, having lost ‘face’, their honour or their standing in the community. Defamation law protects reputation and maintains order by providing a remedy if reputation is damaged, in much the same way as the criminal law protects life and limb from attack and provides sanctions for its breach. Today, the recognition by the law of a right to reputation is no longer required simply to eliminate the threat of violence from revenge, duels or breaches of the peace. Instead, there has been an ‘increasing appreciation and assertion of the intrinsic equality of all human beings’8 which entitles a person to fundamental human rights, including a right to reputation and protection from attack on that reputation.9 Flowing from the concept that in a democratic society every citizen is equal, there is a general understanding that each person will act or behave to a common standard and that each person is therefore deserving of respect. Each person has a right to an unblemished reputation in which others may place their trust and confidence. That reputation gives a person a recognition of his or her worth in the community, his or her dignity, honour, self-esteem and confidence. If that reputation is harmed in some way, it

is a peculiar feature of the nature of reputation that the community’s trust and confidence is destroyed or at least harmed. To exalt a man’s reputation in society is to ensure to him the respect and affection of mankind, and to lay open the avenues to prosperity and honour; to degrade and disgrace him is to banish him to a state of wretched solitude and destitution, to render him the very scorn of men, the outcast of the people.10

[page 95] Consistent with this right is the right of citizenship — every person at birth becomes a member of the community into which he or she is born and is entitled to remain in it until excluded by some competent authority: It follows … that every human being (unless outlawed) is a member of some community, and is entitled to regard the part of the earth occupied by that community as a place to which he may resort when he thinks fit.11

The criminal law governs the right of the community to exclude criminals from society. The law of defamation governs the right of persons within the community to make statements which have the effect of excluding a person from that community. With a good reputation, a person has ‘earned’ the trust and confidence of others who rely upon it and expect that the person will act in accordance with it. The person may rely upon that trust and confidence to be given equal opportunity, or even better, preferential treatment over others who do not have the same unblemished or enhanced reputation: Reputation is an integral and important part of the dignity of the individual. It also forms the basis of many decisions in a democratic society which are fundamental to its wellbeing: whom to employ or work for, whom to promote, whom to do business with or to vote for. Once besmirched by an unfounded allegation in a national newspaper, a reputation can be damaged forever, especially if there is no opportunity to vindicate one’s reputation. When this happens, society as well as the individual is the loser. For it should not be supposed that protection of reputation is a matter of importance only to the affected individual and his family. Protection of reputation is conducive to the public good. It is in the public interest that the reputation of public figures should not be debased falsely.12

The commission of a single act or possession of a single condition which might lower the person’s reputation in the eyes of ordinary people can destroy society’s trust and confidence in that person’s reputation and can often lead to a

generalised view of a bad reputation. Even suspicion of such an act or condition can have the same consequences because people tend not to act upon proof, but upon suspicion or rumour without fair or adequate investigation of the facts. Trustworthiness is an essential ingredient of reputation in our society. If we cannot trust the people who govern us, who police us or who teach our children, society — which depends on these people meeting this basic expectation — will break down for lack of trust. A key to trust is a person’s honesty in their dealings with others. If a person’s reputation for trustworthiness or honesty is attacked, the person’s standing in the community is necessarily diminished. Defamation law does not determine a person’s right to a particular reputation. For example, it does not guarantee the reputation for being the most skilful lawyer amongst lawyers, and cannot determine the success that the person deserves by establishing the correct reputation. This depends upon the information, knowledge [page 96] and judgement of those who know the person and know of the person’s reputation. However, defamation law acts in a protective sense to prevent defamatory statements being made or in a restorative way to compensate the plaintiff for defamatory statements which have the tendency to reduce the plaintiff’s reputation and have the tendency to exclude the plaintiff from enjoying the success and life to which the person’s reputation entitles him or her. The law does not require the plaintiff to prove that the defamatory statements are false, nor that he or she has actually suffered damage (as was the position at common law prior to the Defamation Act 2005, excluding libel and specific cases of slander). It is not necessary for a plaintiff to adduce evidence that his or her pre-publication reputation was good.13 However, if defamatory words are published, the defence of truth is available to show that the plaintiff is not deserving of the reputation he or she has and is not entitled to compensation. If the defendant cannot prove the truth of the defamatory statement, then it should follow that the plaintiff’s right to compensation is based upon the publication of a misrepresentation, deliberate or otherwise, by the defendant to the detriment of the plaintiff to the extent of the

distribution of the publication. The malicious publication of a defamation is as much a misrepresentation of the plaintiff’s reduced reputation, which is the intended effect, as is the deceitful publication or misrepresentation of a person’s undeserving reputation. The principle is the same, for example, where a person publishes fraudulently that Dr X is a skilful surgeon when he is in fact incompetent, compared with the statement that Dr X is an incompetent surgeon when he is in fact skilful.14 At common law, in the absence of a defence of truth, the falsity of the defamatory statements is presumed and may be taken into account as increasing the hurt to the plaintiff on the issue of damages.15 Prior to the Defamation Act 2005, in some states and territories falsity could not be presumed because of the requirement that the defence of truth included the element of public interest or public benefit. In those jurisdictions if the parties chose not to raise truth or falsity as an issue in the proceedings (for example, by way of defence or by way of aggravation or mitigation of damages) it was strictly not relevant.16 The desire to be respected, achieve a good reputation or be famous is a powerful force in society. People seek praise and promotion, and distinguish others by criticism or disapproval. A good reputation provides increasing wealth and power while harm to reputation causes disgrace and exclusion. [page 97] The harm or diminution of the favourable opinion of others shown towards a person by a defamatory publication entitles the person to a cause of action for defamation. The law will only tolerate such harm where it is justified or protected or where there is lawful excuse.

GOOD REPUTATION 4.2 A person’s reputation may be said to be injured when the esteem in which that person is held by the community is diminished in some respect.17

A person’s reputation is the character which he or she bears in public estimation; that is, what other people think of the person.18 Evidence may be called to prove good reputation from witnesses who know the plaintiff to speak about the nature of the plaintiff’s reputation. The witnesses may not be crossexamined about specific instances of misconduct, only general evidence of reputation.19 It must be evidence of general reputation, ‘the esteem in which he is held by others who know him and are in a position to judge his worth’, not evidence of specific events going to make up the general reputation.20 As a qualification to this, evidence of specific events of sufficient notoriety that they contribute to the general reputation may be admissible.21 Reputation evidence is necessarily hearsay. The evidence must be what others think of the plaintiff, not what the witness himself or herself thinks. Reputation can be contrasted with character — that is, what a person is as distinct from what other people think of the person — although ‘character’ has been and can properly be used in the same sense as ‘reputation’.22 If it is sought to prove bad reputation, again the evidence must be of general reputation and not of particular instances of bad conduct. In each case, however, in cross-examination a witness may be asked the grounds for the good or bad reputation and on what it is based, and so particular facts or instances may be asked about.23 A witness as to reputation need not know the plaintiff personally and evidence can be given by those who have heard of the reputation and can say what people generally think of the plaintiff.24 This may particularly apply in the case of a public [page 98] figure where defamatory matter may do the plaintiff more harm amongst those who do not know the plaintiff personally than amongst those who do. However, the best evidence is from a witness who knows the plaintiff well, who has had the opportunity of becoming aware of the opinion of the person’s reputation held generally by the members of the neighbourhood in which he or she lives or of some other relevant group of persons, and is able to state from that knowledge what the person’s general reputation is.25 The law presumes that the publication of a defamatory statement damages a

person’s reputation, without the need to prove that anyone knowing the person has read the statement.26 If the defamed person does not live in a particular jurisdiction, or has no interest or reputation in that jurisdiction, the harm to reputation by a defamatory publication in that jurisdiction is likely to be minimal and only nominal damages awarded.27 However, the publication of the defamatory statement will give rise to a cause of action even where no one reading the statement had prior knowledge of the plaintiff. A newspaper, for example, should not be able to simultaneously create and then defame an individual’s reputation. If an unknown American was about to visit an English town and was erroneously described in the town’s local paper as a paedophile, the law affords him a cause of action for defamation.28 The assessment of damages for injury to reputation must be based upon a qualitative judgement as to what the plaintiff’s reputation was before the publication and the extent to which the publication has injured that reputation.29 In Marsden v Amalgamated Television Services Pty Ltd30 it was established that the plaintiff enjoyed a good settled reputation established over the whole of his life: it was founded in many areas both public and personal. It was a good settled reputation in respect of which the false charges captured in the several imputations of such gravity were damaging in the highest degree. There is a presumption of good reputation, the precise basis for which is unstated and whose existence remains uncertain, in favour of a plaintiff. The presumption is rebuttable and either is that the plaintiff’s reputation was good, or that it received some injury, and if no evidence is led on the issue, the plaintiff has discharged the burden of proof and the finder of fact must conclude that his or her reputation is good (or has been injured) unless the contrary is proved.31 [page 99] In some cases a person’s reputation is, in a relevant sense, his or her whole life. The reputation of a clerk for financial honesty and of a solicitor for integrity are illustrations. The reputation of a doctor is considered to be of this nature, at least where a substantial part of his or her work is in an area where he or she acts on reference from or with the recommendation of other doctors:32

… the law should place a high value upon reputation and in particular upon the reputation of those whose work and life depend upon their honesty, integrity and judgment. This Court should record that its view is such. And it should record that, where hurt and reputation are involved, the vindication of the plaintiff should not be left to speculation: the damages to be awarded will be so large as to make what the Court has done plain and clear.33

FAME 4.3 The more a person enjoys a high reputation in the community, the more a defamatory statement will have the tendency to defame that person and cause damage to that person’s reputation more than someone of lesser standing.34 Fame can be achieved in a number of ways, including birth (royalty), relationship (parents, spouse or children), election or appointment (politicians, judges and others in public office), achievement or entertainment (film stars, sporting heroes, artists, writers) or chance (ordinary people caught up in tragedy or disaster such as Lindy Chamberlain, Schapelle Corby).35 The achievement of fame is undermined by the passing of time. It is the key to Andy Warhol’s ‘15 minutes of fame’ or Mark Twain’s ‘fame is vapour; popularity an accident; the only earthly certainty is oblivion’. Fame can be created instantly by the media. It can grow for the mutual benefit of the person and the media, and information be published which promotes and enhances the person’s good reputation. This can just as soon be over. The person can then become an object of ridicule and derision by the media, which may publish negative publicity, destructive of the person’s reputation and difficult to rescue. Often a famous person may not realise the expectations created by fame, to act in accordance with the public image rather than the person’s private wishes, and may not understand the transience of fame and the fickleness of public opinion. The law imposes a responsibility on the media not to defame or scandalise that person’s [page 100]

reputation to the public without justification or lawful excuse. The media’s exposure of a famous person’s real character is often based upon (true) private information which might not be protected at law. The fact that an individual has achieved prominence on the public stage does not mean that his or her private life can be laid bare by the media. In A v B plc,36 the English Court of Appeal observed that where an individual is a public figure, the person is entitled to have his or her privacy respected in the appropriate circumstances. There is no reason why it should necessarily be in the public interest that an individual who has been adopted as a role model, without seeking this distinction, should be demonstrated to have feet of clay: A public figure is entitled to a private life. The individual, however, should recognise that because of his public position he must expect and accept that his actions will be more closely scrutinised by the media. Even trivial facts relating to a public figure can be of great interest to readers and other observers of the media. Conduct which in the case of a private individual would not be the appropriate subject of comment can be the proper subject of comment in the case of a public figure. The public figure may hold a position where higher standards of conduct can be rightly expected by the public. The public figure may be a role model whose conduct could well be emulated by others. He may set the fashion. The higher the profile of the individual concerned the more likely that this will be the position. Whether you have courted publicity or not you may be a legitimate subject of public attention. If you have courted public attention then you have less ground to object to the intrusion which follows. In many of these situations it would be overstating the position to say that there is a public interest in the information being published. It would be more accurate to say that the public have an understandable and so a legitimate interest in being told the information. If this is the situation then it can be appropriately taken into account by a court when deciding on which side of the line a case falls. The courts must not ignore the fact that if newspapers do not publish information which the public are interested in, there will be fewer newspapers published, which will not be in the public interest.37

In Campbell v Mirror Group Newspapers Ltd,38 it was said that the court in A v B plc39 was not speaking of private facts which a fair-minded person would consider it offensive to disclose. However, where a public figure chooses to make untrue pronouncements about his or her private life, the press will normally be entitled to put the record straight.

BAD REPUTATION 4.4

Damage to reputation depends on the estimation in which the plaintiff is

held by others. If the plaintiff has no reputation or a bad reputation, damages should be [page 101] reduced or be nominal.40 The law will not permit a plaintiff to recover damages in respect of injury to a reputation which he or she either does not have or ought not have.41 It is self-evident that a reputation for proficiency in crime or notorious immorality cannot give rise to an action for defamation if that reputation is challenged. In Mawe v Pigott,42 an Irish priest had been accused of being a police informer, which the plaintiff argued was defamatory amongst the criminal classes or those who sympathised with crime.43 A statement which lowers the estimation of the plaintiff amongst the criminal classes as opposed to rightthinking persons generally is not defamatory. The common law is strict about the admissibility of evidence of bad reputation and will not allow evidence to be admitted of rumours and suspicions, nor evidence of previous acts by the plaintiff unconnected with the defamatory imputations, particularly if the defendant does not plead justification.44 Media reports of a plaintiff’s reputation are inadmissible.45 If the defendant intends to rely upon the plaintiff’s bad reputation, the rules of court require particulars to be provided.46 Evidence of bad reputation, to be admissible, must be relevant to that sector of a person’s reputation which has been defamed.47 For example, if the defamation imputes that the plaintiff was dishonest, evidence that the plaintiff has a reputation for loose morals would be inadmissible in relation to bad reputation.48 This may be difficult to apply in practice. In determining the sector applicable, the ambit of admissible evidence should not be enlarged artificially by reason of a desire to define the sector merely by reference to easily defined segments of the plaintiff’s occupation. Alternatively, the relevant sector should not be limited ‘by the artificial construct we now know as an imputation’.49 Even if defendants cannot prove the truth of the imputations, they may nevertheless seek to rely in mitigation of damages on directly relevant facts

which in other circumstances might have been ingredients of a defence of justification. In Australian [page 102] Broadcasting Corporation v McBride50 the New South Wales Court of Appeal held that the relevant sector of the plaintiff’s reputation for the purposes of the proceedings was his reputation as a medical practitioner dedicated to the wellbeing of his patients, so that particulars in mitigation of damages concerning his reputation for falsifying results of scientific experiments were not relevant for the purposes of mitigation.51 There is one exception to the rule about evidence of particular instances of misconduct not being admissible and that relates to prior convictions. As a conviction is made in open court and is a matter of public knowledge, it is accepted by people as giving the best guide to a plaintiff’s reputation and standing. The conviction must be relevant to the sector of the plaintiff’s life the subject of the defamatory imputation and must have taken place within a relevant period such as to affect the plaintiff’s current reputation.52 In Goody v Odhams Press Pty Ltd,53 People magazine published an article about the Great Train Robbery in England and said the plaintiff was ‘now in prison for 30 years for his part in the Mail Raid’. At common law the newspaper could not succeed on a defence of justification by simply relying upon the plaintiff’s conviction. The defendant had to prove that the plaintiff was in fact one of the train robbers and was in fact guilty. It was not sufficient to prove that he was convicted of the train robbery. The defendant had to prove it all over again if he could.54 This remains the position at common law, but has been remedied under s 42 of the Defamation Act 2005. It has also been held that judicial findings, if relevant to the sector of the plaintiff’s reputation defamed, should be admissible in mitigation of damages on the basis that they took place in open court and can be regarded as a matter of public knowledge.55 The extent of cross-examination of a plaintiff in respect of specific acts of misconduct is a matter for the trial judge’s discretion. Cross-examination as to credit should be refused if it is intended to introduce illegitimately specific

instances of misconduct in the absence of a plea of justification or in the absence of particulars of bad reputation.56 A defendant cannot mitigate damages by tendering evidence of other defamatory publications concerning the plaintiff and must answer for the defendant’s own publication without regard to what others have published.57 [page 103] It had for some time been accepted that matters that occurred after the publication of the defamatory material were not allowed as proof of bad reputation.58 When one speaks of a plaintiff’s actual reputation or current reputation one means the reputation as accumulated from one source or another over the period of time that precedes the occasion of the libel sued upon.59 However, once it is accepted that damages for defamation continue to be incurred after the publication of the defamatory material up to the date of trial, it should follow that evidence referring to a change in the reputation of the plaintiff after the publication date would be relevant.60 After a review of the relevant authorities, the New South Wales Court of Appeal has decided that the continuing nature of damage in a defamation action enables a court to consider actual facts at the time it assesses damages and this includes any evidence of post-publication material that goes to a plaintiff’s reputation. Such evidence is admissible to ensure that the damages awarded accurately reflect the plaintiff’s reputation at the time the damages are awarded. The admission of this evidence should be approached with caution and must be carefully confined in the same sense as reputation evidence is now confined.61

SCANDAL 4.5 The extent of damage to reputation is observed by the reaction of those to whom the defamatory publication is made. The wider the publication, the greater the public reaction, the greater the damage. In that event, if the publication is without justification and without lawful excuse, the plaintiff should be entitled to substantial damages.

The more public the reputation, the greater the damage to reputation.62 The disclosure of a high profile person’s discreditable conduct tends to receive greater reaction than a person of lesser standing. In this sense, the conduct would be regarded by the public as a ‘scandal’ and lead to strong condemnation of the person by the public. The word ‘scandal’, according to the Oxford Dictionary, means a disgraceful imputation or slander; a grossly discreditable circumstance, event or condition of things; a person whose conduct is a gross disgrace to his or her class, country, position or other relevant group. [page 104] ‘Scandal’ can be understood when the conduct of a person of high public standing is revealed to be a gross disgrace to that standing. This disgrace may relate to the private morality of the person, but may also offend the integrity or trust in the public office that the person occupies. The result of a high profile reputation is the public expectation that the person will act in accordance with that reputation, and the person will suffer serious disgrace if he or she does not do so. For example, during the 1992 United States presidential campaign allegations were published in supermarket tabloids that candidate Bill Clinton had had a longstanding affair with Gennifer Flowers. Clinton and his wife Hillary were interviewed on CBS 60 Minutes by Steve Kroft: Kroft: Clinton:

… Are you prepared tonight to say that you have never had an extramarital affair? I’m not prepared tonight to say that any married couple should ever discuss that with anyone but themselves. I’m not prepared to say that about anybody … Now, no matter what I say, to pretend that the press will then let this die, then we are kidding ourselves. I mean, you know, this has become a virtual cottage industry. The only way to put it behind us, I think, is for all of us to agree that this guy has told us about all we need to know.

Kroft:

Clinton:

Hillary Clinton:

Anybody who is listening gets the drift of it and let’s go on and get back to the real problems of this country … I think most Americans would agree that it’s very admirable that you’ve stayed together — that you’ve worked your problems out and that you’ve seemed to reach some sort of understanding or arrangement. Wait a minute, wait a minute, wait a minute. You’re looking at two people who love each other. This is not an arrangement or an understanding. This is a marriage. That’s a very different thing. You know I’m not sitting here — some little woman standing by my man like Tammy Wynette. I’m sitting here because I love him, and I respect him, and I honour what he’s been through and what we’ve been through together. And you know, if that’s not enough for people, then heck, don’t vote for him.63

This interview was broadcast after the Super Bowl, the most widely watched event on United States television. It cleared the way for Clinton’s election to the Presidency in 1992. The private goings-on in late 1995 in the White House and the public revelations in 1997–1998 are history. The scandal of the Lewinsky affair operated on two levels, [page 105] one being Clinton’s private morality vis-à-vis his wife Hillary and the dishonesty and hypocrisy of his public denials of extramarital affairs, particularly when the news of the affair first broke. The second level related to a United States President, prime defender of the Constitution, lying under oath in the court proceedings. The truth could only be established with certainty after DNA tests were conducted on the ‘preserved’ GAP dress. Until the results of those tests became known, Clinton denied any sexual contact, and continued to deny

thereafter that there had been any ‘sexual relationship’ as defined for the purposes of the court proceedings. The Lewinsky affair was diverted by the release of the Starr Report worldwide on the internet. Contrary to the expectation that the President would be forced to resign in disgrace, the report strengthened his and his supporters’ resolve by revealing the oppressive interrogation of a young woman, compelled to state most explicitly the nature of the sexual acts that had occurred, and was seen as a calculated attempt to damage the President’s reputation and humiliate him (and his wife) by the wide dissemination of that material for the world to read. In Australia there have been similar scandals involving politics, sport and business. They follow a similar pattern — news that shocks the public and the public reaction that condemns the person concerned. However, sometimes the person’s reputation is so high that the public, reinforced by denials from the person concerned, will refuse to believe the news and condemn those that convey it. The media, of course, play an essential part in this process, often knowing from confidential sources of the target’s hypocrisy or dishonesty, but unable to publish because of a lack of sufficient proof needed at trial to justify the ruin of the person’s reputation. It is in this context that the very high price that a public figure pays as the result of the publication of a scandal can be measured and understood, but also the very high price that such a person deserves to pay if the scandal is true. What creates a scandal and what sustains it is the interest of the public and therefore its newsworthiness. Scandals have the ability to grow in intensity and develop new directions. The law of defamation cuts across this process and attempts to balance the protection of reputation and the allowance of free speech. Balance in these situations is not easily achieved.

NARCISSISM 4.6 Some personality types may be more prone to scandal than others. Healthy self-confidence and self-esteem can transform themselves into vanity,

conceit and selfishness. Those exhibiting narcissistic behaviour may have the following traits in common: (a) They deny that they did things wrong, but blame others; (b) They are pathological liars, using their charm to persuade and deceive those around them; [page 106] (c)

They are manipulative of others, requiring absolute loyalty and exploiting others without regard to their feelings or interests; (d) They take extraordinary risks. When the market goes up they can be very successful but when the market goes down their risk-taking becomes their greatest weakness; (e) They have an exceptional sexual appetite which they publicly display and use as a source of power and domination; (f) Their partner or spouse is generally submissive and accepting of this behaviour. While privately those around such people may tolerate the behaviour, the exposure of the behaviour publicly can create a scandal, severely damaging to the person’s reputation in society. Freud identified ‘narcissists’ from the Greek myth of Narcissus, the handsome youth who fell in love with his own reflection in a pond and, unable to leave it, turned into the flower by that name. Celebrities can ‘get so used to people looking at them that they stop looking back at other people’.64 Their self-indulgence can also make them overly sensitive to criticism, becoming easily insulted, complaining that they have been defamed. Whatever the reason, these personality types are often seen in the defamation courts.

OSTRACISM

4.7 Lieutenant James J Pelosi was a young cadet at the United States Military Academy at West Point. He failed to put his pen down immediately at the end of an exam and was charged with cheating. He was found to have disobeyed West Point examination rules. However, the charges were dismissed on appeal and he was reinstated in good standing. Notwithstanding, his peers excluded him for 19 months and he was forced to live alone and eat alone. No other cadet socialised with him or spoke to him. Despite this exclusion, he stayed on and graduated:65 Few events in life are more painful than feeling that others, especially those whom we admire and care about, want nothing to do with us.66

The concept of public hatred, contempt or ridicule which evidences damage to reputation bears similarity to the concept of ostracism. In ancient Greece, a crime such as murder could be punished either by death or by permanent exile from the country. As a result, the practice emerged in Athens where a person could be banished for 10 years if it was considered that the person [page 107] threatened the stability of the state. A vote would be taken by the citizens to ‘ostracise’ the person. The concept of ostracism is useful in understanding the effect of defamation. Exclusion is commonly experienced by those whose reputations have been harmed. Psychological studies have argued that exclusion or ostracism attacks four fundamental human needs: (1) (2) (3) (4)

our sense of connection and belonging to a group; our sense of self-esteem, confronted by shame, guilt or inferiority as a result of the exclusion; our control of social engagement, diminished by lack of response from others; and a meaningful existence, making us feel like a ghost and observing what life would be like if we did not exist.67

These human needs are important for a person’s motivation and survival. The studies found that the consequence of exclusion is usually initial hurt and anger, but then leads to the person seeking in desperation to regain or reestablish inclusion within the group. If the exclusion is maintained, the effect of being deprived of these human needs eventually gives way to feelings of alienation, helplessness, depression and despair.68 If the exclusion has resulted from an unjustified attack on reputation, for which there is no satisfactory remedy, these feelings have often been transferred to acts of violence and revenge. A good reputation is central to a person’s wellbeing. Its destruction arouses the most basic instincts. It has wider implications in the context of racism, nationalism, discrimination or vilification of one community against another. Orhan Pamuk, the Turkish winner of the 2006 Nobel Prize for Literature, identified these feelings as he explained the importance of literature: What literature needs most to tell and investigate today are humanity’s basic fears: the fear of being left outside, the fear of counting for nothing, and the feelings of worthlessness that come with such fears; the collective humiliations, vulnerabilities, slights, grievances, sensitivities, and imagined insults, and the national boasts and inflations that are their next of kin. Whenever I am confronted by such sentiments, and by the irrational, overstated language in which they are usually expressed, I know they touch on a darkness inside me. We have often witnessed peoples, societies and nations outside the Western world — and I can identify with them easily — succumbing to fears that sometimes lead them to commit stupidities, all because of their fears of humiliation and their sensitivities.

[page 108] I also know that in the West — a world with which I can identify with the same ease — nations and peoples taking an excessive pride in their wealth, and in their having brought us the Renaissance, the Enlightenment, and Modernism, have, from time to time, succumbed to a self satisfaction that is almost as stupid.69

The law of defamation seeks to inhibit accusations made without justification or excuse which result in a person’s unfair exclusion from society.

COMPETING INTERESTS

4.8 In the context of any given defamatory publication, a defamed person seeking to preserve and protect their reputation may find their interests in conflict with any number of the following competing interests: the interests of the community to preserve its standards, values and rules; the interests of the authority to whom the defamed person answers, such as an employer, not to be associated with or be seen to endorse or approve of scandalous behaviour; the administrative interests of the governing body or management of such an authority to uphold standards and apply them fairly and consistently; the commercial interests of the financiers or sponsors of such an authority to protect their money, image and brand; the media’s interest in reporting news and information and expressing opinions to the public, and the commercial interests within the media for profit, competing to be the first to publish that news, information and opinion; the public’s interest in forming opinions based on information reported to them about the defamed person’s conduct; the interests of ‘sources’ who disclose or sell their stories, exposing the defamed person’s misconduct to the media or others; the interests of witnesses or passersby, random or deliberately set up, who disclose or sell photos to the media or others of misconduct; the schadenfreude of rivals of the defamed person who may use the person’s fall from grace to their advantage; the self-interest of those who may be called upon to substitute for or replace the defamed person in his or her position; and the interests of power brokers who may decide to remove privileges or opportunities from the defamed person. Many of these interests compete after defamatory matter is published, with damaging and uncontrollable consequences for the defamed person’s reputation and prospects. Some of these interests may operate pre-publication as the relevant motive or purpose behind the publication.

____________________ 1.

2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22.

23. 24. 25. 26. 27.

G Spencer Bower, The Law of Actionable Defamation, 2nd ed, Legal Books, Redfern, NSW, 1990, p 3 (originally published by Butterworths, London, 1923); Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 at [1]. Dingle v Associated Newspapers Ltd [1961] 2 QB 162 at 181. R v Burdett (1820) 4 B&Ald 95 at 96; 106 ER 873 at 874. Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 (Windeyer J). Rogers v Nationwide News Pty Ltd [2003] HCA 52 at [66] (Haynes J). Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 70 (Brennan J). Rogers v Nationwide News Pty Ltd [2003] HCA 52 at [66] (Haynes J); Nikolopoulos v Greek Herald Pty Ltd [2003] NSWSC 1060 at [14]. Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 173–4 (Deane J). International Covenant on Civil and Political Rights 1966, Article 17. T Starkie, A Treatise on the Law of Slander and Libel, Vol 1, 2nd ed, J & W T Clarke, London, 1830, p xxi. Potter v Minahan (1908) 7 CLR 277 at 289 (Griffiths CJ). Reynolds v Times Newspapers Ltd [2001] 2 AC 127 at 201. John Fairfax Publications Pty Ltd v Zunter [2006] NSWCA 227 at [44]; Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335 at [153]. Compare T Starkie, A Treatise on the Law of Slander and Libel, Vol 1, 2nd ed, J & W T Clarke, London, 1830, p xlvii. Roberts v Camden (1807) 9 East 93 at 95; 103 ER 508 at 509. Aldridge v John Fairfax & Sons Ltd [1984] 2 NSWLR 544 at 549; Singleton v Ffrench (1986) 5 NSWLR 425 at 442–3; Ainsworth v Burden [2005] NSWCA 174 at [88]–[90]. Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 at [3]. Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335 at [152]. Plato Films Ltd v Speidel [1961] AC 1090 at 1140. Plato Films Ltd v Speidel [1961] AC 1090 at 1138; Hobbs v CT Tinling & Co Ltd [1929] 2 KB 1 at 39; Anderson v Mirror Newspapers Ltd (No 2) (1986) 5 NSWLR 735 at 737–8. Plato Films Ltd v Speidel [1961] AC 1090 at 1131; O’Hagan v Nationwide News Pty Ltd (2001) 53 NSWLR 89 at 94, 97. See Hobbs v CT Tinling & Co Ltd [1929] 2 KB 1 at 17–18, 39, 49–50; Plato Films Ltd v Speidel [1961] AC 1090 at 1138; Re T and Director of Youth and Community Services [1980] 1 NSWLR 392 at 395; Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335 at [152]. Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [1371]; Re T and Director of Youth and Community Services [1980] 1 NSWLR 392 at 399–400. Wishart v Mirror Newspapers Ltd [1964] NSWR 231 at 240. Plato Films Ltd v Speidel [1961] AC 1090 at 1138–9; Re T and Director of Youth and Community Services [1980] 1 NSWLR 392 at 399. Jameel v Dow Jones & Co Inc [2005] All ER (D) 43. Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575 at [53]; Jameel v Dow Jones & Co Inc [2005] All ER (D) 43.

28. 29. 30. 31.

32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44.

45. 46.

47.

48. 49. 50. 51. 52. 53. 54. 55. 56. 57.

Jameel v Dow Jones & Co Inc [2005] All ER (D) 43 at [28]. Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474 at 482. [2001] NSWSC 510 at [5265]. Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474 at 483; John Fairfax Publications Pty Ltd v Zunter [2006] NSWCA 227 at [44]; Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335 at [153]. See also Ratcliffe v Evans [1892] 2 QB 524 at 530; McCarey v Associated Newspapers Ltd (No 2) [1965] 2 QB 86 at 108. Crampton v Nugawela (1996) 41 NSWLR 176 at 193. Crampton v Nugawela (1996) 41 NSWLR 176 at 195 (Mahoney ACJ). Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474 at 481–3; Anderson v Mirror Newspapers Ltd (No 2) (1986) 5 NSWLR 735 at 737–8. See P Chadwick and J Mulally, Privacy and the Media, Communications Law Centre, Sydney and Melbourne, No 4, 1997, pp 5–6. [2003] QB 195. A v B plc [2003] QB 195 at 208. [2003] QB 633 at 658. [2003] QB 195. Scott v Sampson (1882) 8 QBD 491 at 503; See 36.3 generally. M’Pherson v Daniels (1829) 10 B&C 263 at 272; 109 ER 448 at 451. (1869) IR 4 CL 54. See also Younan v Nationwide News Pty Ltd [2003] NSWSC 1211 which involved an imputation that the plaintiff was a police informant. Scott v Sampson (1882) 8 QBD 491 at 504; Plato Films Ltd v Speidel [1961] AC 1090 at 1125, 1131, 1140; Dingle v Associated Newspapers Ltd [1961] 2 QB 162 at 180–1; Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335 at [178]. Chappell v Mirror Newspapers Ltd (1984) Aust Torts Reports 80-691 at 68,942. Uniform Civil Procedure Rules 2005 (NSW) Pt 15 r 15.21(2)(b). See also Supreme Court (General Civil Procedure) Rules 1996 (Vic) O 40 r 10; Supreme Court Rules 1987 (SA) r 78.03; Rules of the Supreme Court 1971 (WA) O 34 r 6; Supreme Court Rules 1987 (NT) O 40.10. Plato Films Ltd v Speidel [1961] AC 1090 at 1140; O’Hagan v Nationwide News Pty Ltd (2001) 53 NSWLR 89; Australian Broadcasting Corporation v McBride (2001) 53 NSWLR 430 at 432, 436; Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335 at [162]–[186]. Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 801. Australian Broadcasting Corporation v McBride (2001) 53 NSWLR 430 at 437. (2001) 53 NSWLR 430. See also Burstein v Times Newspapers Ltd [2001] 1 WLR 579 at 600–1; Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335 at [162]–[186]. Goody v Odhams Press Pty Ltd [1967] 1 QB 333 at 340–1. [1967] 1 QB 333. Goody v Odhams Press Pty Ltd [1967] 1 QB 333 at 339. Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335 at [253]. Chappell v Mirror Newspapers Ltd (1984) Aust Torts Reports 80-691 at 68,953. Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 99; Associated Newspapers Ltd v Dingle [1964]

58. 59. 60. 61. 62. 63. 64. 65.

66. 67. 68. 69.

AC 371. See also 36.4. Rochfort v John Fairfax & Sons Ltd [1972] 1 NSWLR 16 at 22–3; Pamplin v Express Newspapers Ltd [1988] 1 WLR 116 at 119; Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 101. See also 36.3. Associated Newspapers Ltd v Dingle [1964] AC 371 at 399. Middendorp Electric Co Pty Ltd v Sonneveld [2001] VSC 312; Australian Broadcasting Corporation v McBride (2001) 53 NSWLR 430 at 443, 447, 448. See also 36.3. Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335 at [245], [254]–[255]. Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474 at 481–3. The Washington Post, 27 January 1992, cited in The Book of Modern Scandal (ed B Palling), Weidenfeld & Nicolson, London, 1995, pp 370–1. S Crompton, All about Me; Loving a Narcissist, HarperCollins UK, London, 2007, p 171. Kipling D Williams, Ostracism: The Power of Silence, Guilford Press, New York, 2001, p 3; see also Lynn S Parramore, ‘The Social Death Penalty: Why Being Ostracized Hurts Even More than Bullying’, 2 June 2014, available at . Kipling D Williams, Ostracism: The Power of Silence, Guilford Press, New York, 2001, p 1. Kipling D Williams, Ostracism: The Power of Silence, Guilford Press, New York, 2001, p 6. Kipling D Williams, Ostracism: The Power of Silence, Guilford Press, New York, 2001, p 6. Nobel Lecture, Babamin Bavulu, Swedish Academy, Stockholm, 7 December 2006.

[page 109]

CHAPTER 5 FREEDOM OF SPEECH INTRODUCTION SEDITIOUS LIBEL/WORDS DEFAMATORY (CRIMINAL) LIBEL OBSCENE LIBEL BLASPHEMOUS LIBEL CIVIL LIBEL/DEFAMATION STRIKING THE BALANCE

5.1 5.2 5.3 5.4 5.5 5.6 5.7

INTRODUCTION 5.1 Since the law of defamation seeks to protect personal reputation, the history of its development is particularly instructive in how it has been used to protect the reputations of public institutions and governments and how the notions of freedom of speech and public discussion have often been denied for political purposes. The common law courts developed the action on the case for words spoken (that is, slander). The Royal Courts developed the principles applicable to written words (that is, libel). The forms of libel, the subject of the criminal law, covered good order (seditious/criminal libel), morals (obscene libel) and religion (blasphemous libel). These forms of libel were crimes. They are rarely used today, but should be noted to distinguish their forms from civil libel/defamation and to observe how they may restrict freedom of speech. Sir William Blackstone justified the restriction in his Commentaries on the Laws of England: … [W]here blasphemous, immoral, treasonable, schismatical, seditious or scandalous libels are

punished by the English law … [t]he liberty of the press, properly understood, is by no means infringed or violated. The liberty of the press is indeed essential to the nature of a free state: but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published.1

[page 110] The reference to ‘previous restraints’ was to the licensing regulations which had been established in Elizabethan times as a means of controlling the press.

SEDITIOUS LIBEL/WORDS 5.2 Sedition is a common law offence involving the publication of words intended to ‘bring the Crown or the government into hatred or contempt or to excite disaffection with an intention to incite violence or to create public disturbance or disorder’.2 In Burns v Ransley,3 Burns was a member of the Australian Communist Party. During a public debate he said that if there was a war between Russia and the West, the Australian Communist Party would fight on the side of Russia. Burns was convicted of sedition. So too was Sharkey, who was the general secretary of the Australian Communist Party. He had said that if Soviet forces entered Australia (in pursuit of aggressors), Australian workers would welcome them.4 The offence still exists in New South Wales and Victoria but has been abolished in South Australia and the Australian Capital Territory. Statutory sedition offences are contained in the Criminal Codes of Queensland, Western Australia, Tasmania and the Northern Territory. Under Commonwealth law, sedition continued until recently to have a place in the criminal law pursuant to ss 24A–24F of the Crimes Act 1914 (Cth), but was rarely used. These provisions were replaced by the Anti-Terrorism Act (No 2) 2005 (Cth), amending the Criminal Code Act 1995 (Cth). Section 80.2 of the Criminal Code provides sedition offences of intentionally urging the overthrow of the Constitution or government, urging interference in parliamentary elections, and urging violence within the community.

In general, the offence arises from urging others to use force or violence or act in a way deemed contrary to the good of the Australian community or government. There is no definition of what amounts to ‘urging’ but the person must be shown to have intended that the urged force or violence will occur or be recklessly indifferent thereto. The penalty varies from five to seven years’ imprisonment. There is a defence under s 80.3(1) for acting in good faith. The defence does not excuse acts in good faith generally but there are a number of specific matters to which a court may have regard under s 80.3(2), including a report or commentary about a matter of public interest, and under s 80.3(3) a court may have regard to any relevant matter including whether the acts were done in the dissemination of news or the performance of an artistic work. [page 111] The enforcement of sedition laws has usually occurred at times of great fear and uncertainty in the community. This has arisen in relation to religion (Puritanism, Catholicism and now Islam) and government (Fascism, Communism). A law preventing the ‘urging’ of force or violence provides comfort to the people, but it is often the ignorant, the publicity seekers or mere political dissenters who speak out and are prosecuted. Those who are the greatest threat remain anonymous or silent. The publication of official secrets is prohibited under ss 78, 79 and 80 of the Crimes Act 1914 (Cth).5

DEFAMATORY (CRIMINAL) LIBEL 5.3 It is a criminal offence at common law to publish a libel which has the tendency to provoke retaliation, violence or breaches of the peace.6 It is no longer necessary to prove that the statement has a tendency to provoke a breach of the peace: A defamatory libel consists in the writing and publishing of defamatory words of any living

person, words calculated or intended to provoke him to wrath and expose him to public hatred, contempt, or public ridicule, or damage his reputation.7

There is no crime for slanderous words,8 only libel. It is the effect of the words rather than the intention of the defendant which constitutes the criminal offence, and in that sense criminal libel is an exception to the general rule that mens rea is necessary to commit a crime.9 The purpose of the prosecution of criminal defamation is to punish the defamer and protect the community; not to vindicate or protect the reputation of the person defamed.10 Significantly, the crime may be committed even though there is no publication to a third party, but only to the person defamed.11 The truth of the libel is no defence.12 The offence extends to libel of the dead where it has the tendency to provoke living members of the deceased person’s family.13 It has also been suggested that the libel [page 112] must be serious not trivial for the offence to be proved or at least to justify in the public interest the institution of criminal proceedings.14 The falsity of the libel is presumed.15 There have been few prosecutions for criminal libel in Australia over the last 100 years.16 The harshness of the common law has been modified or abolished by statute. Lord Campbell’s Act17 introduced a statutory defence of truth where publication was for the public benefit, and introduced a number of other changes which are reflected by statutory modifications in Australian law today: see Chapter 44.

OBSCENE LIBEL 5.4 It is a criminal offence at common law to publish obscene material.18 The common law test of obscenity was established in R v Hicklin19 in which the publication was a pamphlet entitled The Confessional Unmasked. The court held that the test of obscenity was ‘whether the tendency of the matter charged as

obscene is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall’.20 There have been a number of cases for obscene libel which have had the effect of promoting the publication rather than suppressing it. It is not a crime if the tendency of the publication is merely to shock or disgust or if its publication may be considered as being merely tasteless.21 In Crowe v Graham22 the High Court modified the common law test of obscenity, of the tendency to deprave and corrupt, to whether the publication ‘transgresses the bounds of decency’, to be considered under ‘contemporary standards, community standards … those currently accepted by the Australian community’.23 The purpose of the publisher is not relevant.24 [page 113] These publications typically concern themes such as sex, horror, crime, cruelty, violence and the offence for such publications is now usually governed by statute.25 The common law offence has been abolished in South Australia and the Australian Capital Territory.

BLASPHEMOUS LIBEL 5.5 Another publication attracting criminal sanctions at common law is blasphemous libel. The common law had accepted that blasphemous libel was not only an offence to God and religion, but a crime against the law, state and government, and punishable as a criminal offence.26 The test now to be applied is whether the publication contains any contemptuous, reviling, scurrilous or ludicrous matter relating to God, Jesus Christ or the Bible, or the formularies of the Church of England as by law established.27 The changing attitude towards morals and religion and the offence of blasphemous libel was reflected in the following passage in Bowman v Secular Society Ltd:

… Our courts of law … dealt with … [irreligious] words for their manner, their violence, or ribaldry, or, more fully stated, for their tendency to endanger the peace then and there, to deprave public morality generally, to shake the fabric of society, and to be a cause of civil strife. The words, as well as the acts, which tend to endanger society differ from time to time in proportion as society is stable or insecure in fact, or is believed by its reasonable members to be open to assault. In the present day meetings or processions are held lawful which a hundred and fifty years ago would have been deemed seditious, and this is not because the law is weaker or has changed, but because, the times having changed, society is stronger than before.28

In Whitehouse v Lemon29 a periodical known as Gay News published a poem entitled ‘The Love That Dares To Speak Its Name’. The poem described homosexual practices by Jesus Christ and the Apostles, alongside a drawing depicting the body of Christ after the crucifixion embraced by a Roman centurion. Mary Whitehouse brought a private prosecution for blasphemous libel against the publisher and editor of the periodical. The main issue was whether it was necessary to prove that the publisher had the intention to blaspheme, or whether blasphemy was only the objective effect of the publication. The House of Lords confirmed that the publisher’s intentions were irrelevant, and that there was no need for the prosecution to prove any risk of a breach [page 114] of the peace. A majority verdict found the defendants guilty. The judge fined the publisher £1,000 and the editor £500. In 1997, the National Gallery of Victoria proposed to include in an exhibition a photograph of a crucifix showing Christ on the cross as if enveloped in a mist infused with the colours of a red and gold sunset. The title of the photograph was ‘Piss Christ’. The artist had created the photograph by immersing the crucifix in urine. The Archbishop of the Catholic Archdiocese of Melbourne applied for an injunction to restrain the public exhibition of the photograph on the basis that it would be a blasphemous libel. It was held that there was no evidence to show that the exhibition would cause widespread social unrest and the injunction was refused.30 It has been held in England that blasphemous libel does not extend to Allah and the Islamic religion, in a case concerning Salman Rushdie’s book The Satanic Verses.31

However, remedies may be available under anti-discrimination laws such as s 9 of the Racial Discrimination Act 1975 (Cth), or s 20C of the AntiDiscrimination Act 1977 (NSW) which provides it is unlawful for a person ‘by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group’.32

CIVIL LIBEL/DEFAMATION 5.6 Freedom of speech is based on the principle of liberty. In common law countries individuals are free to do anything that is not specifically forbidden by law.33 By contrast, the executive and judicial branches of government may only do what the law specifically permits.34 In Australia freedom of speech is guaranteed by the Constitution in relation to discussion of government or political matters. The law must conform to the protection afforded by the Constitution. The High Court has explained the ambit of that protection in civil actions for defamation in Lange v Australian Broadcasting Corporation.35 The most celebrated case enshrining freedom of speech in civil actions for defamation involved the First Amendment of the United States Constitution which proclaims: ‘Congress shall make no law … abridging the freedom of speech, or of the press …’. [page 115] On 29 March 1960 the New York Times published an advertisement ‘Heed their Rising Voices’. The advertisement continued: The growing movement of peaceful mass demonstrations by Negroes is something new in the South, something understandable … Let Congress heed their rising voices, for they will be heard.

The advertisement gave some examples of racism and referred to an incident in Montgomery, Alabama, where police used tear gas and shotguns to break up demonstrations.

The advertisement was placed ‘by the Committee to Defend Martin Luther King and the Struggle for Freedom in the South’. Montgomery City Commissioner Sullivan claimed that the advertisement charged him with ‘grave misconduct’ and ‘improper actions and omissions as an official of the City of Montgomery’ and sued the New York Times and the four Alabama ministers, whose names had appeared in the advertisement, for libel. At the trial the judge instructed the jury that the advertisement was libellous per se as having a tendency to injure the plaintiff’s reputation and business or professional status, that the statement was presumed to be false and that damage was also presumed. The jury was required to determine only whether the defendants had published the advertisement, whether Commissioner Sullivan had been identified and, if so, what damages should be awarded. The jury found in favour of Commissioner Sullivan and awarded him $500,000. The defendants appealed, finding themselves in argument before the United States Supreme Court in January 1964. However, times had changed.36 Shortly before his assassination in November 1963, President Kennedy made a nationwide television broadcast on civil rights: This nation was founded by men of many nations and backgrounds. It was founded on the principle that all men are created equal, and that the rights of every man are diminished when the rights of one man are threatened … It ought to be possible, therefore, for American students of any colour to attend any public institution they select without having to be backed up by troops … We face … a moral crisis as a country and a people. It cannot be met by repressive police action. It cannot be left to increased demonstrations in the street. It cannot be quieted by token moves or talk. It is a time to act in the Congress, in your state and local legislative body and, above all, in all of our daily lives …37

[page 116] In March 1964, Justice Brennan of the United States Supreme Court delivered judgment in New York Times Company v Sullivan38 and summarised the issue to be determined: We are required in this case to determine for the first time the extent to which the Constitutional protections for speech and press limit a State’s power to award damages in a libel action brought by a public official against critics of his official conduct.

The Supreme Court held that the common law of defamation in the United

States was subject to the protection under the First Amendment of the United States Constitution so that: Debate on public issues should be uninhibited, robust, and wide open, and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials.39 Freedom of expression must have a breathing space to survive and therefore accommodation must be allowed for the occasional ‘erroneous statement’ inevitable in public debate.40 An award of damages for defamation actions brought by public officials against critics of their official conduct was limited by the Constitution to proof by the plaintiff of actual malice being a statement which was made with knowledge that it was false or with reckless disregard of whether it was false or not.41

United States decisions following New York Times Company v Sullivan have expanded the content of the privilege by extending it to candidates for public office42 and government employees who are in a position to significantly influence the resolution of (public) issues.43 The privilege has also been extended to cover ‘public figures’ who do not hold official or government positions, but who achieve the status of ‘public figure’ either by prominence in the community or because they had, by purposeful activity, thrust that personality into the ‘vortex’ of an important public controversy.44 However, in Gertz v Robert Welch Inc45 a majority of the United States Supreme Court held that the constitutional rule of New York Times Company v Sullivan did not extend to private individuals merely because they were involved in a matter of public interest, thus restricting the rule to public officials and public figures. Following the human rights abuses of Nazi Germany, European countries in 1950 established the European Convention on Human Rights. This convention was incorporated into English law under the Human Rights Act 1998 (UK) and provides [page 117] in Article 10 a guarantee of freedom of expression. The guarantee, however, does not ‘trump’ or give freedom of expression a presumptive priority over other rights such as privacy or reputation.46 In 1966 the United Nations established the International Covenant on Civil

and Political Rights (ICCPR) which guarantees a number of civil and political rights including protection of reputation and freedom of expression.47 In 1991 Australia ratified the First Optional Protocol to the ICCPR. Shortly after, a majority of the High Court determined that a guarantee of free speech was implied in the Australian Constitution.48 In 1997, however, the High Court changed direction and held that the Constitution does not confer personal rights on individuals, but precludes restriction by the exercise of legislative or executive power on freedom of communication on matters of government and politics. The relevant legislation in that case, the Defamation Act 1974 (NSW), was held to be a valid exercise of legislative power as it was compatible with the maintenance of the constitutionally prescribed system of representative and responsible government which the Constitution prescribed, and the law was reasonably and appropriately adapted to that end. Freedom of speech is not therefore guaranteed or protected by the Constitution except in a limited way, namely where the publication concerns ‘government or political’ matters and subject to a standard of reasonableness.49 A case of equal significance in England concerned Albert Reynolds, the Taoiseach (Prime Minister) of Ireland who resigned and announced his resignation in the Dail (the House of Representatives) on a Thursday. On the following Sunday, the Sunday Times published an article, ‘Goodbye Gombeen Man’. The article had a subheading, ‘Why a fib too far proved fatal for the political career of Ireland’s peacemaker and Mr Fix It’. Reynolds sued for defamation, claiming that the article suggested he had deliberately and dishonestly misled the Dail prior to his resignation by suppressing vital information and that he had deliberately and dishonestly misled his coalition cabinet colleagues by withholding this information and had lied to them about when the information had come into his possession. At the trial, the jury found that the newspaper had not acted maliciously in publishing the article. It was for the trial judge to determine whether there was a defence of qualified privilege. He ruled that the publication of the article was not privileged, but awarded Reynolds the nominal sum of one penny. On appeal, the House of Lords was asked to consider whether there was a freedom to publish information to the world at large and, in particular, whether a generic

[page 118] category of political information (for example, of government and political matters) attracted qualified privilege irrespective of the circumstances of the publication. The House of Lords determined that there was no generic category and that the established common law approach to misstatements of fact remained essentially sound. It held that the elasticity of the common law principle of qualified privilege, based on a consideration of ‘all the circumstances of the publication’, enabled the court to give appropriate weight to the importance of freedom of expression by the media on all matters of public concern and confined interference with freedom of speech to what was necessary in the circumstances of the case. Those circumstances were not to be considered separately from the duty/interest test (under the common law defence of qualified privilege), but rather were to be taken into account in determining whether that test was satisfied or, putting it simply, whether the public was entitled to know the particular information.50 In 2006, the House of Lords51 reviewed the Reynolds defence and emphasised that the standard of conduct required from the media was ‘responsible journalism’, which was to be considered by the courts in a practical and flexible manner with weight given to the professional judgement of an editor or a journalist. The defence was not limited to discussion of government or political matters but the communication of information of real public interest and in that event, the Reynolds defence would be determined by whether the steps taken to gather and publish the information were responsible and fair. In the course of 2011 and 2012, the Leveson Inquiry examined media practices in great detail, as a result of the phone hacking scandal involving the News of the World. The Defamation Act 2013 (UK) was then enacted and abolished the Reynolds defence, replacing it with a defence of ‘Publication on Matter of Public Interest’. Section 4 provides a defence for a defendant who shows that the statement complained of was, or formed part of, a statement on a matter of public interest and the defendant reasonably believed that publishing the statement complained of was in the public interest.52

STRIKING THE BALANCE 5.7 The basic object of the law of defamation is to provide a balance between two fundamental human rights: the protection of reputation and freedom of speech.53 The weight to be given to the interests of the person whose reputation is or may be harmed by a publication is balanced against the interests of the public in freedom of speech, liberty of the press and access to information. That balance has been considered at [page 119] times to be weighted too heavily in favour of the protection of reputation and has inhibited the free flow of information on matters of public interest.54 This balance is to be struck by weighing the conflicting rights or conflicting needs. In this sense the test may be whether the public’s need for the publication of the information is greater in the circumstances than the individual’s need for the protection of a good reputation from the publication of false defamatory accusations, or vice versa. Although attempts have been made at the highest judicial level and through statute to set out criteria that provide a guide as to when one need would be greater than the other, the application of the guidelines in practice generally remains unclear and inflexible. ____________________ 1. 2. 3. 4.

5.

6.

W Blackstone, Commentaries on the Laws of England, 5th ed, Book 4, Chapter 2, Clarendon Press, Oxford, 1769, pp 151–2; see also Holley v Smyth [1998] QB 726 at 737. Burns v Ransley (1949) 79 CLR 101 at 109; see also Australian Law Reform Commission, Fighting Words: A Review of Sedition Laws in Australia, Report No 104, 2006. (1949) 79 CLR 101. R v Sharkey (1949) 79 CLR 121. See also the Subversive Activities Control Act 1950 (US) which declared Communism ‘un-American’; R v Chief Metropolitan Stipendiary Magistrate; Ex parte Choudhury [1991] 1 QB 429 at 453. See also Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39; Australian Security Intelligence Organisation Act 1979 (Cth) s 92; and the D notices issued by the Defence, Press and Broadcasting Committee. R v Labouchere (1884) 12 QBD 320 at 322–3; R v Holbrook (1878) 4 QBD 42 at 46.

7. 8. 9. 10. 11. 12. 13. 14. 15. 16.

17. 18. 19. 20.

21. 22. 23. 24. 25.

26. 27. 28. 29. 30. 31. 32. 33. 34. 35.

R v Wicks [1936] 1 All ER 384 at 386. See also Goldsmith v Pressdram Ltd [1977] QB 83; R v Hardy [1951] VLR 454 at 455; Gleaves v Deakin [1980] AC 477 at 483. R v Langley (1704) 6 Mod Rep 125; 87 ER 882; R v Hepburn (1889) 15 VLR 84 at 85. R v Walter (1799) 3 Esp 21; 170 ER 524; R v Wicks [1936] 1 All ER 384 at 386. Spautz v Williams [1983] 2 NSWLR 506 at 540; Williams v Spautz (1992) 174 CLR 509. R v Adams (1888) 22 QBD 66 at 69. R v Carden (1879) 5 QBD 1 at 6. R v Ensor (1887) 3 TLR 366; W B Odgers and R Ritson, A Digest of the Law of Libel and Slander, 6th ed, Stevens & Sons, London, 1929, p 369. R v Wicks [1936] 1 All ER 384 at 386; Gleaves v Deakin [1980] AC 477 at 487. See also Goldsmith v Sperrings Ltd [1977] 1 WLR 478 at 485; Williams v Spautz (1992) 174 CLR 509 at 539. R v Wicks [1936] 1 All ER 384 at 387. Australian Law Reform Commission, Unfair Publication: Defamation and Privacy, Report 11, 1979, pp 103–4; Spautz v Williams [1983] 2 NSWLR 506 at 528; Gypsy Fire v Truth Newspapers Pty Ltd (1987) 9 NSWLR 382. Libel Act 1843 s 6. R v Close [1948] VLR 445; Crowe v Graham (1968) 121 CLR 375 at 390–1. (1868) LR 3 QB 360 at 371. See also R v Sidley (1663) 1 Sid 168; 82 ER 1036; Boyd v Angus & Robertson Ltd (1946) 63 WN (NSW) 189 at 190. R v Hicklin (1868) LR 3 QB 360 at 371. See also William Heinemann Ltd v Kyte-Powell (1960) 103 CLR 351 (God’s Little Acre); R v Close [1948] VLR 445 (Love Me Sailor); R v Anderson [1972] 1 QB 304 (Oz Magazine). R v Martin Secker & Warburg Ltd [1954] 1 WLR 1138 at 1139 and 1143; Gypsy Fire v Truth Newspapers Pty Ltd (1987) 9 NSWLR 382 at 383. (1968) 121 CLR 375. Crowe v Graham (1968) 121 CLR 375 at 399; see also Pell v The Council of the Trustees of the National Gallery of Victoria [1998] 2 VR 391 at 395. Shaw v DPP [1962] AC 220 at 227. See, for example, Classification (Publications, Films and Computer Games) Act 1995 (Cth); Brown v Members of the Classification Review Board (1998) 154 ALR 67; Broadcasting Services Act 1992 (Cth) Sch 2; Crimes Act 1900 (NSW) s 578C. R v Taylor (1678) 1 Vent 293; 86 ER 189; R v Woolston (1929) Fitzgibbons 64; 94 ER 655; see also New South Wales Law Reform Commission, Blasphemy, Report No 74, 1994. Whitehouse v Lemon [1979] AC 617 at 665–6. See also Crimes Act 1900 (NSW) s 574; Pell v The Council of the Trustees of the National Gallery of Victoria [1998] 2 VR 391. Bowman v Secular Society Ltd [1917] AC 406 at 466–7. [1979] AC 617. Pell v The Council of the Trustees of the National Gallery of Victoria [1998] 2 VR 391 at 395. R v Chief Metropolitan Stipendiary Magistrate; Ex parte Choudhury [1991] 1 QB 429. Note s 20C(2) sets out defences including a fair report of a public act, and absolute privilege. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 564–5. Reynolds v Times Newspapers Ltd [2001] 2 AC 127 at 208. (1997) 189 CLR 520.

36. See, for example, Port Huron Statement of the Students for a Democratic Society, Michigan, United States, 11–15 June 1962. ‘We are people of this generation, bred in at least modest comfort, housed now in universities, looking uncomfortably to the world we inherit.’ 37. A Lewis, Make No Law, Vintage Books, New York, 1992, p 41. 38. 376 US 254 (1964). 39. New York Times Company v Sullivan 376 US 254 (1964) at 270. 40. New York Times Company v Sullivan 376 US 254 (1964) at 281. 41. New York Times Company v Sullivan 376 US 254 (1964) at 280. 42. Monitor Patriot Company v Roy 401 US 265 (1971); Ocala StarBanner Co v Damron 401 US 295 (1971) at 300. 43. Rosenblatt v Baer 383 US 75 (1966) at 85. 44. Curtis Publishing Co v Butts 388 US 130 (1967) at 155. 45. 418 US 323 (1974). 46. Douglas v Hello! Ltd [2001] QB 967 at 1005; A v B plc [2003] QB 195. As to the distinction between facts and value judgements as a basis for determining infringement of the guarantee of freedom of expression, see Lingens v Austria (1986) 8 EHRR 407. 47. See 3.10. 48. Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104. 49. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 560. 50. Reynolds v Times Newspapers Ltd [2001] 2 AC 127 at 204–5 (Lord Nicholls). 51. Wall Street Journal Europe SPRL v Jameel [2006] UKHL 44. 52. See 24.7. 53. Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575 at [23]; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 568. 54. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 565.

[page 121]

PART TWO GENERAL PRINCIPLES

[page 123]

CHAPTER 6 THE CAUSE OF ACTION FOR DEFAMATION CAUSE OF ACTION AT COMMON LAW STATUTORY CAUSE OF ACTION MULTIPLE PUBLICATION CHOICE OF LAW MULTIPLE CAUSES OF ACTION

6.1 6.2 6.3 6.4 6.5

CAUSE OF ACTION AT COMMON LAW 6.1 At common law the cause of action for defamation (libel or slander) is constituted by communicating matter which is understood to be defamatory of a person, to someone other than that person. The defamatory accusation or ‘sting’ itself is not the cause of action.1 It is the publication of the defamatory accusation or sting about the plaintiff to a third party that constitutes the cause of action. There are three vital elements — publication, identification and defamatory meaning. These elements are examined in detail in Chapters 7–10. Under s 7(2) of the Defamation Act 2005 the publication of defamatory matter of any kind is actionable without proof of special damage. The Act does not affect the common law cause of action for defamation other than abolishing the distinction between libel and slander (s 7); extinguishing the cause of action for most corporations (s 9); extinguishing the cause of action of, or against, deceased persons (s 10); and limiting the number of causes of action for multiple defamatory imputations published in the same matter: s 8. The cause of action for defamation is therefore constituted by the ‘publication

of defamatory matter’ about a person (except to the extent that the Act provides otherwise, whether expressly or by necessary implication: s 6(2)). [page 124] ‘Matter’ is defined in s 4 to include: (a) an article, report, advertisement or other thing communicated by means of a newspaper, magazine or other periodical; (b) a program, report, advertisement or other thing communicated by means of television, radio, the internet or any other form of electronic communication; (c) a letter, note or other writing; (d) a picture, gesture or oral utterance; and (e) any other thing by means of which something may be communicated to a person. The definition suggests that ‘matter’ is intended to refer to the ‘thing’ communicated, by whatever means. The definition is wide enough to include the words used but not the meaning conveyed by the matter. This is relevant to the statutory defences which provide a defence for ‘publication of defamatory matter’. It has been said that the only significance of the defamatory matter lies in its meaning and there is generally no relevant distinction between the ‘raw material’ of the defamatory matter and the meaning which, for the purposes of proceedings, the plaintiff particularises by identifying the imputations of which he complains.2 For the purposes of s 23 of the Defamation Act 2005, the word ‘matter’ does not include the means by which it was communicated. Otherwise publication of words in a newspaper would constitute different ‘matter’ for publication of the same words on the internet and that interpretation of s 4 has not been accepted.3

STATUTORY CAUSE OF ACTION 6.2

A statutory cause of action for defamation had existed prior to the

Defamation Act 2005 in New South Wales, Queensland and Tasmania. In New South Wales, the cause of action was constituted by the publication of matter to any recipient, by means of which publication an imputation defamatory of a person was made. The person defamed had, in respect of that imputation, a cause of action against the publisher for the publication of that matter to that recipient. There was a separate or additional cause of action for: (a) any other defamatory imputation published to that recipient by means of the same publication;4 and (b) any publication of that matter to any other recipient.5 That is to say, the person defamed had a separate cause of action for each defamatory imputation published about him or her and a separate cause of action for each recipient [page 125] to whom the publication was made. The defendant was required to plead a defence to each separate cause of action under s 9(2).6 Matter was defined as a ‘report, article, letter, note, picture, oral utterance or thing’ published by a person, which made an imputation defamatory of another person, whether by innuendo or otherwise, and the imputation was made by means of the publication of that matter.7 The statutory cause of action for defamation in Queensland and Tasmania was constituted by the publication of defamatory matter.8 ‘Defamatory matter’ was defined by reference to imputations and specifically ‘the matter of the imputation’.9 The cause of action under the Codes was substantially the same as in New South Wales, namely the publication of a defamatory imputation about the plaintiff to a third party.10

MULTIPLE PUBLICATION 6.3

The cause of action for defamation is simple if there is one publication to

one person with one defamatory meaning. That is sufficient to amount to a cause of action for defamation. Complications arise from any variation upon the simple case — where there is more than one publication, where there is more than one person who received the publication or where there is more than one defamatory meaning. For example, where a newspaper is sold containing a defamatory meaning, there is a separate publication and therefore a separate cause of action for each copy of the newspaper which is read.11 This is known as the ‘multiple publication’ rule. ‘Multiple publication’ is defined in the Defamation Act 2005 as a ‘publication by a particular person of the same, or substantially the same, matter in substantially the same form to 2 or more persons’: s 11(5). This definition is relevant to the place of publication and the choice of law (see below). There is an alternative rule, the ‘single publication rule’, accepted in the United Kingdom (s 8 of the Defamation Act 2013) and some United States jurisdictions, that once publication to one person is proved, the cause of action is established and the publication to other persons is a matter for damages.12 This view has not been accepted in Australia.13 [page 126]

CHOICE OF LAW 6.4 Strictly, under the multiple publication rule, the plaintiff could issue separate proceedings for each cause of action and could obtain separate verdicts in different jurisdictions. The rule gave rise to forum shopping or ‘libel tourism’, so that plaintiffs might choose the jurisdiction best suited to their case or which provided the best advantage from the substantive or procedural law.14 In order to overcome this issue, it was suggested that the habitual residence of the plaintiff would present an objective criterion of where the plaintiff would generally suffer most harm.15 However, where jurisdiction had been regularly invoked, access to the court was a right available to the plaintiff and the court was required to exercise jurisdiction unless it was persuaded that it was ‘a clearly inappropriate forum within which to determine the dispute’.16

Within Australia, the uniform cross-vesting laws had to some degree addressed the issue by enabling the transfer from one Australian jurisdiction to another in the interests of justice.17 It was not necessary that the invoked jurisdiction should be a ‘clearly inappropriate’ forum, merely that in the interests of justice the other jurisdiction was more appropriate.18 One of the matters of considerable significance is the identification of the natural forum being that with which the action has the most real and substantial connection.19 The connecting factors include matters of convenience and expense, such as the availability of witnesses, the places where the parties respectively reside or carry on business and the law governing the relevant transaction.20 In cases where there had been publication throughout Australia, or at least publication in a state or territory other than that in which the plaintiff brought the proceedings, there was a question as to whether any of the laws of the other jurisdiction(s) should be taken into account. It was decided that effect should be given by a state or territory court to the Commonwealth Constitution (Covering Clause 5), to any applicable Commonwealth legislation and to the single common law of Australia, no matter where in Australia those rights or obligations are litigated.21 In cases concerning contracts, the courts seek to identify the proper law of the contract. In cases concerning questions of status, they seek to identify the relevant governing law.22 [page 127] This is known as the process of choice of law. Cases concerning tort (at common law or by statute), with respect to Australian torts involving an interstate element, require a single choice of law rule consistently in both federal and nonfederal jurisdictions in all courts in Australia. As a result, at common law, the law of the place of commission of the tort (the Lex Loci Delicti) decides the substantive rights of the parties rather than the law of the forum (the Lex Fori). Hence the Lex Loci Delicti should be applied by courts in Australia as the law governing all questions of substance to be determined in a proceeding arising from an intranational tort.23 Prior to the Defamation Act 2005, if a publication was made throughout Australia, the

plaintiff’s rights were to be consistent with the place of the commission of the tort in each state and territory, by satisfying the cause of action in each state and territory, and the defendant was entitled to rely upon the defences available in each state and territory, and damages awarded as appropriate in accordance with the law in each state and territory. The choice of law for defamation proceedings arising from the publication of defamatory matter within Australia is expressly covered by the Defamation Act 2005. If the matter is published wholly within a state or territory, the substantive law of that state or territory must be applied to determine any cause of action for defamation based on the publication: s 11(1). If there is a multiple publication of matter published in more than one state or territory, the substantive law is of that state or territory with which the harm occasioned by the publication as a whole has its closest connection to determine each cause of action for defamation based on the publication: s 11(2). In this context, ‘multiple publication’ is defined to mean publication by a particular person of the same, or substantially the same, matter in substantially the same form to two or more recipients: s 11(5). A court may take into account, in determining with which state or territory the harm occasioned by publication of matter has its closest connection, the following considerations: (a) the place at the time of publication where the plaintiff was ordinarily resident or, in the case of a corporation, had its principal place of business; (b) the extent of publication in each relevant state or territory; (c) the extent of harm sustained by the plaintiff in each relevant state or territory;24 and (d) any other matter that the court considers relevant: s 11(3).25 For these purposes, the substantive law does not include any law prescribing rules for choice of law that differ from the rules prescribed under the Act: s 11(4). [page 128]

On the basis that defamation law in each state and territory of Australia is uniform from the enactment of the Defamation Act 2005, the choice of law between jurisdictions should no longer be a serious issue as the substantive law is consistent across each state and territory of Australia. Procedural laws, however, may differ from jurisdiction to jurisdiction, which could give rise to procedural advantages in some jurisdictions over others.26 Where a publication is made across a number of jurisdictions, within Australia or outside, a difficult question arises as to the law to be applied to a claim for damages or for aggravated damages for publication outside the jurisdiction in which the proceedings are brought.27 If the proceedings are properly commenced within the jurisdiction, and if injury to feelings is suffered within the jurisdiction, then in relation to a claim for aggravated damages, there is an issue as to whether aggravating conduct that occurred outside the jurisdiction should be excluded or not.28

MULTIPLE CAUSES OF ACTION 6.5 As a matter of principle, each distinct and separate defamatory meaning conveyed by the publication could strictly give rise to a separate cause of action. For example, if the matter published said ‘X is a murderer and a thief’, two distinct and separate defamatory meanings are conveyed which go to different aspects of X’s conduct. One could take the view that the publication of one defamatory meaning establishes the cause of action, and that any separate and distinct defamatory meaning would then relate to damages, not to the establishment of other causes of action.29 More complications can arise from the difference between how defamatory meanings may be conveyed. For example, the meaning may be conveyed: (a) directly from the matter published; (b) by an inference or conclusion which might be drawn from the matter published without reference to extrinsic facts or circumstances (a ‘false innuendo’);30 or (c) by an inference or conclusion which might be drawn from the matter published together with knowledge of extrinsic facts or circumstances

(a ‘true innuendo’). The distinction between the natural and ordinary meaning of the matter published (that is, the direct meaning and any false innuendo) and a true innuendo gives rise to [page 129] the possibility that one publication may create separate causes of action where separate meanings are conveyed by the one publication, even if to one recipient.31 Another complex issue arises when the publication is alleged to convey different shades of meaning, where one meaning is more serious than the other, but each is separate and distinct from the other. For example, to say ‘X stole money from his employer’ is more serious than ‘X carelessly claimed travel expenses to which he was not entitled’ from his employer. If the publication was capable of conveying both meanings at the same time, that is, dishonesty and/or carelessness, significant complications arise in pleading the action and defending the action as a result of the multiple meanings pleaded. While it creates some complexity if the plaintiff asserts that both meanings were conveyed, in a number of cases the plaintiff will assert that the more serious meaning only was conveyed. The question arises whether the defendant should be able to assert that the less serious meaning was conveyed, and then defend that less serious meaning by claiming that it was true. The issue of pleading truth in these circumstances is examined in Chapter 19.32 In order to deal with these issues, the common law enables a plaintiff to bring proceedings for multiple publications or multiple causes of action in the one proceeding, and any further proceedings may be stayed as an abuse of process.33 In New South Wales, prior to the Defamation Act 2005, a separate cause of action was created for the publication of each defamatory imputation to each recipient.34 In order to overcome the complexity arising from the multiplicity of causes of action, a plaintiff was required to obtain leave of the court to bring further proceedings in respect of the same or any other publication of the same or like matter where proceedings for defamation had already been brought.35

The rules of court prohibited or regulated the use of several imputations alleged to be made by means of the same matter published by the defendant where the several imputations did not differ in substance.36 A single verdict by a jury in respect of all the causes of action on which the plaintiff relied was required to be awarded unless the court otherwise directed.37 The court could assess damages in a single sum where it found for the plaintiff as to more than one cause of action in the same proceedings for defamation.38 [page 130] In Queensland, Tasmania and South Australia, further proceedings in respect of the same or any other publication of the same or like matter could be consolidated with the first proceedings.39 The Defamation Act 2005 deals with multiple imputations and multiple causes of action in the following way. Section 8 provides that a person has a single cause of action for defamation in respect of the publication of defamatory matter about the person even if more than one defamatory imputation about the person is conveyed by the matter. Therefore, notwithstanding that there is a separate and distinct defamatory meaning conveyed by the one publication, there is a single cause of action for all meanings conveyed. Likewise, if separate defamatory imputations are conveyed by direct meaning or by inference, there is a single cause of action. Further, if there are separate imputations conveyed by different shades of meaning in the one publication, there is a single cause of action. Where there is a separate cause of action for each publication of the same defamatory matter, as occurs in multiple publication cases, a person who has brought defamation proceedings against any person in respect of the publication of the matter may not bring further defamation proceedings against the same defendant in relation to the same or any other publication of the same or like matter, except with the leave of the court in which the further proceedings are to be brought: s 23. The application for leave must be sought before the commencement of the

further proceedings. Leave cannot be given retrospectively as it is an abuse of process to bring separate and successive proceedings against the same defendant in respect of the same matter subject to leave being sought and given.40 Where further defamation proceedings are brought against the same defendant (as in the first proceedings) in respect of the publication of the same matter, leave would be unlikely to be granted on the basis that there is under s 8 only a single cause of action for that publication of the same defamatory matter. Where further proceedings are brought, after the first proceedings, against a different defendant in respect of publication of the same matter, the further proceedings may still amount to an abuse of process as the defendant may be a joint tortfeasor with the defendant in the first proceedings for publication of the same matter.41 Where, however, further proceedings are brought against a different defendant in respect of similar but not the same matter, such as may occur in a republication case, the further proceedings may not amount to an abuse of process and leave may not be required.42 [page 131] In that case, defendants might apply to consolidate the separate proceedings to be heard together which is subject to the discretion of the court but should not be ordered where it is likely to expose a plaintiff to a substantial risk of real prejudice.43 A consolidation order of properly instituted separate proceedings for defamation may expose the plaintiff to a substantial risk of prejudice under s 35 of the Defamation Act 2005 which caps the amount of damages (apart from aggravated damages) that may be awarded in a defamation proceeding regardless of the number of causes of action that are pleaded or upheld in the proceedings.44 If a plaintiff satisfies the requirements under s 23, and so is permitted to bring separate proceedings, the plaintiff is prima facie entitled to the benefit of a further capped amount in respect of those proceedings which right should not be diminished by a procedural consolidation order.45

____________________ 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30.

Lucas-Box v News Group Newspapers Ltd [1986] 1 WLR 147; Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1 at [311]. Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60 at [84]. Waterhouse v The Age Company Ltd [2011] NSWSC 159 at [63]. Defamation Act 1974 (NSW) s 9(2)(a). Defamation Act 1974 (NSW) s 9(2)(b). Petritsis v Hellenic Herald Pty Ltd [1978] 2 NSWLR 174 at 190; Singleton v Ffrench (1986) 5 NSWLR 425 at 428; Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 162. Defamation Act 1974 (NSW) s 9(1). Defamation Act 1889 (Qld) s 7; Defamation Act 1957 (Tas) s 9. Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 230, 237. Robinson v Laws [2003] 1 Qd R 81 at [49]. Duke of Brunswick v Harmer (1849) 14 QB 185; 117 ER 75; Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575 at [27]. Galligan v Sun Printing & Publishing Association 54 NYS 471 (1898); Russell v Stubbs Ltd [1913] 2 KB 100 at 205. See also Emmerton v University of Sydney [1970] 2 NSWR 633. See 7.3. See also Shevill v Presse Alliance SA [1996] AC 959. See Australian Broadcasting Corporation v Waterhouse (1991) 25 NSWLR 519. Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575 at [134]. See also Australian Broadcasting Corporation v Waterhouse (1991) 25 NSWLR 519 at 539. Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538. Jurisdiction of Courts (Cross-Vesting) Act 1987 in each jurisdiction. BHP Billiton Ltd v Schultz (2004) 211 ALR 523 at [14]. BHP Billiton Ltd v Schultz (2004) 211 ALR 523 at [170]. Simeone v Walker [2006] SASC 387; Toms v Fuller [2009] QSC 232; Pugh v Morrison [2011] ACTSC 44. John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at [20]. John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at [20]. John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at [102]; Nielson v Overseas Projects Corp of Victoria Ltd [2005] HCA 54; Amaca Pty Ltd v Frost [2006] NSWCA 173. See Chesterton v Radio 2UE Sydney Pty Ltd [2010] NSWSC 47 at [16]–[17]. Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575. See also Lewis v King [2004] EWCA Civ 1329; Garsec Pty Ltd v His Majesty Sultan of Brunei [2008] NSWCA 211. See 19.8. Chesterton v Radio 2UE Sydney Pty Ltd [2010] NSWSC 47 at [14]–[15]; Kevin Clark t/a Elumina Iberica UK v Bain [2008] EWHC 2636; Wong v Aripin [2011] WASC 174. Kevin Clark t/a Elumina Iberica UK v Bain [2008] EWHC 2636 at [63]–[66]. MacDougall v Knight (1890) 25 QBD 1 at 10. So-called ‘false innuendos’ are ‘false’ because they do not depend upon the reader or viewer knowing particular extrinsic facts: National Mutual Life Association of Australasia Ltd v General Television Corporation Pty Ltd [1989] VR 747 at 768; Lewis v Daily Telegraph Ltd [1964] AC 234 at 271–2. They are also referred to as ‘popular innuendos’: DDSA Pharmaceuticals Ltd v Times Newspapers Ltd [1973]

31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45.

QB 21 at 26. See, for example, Lewis v Daily Telegraph Ltd [1964] AC 234. See 19.4–19.8. Meckiff v Simpson [1968] VR 62; McLean v David Syme & Co Ltd (1970) 72 SR (NSW) 513. Defamation Act 1974 (NSW) s 9(2). Defamation Act 1974 (NSW) s 9(3). Defamation Act 1974 (NSW) s 9(4). Defamation Act 1974 (NSW) s 9(5). Defamation Act 1974 (NSW) s 9(5A). Defamation Act 1889 (Qld) s 23; Defamation Act 1957 (Tas) s 24; Civil Liability Act 1936 (SA) s 13. Spautz v Kirby (1989) 21 NSWLR 27 at 30; Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 at [129]; Carey v Australian Broadcasting Corporation [2010] NSWSC 709 at [24]. Thomson v Lambert [1938] 2 DLR 545; Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 at [129]–[141]. Buckley v Herald & Weekly Times Pty Ltd (No 2) [2008] VSC 475; Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 at [206]. Cameron v McBain [1948] VLR 245. Davis v Nationwide News Pty Ltd [2008] NSWSC 693 at [8]–[10]; Buckley v Herald & Weekly Times Pty Ltd [2009] VSCA 118 at [4]. Buckley v Herald & Weekly Times Pty Ltd [2009] VSCA 118 at [12].

[page 133]

CHAPTER 7 PUBLICATION INTRODUCTION THE ACT OF PUBLICATION WHEN PUBLISHED AND FOR HOW LONG WHERE PUBLISHED INTERNET PUBLICATION TO WHOM PUBLISHED AND TO HOW MANY ABOUT WHOM PUBLISHED (IDENTIFICATION) BY WHOM PUBLISHED FORM OF THE PUBLICATION — LIBEL AND SLANDER PROOF OF PUBLICATION

7.1 7.2 7.3 7.4 7.5 7.6 7.7 7.8 7.9 7.10

INTRODUCTION 7.1 Publication is the foundation of the cause of action for defamation.1 The law of defamation protects the plaintiff’s reputation in the eyes of persons other than the plaintiff. Therefore, at common law, publication consists of the communication of matter defamatory of the plaintiff to some person other than the plaintiff.2 Publication to the plaintiff is not a publication which gives rise to the cause of action.3 The cause of action at common law is based upon the publication of the ‘vehicle’ by which that matter is communicated.4 By contrast, under the Defamation Act 1974 (NSW), the cause of action in that state had previously been based upon the publication of each defamatory imputation, rather than the vehicle or matter.5

[page 134] The act of publication not only establishes the cause of action, but also whether a defence applies and what remedy applies. When, where, to whom, by whom, about whom and in what form was the matter published are all important questions to be considered.

THE ACT OF PUBLICATION 7.2 Publication may be made by any means of communication — orally, in writing or by conduct — but there must be a communication from one person to another. If the recipient cannot or does not comprehend (hear, read or see) the material, there has been no communication and therefore no publication. Publication is a bilateral act in which the publisher makes it available and a third party has it available for his or her comprehension. Harm to reputation is done when a defamatory publication is comprehended by the reader, the listener or the observer. The bilateral nature of publication underpins the longestablished common law rule that every communication of defamatory matter founds a separate cause of action.6 Damage is presumed whenever the act of publication occurs.7

WHEN PUBLISHED AND FOR HOW LONG 7.3 The relevant date for the purposes of the cause of action is the date on which the publication is comprehended by the recipient.8 To the extent that the publication continues to be made available over a period of time, such as on the internet, publication is continuing whenever it is accessed or read. In Duke of Brunswick v Harmer,9 an article in the newspaper, Weekly Dispatch, was first published in 1830 but not sued upon until 1848. The Duke of Brunswick, the exiled German ruler Karl II, had found a copy of the 1830 newspaper article in the British Museum which was critical of him. He had been

living in Paris for 17 years and upon accessing it, requested his valet to purchase a copy of the same newspaper from the defendant directly in 1848. While the court held that the first publication was statute barred, the publication by sale and delivery to the valet was a separate publication and created a separate cause of action which was not statute barred. In the United Kingdom, this now would be met by s 8 of the Defamation Act 2013 (UK), which under the single publication rule bars an action after 12 months from the date of first publication unless the latter publication is materially different. In Australia, the multiple publication rule still applies. Therefore, multiple publication of the same defamatory matter gives rise to as many separate causes of action as there [page 135] are publications.10 It follows that publication on two different occasions at different times to the same person amounts to two publications, not one.11 Publication of the same matter to the same person by a different publisher can amount to a republication.12 Where a person engages in separate or continuing acts of publication, for example, by maintaining content on a website, the bilateral act of communication between publisher and reader is constituted by each separate (or continuing) act of publication and reading, and thereby multiple publications to the same reader may occur.13

WHERE PUBLISHED 7.4 Ordinarily, defamation is located at the place where the damage to reputation occurs. Normally, that would be where the material which is alleged to be defamatory is available in comprehensible form. In the case of the internet or the World Wide Web, it is not available in comprehensible form until downloaded onto the computer of a person who has used a web browser to pull the material from the web server. It is where that person downloads the material that the damage to reputation may be done.

Ordinarily then, that will be the place where the tort of defamation is committed.14 The place of publication therefore is where the matter complained of is read, heard or seen by the recipients,15 which thereby causes damage to the plaintiff’s reputation. Each defamatory publication constitutes a separate cause of action at common law.16 In the case of a newspaper, there is a separate publication for each copy circulated to readers. The common law permits a plaintiff to plead a single cause of action against a newspaper defendant and recover damages caused by the entire circulation of that newspaper, be it within the state in which the action is brought or elsewhere.17

INTERNET PUBLICATION 7.5 Dow Jones & Company Inc (Dow Jones) published the Wall Street Journal newspaper and Barrons magazine. From 1996 Dow Jones operated wsj.com, a subscription news site on the World Wide Web. The information on the website included Barrons Online in which the text and pictures published in the edition of Barrons magazine were reproduced. [page 136] Barrons Online contained an article entitled ‘Unholy Gains’ in which reference was made to Joseph Gutnick. Gutnick brought proceedings in the Supreme Court of Victoria against Dow Jones claiming damages for defamation. Dow Jones applied to stay the proceedings on the basis that the matter was not published in Victoria, but at the servers maintained by Dow Jones in New Jersey in the United States, and therefore Victoria was an inappropriate forum. An Australian court will decline (on the ground of forum non conveniens) to exercise jurisdiction, which has been regularly invoked by a plaintiff whether by personal service or under relevant long-arm jurisdiction provisions of the court rules, only when it is shown that the forum whose jurisdiction is invoked by the

plaintiff is clearly inappropriate.18 In trying an action for tort in which the parties or the events have some connection with the jurisdiction outside Australia, matters of substance are governed by the law of the place of commission of the tort.19 The originator of a document wishing to make it available on the World Wide Web arranges for it to be placed in a storage area managed by a web server. This process is conventionally referred to as ‘uploading’. A person wishing to have access to that document must issue a request to the relevant server, nominating the location of the web page identified by its ‘Uniform Resource Locator’ (URL). When the server delivers the document in response to the request, the process is conventionally referred to as ‘downloading’.20 Dow Jones uploaded the matter from Barrons in New Jersey, United States, which is where Dow Jones contended the matter was published. Dow Jones sought to distinguish between the publisher’s ‘act of publication’ and the ‘fact of publication’ (to a third party). Dow Jones argued that there was a general rule that intentional torts were committed where the tortfeasor’s acts were committed, being the place where the last event necessary to make the act liable took place.21 Dow Jones also sought to rely upon the single publication rule which applies in the state of New York, making a single communication to two or more people a single publication for the purposes of a cause of action. Under this United States rule, only one action can be brought in respect of the alleged defamation, and the place of publication is where the person publishing the words has acted. A plaintiff can bring only one action against a defendant to recover damages for all the publications that had by then been made of an offending publication.22 The High Court considered that this rule, if it was considered to affect the choice of law, confused the question as to how to prevent multiplicity of suits and vexation of parties and the question as to what law must be applied to determine substantive questions arising in an action in which there are foreign elements: [page 137]

… [T]he common law favours the resolution of particular disputes between parties by the bringing of a single action rather than successive proceedings. The principles of res judicata,23 issue estoppel,24 and what has come to be known as Anshun estoppel25 all find their roots in that policy … Effect can be given to that policy by the application of well established principles preventing vexation by separate suits or, after judgment, by application of the equally well established principles about preclusion, including principles of Anshun estoppel. Conversely, where a plaintiff brings one action, account can properly be taken of the fact that there have been publications outside the jurisdiction and it would be open to the defendant to raise, and rely on, any benefit it may seek to say flows from applicable foreign law.26

For publications within Australia, prior to the Defamation Act 2005, the choice of law was the law of the place of the tort.27 Questions of full faith and credit28 or other constitutional questions might well arise.29 It was usual in Australia for defamation plaintiffs to bring a single action in respect of nationwide or multi-state publications so that, in respect of each state or territory in which the material was published, it was open to the parties to rely on the law of that state or territory.30 For international publications, the High Court held that the cause of action for defamation is to be located at the place where the damage to reputation occurs. It is where the recipient downloads the material that the damage to reputation may be done.31 The place of commission of the tort for which Gutnick sued was readily located in Victoria. It was his reputation in that state, and only in that state, which he sought to vindicate. Questions of choice of forum may arise if the complaint is made for an injury to reputation which is said to have occurred as a result of publications in a number of places, particularly international publications. There may be some question whether the forum chosen by the plaintiff is ‘clearly inappropriate’. A case in which it is alleged that the publisher’s conduct has all occurred outside the jurisdiction of the forum may invite attention to whether the reasonableness of the publisher’s conduct should be given any significance in deciding whether it has a defence to the claim made. This includes all the circumstances relevant to the publisher’s conduct, including where that conduct took place and what rules about defamation applied in that place or places: [page 138] If people wish to do business in, or indeed travel to, or live in, or utilise the infrastructure of

different countries, they can hardly expect to be absolved from compliance with the laws of those countries.32

The High Court noted that pointing to the breadth or depth of reach of particular forms of communication such as the internet may tend to obscure one basic fact. However broad the reach of any particular means of communication, those who make information accessible by a particular method do so knowing of the reach that their information may have. In particular, those who post information on the World Wide Web do so knowing that the information they make available is available to all and sundry without any geographic restriction. The High Court noted that satellite broadcasting now permitted very wide dissemination of radio and television and, to that extent, the World Wide Web may not have a uniquely broad reach.33 The High Court considered that the suggestion that a publisher on the World Wide Web would have to consider the defamation laws of every country from Afghanistan to Zimbabwe was unreal when it is understood that, in all except the most unusual of cases, identifying the person about whom material is to be published will readily identify the defamation law to which that person may resort.34 If in a case an issue arises as to whether an Australian court is a clearly inappropriate forum, a very significant consideration will be whether that court can determine the whole controversy and, if it cannot, whether the whole controversy can be determined by a court of another jurisdiction. Importantly, the place of the tort, the parties’ connection with one jurisdiction or another, and the publisher’s choice to place matter on the internet are relevant matters to the court’s exercise of discretion as to whether the chosen forum is appropriate or not.35 If a plaintiff complains of multiple and simultaneous publications by a defendant of the same defamatory matter, there is in essence a single controversy between them, notwithstanding that the plaintiff may have several causes of action governed by the laws of different jurisdictions. Gutnick limited the controversy in this case to the publication of defamatory matter in Victoria. As a result, the controversy was one that could be determined in its entirety by the Supreme Court of Victoria and there could be no question of multiple suits in different jurisdictions.36 The High Court considered that three other matters were relevant:37 (a) Due weight must be given to the fact that a claim for damage to

reputation will warrant an award of substantial damages only if the plaintiff has a [page 139] reputation in the place where the publication is made. Otherwise, nominal damages should be awarded where the defamed person does not live in that place, or has no interest or reputation there. (b) The plaintiff is unlikely to sue for defamation published outside the forum unless a judgment obtained in the action would be of real value to the plaintiff. (c) The value that a judgment would have may be much affected by whether it can be enforced in a place where the defendant has assets. A relevant matter is where the plaintiff first learned of the publication and suffered hurt to feelings in that place; this may in some cases be a different place to where it was received and understood.38 The Defamation Act 2005 applies the substantive law of the state or territory in which the matter was published within Australia. If the matter is a multistate publication, the Act applies the substantive law with which the harm caused by publication has its closest connection: s 11. The Act does not provide for international publications. It may be necessary to apply foreign law where the publication occurs in a foreign jurisdiction and the appropriate forum is within Australia.39

TO WHOM PUBLISHED AND TO HOW MANY 7.6 The recipients of the publication are the persons other than the plaintiff who have received the publication. The law protects a person’s reputation in the eyes of others, not in the plaintiff’s perception of his or her own reputation.40 Publication to one other person is sufficient at law, even if it is only to an employee or agent of the plaintiff. Where the plaintiff is a company, it may be sufficient if the publication is made by an employee or agent of that company to

another such employee or agent.41 However, publication by a third party to an employee of the company may not constitute publication about the company itself because the company can only act by natural persons and if received by someone on behalf of the company in the ordinary course of business, it is a communication only to the company and does not constitute a publication (at the suit of the company).42 The recipients of the publication should be identified by their names and addresses in particulars supplied by the plaintiff, when their identity is relevant to the plaintiff’s or the defendant’s case.43 The plaintiff cannot avoid supplying these particulars by claiming that they are matters of evidence or that the names of possible witnesses [page 140] might be disclosed. Detail sufficient to enable the defendant to contact the person must be given. There is no property in a witness.44 An address means the street name and number at which the person resides or at which they can be contacted through their business, to enable a document to be served, if necessary.45 In cases where the plaintiff does not know the names of the recipients and is unable to give particulars, provided that the plaintiff is able to demonstrate a prima facie case of publication (for example, by affidavit verifying the factual basis of the allegation of publication and the lack of knowledge of the names of the persons to whom the matter complained of was published), it will be sufficient to give the best particulars the plaintiff can, identifying those persons.46 The law recognises that defamatory material may be repeated or republished to others through the ‘grapevine effect’ so that the damage is caused by the ongoing publication to a much wider audience than those to whom it was initially published or was intended to be published by the defendant.47 The expression ‘grapevine effect’ has been used as a metaphor to help explain the basis upon which general damages may be recovered in defamation actions. The idea sought to be conveyed by the metaphor was expressed by Lord Atkin in Ley v Hamilton:

It is precisely because the ‘real’ damage cannot be ascertained and established that the damages are at large. It is impossible to track the scandal, to know what quarters the poison may reach: it is impossible to weigh at all closely the compensation which will recompense a man or a woman for the insult offered or the pain of a false accusation.48

If a plaintiff relies upon the ‘grapevine effect’, he or she should state so in that form or some similar form which gives that information to the defendant.49 A presumption of the fact of publication to the general public may be made in relation to newspapers, television or radio broadcasts.50 In media cases, the precise identity of the recipients is not usually relevant to the issues because the plaintiff relies upon the unrestricted nature of the publication (and the natural and ordinary meaning), but the identity of the recipients may be relevant where the plaintiff relies upon their knowledge of extrinsic facts to give the publication a secondary or special meaning to particular persons within the media audience.51 [page 141] In the context of internet publications or social media, there is no presumption that the material has actually been read. It has been held that the claimant must produce some evidence of the downloading of the material.52 It may be necessary for the plaintiff to show the matter was read by at least one other person via an internet website. 53 Some flexibility might be required in the absence of such evidence if other evidence may lead to an inference of publication being drawn.54 If the matter was accessible to anyone from the website, or accessible by feeding the plaintiff’s name into a standard search engine to find and access the website, the inference of substantial publication is reasonably clear.55 The inference may arise from the whole of the evidence including the reaction of others to the publication.56 While there is no rebuttable presumption of extensive publication on the internet, its ubiquity and commonplace use would enable a court to draw the inference of publication readily.57 The issue may also need to be considered in the context of the websites of major daily newspapers. Such evidence is not required for the hard copy

newspaper published the same day as the website version which would otherwise appear to require it. In Hockey v Fairfax Media Publication Pty Ltd58 the different contexts in which a publication is made, the different forms of publication and the different audiences were evident. Articles were published about the then Federal Treasurer Joe Hockey in major metropolitan newspapers, The Sydney Morning Herald, The Age and The Canberra Times and their online editions. The SMH article was promoted by headlines on a poster placed outside news agencies. The Age also published two tweets on Twitter with the words ‘Treasurer for Sale’ and ‘Treasurer Hockey for Sale’ with hyperlinks to the newspaper articles. The court found that the newspaper/online articles did not convey imputations of corruption but that the SMH poster and the two tweets published by The Age did defame Mr Hockey. The court awarded him damages in respect of the SMH poster of $120,000 and in the case of The Age’s two tweets, of $80,000. The Age had approximately 280,000 followers on its Twitter account and some 789 of those followers had downloaded The Age article online. The extent to which it may be inferred that the matter complained of was published will be identifiable on social media from the number of followers on Twitter or friends on Facebook. The court considered the issue of the ease with which the reader may obtain access to the article complained of as to whether the tweets in this case were defamatory, given the finding that the articles when [page 142] read in full were not. It was submitted that if the tweet had any impact on those reading it, they were likely to have used the hyperlink to read the article in full. The court considered this matter as going to damages, not to liability.59 Accordingly, the court accepted that there would have been a large number of persons, perhaps in the tens of thousands, who read the bare tweets and who did not read further, and therefore the defamatory imputations were conveyed to them distinct from those who accessed the articles and read the full context to whom the defamatory imputations were not conveyed.60

ABOUT WHOM PUBLISHED (IDENTIFICATION) 7.7 The plaintiff must prove that he or she was identified in the matter published. Identification of the plaintiff is discussed in Chapter 8.

BY WHOM PUBLISHED 7.8 Each person who publishes or participates in the publication of the defamatory matter may be sued. The proper name of the defendant publisher in the case of a newspaper is usually printed on the first or last page of the newspaper and is prima facie evidence of that fact.61 The broadcaster of a television or radio program is the licensee under the Broadcasting Services Act 1992 (Cth). The publication may be made jointly by a number of defendants where, for example, the author, editor, publisher, printer and distributor participate in the production of a newspaper. Each is jointly and severally responsible for the publication.62 Any person who is in any degree accessory to the publication of a defamation, ‘and by any means whatsoever conduce’ to the publication, may be considered a principal in the act of publication.63 A principal is liable for publication by its servant or agent provided the publication was authorised or made in the course of employment or within the scope of the agent’s authority.64 A director may not be liable for publication by the company based on the mere fact of being a director of that company.65 [page 143] Where a person contributes material to a publication, for example, being interviewed for comment published in a newspaper article, but has no control over the publishing process, the person will not ordinarily be liable as a publisher unless he or she has assented to its final form.66 Where the plaintiff seeks to make the defendant responsible for the publication of someone else’s defamatory statement which is, for example,

physically attached to the defendant’s property, the plaintiff must establish more than mere knowledge on the part of the defendant of the existence of that statement and the opportunity to remove it. The plaintiff must establish that the defendant consented to, or approved of, or adopted, or promoted, or in some way ratified, or in one way or another accepted responsibility for the continued publication of that statement (once it came to the defendant’s knowledge).67 In exceptional circumstances, the plaintiff may be obliged to publish a statement originally published by the defendant, and in so doing the plaintiff is acting under at least a moral obligation to do so rather than expressly or impliedly consenting to the publication.68

Repetition A person who repeats or republishes defamatory matter published by another may be liable as if the person was the original publisher.69 It is not, however, a rule of invariable application.70 The nature and quality of the republication may differ from the original publication, depending upon the circumstances.71 Liability does not necessarily depend on whether the person approved, reaffirmed or endorsed the original publication. A mere report of another’s statement is a republication for which the republisher may be answerable, but which may be defended on different grounds to the original publication.72 The context of the statement may show that it is refuted or undermined by other parts of the publication.73 [page 144]

Republication The original publisher may be liable for whatever form the republication takes,74 and for the damages which flow from the republication.75 The original publisher cannot be held liable for republication by another person unless he or she: (a) authorised the repetition of the original publication; (b) intended that the repetition should take place; (c) published it in circumstances where the repetition was the natural and

probable consequence of the original publication; or (d) published it to a person who was under a moral obligation to repeat it.76 The repetition of a newspaper review on a radio program was held to be foreseeable where it could be considered to be the natural and probable consequence of the original publication or through common sense or experience to be something caused by that original publication.77 The question whether the original publisher is liable for the voluntary republication of the defamatory statement or for the damage caused by its republication is the same causation question which arises in ‘any other tort case where it is sought to make the defendant liable for harm which is directly attributable to the voluntary act of a third person’.78 The courts recognise the dissemination of defamatory material by the ‘grapevine effect’.79 It is appropriate when pleading that the republication by a third party was the foreseeable consequence of the original publication by the defendant, that it may be pleaded that the original publication ‘caused’ the republication.80 A plaintiff may sue the defendant both for the original publication and for the republication as separate causes of action, or sue for the original publication only and seek damages for the foreseeable consequence of republication.81 If the plaintiff relies upon the republication as a matter going only to damages, an issue arises as to whether the original publisher can rely on a defence, for example, absolute privilege, available to the republisher.82 If the plaintiff brings proceedings against the republisher, [page 145] the action is not confined to the action for defamation against the original publisher as each publisher is answerable as if the defamation had originated with him or her.83

Anonymity Where the identity of the publisher is not known, it may be necessary to apply to the court for preliminary discovery.84 A complex issue which has serious implications for the law is the publication of defamatory material on the internet

by anonymous persons, those using pseudonyms or those falsely using another person’s name. It is difficult as a practical matter to trace the identity of these persons but it can be done.

Intermediaries In this context, plaintiffs have chosen to sue intermediaries on the internet such as search engines and platforms. Proceedings have been commenced in Australia against Google Australia Pty Ltd. In the absence of evidence to the contrary, it has been held that the local entity does not have the ability to control or direct the conduct of Google Inc and the proceedings have been struck out.85 Google Australia Pty Ltd, it might be accepted, participates in the business of Google Inc but that is not sufficient to prove, or be a basis for bringing proceedings, that it participated in the publication by participating in the chain of communication or distribution of matter published by Google Inc.86 In one case, however, an injunction was granted to restrain publication by Google Australia of a blog suggesting that the plaintiff who was a Greek Orthodox priest was involved in a sex scandal. The solicitor for Google Australia had sent a letter to the plaintiff’s solicitor stating that it was a support services company and did not operate the blogger product and did not have the authority to remove blog postings from the blogger product on legal grounds. It said that the blogger product was owned and operated by Google Inc based in the United States which had a dedicated removals team that handled removals requests. The plaintiff argued that on the evidence of the letter if the injunction was granted, it did not follow that Google Australia would not have the authority or ability to comply with it and the court agreed and granted the injunction.87 The position taken by Google Inc, however, is that the company incorporated in the United States is the proper defendant. As such, a plaintiff would need leave of the court to serve proceedings outside Australia under the long arm jurisdiction of the rules of court. The grounds of the application would be that the proceedings were based on a tort committed in Australia or based on recovery of damage suffered within Australia caused by a tort.88 [page 146]

Google Inc, Twitter Inc and Facebook Inc are all incorporated in the United States. If liability is established against them in Australia and judgment entered, the judgment may still not be enforceable in the United States because of the collective effect of the First Amendment of the United States Constitution, s 230 of the Communications Decency Act 1996 (US) which protects United States providers of an ‘interactive computer service’, and the Speech Act 2010 (US) which protects United States citizens from foreign libel judgments in jurisdictions where the law provides less protection for free speech than the United States. This may have the effect of neutralising any judgment entered in Australia and sought to be enforced in the United States.89 The foreign judgment may be recognised only if the plaintiff proves in a United States court that he or she would have prevailed under United States law. It has been held in the United Kingdom that, in the absence of any conduct authorising or acquiescing in continuing publication of defamatory material after complaint is made, and in the absence of knowledge of the defamatory material prior to the complaint, a search engine cannot be regarded as a publisher of the defamatory material.90 It is a mere conduit or possible distributor like a telephone carrier or broadband provider. This position has been reinforced by the statutory defence for website operators featuring user generated content under s 5 of the Defamation Act 1996 (UK). In Australia, a search engine may be held liable as a publisher at law, subject to the defence of innocent dissemination available to distributors, if it participates in and enables the dissemination of defamatory material.91 In Google Inc v Trkulja,92 the Victorian Court of Appeal distinguished between the liability of those as primary publishers of defamatory material from the date when the defendant is taken to have authorised or acquiesced in the earlier publication of that material by another and the liability of those as secondary or subordinate publishers where a defendant intendedly but unwittingly distributed material within which defamatory matter appeared.93 The plaintiff had sued Google for images and snippets which were produced on search of the terms ‘Melbourne-criminal-underworld-figure’ and ‘Melbourne Criminal Underworld photos’ amongst others. The plaintiff alleged that the defamatory material was published by accessing the Google.com.au, Google.com and Google.com.de websites and typing in the various search terms. Google Inc applied to strike out the statement of claim as having no prospects of success.

[page 147] In a comprehensive judgment, the court considered the act of searching, the size of the internet, the multiple uses of the internet, the different types of Internet Service Provider, the nature of browsers, platforms, publishing services, gateways, search terms and the interaction between a user and the Google search engine.94 The court in referring to the distinction that it drew between a primary publisher and a secondary publisher noted that the United Kingdom line of authorities supported the proposition that the website operator became a primary publisher after a reasonable time to consider notice of defamatory material and the failure to take the post down95 or because the website operator ceases to be an innocent secondary publisher at that time.96 The court considered whatever the position may be in relation to website operators, the circumstances which arise in connection with search engines differ significantly. While the website operator has the ability to control the continued presence of objectionable material on its site, the search engine provider has no connection to it, other than by operation of algorithms with the websites created by others, which contain matter that the search engine crawls, indexes and then returns as results in response to a search term.97 The court observed that the case law in respect of search engines had held that a search engine is simply not a primary publisher of search results, hyperlinked external web pages or autocomplete predictions but was a secondary publisher of such matter and is almost certainly protected by the innocent dissemination defence until notice is given and for a reasonable time thereafter. Then if it does not take down the impugned matter, it will lose the innocent dissemination protection.98 The court considered that an innocent dissemination defence would almost always, if not always, be maintainable in the period before notification of an alleged defamation, whether at common law or under s 32 of the Defamation Act 2005, but it had reservations as to whether and how notification of a past defamatory publication by way of search results could lead to innocent dissemination becoming something else.99 Therefore, the production of results by an internet search engine does not constitute a primary publication of those results. The operator of the search

engine may still be liable if at all for any defamatory content in the search results only as a secondary publisher.100 The court proceeded to strike out the claim not on the basis as pleaded that Google Inc was a primary publisher but on the basis that the search results complained of would have no prospect at all of conveying any of the defamatory imputations relied upon because the ordinary reasonable reader of a search engine would understand that from what search engines do and the function they perform, the imputations were not capable of being conveyed.101 [page 148]

FORM OF THE PUBLICATION — LIBEL AND SLANDER 7.9 The Defamation Act 2005 abolishes the distinction at common law between libel and slander and, accordingly, the publication of defamatory matter of any kind is actionable without proof of special damage: s 7. ‘Matter’ is defined in s 4 of the Act to include: (a)

an article, report, advertisement or other thing communicated by means of a newspaper, magazine or other periodical; (b) a program, report, advertisement or other thing communicated by means of television, radio, the internet or any other form of electronic communication; (c) a letter, note or other writing; (d) a picture, gesture or oral utterance; and (e) any other thing by means of which something may be communicated to a person.

‘Document’ is defined in s 4 to mean any record of information, and includes: (a) anything on which there is writing; (b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; (c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else; and (d) a map, plan, drawing or photograph.

‘Electronic communication’ is also defined in s 4 to include a communication

of information in the form of data, text, images or sound (or any combination of these) by means of guided or unguided electromagnetic energy, or both. The common law of defamation distinguishes between libel and slander. In broad terms, the distinction is based upon the form of the communication, ‘libel’ being a written defamation and ‘slander’ being an oral defamation.102 At common law libel is actionable without proof of special damage while slander is only actionable with proof of special damage, subject to some important exceptions. The distinction arose from the form of the cause of action in the common law courts.103 The essence of the action on the case for slander was damage to the reputation of the plaintiff. This required the plaintiff to prove actual loss caused by the slander, which in most cases was impossible. As a result it came to be accepted at common law that certain words were damaging in themselves without proof of any actual loss. Accordingly, words: (a) alleging a crime committed by the plaintiff; (b) disparaging the plaintiff in the conduct of his or her office, profession, trade or business; (c) alleging that the plaintiff had a contagious or infectious disease, are presumed to cause a plaintiff damage to reputation. [page 149] The allegation of a crime is the oldest form of slander. It must be an allegation of guilt not mere suspicion, unless the plaintiff proves actual loss.104 The nature of the crime must be one liable to endanger the liberty of the plaintiff, not a mere fine or otherwise not scandalous.105 This is taken to mean that the crime should be punishable with imprisonment, although it need not be indictable.106 An allegation disparaging of office may be defamatory even if no moral fault or defect of personal character is alleged, such as an imputation of insolvency.107 However, the allegation must touch or be directed to the plaintiff’s office or trade. An allegation of immorality may not necessarily do so. In Jones v Jones,108 David Jones was the headmaster of a school in Wales. He

was unmarried and lived with his aunt (Mrs Jones). A local farmer’s wife, Ellen Jones, told a neighbour, Elizabeth Jones, that David Jones had committed adultery with the wife of the cleaner of the school (who was not a Jones). The plaintiff was represented by Artemus Jones.109 The case reached the House of Lords, which held that the imputation of immorality (adultery) was not directed to the headmaster’s occupation as such, and therefore, being a slander, required actual damage to be proven, even though it was accepted that the local educational authority would naturally not allow a teacher to remain in the school and teach children if he were carrying on ‘an immoral intercourse’. The distinction made was that the imputation must concern the plaintiff when acting in a professional capacity or in the capacity of his trade or business. It did not extend to an imputation which had a natural tendency to produce injury to the profession or trade. In this case, the imputation of adultery was not obviously directed to the plaintiff’s reputation as a school master. It would have been if the immoral intercourse had been with a student at the school. The imputation of immorality was treated differently from the imputation of dishonesty, perhaps based upon the jurisdiction of the church in dealing with defamation in early times: So scandals, which concern matters merely spiritual, as to call a man heretic or adulterer, are cognizable only in the ecclesiastical court; unless any temporal damage ensues, which may be a foundation for a per quod.110

Accordingly, the Slander of Women Act 1891 (UK) was passed in England so that damage would be presumed where an imputation of unchastity was made against a woman. (This provision was repealed by s 14(1) of the Defamation Act 2013 (UK).) The House of Lords suggested that the legislation should be extended to apply to [page 150] men.111 In some states in Australia, where the distinction between libel and slander remained relevant, the common law was amended to make slander actionable per se where there was an imputation of unchastity against a woman.112

The imputation of a contagious disease did not require proof of actual damage because of the obvious exclusion from society that publication of such an imputation would bring. (Section 14(2) of the Defamation Act 2013 (UK) requires special damage in respect of an imputation of contagious or infectious disease.) As a result of its significance as a crime during the period of the Star Chamber, libel became actionable as a tort without proof of actual loss because a written publication was permanent and the words contained ‘more malice, than if they had once been spoken’.113 For all other slanderous allegations in common law jurisdictions, the plaintiff was required to prove actual loss. While slander may be defined to be only conveyed by spoken words, it extends to signs or gestures or even sounds. It is transient in nature compared with libel which is in permanent form and for that reason libel is damaging per se.114 The ability to record sound and picture challenged the notion of such publications being slander. In the absence of legislation, the common law would require a radio or television broadcast to be treated as a slander not libel.115 However, s 206 of the Broadcasting Services Act 1992 (Cth) states: ‘For the purposes of the law of defamation, the broadcasting of matter is taken to be publication of the matter in a permanent form’. The test of whether the form of publication is transient, in which case it is a slander, or permanent, in which case it is a libel, raised a question as to whether the contents of a radio program posted on a website amounted to ‘broadcasting’ within the meaning of the Broadcasting Services Act or whether a website is in permanent form.116 Words and images in a motion picture were held to be a libel and not a slander.117 An effigy of a model of the plaintiff adjacent to the Chamber of Horrors in Madame Tussauds Wax Museum was found to be a libel rather than a slander.118 In 1843 the Select Committee reporting to the House of Lords on the law of defamation suggested that a defamatory allegation at a public meeting could be more damaging than a libel seen by one person, and recommended that the distinction between slander and libel should be abolished.119 The recommendation was not

[page 151] implemented in the United Kingdom but was adopted in New South Wales in 1847, for the first time in the common law world.120 The distinction between libel and slander is now abolished throughout Australia under the Defamation Act 2005. The categories of slander considered as actionable without proof of damage may still be instructive as to the nature of defamation. Criminal conduct endangering the liberty of the plaintiff, misconduct in office or incompetence in trade or business or profession and the stigma of an infectious disease leading to being cut off from society are important historical examples of what were perceived to have the tendency to lower reputation in the eyes of the ordinary reasonable person in the community. Accordingly, these categories will be considered further in relation to the test of defamation.121 Prior to the Defamation Act 2005, ‘publication’ was defined by statute in the Queensland and Tasmanian Codes122 in these terms: (a) in the case of spoken words or audible sounds, the speaking of such words or making of such sounds in the presence and hearing of any other person than the person defamed; (b) in the case of signs, signals, or gestures, the making of such signs, signals, or gestures, so as to be seen or felt by, or otherwise come to the knowledge of, any person other than the person defamed; and (c) in the case of other defamatory matter, the exhibiting of it in public, or causing it to be read or seen, or showing or delivering it, or causing it to be shown or delivered, with a view to its being read or seen by any other person than the person defamed.123

PROOF OF PUBLICATION 7.10 In oral defamation cases, the plaintiff will need evidence from a person who heard the statements made. In cases of television or radio broadcasts concerning political subjects or current affairs, a notice may be issued to the broadcaster requiring the recording of the television or radio broadcast (which

must be retained by the broadcaster for a period of six weeks from the date of publication or, if a complaint has been made about the matter, for 60 days from the date of publication) be retained for the purposes of court proceedings, and the broadcaster must retain the recording, provided those proceedings are instituted within three months after notice is given.124 [page 152] In written defamation cases, or cases involving defamation by conduct, it is necessary to obtain evidence of the document or the act complained of for the purposes of pleading, or at least for tendering as an exhibit at the trial.125 At the trial, the oral evidence as to what was published and the document of what was published are obviously admissible relevant evidence. However, issues have arisen as to whether, in cases of broadcasts by television or radio, the tribunal of fact should be permitted to hear or see the publication more than once, and whether it should be permitted to have a transcript of the broadcast.126 While a transcript of the words said in the broadcast may go to the issue of whether the words were said or not, or may assist in understanding an unclear or inaudible recording, or where a translation between languages is needed,127 the best evidence of what was said is the broadcast itself. If the issue between the parties is limited to whether the broadcast conveyed the imputations and whether they were defamatory, the tribunal of fact must assess the broadcast by the tone of voice, the visible actions of the persons involved and the captions and images displayed by television. This would be lost or reduced in a transcript which merely presents the words spoken. For these reasons, a written transcript may not be admissible because it does not meet the test that it can ‘rationally affect the assessment of the probability of a fact in issue’ in the proceedings under s 55 of the Evidence Act 1995 (NSW) and that only relevant evidence is admissible under s 56 of that Act.128 Alternatively, there may be a danger of unfair prejudice to the defendant by the use of a transcript, which would outweigh the probative value and which should therefore be excluded under s 135 of the Evidence Act 1995 (NSW).129 Where there is no difficulty understanding the recorded broadcast played before the jury, a transcript could

only distract them from their task of assessing the impression of the broadcast on the ordinary, reasonable listener or viewer, who hears it or sees it only once.130 In media cases, there is a presumption of publication to the general public.131 In internet cases, a presumption of publication is not available, but given the ubiquity and common usage of the internet, the courts may be readily able to infer publication based on the whole of the evidence.132 ____________________ 1. 2.

3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26.

Powell v Gelston [1916] 2 KB 615 at 619; Lee v Wilson and MacKinnon (1934) 51 CLR 276 at 287. Pullman v Hill & Co Ltd [1891] 1 QB 524 at 527; R v Grassby (1988) 15 NSWLR 109 at 114. See also Webb v Bloch (1928) 41 CLR 331 at 363; Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575 at [26], [124]. Powell v Gelston [1916] 2 KB 615 at 619. Webb v Bloch (1928) 41 CLR 331 at 363. Defamation Act 1974 (NSW) s 9(2). Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575 at [27]. Shevill v Presse Alliance SA [1996] AC 959; Jameel v Dow Jones & Co Inc [2005] All ER (D) 43. Dow Jones & Company Inc v Gutrick (2002) 210 CLR 575 at [44]. (1849) 14 QB 185; 117 ER 75. Harris v 718932 Pty Ltd [2003] NSWCA 38 at [15]–[19]. Dods v McDonald [2016] VSC 200 at [14]. Dods v McDonald [2016] VSC 200 at [15]. Dods v McDonald [2016] VSC 200 at [18]. Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575 at [44]. See also Loutchansky v Times Newspapers Ltd [2002] QB 783 at [58]; King v Lewis [2005] EMLR 45. Gorton v Australian Broadcasting Commission (1973) 22 FLR 181 at 183. Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575 at [124]. Toomey v Mirror Newspapers Ltd (1985) 1 NSWLR 173; see also s 11 of the Defamation Act 2005; Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575 at [53]–[54]. Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; BHP Billiton Ltd v Schultz (2004) 211 ALR 523 at [11]. Regie National Des Usines Renault SA v Zhang (2002) 210 CLR 491. Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575 at [16]. Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575 at [28]. Galligan v Sun Printing & Publishing Association 54 NYS 471 (1898). Jackson v Goldsmith (1950) 81 CLR 446. Blair and Perpetual Trustee Company Ltd v Curran (1939) 62 CLR 464. Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575 at [36].

27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51.

52. 53. 54. 55. 56. 57.

John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503. Section 118 of the Constitution. Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575 at [37]. McLean v David Syme & Co Ltd (1970) 72 SR (NSW) 513; Gorton v Australian Broadcasting Commission (1973) 22 FLR 181 at 183. Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575 at [44]. Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575 at [186] (Callinan J). Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575 at [39]. See also Lewis v King [2004] EWCA Civ 1329 at [30]–[31]. Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575 at [54] (Gleeson CJ, McHugh, Gummow and Hayne JJ with whom Gaudron J agreed). Lewis v King [2004] EWCA Civ 1329 at [35]–[36]. Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575 at [124]. Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575 at [53] (Gleeson CJ, McHugh, Gummow and Hayne JJ with whom Gaudron J agreed). Barach v University of New South Wales [2011] NSWSC 431 at [51]. Barach v University of New South Wales [2011] NSWSC 431 at [73]–[81]. Pullman Hill & Co Ltd [1891] 1 QB 524 at 527; Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575 at [26], [124]. Traztand Pty Ltd v Government Insurance Office of New South Wales [1984] 2 NSWLR 598; Jones v Amalgamated Television Services Pty Ltd (1991) 23 NSWLR 364 at 366. State Bank of New South Wales Ltd v Currabubula Holdings Pty Ltd (2001) 51 NSWLR 399 at [129]. Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188; Martindale v Allister (1994) 1 MLR 68. Fullam v Newcastle Chronicle and Journal Ltd [1977] 1 WLR 651 at 656. McCormick v John Fairfax & Sons Pty Ltd (1989) 16 NSWLR 485. Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188 at 195. Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388 at [88]; Jones v Sutton [2004] NSWCA 439 at [60]. (1935) 153 LT 384 at 386. McCormick v John Fairfax & Sons Pty Ltd (1989) 16 NSWLR 485; Moore v Australian Broadcasting Commission (1985) A Def R 50-010. Fullam v Newcastle Chronicle and Journal Ltd [1977] 1 WLR 651. Fullam v Newcastle Chronicle and Journal Ltd [1977] 1 WLR 651 at 655; Moore v Australian Broadcasting Commission (1985) A Def R 50-010. See also Hughes v Mirror Newspapers Ltd (1985) 3 NSWLR 504; Williams v Radio 2UE Sydney Pty Ltd (1994) 1 MLR 33; Sims v Jooste [2016] WASCA 83 at [13]–[14]. Metropolitan International Schools Ltd v Designtechnica Corporation [2009] EWHC 1765 at [33]; Sims v Jooste [2016] WASCA 83 at [18]. Restifa v Pallotta [2009] NSWSC 958 at [26]–[29]. Restifa v Pallotta [2009] NSWSC 958 at [26]–[29]. Steinberg v Pritchard Englefield [2005] EWCA Civ 288 at [21]; Trkulja v Yahoo! Inc LLC [2012] VSC 88 at [37]. Dods v McDonald [2016] VSC 200 at [9]; Sims v Jooste [2016] WASCA 83 at [19]. Dods v McDonald [2016] VSC 200 at [9]; Douglas v McLernon [2016] WASC 320 at [42]–[43].

58. 59. 60. 61.

62. 63. 64.

65. 66. 67. 68. 69.

70. 71. 72. 73. 74. 75. 76. 77. 78. 79. 80. 81. 82. 83.

[2015] FCA 652. Hockey v Fairfax Media Publication Pty Ltd [2015] FCA 652 at [208]. Hockey v Fairfax Media Publication Pty Ltd [2015] FCA 652 at [451]–[454]. See Printing and Newspapers Act 1973 (NSW) ss 4 and 5; Printing and Newspapers Act 1981 (Qld); Printers and Newspapers Act 1984 (NT); equivalent legislation in other jurisdictions has been repealed or not enacted. See also Defamation Act 2005 s 41. Webb v Bloch (1928) 41 CLR 331 at 363–5; Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 at [121]. Parkes v Prescott (1869) LR 4 Ex 169 at 173; Webb v Bloch (1928) 41 CLR 331 at 364; Google Inc v Trkulja [2016] VSCA 333 at [100]–[101]. Citizens’ Life Assurance Company Ltd v Brown [1904] AC 423 at 428; NSW Country Press Cooperative Co Ltd v Stewart (1911) 12 CLR 481; Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Cooperative Assurance Co of Australia Ltd (1931) 46 CLR 41; Coroneo v Kurri Kurri and South Maitland Amusement Company Ltd (1934) 51 CLR 328. Douglas v McLernon [2016] WASC 319 at [45]. Dank v Whittaker [2013] NSWSC 1062 at [26]; Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288; Mohareb v Harbour Radio Pty Ltd [2017] NSWSC 353 at [14]. Byrne v Deane [1937] 1 KB 818 at 830, 835, 837–838; Urbanchich v Drummoyne Municipal Council (1991) Aust Torts Reports 81-127; Bishop v State of New South Wales [2000] NSWSC 1042. Jones v Amalgamated Television Services Pty Ltd (1991) 23 NSWLR 364. Truth (NZ) v Holloway [1960] 1 WLR 997 at 1002–3; Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 at 300; John Fairfax Publications Pty Ltd v Obeid [2005] NSWCA 60 at [91]; Lord McAlpine v Bercow [2013] EWHC 1342 at [44]. Ronald v Harper (1910) 11 CLR 63 at 77. Ross McConnel Kitchen & Co Pty Ltd v John Fairfax & Sons Pty Ltd [1980] 2 NSWLR 845 at 848. Wake v John Fairfax & Sons Ltd [1973] 1 NSWLR 43; John Fairfax Publications Pty Ltd v Obeid [2005] NSWCA 60 at [96]–[102]. Bik v Mirror Newspapers Ltd [1979] 2 NSWLR 679 at 681. Webb v Bloch (1928) 41 CLR 331 at 363–6; Sims v Wran [1984] 1 NSWLR 317 at 320; Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 at [123]. Toomey v Mirror Newspapers Ltd (1985) 1 NSWLR 173 at 183; Belbin v McLean [2004] QCA 181; Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 at [123]. Speight v Gosnay (1891) 60 LJQB 231; Sims v Wran [1984] 1 NSWLR 317 at 320; Re Application of Cojuangco (1986) 4 NSWLR 513 at 517–18. Williams v John Fairfax Group Pty Ltd (1991) A Def R 51-035. See also Ratcliffe v Evans [1892] 2 QB 524. Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 at [124]. See 7.6. Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 at [125]. Toomey v Mirror Newspapers Ltd (1985) 1 NSWLR 173 at 181–2; Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 at [126]. Belbin v McLean [2004] QCA 181; Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 at [128]. Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 at [127].

84. See 13.3 and 13.8. 85. Duffy v Google Inc [2011] SADC 178; Rana v Google Australia Pty Ltd [2013] FCA 60; Ghosh v Google Australia Pty Ltd [2013] NSWDC 146; Defteros v Google Inc LLC [2017] VSC 158. 86. Defteros v Google Inc LLC [2017] VSC 158 at [63]. 87. Konidaris v Google Australia Pty Ltd [2015] NSWSC 1810. 88. Rana v Google Australia Pty Ltd [2013] FCA 60 at [44]–[46]; Barach v University of New South Wales [2011] NSWSC 431 at [32]–[62]. 89. Investorshub Com Inc v Mina Ma Group Inc 2011 US DistLexis 87566 (MDFLA) 20 June 2011; Pontigon v Lord 340 SW 3d315 (MoCtApp 2011); Barach v University of New South Wales [2011] NSWSC 431. 90. Bunt v Tilley [2006] All ER (D) 142; Metropolitan International Schools Ltd v Designtechnica Corporation [2009] EWHC 1765; Tamiz v Google Inc [2013] EWCA Civ 68. 91. Trkulja v Google Inc LLC (No 5) [2012] VSC 533 at [27]–[28]; Rana v Google Australia Pty Ltd [2013] FCA 60 at [56]; Bleyer v Google Inc [2014] NSWSC 897; Von Marburg v Aldred [2015] VSC 467; Duffy v Google Inc [2015] SASC 170; Google Inc v Trkulja [2016] VSCA 333. 92. [2016] VSCA 333. 93. Google Inc v Trkulja [2016] VSCA 333 at [112]–[113]. 94. Google Inc v Trkulja [2016] VSCA 333 at [145]–[201]. 95. Tamiz v Google Inc [2013] EWCA Civ 68; see also Murray v Wishart [2014] NZCA 461 at [170]. 96. Oriental Press Group v Fevaworks Solutions Pty Ltd [2013] HK CFA 47. 97. Google Inc v Trkulja [2016] VSCA 333 at [285]. 98. Google Inc v Trkulja [2016] VSCA 333 at [319]. 99. Google Inc v Trkulja [2016] VSCA 333 at [353]. 100. Google Inc v Trkulja [2016] VSCA 333 at [357]. 101. Google Inc v Trkulja [2016] VSCA 333 at [390]–[301]. 102. See Meldrum v Australian Broadcasting Company [1932] VLR 425 at 435. 103. See 2.15. 104. Simmons v Mitchell (1880) 6 App Cas 156 at 162. 105. Berry v British Transport Commission [1960] 3 All ER 322 at 329. See also Spencer v Shory (1599) Cro Eliz 709; 78 ER 944; Webb v Beavan (1883) 11 QBD 609; Hellwig v Mitchell [1910] 1 KB 609. 106. Webb v Beavan (1883) 11 QBD 609. 107. Drummond-Jackson v British Medical Association [1970] 1 All ER 1094 at 1104. 108. [1916] 2 AC 481. 109. Artemus Jones was famous in his own right for an earlier defamation case of mistaken identity: E Hulton & Co v Jones [1910] AC 20. 110. W Blackstone, Commentaries on the Laws of England, Book 3, Chapter 8, 1769, pp 124–5. 111. Jones v Jones [1916] 2 AC 481 at 493. 112. Wrongs Act 1958 (Vic) s 8; Wrongs Act 1936 (SA) s 5. Compare Costello v Random House Australia Pty Ltd (1999) 137 ACTR 1. 113. King v Lake (1672) Hardres 470; 145 ER 552 at 553. 114. Wainer v Rippon [1980] VR 129 at 134. 115. Wainer v Rippon [1980] VR 129. 116. See Mickelberg v 6 PR Southern Cross Radio Pty Ltd (2001) 24 WAR 187.

117. Youssoupoff v Metro-Goldwyn-Meyer Pictures Ltd (1934) 50 TLR 581. 118. Monson v Tussauds Ltd [1894] 1 QB 671 at 691. 119. The distinction was abolished under the following statutes in Australia: Defamation Act 1889 (Qld) s 5; Defamation Act 1957 (Tas) s 9(1); Civil Law (Wrongs) Act 2002 (ACT) s 57; Defamation Act 1989 (NT) s 2; Defamation Act 1974 (NSW) s 8. The distinction had remained relevant in Victoria, South Australia and Western Australia. 120. 11 Victoria c 13. 121. See Chapter 10. 122. Defamation Act 1889 (Qld) s 5(2); Defamation Act 1957 (Tas) s 7. 123. See Defamation Act 1889 (Qld) s 5(2). 124. Broadcasting Services Act 1992 (Cth) Sch 2 Pt 2 cl 5. 125. See Defamation Act 2005 s 41. 126. Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448 at 472–3; TCN Channel Nine Pty Ltd v Mahony (1993) 32 NSWLR 397 at 400–1; Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 166; Voelte v Australian Broadcasting Corporation [2016] NSWSC 1012. 127. Foreign Media Pty Ltd v Konstantinidis [2003] NSWCA 161. 128. Reading v Australian Broadcasting Corporation [2003] NSWSC 716; Griffith v Australian Broadcasting Corporation [2003] NSWSC 483. 129. Purcell v Cruising Yacht Club of Australia [2001] NSWSC 926 at [11]; Nu-Tec v Australian Broadcasting Corporation [2010] NSWSC 711 at [12]; Voelte v Australian Broadcasting Corporation [2016] NSWSC 1012 at [16]. 130. Voelte v Australian Broadcasting Corporation [2016] NSWSC 1012 at [16]. 131. Fullam v Newcastle Chronicle and Journal Ltd [1977] 1 WLR 651. 132. See 7.6.

[page 153]

CHAPTER 8 IDENTIFICATION INTRODUCTION THE UNDERSTANDING OF THE ORDINARY REASONABLE RECIPIENT IDENTIFIED EXPRESSLY OR IMPLICITLY FROM THE PUBLICATION THE PLAINTIFF AS A MEMBER OF A GROUP INFERENCE: EXTRINSIC FACTS NOT IN THE PUBLICATION EXTRINSIC FACTS: PRIOR OR SUBSEQUENT PUBLICATIONS

8.1 8.2 8.3 8.4 8.5 8.6

INTRODUCTION 8.1 Identification of the plaintiff is an essential part of the plaintiff’s cause of action. The plaintiff must prove that the defendant published the defamatory matter ‘about the plaintiff’ or ‘of and concerning’ the plaintiff.1

THE UNDERSTANDING OF THE ORDINARY REASONABLE RECIPIENT 8.2 The publication must identify the plaintiff as the person defamed. This will be easy where the plaintiff is referred to by name or title. Where there is no such reference, the law applies the understanding or comprehension of an ordinary reasonable person or ordinary reasonable recipient of the publication.2 Such a person is taken to be prone to a certain amount of loose thinking and is permitted to draw rather far-fetched inferences. What must be looked at is the general impression the

[page 154] recipients would have obtained, without any need on their part to formulate reasons for the impression they obtained.3 For example, the average reader of a newspaper does not read a sensational article with cautious and critical analytical care.4 The ordinary sensible reader would be likely to skim through an article casually without a high degree of accuracy and without giving it concentrated attention or a second reading.5 By contrast, the ordinary reasonable viewer of a television program does not have the opportunity which the ordinary reasonable reader has of considering or rereading the whole of the publication at leisure, to check back on something that has gone before to see whether his or her recollection of it is correct, and in doing so to perhaps change a first impression of the message that was intended to be conveyed.6 The ordinary reasonable reader is fair-minded and would not read the matter with a morbid or suspicious mind7 and the conclusion that the plaintiff is identified in the matter complained of is one which is reached by the reader (or viewer) acting reasonably.8 The defendant’s actual intention to refer to the plaintiff or the defendant’s knowledge of the plaintiff is not relevant to this issue.9 The only intention of the defendant which is relevant is that which is understood by the ordinary reader to have been the intention, gained only from what has been published by the defendant.10 (Note, however, that the defendant’s actual intention may be relevant to the defences, the issue of malice or damages.) The understanding of the matter by the persons who receive it must be reasonable and made with general knowledge or experience of worldly affairs.11 [page 155]

IDENTIFIED EXPRESSLY OR IMPLICITLY FROM THE PUBLICATION

8.3 The plaintiff is required to prove that the defamatory material was published ‘of and concerning’ the plaintiff.12 The plaintiff may be identified in the publication expressly by name, or by title such as ‘the Prime Minister’. It is not essential, however, that the plaintiff be specifically named, provided there is some form of description which in the circumstances is such that the ordinary reasonable recipient would reasonably believe that it referred to the plaintiff.13 It is not necessary for everyone to know to whom the matter complained of refers; but if a substantial number of persons who knew the plaintiff would believe that the matter complained of referred to the plaintiff, the action can be maintained.14 It is a question of degree as to what evidence is required to prove identification by description. The plaintiff must correspond to the description in the defamatory material, and must be identified with that description by persons who know the plaintiff. The identification process consists of correctly associating an existing personal thing with a description contained in the defamatory material.15 The position will differ in descending proportion to the extent of the clarity of the description and of the probable number and knowledge of the recipients.16 Whatever form the description may take (for example, a photograph, a reference to a group of people, to the person’s title or to an incident for which the person is known), if in the circumstances the description is such that a person hearing or reading the defamatory publication would reasonably believe that the plaintiff was referred to, that is sufficient reference to the plaintiff.17 The extent to which the plaintiff was in fact identified is directly relevant to the amount of damages to be awarded.18 In Pedavoli v Fairfax Media Publications Pty Ltd,19 the Sydney Morning Herald published an article under the headline ‘Female teacher quits top Catholic school after claim of sex with boys’. The article reported that an unnamed teacher had [page 156] resigned from a leading Catholic boys school after an internal investigation had revealed that she had been having ‘inappropriate relationships’ with a number of

boys in year 12. The article referred to the teacher as in her late 20s and that it was believed the teacher taught drama and English at the school. In fact, the teacher the subject of the allegations did not meet either of those descriptions, while they accurately described the plaintiff. Although the plaintiff was not named in the article, the trial judge concluded that the article identified her as the teacher concerned by reason of the identifying details. In Zoef v Nationwide News Pty Ltd,20 the Daily Telegraph published an article under the headline ‘Tailor’s alter ego as a gunrunner’. The plaintiff was a tailor carrying on business in the Sutherland Shire. The article reported that he was a friendly tailor who spent his days altering clothes, but that police alleged he was the mastermind behind a haul of military grade weapons smuggled into Australia. In fact, it was the plaintiff’s son who was the subject of the police allegations, not the plaintiff. However, the article referred to the plaintiff by name and it was accepted that the plaintiff need only prove that it was published by the defendant without proving that the persons to whom it was published had any knowledge of the plaintiff.21 While the ordinary reasonable reader must be taken to be aware of the possibility that in any district there may be more than one person of the same name,22 in this case, the court held that it was highly improbable that the ordinary reasonable reader would conclude that there were two people in the same district with the same distinctive name and the same trade and that the article referred to the other person known by that name.23 Where a defamatory statement refers to a plaintiff by name or, without mentioning him or her by name, describes him or her in such a way that the man in the street reading or hearing it would know to whom it referred, for example, the holder of a particular office and it was a matter of general notoriety who the holder of that office was, then evidence that some one or more persons who read or heard the statement understood it was referring to the plaintiff is unnecessary.24 However, where the plaintiff could only be identified by extrinsic facts by those who happen to know that he or she was a particular person, it is necessary to show that some one or more of those to whom the matter was published had that special knowledge.25 [page 157]

THE PLAINTIFF AS A MEMBER OF A GROUP 8.4 Where the publication asserts that one unidentified member of a small group was responsible for certain defamatory conduct, and where there is nothing in the publication which points to any particular member of that group as the one who is responsible for the conduct, the publication is incapable of conveying an imputation of guilt in relation to each member of the group.26 In Knupffer v London Express Newspaper Ltd,27 a newspaper article was published during the Second World War which attacked a pro-Nazi group known as Young Russia. It reported that the group sought to replace the Soviet government with a puppet führer nominated by Hitler and install a totalitarian regime based on the German model. Mr Knupffer was the head of the English Branch which had 24 members with a total of 2,000 worldwide. The article did not refer to the plaintiff by name and there was nothing else in the article to identify him separately from any other member of the group. The court held that the group was far too large for the article to be capable of identifying the plaintiff. Whether a particular publication is capable of conveying an imputation in relation to an individual member of a group depends on a range of factors (none of which is conclusive): (a) whether the publication, properly interpreted, defames all or some of the class — if it conveys the meaning that it defames all members of the class, it is more likely that each member of the class will have a cause of action; (b) the size of the class — even if all members of the class appear to be the subject of the defamatory statement, the class may be so large that the ordinary reasonable recipient would not interpret the publication as referring to any of them in particular. Conversely, the class may be so small that to defame any one of them might be interpreted by the ordinary reasonable recipient as referring to any one of them; (c) the generality of the defamatory allegation — the more general the allegation, the less likely it is that the average reasonable recipient would interpret the publication as defaming each member of the class. Conversely, the more specific the allegation against a large class, the

less likely it is that the ordinary reasonable recipient could accept that the publication conveys the relevant imputation against each member of the class; (d) the extravagance of the allegation — the more extravagant the allegation, the less likely it is that the ordinary reasonable recipient would accept that [page 158] the publication conveyed the imputations against any or all of the members of the class.28 In Bjelke-Peterson v Warburton29 the Deputy Leader of the Opposition in Queensland gave an interview in which he made a statement referring to ‘this Government’s corruption’ and asked ‘which Ministers have their hands in the till?’ There were 18 Ministers in the Queensland Government and each Minister commenced proceedings. The court held that the class was sufficiently narrow for each member of the class to be able to complain that the words could reasonably be taken to refer to each one of them.

INFERENCE: EXTRINSIC FACTS NOT IN THE PUBLICATION 8.5 If the publication does not refer by name or description to the plaintiff, and the identity of the plaintiff would be apparent only to persons who had knowledge of special facts, the plaintiff must prove that the matter was published to a person or persons who had knowledge of those facts.30 The plaintiff must provide particulars31 of the facts and matters upon which he or she relies to lead the ordinary reasonable recipient, with knowledge of those facts and matters, to identify the plaintiff.32 The tribunal of fact must assume that the special facts particularised were included in the publication to enable it to determine such cases of identification.33 In such cases, the plaintiff will need to call witnesses to prove that there were

persons to whom the defamatory matter was published who had special knowledge of facts external to the matter, which by inference would lead the ordinary reasonable recipient to identify the plaintiff.34 However, there is no inflexible rule requiring at least one witness to be called to prove identification where the plaintiff is not named [page 159] in the matter complained of. In some cases, the extrinsic fact will be of sufficient notoriety that it can fairly be presumed or inferred that the matter complained of would be published to a person with that knowledge.35 Another indirect way of proving identification without calling individual witnesses is where the plaintiff gives evidence of being contacted by people in circumstances showing that the contact was obviously a response or reaction to the publication.36 As a general guide, the relevant criteria that a plaintiff must satisfy on the question of whether recipients with knowledge of special facts would identify the plaintiff as the person referred to are: (a) there must be evidence that persons with particular knowledge of a plaintiff believe that the publication refers to the plaintiff; (b) there must be evidence that the witnesses did possess the particular knowledge about the plaintiff which enabled them to make the identification they asserted; (c) those who did identify the plaintiff must be ordinary reasonable persons; (d) there must be evidence that those with particular knowledge of the plaintiff, who as ordinary reasonable persons understood the publication with the degree of latitude permitted and who honestly identified the plaintiff as the person referred to, could reasonably come to that conclusion.37 In cases where the plaintiff carries on a business under a name different to the plaintiff’s own name, it is not enough that the plaintiff prove that someone who read or saw a publication which does not refer to the plaintiff by name linked the publication and the business of the plaintiff. The plaintiff must prove that

the link was drawn between the publication and the plaintiff. It is not necessary that the viewer or reader must know the plaintiff’s name. It is sufficient to prove publications to persons who would know who the owners were. It does not require knowledge of the plaintiff’s name, but knowledge of the plaintiff’s identity, and particularly with respect to the publication to make the link.38 An example would be where a business is conducted under a well-known name such as David Jones, but the corporate owner of the well-known business has an obscure name.39 It should make no difference if the witness is slightly mistaken as to the plaintiff’s name, believing him to be ‘Peter Smith’ when in truth he is ‘Peter Smythe’.40 Likewise, if a person uses a stage name but retains a family name for private purposes, [page 160] he or she will not be precluded from recovering damages without calling witnesses who know the private name.41 In cases where extrinsic facts are relied on, the number of persons with knowledge of the extrinsic facts which led to the identification is relevant to the assessment of damages. Even if a newspaper has a large circulation, it is only publication to the limited few with knowledge of the extrinsic facts that should be taken into account in assessing damages.42 The employees or agents of a company may give relevant identification evidence of the company, but the extent and impact of publication to the limited group of persons who probably identified the company will be taken into account in assessing damages.43 A defendant cannot be liable for an identification made by a reader who erroneously believes in the existence of the particular extrinsic fact upon which the plaintiff relies.44 But the nature of that extrinsic fact may vary in different cases. In some circumstances, the plaintiff may rely for the extrinsic fact which identifies him or her in the publication upon a statement of fact (rather than upon the fact stated itself), provided that the plaintiff establishes in evidence the existence of that statement and a reader’s knowledge of its existence, even though the fact stated is itself erroneous.45 The publication of the plaintiff’s picture on television is not the same as the publication of his or her name in a newspaper. If the plaintiff is not named in

the matter complained of, the plaintiff is obliged to establish the persons who saw the television program and who are able to identify him or her as the person shown in the program.46

EXTRINSIC FACTS: PRIOR OR SUBSEQUENT PUBLICATIONS 8.6 As extrinsic facts may be relied on to establish the identification of the plaintiff, a prior publication in which the plaintiff has been identified may be relied upon as special knowledge of an extrinsic fact to the publication complained of. Identifying material published in a newspaper prior to the publication complained of, whether it was published by the defendant or by someone else, may be relied upon by the plaintiff as showing the condition of the public mind.47 [page 161] If a plaintiff relies upon the reader’s knowledge of extrinsic facts in order to understand what was published by the defendant in a defamatory sense, that knowledge must exist at the time of the defendant’s publication to that reader. For that reason, a subsequent publication cannot be used as an extrinsic fact by way of true innuendo in order to cause an otherwise innocent publication to be understood in a defamatory sense.48 However, a subsequent publication may be relied upon as an extrinsic fact for identification where the publication complained of is defamatory on its face, and where the subsequent publication is used only to identify the plaintiff as the person referred to.49 Such a publication tends to establish that the defendant had actually intended to refer to the plaintiff in the publication complained of. The subsequent publication leads the reader to infer from what was published that the defendant had intended to refer to the plaintiff. Where the subsequent publication is by someone other than the defendant, the plaintiff may still rely upon the subsequent publication as an extrinsic fact

where the perceived intention of the defendant (whatever may have been the defendant’s actual intention) is to refer to a particular person or group of persons and to invite the reader to ascertain their identity by reference to a publication by someone else.50 The matter complained of need not contain within it an express or implicit invitation to the recipient to seek out some particular source of information in order to identify the plaintiff, which would be subsequently acquired information not present at the time of publication. It is a natural human response, when confronted with serious allegations against an unnamed person, to make enquiries as to the identity of that person. This may include making enquiries of those who might be supposed to have the relevant information or by accessing the internet or electronic media.51 ____________________ 1.

2. 3. 4. 5. 6. 7. 8.

9.

10. 11. 12. 13. 14. 15.

Sadgrove v Hole [1901] 2 KB 1 at 4; Knupffer v London Express Newspaper Ltd [1944] AC 116 at 121; Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 at 371; Universal Communication Network Inc v Chinese Media Group (Aust) Pty Ltd [2008] NSWCA 1 at [42]; Zoef v Nationwide News Pty Ltd [2016] NSWCA 283 at [126]. Younan v Nationwide News Pty Ltd [2013] NSWCA 335 at [18]. Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1244, 1245. Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1254, 1264; Zoef v Nationwide News Pty Ltd [2016] NSWCA 283 at [157]. Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1269–70. Savvas v TCN Channel Nine Pty Ltd (1987) A Def R 50-020 at 40,103–40,105. Keogh v Incorporated Dental Hospital of Ireland [1910] 2 IrR 577 at 586. Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1246, 1252–5, 1262, 1267–8; Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 at 371–3. See also Savvas v TCN Channel Nine Pty Ltd (1987) A Def R 50-020. Jones v E Hulton & Co [1909] 2 KB 444 at 454; Baltinos v Foreign Language Publications Pty Ltd (1986) 6 NSWLR 85 at 89–96. See also David Syme & Co Ltd v Lloyd [1984] 3 NSWLR 346 at 362; Lloyd v David Syme & Co Ltd (1985) 3 NSWLR 728 at 734. Baltinos v Foreign Language Publications Pty Ltd (1986) 6 NSWLR 85 at 90. See 9.2. Kasic v Australian Broadcasting Corporation [1964] VR 702 at 707; Zoef v Nationwide News Pty Ltd [2016] NSWCA 283 at [126]. David Syme & Co v Canavan (1918) 25 CLR 234 at 238. Jones v E Hulton & Co [1909] 2 KB 444 at 454; Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 at 639. Lee v Wilson and MacKinnon (1934) 51 CLR 276 at 288. See, for example, Andrews v John Fairfax &

16. 17. 18.

19. 20. 21. 22. 23. 24. 25. 26.

27. 28.

29. 30. 31. 32.

33. 34.

35. 36. 37. 38. 39. 40.

Sons Ltd [1980] 2 NSWLR 225; Nuclear Utility Technology & Environmental Corporation Inc (Nu-Tec) v Australian Broadcasting Corporation [2010] NSWSC 711. Consolidated Trust Company Ltd v Browne (1948) 49 SR (NSW) 86 at 93. David Syme & Co v Canavan (1918) 25 CLR 234 at 238; Universal Communication Network Inc v Chinese Media Group (Aust) Pty Ltd [2008] NSWCA 1 at [42]. Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1247, 1255, 1271; Morgan v John Fairfax & Sons Pty Ltd (No 2) (1991) 23 NSWLR 374 at 392; Mann v The Medicine Group Pty Ltd (1992) 38 FCR 400 at 402–3. [2014] NSWSC 1674; Fairfax Media Publications Pty Ltd v Pedavoli [2015] NSWCA 237. [2016] NSWCA 283. [2016] NSWCA 283 at [140]; Mirror Newspapers Ltd v World Hosts Pty Ltd [1979] 141 CLR 632 at 639. Newstead v London Express Newspaper Ltd [1940] 1 KB 377 at 397. [2016] NSWCA 283 at [165]. Cross v Denley (1952) 52 SR (NSW) 112 at 116. Cross v Denley (1952) 52 SR (NSW) 112 at 116. McCormick v John Fairfax & Sons Pty Ltd (1989) 16 NSWLR 485; Knupffer v London Express Newspaper Ltd [1944] AC 116 at 119. See also Mann v The Medicine Group Pty Ltd (1992) 38 FCR 400 at 402–3; Lever v Murray (CA (NSW), 5 November 1992, unreported); Channel Seven Sydney Pty Ltd v Parras [2002] NSWCA 202 at [30]. [1944] AC 116. Knupffer v London Express Newspaper Ltd [1944] AC 116 at 124; McCormick v John Fairfax & Sons Pty Ltd (1989) 16 NSWLR 485 at 487–8; McLeod v University of NSW (SC (NSW), Hunt J, 7 February 1992, unreported). [1987] 2 Qd R 465. Consolidated Trust Company Ltd v Browne (1948) 49 SR (NSW) 86 at 89; Channel Seven Sydney Pty Ltd v Parras [2002] NSWCA 202. See Uniform Civil Procedure Rules 2005 (NSW) Pt 15 r 15.19(1)(d). David Syme & Co v Canavan (1918) 25 CLR 234 at 238; Consolidated Trust Company Ltd v Browne (1948) 49 SR (NSW) 86 at 89. See also Turner v Bulletin Newspaper Co Pty Ltd (1974) 131 CLR 69 at 80; Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348; Dawson Bloodstock Agency Pty Ltd v Mirror Newspapers Ltd [1979] 2 NSWLR 733; Zoef v Nationwide News Pty Ltd [2016] NSWCA 283 at [132]. Dawson v Radio Station 2UE Sydney Pty Ltd (SC (NSW), Hunt J, 24 August 1990, unreported). Consolidated Trust Company Ltd v Browne (1948) 49 SR (NSW) 86 at 89; Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1245; Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 at 638– 40. Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 at 54. Channel Seven Sydney Pty Ltd v Parras [2002] NSWCA 202. Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 at 373–4; Butler v John Fairfax Group Pty Ltd (1994) 1 MLR 106 at 107. Channel Seven Sydney Pty Ltd v Parras [2002] NSWCA 202 at [45]–[48]; Universal Communication Network Inc v Chinese Media Group (Aust) Pty Ltd [2008] NSWCA 1 at [61]. Channel Seven Sydney Pty Ltd v Parras [2002] NSWCA 202 at [49]. Channel Seven Sydney Pty Ltd v Parras [2002] NSWCA 202 at [50].

41. Channel Seven Sydney Pty Ltd v Parras [2002] NSWCA 202 at [51]. 42. Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1247; Kendell v North Queensland Newspaper Company Ltd (CA (Qld), 12 May 1994, unreported) and see (1994) Aust Torts Reports 81-272; Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 at 371. 43. Channel Seven Sydney Pty Ltd v Parras [2002] NSWCA 202 at [69]. 44. Livingstone-Thomas v Associated Newspapers Ltd [1969] 1 NSWR 771; Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632. 45. Abbott v TCN Channel Nine Pty Ltd (1987) Aust Torts Reports 80-138. 46. Consolidated Trust Company Ltd v Browne (1948) 49 SR (NSW) 86; Cross v Denley (1952) 52 SR (NSW) 112. See also Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30. 47. Van Ingen v Mail & Express Publishing Company (1898) 50 NE Rep 979 at 979–82; Astaire v Campling [1966] 1 WLR 34 at 39. See also Bourke v Warren (1826) 2 C&P 307; 172 ER 138 at 140. 48. Grappelli v Derek Block (Holdings) Ltd [1981] 1 WLR 822 at 825, 831; Fairfax Media Publications Pty Ltd v Pedavoli [2015] NSWCA 237 at [53]–[55]. 49. Hayward v Thompson [1982] 1 QB 47 at 60, 67–8; Baltinos v Foreign Language Publications Pty Ltd (1986) 6 NSWLR 85 at 89; John Fairfax & Sons Ltd v Foord (1988) 12 NSWLR 706 at 708–9; Fairfax Media Publications Pty Ltd v Pedavoli [2015] NSWCA 237 at [76]–[78]. 50. Hayward v Thompson [1982] 1 QB 47 at 60; Baltinos v Foreign Language Publications Pty Ltd (1986) 6 NSWLR 85 at 89; Ware v Associated Newspapers Ltd (1969) 90 WN (Pt 1) (NSW) 180 at 184–5; Abbott v TCN Channel Nine Pty Ltd (1987) Aust Torts Reports 80-138; Fairfax Media Publications Pty Ltd v Pedavoli [2015] NSWCA 237 at [79], [158]. 51. Fairfax Media Publications Pty Ltd v Pedavoli [2015] NSWCA 237 at [76].

[page 163]

CHAPTER 9 MEANING INTRODUCTION INTERPRETATION NATURAL AND ORDINARY MEANING REASONABLENESS THE FORM OF THE PUBLICATION INFERENCES CONTEXT GENERAL COMMUNITY STANDARDS PARTICULAR DEFAMATORY MEANINGS THE COMMON LAW — PLEADING THE MEANING NEW SOUTH WALES — THE PLEADED IMPUTATION THE FORM OF THE IMPUTATION UNIFORM APPROACH TO PLEADING MEANING SEPARATE AND DISTINCT MEANINGS EXTRINSIC MEANING — TRUE INNUENDO DETERMINATION OF DEFAMATORY MEANING BY TRIBUNAL OF FACT

9.1 9.2 9.3 9.4 9.5 9.6 9.7 9.8 9.9 9.10 9.11 9.12 9.13 9.14 9.15 9.16

INTRODUCTION 9.1 The third essential element of the cause of action for defamation, in addition to publication and identification, is that the published matter should convey a defamatory meaning. At common law, words are defamatory if they convey a meaning or, to be more precise, if they assert or attribute an act or condition (an imputation)1 to a person which would tend to cause ordinary reasonable people to think less of the

person about whom the words are published. This is the ‘sting’ of the defamation — the accusation of an act or condition in the published matter which hurts the plaintiff’s feelings and damages (or at the least has the tendency to damage) the plaintiff’s reputation. [page 164] The Defamation Act 2005 does not define what is defamatory or how the matter should be interpreted, leaving those issues to be determined in accordance with the common law.

INTERPRETATION 9.2 The published matter is to be interpreted objectively, as understood in its ‘natural and ordinary meaning’ by the ordinary reasonable person with general knowledge and experience of worldly affairs. If the audience has a particular knowledge which gives the published matter a special meaning, the plaintiff can rely on that meaning as a ‘true innuendo’ for the cause of action. However, where there are legitimate but contradictory interpretations of the words there can only be, at common law, one natural and ordinary meaning (in respect of each separate and distinct imputation) and, where appropriate, one innuendo meaning (‘the single meaning rule’).2 This rule overrides the reality that any number of persons might interpret the words in one or more ways, but a publication cannot at law be found to convey inconsistent or contradictory meanings. It is recognised that words are but instruments by which people express and convey their meaning. Outside of legal documents, words are imprecise instruments for the expression of meaning.3 It is rare that the act or condition attributed to a person of which a complaint is made is expressly stated in the words used. Rather, it is more usually implied or to be inferred.4 The allegation is often to be read only between the lines, or by insinuation, or it may be so near the surface that it is hardly hidden at all, or it may be difficult to detect.5

Disputes about the meaning of words or the meaning of the matter published are at the centre of many defamation actions, giving rise to arguments about the pleading of the meaning and the defences that can be pleaded to that meaning. The law requires that the interpretation be reasonable. The words are to be understood as a matter of impression and not by way of legal analysis. Interpretation operates between two extremes, the meaning achieved by straining the language in an unreasonable way on the one hand and the meaning achieved by close detailed analysis that a lawyer might apply to the interpretation of a legal document on the other. The meaning depends upon the ordinary reasonable person’s level of comprehension which includes the ability to comprehend shades and nuances of meaning from the actual words used or from the literal meaning of those words. It depends upon the [page 165] form of publication and the whole of the context in which the words are used. The meaning that the publisher intends the words to mean and the meaning that the plaintiff understands them to mean are not relevant for this purpose.

NATURAL AND ORDINARY MEANING 9.3 The question of whether the published matter is capable of conveying a defamatory meaning is a question of law for decision by the court. If it is capable, then it is a question of fact whether the published matter does, in fact, convey a defamatory meaning.6 Where two meanings are reasonably open, one defamatory and one innocent, or if reasonable persons may differ as to the conclusion to be drawn, the issue as to what is the correct interpretation, or whether the imputation was in fact conveyed, must be left to the tribunal of fact at trial, the jury or the judge, as the case may be.7 The question for the court on the question of law is not whether a jury should, or would, conclude that the matter conveyed the imputations pleaded by

the plaintiff but whether a jury, properly instructed, could reasonably conclude that the matters conveyed those imputations.8 The test for the meaning of the words is whether, under the circumstances in which the matter was published, ordinary reasonable persons (or hypothetical referees) would understand the published words in a defamatory sense.9 This test involves the following two questions: (1) What is the meaning of the words used? (2) Is the meaning of the words defamatory?

REASONABLENESS 9.4 The meaning of the words is to be determined by the sense in which fairminded ordinary reasonable persons in the general community would understand the published words.10 [page 166] The meaning of the words cannot be determined by evidence from the plaintiff or the defendant, but only by the interpretation reached through the ordinary reasonable person’s understanding of the words.11 In determining this issue, it is vital that the tribunal of fact focuses only on the publication complained of and puts out of its mind the evidence relating to other issues at the trial.12 The ordinary reasonable person is taken to be a person of average intelligence13 who approaches the interpretation of the publication in a fair and objective manner. The person is neither perverse nor suspicious nor ‘avid for scandal’.14 There is a limit of reasonableness, so that the ordinary reasonable person does not interpret the publication in a strained or forced or utterly unreasonable way.15 The ordinary reasonable person does not live in an ivory tower, but approaches the interpretation of the publication in the light of the person’s general knowledge and experience of worldly affairs.16 The interpretation does

not extend to the conclusion which the ordinary reasonable person reaches by taking into account his or her own belief which has been excited by what the matter complained of says.17 The ordinary reasonable person does not interpret the publication in a precise manner and does not formulate reasons for the meaning which is understood, but rather forms a general impression of the meaning from the words used.18 As a result, the ordinary reasonable person may imply meanings quite freely and will be prone to do so when the publication is derogatory. The interpretation is not approached in the same way that a lawyer might interpret the words, which would be in a logical, precise or analytical manner, or would be only to draw implications if they are both necessary and reasonable.19 It has been suggested that the fiction of the ordinary reasonable reader should be abandoned and that judges should not hide behind it, attributing to such a person the outcome that the judges actually determine for themselves.20 [page 167]

THE FORM OF THE PUBLICATION 9.5 The ordinary reasonable person will interpret the publication in a different way depending upon its form. If there is an opportunity to re-read the publication or review it before understanding it, such as in a newspaper case, the interpretation will be different from that gained by watching television or hearing the publication on the radio. Similarly, the readers of a book may read it with more care than they would a newspaper. … [T]he reader of a written document [for example, a newspaper or book] 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 … [Likewise,] the reader of a book … is assumed to read it with more care than they would read a newspaper. The more sensational the article in a newspaper, the less likely is it that the ordinary reasonable reader will have read it with the degree of analytical care which may otherwise have been given to a book, and the less the degree of accuracy which would be expected by the reader.21

The ordinary reasonable listener or viewer of publications in ‘transient’ form such as television or radio has no opportunity to reconsider the whole

publication at leisure or to check back and change first impressions.22 Although such a listener or viewer is assumed to have heard and/or seen the whole of the program, they may not have devoted the same degree of concentration (particularly in the case of radio) to each part of the program as would otherwise have been given to a written article23 and may have missed the significance of the existence earlier in the program of a qualification of a statement made later.24 The trial judge in a case involving a publication in transient form will more readily leave it to the jury to decide whether an imputation affected by these circumstances was in fact conveyed, than they would in relation to a written document case.25 Publications when broadcast or telecast by the electronic media are necessarily transient or ephemeral in nature notwithstanding the provisions of s 206 of the Broadcasting Services Act 1992 (Cth) which deem them to be publications in permanent form.26 For this reason objections have been made to the admission of transcripts of the television or radio broadcast, leaving the jury to consider the actual form of the publication to determine meaning, and objections made to the number of times the jury may view the broadcast for the purpose of considering meaning.27 [page 168] The emphasis placed on particular matters in a newspaper article should not be treated as if they have only the same impact or significance as matters which are treated differently:28 A headline, for example, expressed pithily and necessarily incompletely, but designed to catch the eye and give the reader a predisposition about what follows, may well assume more importance than the latter … Layout may create its own impression. Some black and white shading … [may] have some sinister overtones. The order in which matters are dealt with can be significant. The capacity of the first paragraph of an article, the ‘intro’, to excite the reader’s attention is a matter upon which editors place store. The language employed is also of relevance … While readers may take an article on impression, the fact that they may do so is likely to have the consequence that ideas and meanings conveyed by graphic language will create the strongest impressions. If publishers use colourful and seductive language, they may run the risk of seducing readers into believing only what is colourful, and on occasions, scandalous, rather than the facts conveyed by straight reportage. The fact that an apparently responsible, financial and broadsheet publisher has chosen to repeat a person’s allegations may well give them a meaning, credibility and impact that they might not otherwise possess.29

Ultimately, it is a matter of determining what meaning was actually conveyed to the ordinary reasonable reader, viewer or listener considering the publication as a whole and in its context. It is that objective understanding or comprehension of the words used that is vital to the plaintiff’s case. In Hockey v Fairfax Media Publications Pty Ltd,30 Joe Hockey, the then Treasurer of the Commonwealth Government, brought proceedings for publications on Twitter with the headline ‘Treasurer for Sale’ and ‘Treasurer Hockey for Sale’. The trial judge observed that a reasonable reader considers the publication as a whole and tries to strike a balance between the most extreme meaning that the words could have and the most innocent meaning. The reasonable reader considers the context as well as the words alleged to be defamatory. If in one part of the publication something disreputable to the plaintiff is stated but that is removed by the conclusion, the bait and antidote must be taken together. However, this does not mean that the reasonable reader does or must give equal weight to every part of the publication. The emphasis that the publisher supplies by inserting conspicuous headlines, headings and captions is a legitimate matter that readers do and are entitled to take into account in forming their view as to the meaning. Contrary statements in an article do not automatically negate the effect of other defamatory statements in the article. [page 169] The emphasis by way of headline or other method given by a publisher is not to be ignored and while consideration must be given to the publication as a whole, this does not mean that the court must give equal significance to each part of the publication.31 A separate issue arises in relation to related publications where they may be contained in a single edition of the newspaper, for example, or contained in successive daily or weekly editions of the same publication or connected by hyperlink within the matter complained of. The general principle is that it is generally for the plaintiff to select the manner in which he or she wishes to present a case and it is only if the plaintiff’s selection of the mode of pleading is untenable for reasons of unfairness amounting to an abuse of process or

unreasonableness or the inability of the publication to sustain the form of pleading chosen, that it will be struck out.32 If the plaintiff is selective of one matter complained of distinct from others that might form additional publications on which the defendant could rely, their existence and the extent to which they are capable of informing the defamatory meaning of the matter complained of selected by the plaintiff is a factor that could be relied upon by the defendant as going to the issue of damages. The defendant, for example, could tender the article on the damages hearing to support the proposition that to the class of readers who read not only the matter complained of but also the additional article, the damage to the plaintiff’s reputation was likely to be less.33

INFERENCES 9.6 The natural and ordinary meaning of words may be either the literal meaning or may be an implied, inferred or indirect meaning — any meaning supported by general knowledge and capable of being understood in the language used in the publication complained of.34 Implications or inferences based on general knowledge are permissible as part of the natural and ordinary meaning. An implication is something that is included in and is part of the matter complained of as expressed by the publisher. The ordinary reasonable person’s capacity for implications is much greater than the lawyer’s. The lawyer’s understanding is that the implication must be necessary as well as reasonable. The ordinary reasonable person’s understanding is what is based on a reasonable interpretation.35 In contrast to an implication, an inference involves drawing a conclusion by a process of reasoning from something known or assumed.36 It is a conclusion drawn [page 170] by the ordinary reasonable person that adds to what has been published, either

expressly or by implication.37 It follows that an inference deriving a conclusion from known or assumed information can include the expressed and implied context of the publication. As such it will be conveyed as part of the natural and ordinary meaning.38 Those inferences based on special knowledge not included in the expressed or implied content of the matter complained of are only permissible as ‘true innuendos’.39 The simplest meaning conveyed is the literal or direct meaning. If the publication states that John bribed the Prime Minister, there is little room for argument about what the words mean. In the history of defamation law, if the meaning was not obvious on an interpretation in its natural and ordinary sense, no action could be brought. The complexity of this area of law arises from the fact that people understand words differently to one another and people do not always say what they mean or say what they intend to say. Even the literal meaning can be the subject of debate. People also draw conclusions or make inferences from words which give them an indirect meaning by way of implication or inference.40 A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.41

Having understood what is expressly or implicitly stated in the publication, the ordinary reasonable person, drawing on his or her own knowledge and experience of human affairs, may draw an inference or conclusion. The inference is something which the reader (or listener or viewer) adds to what is stated by the publisher, and the publisher may be held responsible for such an inference.42 However, the publisher will not be held responsible for an inference by the reader (or listener or viewer) from the first inference he or she may draw as it would be unreasonable to do so. The ‘inference upon an inference’ interpretation may particularly give rise to an inference of guilt from a statement that a person has been arrested and charged.43 By itself, it may not be capable of conveying an imputation of guilt. If a publisher invites the recipient to ‘adopt a suspicious approach’, the publisher can be held responsible for at least some conclusions reached for which it would not

[page 171] otherwise have been reasonable to make it responsible. If the publisher does anything which makes it reasonable for it to be held responsible for a conclusion which is not reasonably understood to have been expressed or implied by what the publisher has said, but which the ordinary reasonable recipient has drawn for himself or herself (such as by an invitation to speculate), then the publisher is made responsible for it.44 The publisher must be careful not to convey the impression that it is anxious to wound but fearful to strike.45 Damn with faint praise, assent with civil leer, And without sneering, teach the rest to sneer; Willing to wound, and yet afraid to strike, Just hint a fault, and hesitate dislike;46

Even so, the requirement of reasonableness still applies, and the publisher will not be responsible for every conclusion which may have been reached by suspicion or guesswork.47 Because the meaning is to be determined objectively from the words used, the meaning actually intended to be conveyed by the publisher is irrelevant.48 Likewise, the meaning in which the words were in fact understood by the actual recipients is irrelevant49 and evidence as to the natural and ordinary meaning conveyed to them cannot be called in relation to the natural and ordinary meaning.50 In some cases, the ordinary reasonable person’s understanding of what was conveyed and what was intended by the publisher to be conveyed may determine whether the words were used in a humorous or abusive sense and not defamatory sense,51 but evidence cannot be called to show the actual intention of the publisher. As the test is objective, it is not relevant whether the people to whom the matter was published did not believe it52 or whether the people did not know of the plaintiff.53 Where the audience of the publication is restricted to a certain group, the principle remains the same: the meaning is to be determined by ordinary reasonable people in the

[page 172] community, not ordinary reasonable people within the particular group to whom it is published, unless a true innuendo is pleaded that it has a special meaning to that group. This is unlike the test under the Competition and Consumer Act 2010 (Cth)54 where, although the reasonable person test applies in relation to representations made to the public, a different test may apply if the publication is directed to members of a particular class, in which case the relevant test is the ordinary or reasonable members of the class to whom the publication is directed.55 The court declines to have regard to the assumptions made by persons whose reactions are extreme or fanciful, or to the interpretation of those who are extremely stupid or gullible.56

CONTEXT 9.7 A reasonable reader (or listener or viewer) considers the publication as a whole and attempts to strike a balance between the most extreme meaning that the words could have and the most innocent meaning.57 Where a plaintiff chooses to complain of part of a whole publication, the tribunal of fact is entitled to see and read the whole publication.58 The defendant may seek to ‘strike in’ to the plaintiff’s pleading the other part of the publication.59 Where the publication sued upon is in written form, a plaintiff is obliged to include within the pleading every passage which materially alters or qualifies the complexion of the imputation complained of.60 However, in the case of oral defamations or transient publications, such as radio and television broadcasts, a plaintiff is entitled to submit to the jury that the reasonable listener or viewer, although deemed to have listened to or watched the whole of the broadcast, nevertheless may not have devoted the same degree of concentration to the broadcast as he/she would have to a written document.61 Each case will depend upon its own circumstances. Where a web page has links to other web pages on the internet, a reader may

download and read any combination of links. If the publication of a web page at law is complete when it is downloaded onto the reader’s computer, it follows the [page 173] plaintiff may plead each separate web page as a separate matter complained of, even if it contained an invitation and internal reference to other material available on the same website.62 The reasonable reader (or listener or viewer) considers the context as well as the words alleged to be defamatory so that if in one part of the publication there is a defamatory meaning, but in another part it is removed, the contradictory assertions (bane and antidote) must be taken together. The reasonable reader (or listener or viewer), however, does not give equal weight to every part of the publication and may take into account emphasis supplied by the publisher such as conspicuous headlines, headings and captions.63 Where the publication reports a defamatory statement by a third party, the general rule is that a person who does so adopts the statement and has the same liability as if the statement originated from the publisher.64 Notwithstanding the extent of the rules that apply to the interpretation or meaning of the words complained of, the analysis of meaning, having regard to the ordinary person’s means of understanding, should as a matter of principle be kept simple. The unreality that otherwise results can be observed in Slim v Daily Telegraph Ltd65 where Diplock LJ said: In the spring of 1964 two short letters appeared in the correspondence columns of the ‘Daily Telegraph’ … Neither letter can have taken a literate reader … more than 60 seconds to read before passing on to some other, and perhaps more interesting, item. Any unfavourable inference … would have been one of first impression. Yet in this court three Lord Justices and four Counsel have spent the best part of three days applying minute linguistic analysis of every phrase used in each of the letters.66

GENERAL COMMUNITY STANDARDS 9.8 The words should be interpreted by reference to ‘general community standards, [and] not by reference to sectional attitudes’.67 The natural and

ordinary meaning of the words must depend on their terms understood in the light of the circumstances generally known at the time of publication.68 [page 174]

PARTICULAR DEFAMATORY MEANINGS 9.9

See Chapter 11.

THE COMMON LAW — PLEADING THE MEANING 9.10 The practice in common law jurisdictions is that a plaintiff in a defamation action pleads or particularises the meanings which will be attributed at the trial to the matter complained of.69 Ordinary principles of pleading, fairness to a defendant, and the need for clarity of issues at trial all require adequate specification by a plaintiff of the meanings or imputations sued upon.70 If the matter complained of appears on its face to convey a clear defamatory meaning, it will sometimes be sufficient for a plaintiff to plead only the offending publication, and not the defamatory meaning.71 Where the words in the offending publication convey meanings inferred from the publication (a false innuendo) or exterior to the publication (a true innuendo), it is the settled practice for a plaintiff to give particulars of the meanings which will be alleged at the trial.72 The purpose of the practice is to facilitate the fair determination of the dispute which the parties bring to court. Nevertheless, the tribunal of fact is not strictly bound at common law by the imputations pleaded by the plaintiff, and it is the tribunal’s function to determine the actual meaning of the words and the actual defamatory imputations.73 The tribunal is not bound by the meanings which either the plaintiff or the defendant seek to place upon the words.74 This principle is controversial because it has consequences for the ambit of the plaintiff’s cause of action and the ability of the defendant to defend the publication.

The particularisation of meanings will assist the defendant to know whether to plead the defences of justification or fair comment or what issues may be expected at the trial.75 In practice, at trial it is expected that the plaintiff’s case will be presented in accordance with the particulars.76 [page 175] However, the approach of the courts to the pleading of the meanings alleged to arise from the offending publication has differed — some favouring the liberal approach referred to above and others favouring a strict approach, binding a plaintiff at the trial to the precise imputations pleaded. The practice of pleading the plaintiff’s imputations arose in England where the publication did not speak for itself as to the clear imputations conveyed. The plaintiff was required to plead those imputations or indirect meanings which went beyond the literal meaning of the publication and which the plaintiff contended was inherent in or implied by the words, or which could reasonably be read into the words by the ordinary reasonable reader.77 A full history of the development of the pleading practice is set out in 19.8. A pleaded imputation was regarded as the most damaging meaning which the publication could bear. As a result, the plaintiff was not permitted to rely on a more damaging meaning at the trial, but was permitted to rely on a less damaging meaning, one which fell broadly within the imputation pleaded.78 Following the introduction of the Defamation Act 1974 in New South Wales, a separate cause of action existed for each imputation published. The plaintiff was required to specify in the pleading each imputation relied upon. Accordingly, the most damaging meaning principle which included within it all the less damaging meanings was no longer applicable and each imputation was required to stand alone although it included within it those meanings which did not differ in substance from that pleaded.79 The approach applied in New South Wales prior to the introduction of the Defamation Act 2005 will be examined in 9.11. In Queensland, which was governed by a code, plaintiffs were required to

particularise the imputations on which they relied. If plaintiffs chose to plead meanings and imputations upon which they relied, then they were bound by them at the trial.80 Once it was acknowledged that the particular matter of the imputation was the heart or essence of the cause of action in defamation in Queensland, it was taken to fall to a plaintiff to plead the particular meanings relied upon and the plaintiff was bound by them.81 That is not to say that another meaning, where its availability was [page 176] open and the plaintiff wished to adopt it, could not be adopted at or during a trial in an appropriate case by way of amendment prior to judgment.82 In Queensland, if the defendant contended there was a meaning properly conveyed by the words to the exclusion of the meaning asserted or pleaded by the plaintiff, the plaintiff failed to make out the action on which the plaintiff had sued. There was therefore no scope for a defendant to advance any positive grounds of defence in respect of an entirely different action on which the plaintiff had chosen not to sue.83 The plaintiff was obliged to define the case the plaintiff mounted. As the proceedings were driven by the plaintiff, success in the proceedings depended upon the plaintiff making out that case. The practice in Queensland was based on the notion that the plaintiff set up and defined the case, and unless he or she established the case so defined, judgment went to the defendant. Otherwise, the defendant ‘would have been able to change the goal posts by promoting other imputations … [and] elasticise [the proceedings] to the point where [they] resemble the workings of a roving commission of inquiry’.84 While plaintiffs in New South Wales and Queensland were bound to their pleaded imputations and defendants were generally bound to defend those imputations, in other Australian jurisdictions it appeared that defendants could assert and defend ‘alternative’ meanings. This would be particularly necessary where the defendant sought to justify an alternative meaning.85 In Chakravarti v Advertiser Newspapers Ltd86 Brennan CJ and McHugh J observed that pleading justification to a meaning not relied upon by the plaintiff would not provide a good defence. They said it was immaterial whether the defendant could justify

or otherwise defend the meaning which it attributed to the publication. In their view such a defence or practice contravened fundamental principles of common law pleadings. It raised a false issue which could only embarrass the fair trial of the action. Justice Kirby observed: In jurisdictions where this matter is not regulated by statute, courts have commonly exercised a measure of discretion and flexibility where the essence of the sting of the defamation complained of at the end of the trial does not exactly, or entirely, coincide with the imputations which were pleaded. In part, this approach reflects the modern attitude to pleading of civil causes by which overly pedantic or rigidly technical rules tend to be avoided where they would inhibit the attainment of justice. In part, it arises from the recognition by courts of the way in which pleading is commonly done. In part, it arises from a recognition of the ample power of the trial judge to protect the defendant from injustice by ordering further particulars before the trial or by adjourning or terminating the hearing if that course is needed to prevent surprise or injustice. In part, the judicial approach arises from the entitlement of the tribunal of fact always to examine the entire publication to see the matter complained of in its context. An overly rigid rule, strictly confining a plaintiff to the pleaded imputations, would run

[page 177] the risk that the alleged wrong was forgotten or overlooked. Instead of measuring the damage done by the publication itself, the trial might be diverted to a different document, namely the pleading containing the imputations formulated by lawyers.87

Justices Gaudron and Gummow followed the settled practice at common law, permitting reliance on a meaning which was simply a variant of the meaning pleaded, and no more injurious.88 The approach taken in Victoria was that a plaintiff who pleaded the meaning of the publication could succeed at trial only on that pleaded meaning or some other meaning which was a variant on, or not substantially different from, the pleaded meaning and which was no more injurious or serious than the pleaded meaning.89 Likewise, a defendant who pleaded justification was confined to justifying the meanings pleaded by the plaintiff, or some other meaning which was a variant on, or not substantially different from, the pleaded meaning and which was no more injurious or serious than the pleaded meaning.90 Reliance by a defendant upon a ‘shade or nuance’ of the meaning pleaded by the plaintiff, and no more damaging, was accepted in other jurisdictions. In Western Australia, it was well settled that the plaintiff should plead ‘the

precise act or condition asserted of, or attributed to, him, or with which he is charged’,91 subject to questions of degree in the particular circumstances of the case.92 If an imputation was pleaded ambiguously, it was liable to be struck out.93 Plaintiffs and defendants, however, could depart from the meaning pleaded, where fairness required, in accordance with the practice in Victoria.94 In South Australia, the same approach applied. A defendant, it was said, was entitled to know the precise imputation alleged by the plaintiff in order to determine whether to apologise or defend the matter and, if to defend, upon what ground.95 To the extent that a plaintiff may be permitted to depart from the meaning pleaded, being no more than a shade or nuance of the meaning pleaded, or in substance close to or the same as the meaning pleaded by the plaintiff, the defendant may be permitted to anticipate and [page 178] deal with such alternative meaning.96 In the Northern Territory, the plaintiff was not bound by the pleading, which was treated as the ‘high water mark’ of the plaintiff’s case and as including all imputations of a lesser seriousness than that which was pleaded.97 In the Australian Capital Territory, the common law approach was demonstrated in Random House Australia Pty Ltd v Abbott and Costello.98 Random House published a book by Bob Ellis entitled Goodbye Jerusalem: Night Thoughts of a Labor Outsider. The book referred to a conversation in which a member of the Australian Labor Party was reported to have said to Mr Ellis about Mr Abbott (then Minister for Employment Services) and Mr Costello (Treasurer): ‘They’re in the Right Wing of the Labor Party till the one woman fucked both of them and married one of them and inducted them into the Young Liberals’. Mr Abbott and Mr Costello and their respective wives brought proceedings. The wives pleaded that the passage conveyed an imputation of sexual promiscuity. The trial judge did not accept this, but found that an imputation of unchastity was conveyed. On appeal, the court held that, although different from the precise imputation pleaded, the imputation found by the trial judge

was a meaning which did not differ in substance or significance from that pleaded. The meaning as found was not merely one of unchastity in the sense of premarital sex, but one of much grosser sexual misconduct, namely, the exploitation of a sexual liaison, or the prospect of it, to achieve the result of changing a man’s political allegiance. In any event, Random House could not demonstrate that it had been prejudiced by any departure from the imputation pleaded or deprived of an opportunity to justify the imputation as found.

NEW SOUTH WALES — THE PLEADED IMPUTATION 9.11 It was fundamental to the Defamation Act 1974 (NSW) that a person’s cause of action was established upon the publication of the defamatory imputation.99 Hence, each defamatory imputation published created a separate (statutory) cause of action.100 There was, as a result, a need for exact precision in the statement of claim of each cause of action in each pleaded imputation.101 [page 179] A plaintiff was required to plead each precise defamatory imputation he or she alleged was conveyed by the publication of which complaint was made, and each pleaded imputation had to differ in substance one from the other.102 It was thought in practice that the pleaded imputation had to be considered on its own, by the tribunal of fact, without importing any significance to the words from the knowledge the reader had from the publication, or of the circumstances generally. However, it came to be accepted that a pleaded imputation was to be examined in the context of the publication complained of. The pleaded imputation was itself a statement extrapolating something from the matter complained of. The statement would seldom be found in the very words used and the imputation would often be implicit in the text.103 The words of the

imputation were necessarily to be read in the context of the publication which may clarify or intensify the sting of an apparently benign (pleaded) imputation.104 As a general principle, words complained of were to be construed as a whole and in context. Section 9(2) of the Act did not and was not intended to depart from this principle. The tribunal of fact was required to consider the pleaded imputations in the context of the matter complained of.105 The pleadings were required to serve the ends of justice. They were not permitted to assume an independent, self-reverential function. The pleaded imputation remained ‘the statement which, as the plaintiff alleges, the publication gives the reader or viewer to understand’.106 A plaintiff’s pleaded imputation therefore set the scene for the contest which followed. The defendant’s pleadings would respond to the asserted causes of action. The tribunal of fact would have to decide whether the publication complained of carried the imputation and if so whether it was defamatory of the plaintiff. Defences as to truth, contextual truth and comment were responsive to the pleaded imputations.107 The plaintiff would be bound by the substance, as distinct from the precise words, of the pleaded imputation.108 The pleader’s task was to capture the essence of the specific matters imputed in relation to the plaintiff. Necessarily, there would be questions of ‘degree of specificity of pleading required … solution to which will usually be found in considerations of practical justice rather than philology’.109 [page 180] The jury (at a s 7A trial) was entitled to consider the whole of the publication in its form and context to determine whether the pleaded imputation arose from the publication to the ordinary reasonable recipient (and was defamatory). If the jury did not accept that the plaintiff’s pleaded imputation was conveyed to the ordinary reasonable recipient from the publication, there would be judgment for the defendant on that imputation. If there was an imputation of lesser substance or seriousness to that pleaded by the plaintiff, a jury could not find in the plaintiff’s favour on that lesser imputation unless it had been pleaded. Plaintiffs

therefore pleaded what was called a ‘fallback’ imputation to avoid a verdict for the defendant on that basis.110

THE FORM OF THE IMPUTATION 9.12 Prior to the Defamation Act 2005, it was accepted practice in New South Wales that an imputation should be stated with sufficient precision so as to avoid the likelihood of confusion in relation to the meaning for which the plaintiff contended. This was based upon the fundamental rule that the defendant in any proceedings is entitled to know the nature of the case to which it must plead and which it will be called upon to meet at the trial.111 If there was likely to be confusion in a defamation action either at the pleading stage or at the trial, as to the meaning for which the plaintiff contended, the defendant would be necessarily embarrassed.112 Accordingly, the Supreme Court Rules 1970 (NSW)113 permitted the striking out of any pleading (or part thereof) which had a tendency to cause prejudice, embarrassment or delay in the proceedings. Objections as to the form of an imputation would succeed if the imputation failed to specify the act or condition which the plaintiff claimed was attributed to him or her by the matter complained of. Ordinarily, the sense in which an imputation is to be understood will be clear from its terms considered with regard to the context provided by the publication. However, the dangers of what are said to be ambiguities in an imputation were highlighted in the case of Singleton v Ffrench.114 In that case, the imputation was that ‘the plaintiffs had acted in breach of their trust in relation to John Farragher’. The defendants sought to justify the imputation on the basis that, if the imputation was conveyed, it was true that the plaintiffs had, in the legal sense, acted in breach of trust. The trial judge left it to the jury to determine [page 181] whether the imputation was to be understood in that sense or whether it might have a meaning to the effect that ‘the plaintiffs as trustees had acted in a morally

blameworthy way in relation to Mr Farragher’. The Court of Appeal held that if both of the meanings were capable of being conveyed, separate imputations should have been pleaded as the defendant may have had a defence to one, but not the other. However, the ambiguity or imprecision in pleading the imputations which might endanger or embarrass the proper conduct of the trial cannot ignore the context of the matter complained of for the sake of ‘exquisite matters of form’ in relation to the imputations.115 The practice developed, particularly under the s 7A trial process, for the plaintiff to plead the imputations in the words of the matter complained of itself. It was argued that a defendant could not complain that the imputation was ambiguous, uncertain or contained imprecise use of language or colloquialism when the plaintiff had used in the pleading the actual words published by the defendant.116 However, this was criticised as not adequately identifying the act or condition attributed to the plaintiff as would be understood by the ordinary reasonable reader, which meaning would usually be distilled or inferred from the words used.117 The courts identified certain forms of imputations or words used in imputations which had the tendency to cause confusion. A ‘weasel word’ was described as a word which has both a more serious and a less serious meaning and leads to ambiguity and confusion. For example, the word ‘caused’ is a weasel word. It is conveniently ambiguous in that it is not clear the way in which it is being used or understood. It could mean the immediate cause (or the last link in the chain of causation) or it could mean some preceding link without which the consequences asserted by the plaintiff could not have occurred.118 Accordingly, a plaintiff was granted leave to substitute the words ‘bore a responsibility for’ for the word ‘caused’ in the imputations pleaded and to substitute the words ‘which acts in combination caused’ for the words ‘which acts caused’.119 The following words were contentious: (a) ‘wrongful’ (ambiguous — possibly meaning breach of the law, criminal or civil, or breach of some moral or ethical standard);120 (b) ‘improper’ (ambiguous);121 (c) ‘criminally liable’ (not ambiguous in context);122

[page 182] (d) ‘in respect of’ (not ambiguous in context);123 (e) ‘incorrect’ (not ambiguous in context — the correctness of a decision can be a matter of objective truth or a matter of propriety);124 (f) ‘was responsible for’ (not ambiguous in context).125 Objection was also taken to imputations expressed in the passive voice, typically used in connection with accusations. For example, if it was stated that the plaintiff had been accused of committing a crime, it was necessary to specify the accuser or the person or authority making the accusation or state that the accusation was warranted to overcome objection to the imputation.126 The nature of the imputation could be understood if the accusation was made by a legitimate authority such as the police. The absence of the identity of the accuser leaves the imputation in a position where it may have been made by a completely irresponsible person as much as by a responsible one.127 It came to be accepted that there were two ways to formulate the imputation — the suspicion was to be attributed to an authority figure, such as the police, or the imputation was to be framed in terms of ‘reasonable grounds to suspect’ or the plaintiff having acted in such a way as to warrant suspicion.128 The form of the imputation could differ in substance if pleaded in the general as well as the specific sense.129 In identifying the act or condition attributed to the plaintiff, differences could be introduced by adding the reason identified for the act or condition by use of the words ‘in that’ or ‘by’. The technique of pleading the form of the imputation in New South Wales was previously crucial to the success of the plaintiff’s case. In Drummoyne Municipal Council v Australian Broadcasting Corporation130 the New South Wales Court of Appeal referred to the requirements of precision of pleading under the Defamation Act 1974 (NSW). The plaintiff council had pleaded an imputation that it was corrupt. Chief Justice Gleeson considered that precision was a question of degree which may be determined by the facts and circumstances of each case: The requirement that a plaintiff must ‘specify’ the act or condition which he claims was attributed to him, that is to say, the statement which he says was made about him, which follows

from the scheme of the Defamation Act, the provisions of the Supreme Court Rules, and the ordinary rules of pleading, is one which, in its practical application,

[page 183] raises questions of degree. Almost any attribution of an act or condition to a person is capable of both further refinement and further generalisation. In any given case a judgment needs to be made as to the degree of particularity or generality which is appropriate to the occasion, and as to what constitutes the necessary specificity. If a problem arises, the solution will usually be found in considerations of practical justice rather than philology … … [The] practical application [of the principles relevant to the plaintiff’s obligation to plead] may depend upon the facts and circumstances of the given case, and the relevant circumstances may include the manner in which the defendant, or the author of the defamatory matter, has expressed the defamatory matter. 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 nonspecific 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 requirement upon a plaintiff [to plead the act or condition attributed] cannot go beyond doing the best that can reasonably be done in the circumstances and the appropriate degree of specificity needs to be related to the nature and content of the defamatory matter.131

His Honour observed that the word ‘corrupt’, depending upon context, can have at least three possible meanings: either that a person takes bribes, that a person abuses power entrusted to him or her, or that a person improperly obtains private benefits from a public position. An examination of the detail of the broadcasts in that case, his Honour considered, disclosed that there were different forms of corruption that could possibly be taken from their meaning. The issue which had to be decided in the particular case was whether there was likely to be confusion either at the pleading stage or at the trial in relation to the meaning for which the plaintiff contended.132 Chief Justice Gleeson suggested that, as in other proceedings, a pragmatic approach to the art of pleading is required rather than the technical and artificial approach that pleadings demand.133 His Honour held that the word ‘corrupt’ in the context of the publication was ambiguous.134 Justice Priestley agreed, holding that corruption could have, in addition to the three meanings identified, a general defamatory meaning. He said that a

defendant was entitled to know the ‘precise’ meaning alleged by the plaintiff, if ‘precise’ means that it is ‘sufficiently clear’ to inform the defendant of the case it must meet, since precision was always a relative matter.135 [page 184] A similar approach was suggested by another judge in the New South Wales Court of Appeal. In Mahoney J’s view, where the imputation specified by the plaintiff was not the imputation conveyed by the publication, the plaintiff would fail at trial, unless it was a mistake on the pleader’s part, not pleading with complete accuracy the imputation which was conveyed by the publication. If the pleader had erred in attempting to translate the imputation from the published material to the pleading, the plaintiff’s claim should not necessarily fail.136 Accordingly, the tribunal of fact could find for the plaintiff on a nuance of meaning not pleaded by him or her.137 The question was whether it was prejudicial, embarrassing or unfair to the defendant to allow a plaintiff to succeed on this basis or, alternatively, to amend the statement of claim or raise an issue or seek a verdict, on the basis that the matter complained of bore a meaning different from the meaning previously pleaded or relied upon by the plaintiff.138 A plaintiff who pleaded a false innuendo confined the meanings relied on. The plaintiff could not then seek a verdict on a different meaning, which so altered the substance of the meaning pleaded, that the defendant would have been entitled to plead a different issue, to adduce different evidence or to conduct the case on a different basis.139 If there was no unfair disadvantage to the defendant by allowing another defamatory meaning to be relied on, as where the plaintiff sought to rely upon a different nuance of meaning or merely a less serious defamation, the different defamatory meaning could be determined by the tribunal of fact.140 This approach was not followed in New South Wales as the plaintiff would fail unless the ‘fallback’ imputation was pleaded, but the approach is consistent with that established in the common law jurisdictions elsewhere in Australia. The strict approach to the pleading of the imputation in New South Wales was severely criticised. The complexity of the pleading rules led to the perception of lawyers enjoying Dickensian times ‘tripping one another up on

slippery precedents, groping knee-deep in technicalities … [and making] mountains of costly nonsense’.141 The pleading of the cause of action appeared to encourage the artificial construction of words, delighting the most technical of lawyers and pushing the law back 200 years to a time when pleadings, not the merits of the case, determined the success of the action. The detriment and, paradoxically, the intended benefit of the imputation system was its abstraction of the meaning from the publication itself. The meaning of the words was precisely defined by the imputation. Under the s 7A process, a jury was asked to determine the meaning of the publication through the form of the imputations pleaded, and the plaintiff won or lost on the basis of questions as to whether the imputations pleaded were conveyed. The defendant knew the precise meaning he or [page 185] she was required to defend, all other meanings being irrelevant to the defences of truth and comment, or the meaning intended by the defendant being measured against that pleaded by the plaintiff for the defences of qualified privilege or contextual truth. It was, however, unjust if juries took the view that, while there was a defamatory meaning conveyed by the publication, it was not expressed in the form of the imputation which had been pleaded and presented to them for determination, and so found for the defendant. The imputation system was capable of leading a jury, without any previous experience with it, into error and misunderstanding their function. For this reason at least, there was a need for flexibility at the trial enabling a plaintiff to amend the pleaded imputation subject to prejudice suffered by the defendant. The pleaded imputation was criticised for the many pre-trial applications and complex interlocutory proceedings it caused, and potential for injustice, depending upon the ingenuity and skill of the pleader of the imputations. It was observed that because readers and viewers were not favoured with pleaded imputations when they received the publication, there was a risk that attention at a s 7A trial would be deflected from the publication actually said to have

harmed the plaintiff’s reputation, to an evaluation only of the pleaded imputations and a debate about whether they truly arose.142 As a result of the focus on the imputation as the cause of action in New South Wales, the imputation evolved into a highly technical lawyers’ construct. Precedent established a technical approach to the wording and form of the imputation.143 Plaintiffs were also at pains to frame imputations that could circumscribe, if not preclude, a defendant from pleading a defence of justification or a defence of comment: In the ‘real world’, freedom of speech is exercised by the publication of newspaper articles, reports, television programs, radio broadcasts, books, letters and so on. It is in the same world that the fact that someone has published such material, which usually aggrieves the plaintiff. The law intervenes to require the aggrieved plaintiff to plead a cause of action in the form of an imputation drafted by lawyers to get that grievance ‘off the ground’ in court. There is a risk that that ‘real world’ will be forgotten when in pursuit of a remedy for the grievance all attention is focused on the artificial construct of the imputation to the exclusion of the published material which conveyed it.144

Justice Levine, who was the New South Wales Defamation List Judge for many years, observed: Fortnight after fortnight, I have to deal with arguments concerning whether a pleaded imputation is proper in form and is capable of arising from the relevant publication. The vocabulary of the Defamation List now includes words used with increasing

[page 186] frequency: ‘Jesuitical, casuistry, weasel words’ and the best of all, ‘epexegetical’ … The amount of the Court’s time, let alone litigants’ resources, expended profligately in the determination of what words, sentences and phrases mean is positively scandalous; and this is at the initiation of proceedings … Matters of principle have been elevated to an obsessive pre-occupation, the playthings of forensic ingenuity, fantasy and imagination, at the expense of the early, quick and cheap litigation of real issues that affect the people involved in libel actions … It makes no sense to me in the wide and important context of the administration of justice which should involve the speedy and efficient and fair resolution of disputes.145

The artificiality of the imputation system was taken to its logical conclusion at the trial in Greek Herald Pty Ltd v Nikolopoulos,146 but rejected. Counsel for the defendants sought a direction during the trial that the issue of whether an imputation was defamatory had to be assessed from its terms alone, without importing any significance to the words from the knowledge the reader had from the article or of the circumstances generally. The submission was based

upon the fact that the imputation was the cause of action under s 9(2) of the Act and therefore the defamatory quality of the imputation should be assessed entirely within its own terms. The trial judge refused the application. On appeal, the majority of the New South Wales Court of Appeal held that the pleaded imputation was to be examined in the context of the matter complained of. The court said that, while the imputation must capture the essence of the specific matters imputed in relation to the plaintiff, pleadings must not be permitted to assume an independent self-reverential function. The substance, as distinct from the precise words of the pleaded imputation, would bind the plaintiff. Words must be read in context, and the context may clarify or intensify the sting of the imputation.147 This is consistent with the general principle at common law that the words complained of must be construed as a whole and in context. The imputation under consideration in that case was that ‘the plaintiffs lied to members of the Canterbury–Marrickville Olympic Soccer Football Club’. Counsel for the defendants argued that merely to be accused of lying was not defamatory, without specification of what the lie was about, why it was told, or its effect. Counsel gave as an example an adult telling a child about Santa Claus or a fire officer telling people in a crowded theatre, with an inferno behind the scenes, that there was no cause for alarm. The New South Wales Court of Appeal considered that it would have been better if the content of the lie imputed to the plaintiffs was spelled out in the imputation. [page 187] If an objection had been taken to the pleading as being ambiguous and embarrassing (and upheld), the plaintiffs would have been forced to plead with greater specificity. The judge and jury were entitled to a true joinder of issue in the pleadings if a naturally defamatory meaning was in genuine dispute.148

UNIFORM APPROACH TO PLEADING MEANING

9.13 Under the Defamation Act 2005, the cause of action is based upon the ‘publication of defamatory matter’ (s 7(2)) and there is a single cause of action regardless of the number of defamatory imputations that the publication may convey (s 8). Accordingly, it was intended at the introduction of the Act that the meaning of the defamatory matter would be pleaded in accordance with the liberal approach at common law and not the strict approach previously found in New South Wales, which required precision in the formulation of the imputation in the pleading.149 As a result, it was expected that the plaintiff would be allowed to amend at the trial those meanings of which he or she had complained in the pleadings, where such amendment was required in the interests of justice. Under the then accepted practice in Australian common law jurisdictions, such a meaning was a variant or nuance on, or not substantially different from, the pleaded meaning, and no more damaging or serious than the pleaded meaning.150 For reasons to be examined in 19.8, this is not the current practice in New South Wales.151 Applications to strike out pleadings before trial were frequent in New South Wales prior to the Defamation Act 2005. The approach that should be applied to striking out pleadings, as disclosing no reasonable cause of action because the matter published was not capable of giving rise to the defamatory imputations as pleaded, has been approved by the High Court as follows: Whether or not [the pleading] ought to and will be struck out [as disclosing no cause of action] is ultimately a matter for the discretion of the judge who hears the application. Such a step is not to be undertaken lightly but only, it has been said, with great caution. In the end, however, it depends on the degree of assurance with which the requisite conclusion is or can be arrived at. The fact that reasonable minds may possibly differ about whether or not the material is capable of a defamatory meaning is a strong, perhaps an insuperable, reason for not exercising the discretion to strike out. But once the conclusion is firmly reached, there is no justification for delaying or avoiding that step [at] whatever stage it falls to be taken.152

[page 188] Accordingly, whether the imputation should be left to the jury depends on whether reasonable persons might differ as to whether the imputation is capable of being conveyed or if it is ‘blindingly obvious’ that no other conclusion is reasonably open.153

This is an ‘exercise in generosity not parsimony’.154 It is a matter of impression, not of what the words mean but of what a jury could sensibly think they mean.155 In Favell v Queensland Newspapers Pty Ltd,156 the High Court considered whether the following three imputations were capable of being conveyed by an article published in the Sunday Mail newspaper: (a) the plaintiffs committed the crime of arson; (b) the plaintiffs were reasonably suspected by the police of committing the crime of arson; and (c) the second plaintiff (Mrs Favell) lied about neighbourhood reactions to the proposed development of the Griffith Street property. These were the three most serious imputations pleaded, amongst a total of 15 pleaded imputations. The imputations generally drew objection for prolixity and failure to distinguish between alternative imputations, but these were the only ones considered by the court. The article was as follows: DEVELOPMENT SITE DESTROYED — FIRE GUTS RIVERSIDE MANSION A MULTIMILLION-dollar Brisbane home which is the subject of a controversial development application burned down early yesterday morning. Owners of the house on the Brisbane River at New Farm, which has views across the city, had applied to build a five-storey block of units. Barrister Paul Favell, his lawyer wife Dianna and his three teenage children will return home from holiday in Rome to find the Griffith St home gutted. Fire-fighters took almost two hours to extinguish the blaze which started about 4am yesterday morning and caused severe structural damage. Speaking from Rome, a distressed Mrs Favell told the Sunday Mail: ‘We are devastated and we’re just trying to get home as soon as possible. We had some cousins house-sitting and we’re just so glad they weren’t in the house at the time.’ Relatives arrived to see the multi-storey house — which has security gates and a private river pontoon and boat — gutted. Mr Favell’s sister, who did not wish to be identified, said: ‘I’m just in shock. The women who were house-sitting would usually have been home but they decided to stay somewhere else instead’.

[page 189] It is understood neighbours had planned a meeting to protest against the impending unit development.

Neighbour Margaret Morrisey said: ‘None of us are happy about the application.’ The ambience of New Farm is being destroyed because of all these units going up’. Another neighbour, Peter Campbell, said about a dozen residents had planned to attend the meeting. ‘People want to keep the character of the street and keep it the way it is’ he said. Asked whether the planned meeting would go ahead Mrs Morrisey said: ‘No, the meeting won’t go ahead now. It’s all gone.’ Asked about the reaction from neighbours to the application for development on the property Mrs Favell said: ‘We provided copies of the plans to both neighbours and they were fine about it.’ Police said investigations into the cause of the fire were continuing. Detective Senior Constable John Kilburn from the arson investigation unit said the cause of the fire was not known. ‘All fires are treated as suspicious until otherwise disproved and we will follow all lines of inquiry’ he said. A Queensland Fire and Rescue spokesman said security, the location of the house and debris had hindered fire-fighters.

In considering a strike-out application, the High Court applied the test referred to above and held that the imputations were capable of being conveyed. In doing so, it said in relation to imputation (a) that an article which is capable of conveying the meaning that there are reasonable grounds for suspicion of arson, and which also states and elaborates those grounds, taking as the introduction to an account of the fire the existence of the controversial development proposal, and developing the story by giving the neighbour’s point of view, could reasonably be found by a jury to convey that the suspicion is well-founded and the suspects are guilty: An article which gives otherwise irrelevant prominence to the existence of smoke may be found to suggest the existence of fire.157

Justice Kirby observed that courts should, in deciding issues such as this, keep in mind the practical burdens and consequences that flow from excessive refinement in pleading the imputations.158 He said that excessive refinement of pleadings overwhelmingly favours defendants, exhausts the means of plaintiffs, delays the trial and undermines the utility of the tort of defamation as a practical means for defending respect in our society for the reputation of others: For ordinary Australians, suing a media defendant in defamation is a very risky way of vindicating wrong to one’s good name. Usually, it is only the foolhardy who try. Part of the reason is the resulting trial by interlocutory ordeal. If the remedy of

[page 190] defamation is to be fair to both sides, courts must do something to discourage, or minimise, such impediments.159

Objections as to the form of the imputations, distinct from capacity (above), may still be brought consistent with the need for the pleading or the particulars of the imputation to be specific.160 Arguments are therefore still made, seeking to strike out imputations which use the actual words in the matter complained of, or contain words said to be ambiguous or ‘weasel words’ (for example, ‘wrongful’, ‘corrupt’),161 are in the passive voice, rhetorical (for example, ‘unfit’) or do not contain an ‘epexegetic’ explanation of the precise conduct referred to in the matter complained of.162 However, the fact that the ‘matter’, not the imputation, is the cause of action pursuant to s 8 of the Defamation Act 2005 requires a practical approach by the court to such objections. This had been the principle established by the courts prior to the Defamation Act 2005 where it had been said that the considerations of practical justice rather than philology should prevail and that an imputation need not be any more specific than the matter complained of.163 Accordingly, a court hearing applications to strike out imputations should be cautious not to do so where the imputations are asserted to be pleaded with insufficient precision. This practical approach is reflected as follows: The question as to the meaning that the words conveyed to the ordinary person should be a simple and straight forward one, as befits a law that governs the everyday life and actions of all levels of persons in the community. The question should not be obscured by overly complex and subtle metaphysical distinctions that stand as a formidably esoteric barrier to what should be an easily comprehensible reasoning process akin to common sense.164

The New South Wales Court of Appeal has confirmed that applications to strike out imputations on grounds of form or capacity should be approached on the basis that in circumstances where reasonable persons may differ as to their understanding of the matter complained, the issue is one that must be left to the jury.165 Great caution is required because of the conclusion that it would be perverse for a jury to find [page 191]

that the pleaded imputation was conveyed when the jury (where applicable) has the responsibility as representatives of the community to make that decision.166 The pleading of the defamation cause of action by way of imputations, despite s 8 of the Defamation Act 2005 identifying the publication of the matter not the imputations as the cause of action, has been established on what has been said to be principles of ‘proper case management’.167

SEPARATE AND DISTINCT MEANINGS 9.14 At common law, separate and distinct meanings are usually required to be pleaded by the plaintiff. One indication of distinctness or specificity ‘would be whether the justification would be substantially different’.168 A convenient litmus test as to whether two meanings are different in substance is whether the same evidence could be used to justify both meanings.169 If the same evidence would amount to justification in relation to each meaning, it would be open to the defendant to argue that they did not differ in substance. If, however, different evidence would be required, there might be a difference in substance.170 This requires an examination of the elements of fact which constituted the imputation and whether those elements differ. Similarly, a defendant who seeks to justify a different meaning to that pleaded by the plaintiff has generally been required to plead or give particulars of that other meaning if it has not been pleaded by the plaintiff.171 A meaning which is a variant on, or not substantially different from, the meaning pleaded by the plaintiff and which is no more injurious or serious than the pleaded meaning is not separate and distinct and is not required to be pleaded as an ‘alternative’ meaning. The plaintiff is permitted to rely upon a less damaging meaning, one which falls broadly within the imputation pleaded.172 A difference in practice, however, has emerged between New South Wales and other jurisdictions because of the difference in court rules.173 [page 192]

In New South Wales, the Uniform Civil Procedure Rules 2005 (NSW) Pt 14 r 14.30(3) requires that the imputations differ in substance. Once the plaintiff has pleaded the meaning on which he or she relies, the plaintiff will not be entitled to seek a verdict on a different imputation. That is subject to the qualification that another defamatory meaning might be relied upon by the plaintiff, when it is a mere ‘shade or nuance’ of the pleaded meaning, provided that the defendant suffers no prejudice, embarrassment or unfair disadvantage as a result.174 A meaning will be separate and distinct from the plaintiff’s pleaded meaning if it removes or ignores an aspect of the meaning pleaded by the plaintiff, or raises the meaning pleaded by the plaintiff to a higher level of generality. This could result in the introduction of evidence that does not bear directly on the matter of which the plaintiff complains, that may increase the length of the trial, may tend to cloud the issues or may work to the unfair prejudice of the plaintiff where pleaded by the defendant.175 For example, a forensic pathologist brought proceedings against a newspaper, pleading in substance that the newspaper had alleged that he had been guilty of professional incompetence in his investigation of the cause of death in cases that became murder trials. The defendant sought to plead an imputation that the forensic pathologist was incompetent in the practice of forensic pathology generally and that he was incompetent in investigating the cause of any death as a forensic pathologist. The court held that the defendant’s imputation was separate and distinct and was not a nuance or variant from the imputation pleaded by the plaintiff.176 There is a distinction between the concept of negligence and incompetence. Negligence conveys the idea of a person who although able to perform a function or duty competently, neglects to do so, while incompetence entails an inability to perform a required duty or function.177 Objections may be made to imputations as ‘rolled up’ or ‘composite’ which contain two separate components and are impermissible under the rule. The approach is taken to identify whether what is contained in the imputation attributes to the plaintiff more than one condition or quality that are independent of one another or whether they in combination, even where multiple adjectives or descriptors are used, express a single (even if composite) condition or quality.178

Pleading shades and gradations of substantially similar imputations was not previously permitted in New South Wales.179 As a matter of form, it had been accepted that imputations which alleged conduct of a particular instance, and others which [page 193] alleged conduct of a general nature, did differ in substance.180 For example, there is a difference in substance between a person who commits an isolated act of dishonesty and a person regarded as dishonest. However, there are some things so dishonest that one can infer that only a dishonest person would do them.181 Where the substance of the imputation was simply a less serious version of another imputation, the tribunal of fact could only consider the imputations as alternatives. For example, if imputations put variations of possible criminal charges, from more serious to less serious, to provide a number of separate and cumulative imputations, they might only be considered as alternatives.182 The jury was at liberty to find that an imputation arose, which was different in form but not in substance, from that pleaded by the plaintiff.183 It was permissible to plead different gradations of seriousness in separate imputations so that the tribunal of fact might select the way in which the matters would have been understood by the ordinary reasonable reader, even though the same evidence might prove the truth of each imputation.184 For example, if a barrister was reported to have deliberately insulted a judge, that report might carry a number of imputations which differed in substance — it might suggest that the barrister was guilty of rude behaviour; or it might suggest incompetence, it being the barrister’s function to persuade the judge to his or her point of view. The same facts could prove each imputation even though each differed in substance.185 However, the practice developed where a plaintiff would plead a multiplicity of imputations to gain a tactical advantage before a jury, that a jury might find one imputation out of 10, as a matter of probability.186

EXTRINSIC MEANING — TRUE INNUENDO 9.15 The knowledge of the reader, listener or viewer (or a particular section of the recipients) of extrinsic facts to the publication may give the publication a special or secondary meaning additional to or different from the natural and ordinary meaning. This special meaning is not one which the words viewed in isolation are capable of [page 194] sustaining. It is one which a recipient with knowledge of the extrinsic facts will add to the matter complained of and he or she will understand the words in the light of those facts.187 The plaintiff must call witnesses to prove the existence of the extrinsic facts at the date of publication and that the words were read and understood by them in that sense, such that a reasonable person knowing those facts would conclude that the words have a special meaning which is defamatory of the plaintiff.188 This may require reference to other publications incorporated in the publications sued on or to extrinsic facts known to a special group of recipients which they bring to their understanding of that publication. A true innuendo must be based upon an existing fact.189 A defendant cannot be made liable for an imputation conveyed to a reader who erroneously believes in the existence of a particular extrinsic fact which, if it did exist, would support a defamatory imputation.190 It is necessary for the plaintiff in every case to establish the truth of the extrinsic facts upon which they rely in order to establish a true innuendo.191 However, the New South Wales Court of Appeal has questioned this. The court said that there is no general principle which requires the extrinsic facts to be true. The facts may only exist in the belief or opinion of the recipients and not in reality. In other words, it is not necessary that the plaintiff prove the objective truth of those extrinsic facts.192 Sometimes the publication consists of related material published by the defendant on different occasions. It may be apparent, on the face of the publication itself, that either it was the defendant’s intention that they be read

together or there are direct references internally one to the other so that the reader may reasonably be expected to read them together. In these circumstances, it is acceptable practice to plead all of the material in the one paragraph of the statement of claim and to identify the meaning said to have been conveyed by the material as a whole. It is not necessary to plead each part separately and to add true innuendos where material published on one occasion is relied upon to give a statement published on another occasion a meaning beyond that which it conveys when considered in isolation.193 The plaintiff must establish the existence of the extrinsic facts responsible for conveying the true innuendos independently of references to them in the newspaper, but can rely on the references in the newspaper to establish the existence of those facts alleged to be known to its readers.194 The plaintiff can only rely upon the references [page 195] to them in the newspaper to establish that the readers of the newspaper were thereby made aware of the existence of those extrinsic facts.195 Where a plaintiff requires extrinsic facts to prove identification in the matter complained of, the meaning which is then conveyed by that matter, of and concerning the plaintiff, to those persons having knowledge of those extrinsic facts, is the natural and ordinary meaning of the matter, not a true innuendo.196 A publisher is responsible for any extended meaning conveyed by the statements to persons with knowledge of the existence of extrinsic facts, whether or not the publisher knew of their existence, and whether or not the publisher was aware of any persons aware of the unknown extrinsic facts.197 It does not matter how readers came to know of the existence of the extrinsic facts. It matters only that they did so either at the time of or before the statements were published.198

DETERMINATION OF DEFAMATORY MEANING BY TRIBUNAL OF FACT

9.16 Once the meaning of the publication is determined, the tribunal of fact will ask itself, in looking at the publication, whether the meaning is defamatory. It is once again an objective test, as to whether the meaning would tend to lower the plaintiff in the estimation of ordinary reasonable members of society.199 See Chapter 10 generally. ____________________ 1. 2. 3. 4. 5. 6.

7.

8. 9. 10.

11. 12. 13. 14. 15. 16.

Hall-Gibbs Mercantile Agency Ltd v Dun (1910) 12 CLR 84 at 91; Sungravure Pty Ltd v Middle East Airlines Airliban SA (1975) 134 CLR 1 at 10. Slim v Daily Telegraph Ltd [1968] 2 QB 157 at 171–2; Readers Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 506; Charleston v News Group Newspapers Ltd [1995] 2 AC 65. Lewis v Daily Telegraph Ltd [1964] AC 234 at 266; Slim v Daily Telegraph Ltd [1968] 2 QB 157 at 171; Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 at [121]. Jones v Skelton [1964] NSWR 485 at 491. Lewis v Daily Telegraph Ltd [1964] AC 234 at 258, 278 and 280; Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 at [121]. Jones v Skelton [1964] NSWR 485 at 491; Sungravure Pty Ltd v Middle East Airlines Airliban SA (1975) 134 CLR 1 at 7–8. See also Lloyd v David Syme & Co Ltd (1985) 3 NSWLR 728 at 733; Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 164; Favell v Queensland Newspapers Pty Ltd [2005] HCA 52 at [9]. Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 164; Jones v Skelton [1964] NSWR 485 at 491; Favell v Queensland Newspapers Pty Ltd [2005] HCA 52 at [6]; Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 at [135]–[136]. Jones v Skelton [1964] NSWR 485 at 491; Trkulja v Yahoo Inc [2010] VSC 215 at [10]. Capital & Counties Bank Ltd v George Henty & Sons (1882) 7 App Cas 741 at 745; Lewis v Daily Telegraph Ltd [1964] AC 234 at 260; Readers Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 506. See, generally, Farquhar v Bottom [1980] 2 NSWLR 380 at 385–6; Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 165–6; John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50 at [26]; Griffith v John Fairfax Publications Pty Ltd [2004] NSWCA 300 at [19]–[20]; John Fairfax Publications Pty Ltd v Obeid [2005] NSWCA 60 at [97]; Favell v Queensland Newspapers Pty Ltd [2005] HCA 52 at [17]; Malcolm v Nationwide News Pty Ltd [2007] NSWCA 254 at [14]–[30]; Jeynes v News Magazines Ltd [2008] EWCA Civ 130; Soultanov v The Age Company Ltd [2009] VSC 145 at [11]; Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 at [49], [132]–[138]. Slim v Daily Telegraph Ltd [1968] 2 QB 157 at 171. Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1 at [326]. Slatyer v Daily Telegraph Newspaper Co Ltd (1908) 6 CLR 1 at 7. Lewis v Daily Telegraph Ltd [1964] AC 234 at 260; Keogh v Incorporated Dental Hospital of Ireland [1910] 2 IrR 577 at 586. Jones v Skelton [1964] NSWR 485 at 491. Lewis v Daily Telegraph Ltd [1964] AC 234 at 258; Jones v Skelton [1964] NSWR 485 at 491; Lang v Australian Consolidated Press Ltd [1970] 2 NSWR 408 at 412; Favell v Queensland Newspapers Pty Ltd [2005] HCA 52 at [10]; Soultanov v The Age Company Ltd [2009] VSC 145 at [11].

17. Griffith v John Fairfax Publications Pty Ltd [2004] NSWCA 300. 18. Lewis v Daily Telegraph Ltd [1964] AC 234 at 285; David v Abdishou [2007] NSWSC 1195 at [6]. 19. Lewis v Daily Telegraph Ltd [1964] AC 234 at 277; Favell v Queensland Newspapers Pty Ltd [2005] HCA 52 at [11]. 20. Favell v Queensland Newspapers Pty Ltd [2005] HCA 52 at [23]–[26] (Kirby J). 21. Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 165–6. 22. Gorton v Australian Broadcasting Commission (1973) 22 FLR 181; Brown v Australian Broadcasting Corporation (SC (NSW), Hunt J, 4 May 1987, unreported) at 11; Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60. 23. Morosi v Broadcasting Station 2GB Pty Ltd [1980] 2 NSWLR 418 at 420. 24. Gordon v Amalgamated Television Services Pty Ltd [1980] 2 NSWLR 410 at 413. 25. Brown v Australian Broadcasting Corporation (SC (NSW), Hunt J, 4 May 1987, unreported) at 12–13. 26. Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 165–6. 27. See 7.10. 28. John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50 at [187] (Callinan J). 29. John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50 at [187] (Callinan J). See also [24]–[27] (McHugh J). 30. [2015] FCA 652 at [26]. 31. Mirror Newspapers Ltd v World Hosts Pty Ltd [1979] 141 CLR 632 at [646]; Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652 at [71]. 32. Phelps v Nationwide News Pty Ltd [2001] NSWSC 130 at [21]–[22]; Australian Broadcasting Corporation v Obeid [2006] NSWCA 231 at [69]. 33. McFarlane v Nationwide News Pty Ltd [2014] NSWSC 1574 at [13]. 34. Jones v Skelton [1964] NSWR 485 at 491. 35. Lewis v Daily Telegraph Ltd [1964] AC 234 at 277. 36. Nationwide News Pty Ltd v Warton [2002] NSWCA 377 at [44]. 37. Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 167. 38. Lewis v Daily Telegraph Ltd [1964] AC 234 at 280. 39. Grubb v Bristol United Press Ltd [1963] 1 QB 309 at 327; Trkulja v Yahoo Inc [2010] VSC 215 at [12]. 40. John Fairfax & Sons Ltd v Foord (1988) 12 NSWLR 706 at 719; Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 165; Farquhar v Bottom [1980] 2 NSWLR 380 at 385–6. 41. Towne v Eisner 245 US 418 (1918) at 425 (Holmes J), cited in Greek Herald Pty Ltd v Nikolopoulos (2002) 54 NSWLR 165 at 172–3. 42. Bargold Pty Ltd v Mirror Newspapers Ltd [1981] 1 NSWLR 9 at 12; Harrison v Mirror Newspapers Ltd [1981] 1 NSWLR 620 at 627; Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 166–7. 43. Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293; Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 167. See also Chapter 11. 44. Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 171–2; Rayney v Pan MacMillan Australia Pty Ltd [2014] WASC 129 at [30]–[35]. 45. Lloyd v David Syme & Co Ltd (1985) 3 NSWLR 728 at 734. 46. Alexander Pope, Works, 1735, ‘Epistle to Dr Arbuthnot’ (lines 201–4). 47. Jones v Skelton [1964] NSWR 485 at 492.

48. Slim v Daily Telegraph Ltd [1968] 2 QB 157 at 172; Morgan v John Fairfax & Sons Pty Ltd (No 2) (1991) 23 NSWLR 374 at 392. 49. Hough v London Express Newspaper Ltd [1940] 2 KB 507 at 515; Slim v Daily Telegraph Ltd [1968] 2 QB 157 at 173. 50. Toomey v John Fairfax & Sons Ltd (1985) 1 NSWLR 291; Readers Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 506. 51. Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 664 at 667; Anderson v Mirror Newspapers Ltd (No 1) (1986) 6 NSWLR 99 at 108. 52. Parker v Falkiner [1889] 10 NSWR 7 at 10–11. 53. Consolidated Trust Company Ltd v Browne (1948) 49 SR (NSW) 86 at 89. 54. Previously known as the Trade Practices Act 1974. 55. Campomar Sociedad Limitada v Nike International Ltd (2000) 202 CLR 45 at 85–7. 56. Taco Company of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177; Telstra Corp Ltd v Cable & Wireless Optus Ltd [2001] FCA 1478. 57. Lewis v Daily Telegraph Ltd [1964] AC 234 at 259–60; Favell v Queensland Newspapers Pty Ltd [2005] HCA 52 at [17]. 58. Polly Peck (Holdings) plc v Trelford [1986] QB 1000 at 1020; Malcolm v Nationwide News Pty Ltd [2007] NSWCA 254 at [10]. 59. Australian Broadcasting Corporation v Obeid [2006] NSWCA 231 at [2]–[5]. 60. Gordon v Amalgamated Television Services Pty Ltd [1980] 2 NSWLR 410 at 413. 61. Gordon v Amalgamated Television Services Pty Ltd [1980] 2 NSWLR 410 at 413; Australian Broadcasting Corporation v Obeid [2006] NSWCA 231 at [64], [69]. 62. Kermode v Fairfax Media Publications Pty Ltd [2009] NSWSC 1263 at [24]. 63. Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 at 646; John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50 at [26] (McHugh J), [187] (Callinan J); Bass v TCN Channel Nine Pty Ltd (2003) 60 NSWLR 251 at [143]. 64. Truth (NZ) v Holloway [1960] 1 WLR 997 at 1002–3; John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50 at [27] (McHugh J). 65. [1968] 2 QB 157. 66. Slim v Daily Telegraph Ltd [1968] 2 QB 157 at 171. See also Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448 at 473–4. 67. Readers Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 507; Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682 at 693–4. 68. John Fairfax & Sons Ltd v Punch (1980) 31 ALR 624. 69. Lewis v Daily Telegraph Ltd [1964] AC 234 at 265, 279–80; Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1 at [307]. 70. Kerney v Optimus Holdings [1976] VR 399; Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135. 71. Packer v Mirror Newspapers Ltd (1969) 90 WN (Pt 1) NSW 308 at 309–10; Lewis v Daily Telegraph Ltd [1964] AC 234 at 265. 72. Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; (1998) 193 CLR 519 at 579; Lucas-Box v News Group Newspapers Ltd [1986] 1 WLR 147 at 151. 73. Polly Peck (Holdings) plc v Trelford [1986] QB 1000 at 1021.

74. Lucas-Box v News Group Newspapers Ltd [1986] 1 WLR 147 at 152. 75. Allsop v Church of England Newspaper Ltd [1972] 2 QB 161 at 167; Lewis v Daily Telegraph Ltd [1964] AC 234 at 275. See also Taylor v Jecks (1993) 10 WAR 309 at 314; Barclay v Cox [1968] VR 664 at 666. 76. Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1 at [308]. 77. Lewis v Daily Telegraph Ltd [1964] AC 234 at 280; Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 at [74]. 78. Lewis v Daily Telegraph Ltd [1964] AC 234 at 259; Slim v Daily Telegraph Ltd [1968] 2 QB 157 at 175, 185; Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 at [74]. 79. Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663 at 676. 80. Robinson v Laws [2003] 1 Qd R 81 at [45]; Slim v Daily Telegraph Ltd [1968] 2 QB 157 at 185; Sungravure Pty Ltd v Middle East Airlines Airliban SA (1975) 134 CLR 1 at 7–8, 14–15; Evans v Davies [1991] 2 Qd R 498 at 510. Compare Ryan v Ross (1916) 22 CLR 1 at 11 (Griffith CJ). 81. Robinson v Laws [2003] 1 Qd R 81 at [49]; Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; (1998) 193 CLR 519 at 533, 580–1. 82. Robinson v Laws [2003] 1 Qd R 81 at [50]. 83. Robinson v Laws [2003] 1 Qd R 81 at [51]. 84. Robinson v Laws [2003] 1 Qd R 81 at [55]–[56]. 85. Polly Peck (Holdings) plc v Trelford [1986] QB 1000. 86. [1998] HCA 37; (1998) 193 CLR 519 at 527–8. 87. Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; (1998) 193 CLR 519 at 579–80. See also National Mutual Life Association of Australasia Ltd v General Television Corporation Pty Ltd [1989] VR 747 at 768; Gumina v Williams (No 2) [1990] 3 WAR 351 at 355, 364. 88. Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; (1998) 193 CLR 519 at 546. 89. David Syme & Co Ltd v Hore-Lacy (2000) 1 VR 667 at 674, 686 and 690. 90. David Syme & Co Ltd v Hore-Lacy (2000) 1 VR 667 at 674, 686. 91. Taylor v Jecks (1993) 10 WAR 309 at 319; Aqua Vital Australia Ltd v Swan Television and Radio Broadcasters Pty Ltd (1995) Aust Torts Reports 81-364. See Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663 at 678. 92. Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137. 93. Askew v Morris [2005] WASCA 59 at [13]. 94. Nationwide News Pty Ltd v Moodie (2003) 28 WAR 314. 95. Chapman v Australian Broadcasting Corporation (2000) 77 SASR 181 at [55]; Sands v Channel Seven Adelaide Pty Ltd [2005] SASC 182 at [22]. 96. Advertiser-News Weekend Publishing Co Ltd v Manock [2005] SASC 82 at [72]. 97. Penfold v Higgins [2002] NTSC 65 at [25]. 98. (1999) 167 ALR 224; see also Aboriginal Nations Pty Ltd v John Fairfax Publications Pty Ltd [1998] ACTSC 125 at [23]–[26]. 99. Defamation Act 1974 (NSW) s 9(2). 100. Petritsis v Hellenic Herald Pty Ltd [1978] 2 NSWLR 174 at 190; Singleton v Ffrench (1986) 5 NSWLR 425 at 428. See also Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 136–8; Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 162. 101. Morris v Newcastle Newspapers Pty Ltd (1985) 1 NSWLR 260 at 263–4; Whelan v John Fairfax & Sons

102. 103. 104. 105.

106. 107. 108. 109. 110.

111.

112. 113. 114. 115. 116.

117. 118. 119. 120. 121. 122. 123. 124. 125. 126. 127. 128.

Ltd (1988) 12 NSWLR 148 at 152. Supreme Court Rules 1970 (NSW) Pt 67 r 11(3) (repealed). Greek Herald Pty Ltd v Nikolopolous (2002) 54 NSWLR 165 at 172. See, generally, Petritsis v Hellenic Herald Pty Ltd [1978] 2 NSWLR 174 at 195–6. Greek Herald Pty Ltd v Nikolopolous (2002) 54 NSWLR 165 at [22]. Australian Broadcasting Corporation v McBride (2001) 53 NSWLR 430 at 439 [47] and 449 [107]; Nationwide News Pty Ltd v Heggie [2001] NSWCA 257 at [29]; Greek Herald Pty Ltd v Nikolopolous (2002) 54 NSWLR 165 at [22]. Singleton v Ffrench (1986) 5 NSWLR 425 at 428. See Defamation Act 1974 (NSW) ss 15(2), 16(2) and 32. Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 771; Greek Herald Pty Ltd v Nikolopolous (2002) 54 NSWLR 165 at [22]. Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137 (Gleeson CJ). Anderson v Mirror Newspapers Ltd (No 2) (1986) 5 NSWLR 735 at 738; Morris v Newcastle Newspapers Pty Ltd (1985) 1 NSWLR 260 at 263–5; Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 at [75]. Saunders v Jones (1877) 7 ChD 435 at 451; R v Associated Northern Collieries (1910) 11 CLR 738 at 740; Dare v Pulham (1982) 148 CLR 658 at 664; Sims v Wran [1984] 1 NSWLR 317 at 321–2; Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 162. Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148 at 155; Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 at [124]. Supreme Court Rules 1970 (NSW) Pt 15 r 26(1)(b) (repealed). (1986) 5 NSWLR 425 at 428, 433. Young v Munro (SC (NSW), Levine J, 12 May 1995, unreported), BC9504565; Greek Herald Pty Ltd v Nikolopolous (2002) 54 NSWLR 165 at 172–3. See Lewis v Daily Telegraph Ltd [1964] AC 234; John Fairfax & Sons Ltd v Foord (1988) 12 NSWLR 706 at 726; Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137; Mahommed v Channel Seven Sydney Pty Ltd [2006] NSWCA 213. Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 at [118]–[132]. Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 163; Gillespie v Nationwide News Pty Ltd [2002] NSWSC 553 at [14]. Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 163. Ma Ching Kwan v John Fairfax Publications Pty Ltd (CA (NSW), 30 July 1998). Morris v Newcastle Newspapers Pty Ltd (1985) 1 NSWLR 260 at 271. John Fairfax Publications Pty Ltd v Rivkin [1999] NSWCA 164. John Fairfax Publications Pty Ltd v Rivkin [1999] NSWCA 164. Reading v Australian Broadcasting Corporation [2003] NSWSC 716. Wafawarova v Australian Broadcasting Corporation [2007] NSWSC 1212. Sergi v Australian Broadcasting Commission [1983] 2 NSWLR 669 at 671. Sergi v Australian Broadcasting Commission [1983] 2 NSWLR 669 at 680; David v Abdishou [2007] NSWSC 1195. Purcell v Cruising Yacht Club of Australia Pty Ltd [2003] NSWSC 245 at [28]; Greig v WIN Television

129. 130. 131. 132. 133. 134. 135. 136. 137. 138. 139. 140. 141. 142.

143. 144. 145.

146. 147. 148. 149. 150. 151. 152.

153.

NSW Pty Ltd [2007] NSWSC 1118 at [16]. John Fairfax Publications Pty Ltd v Jones [2004] NSWCA 205 at [9]. (1990) 21 NSWLR 135. Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137–8 [emphasis added]. Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137–8; Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148 at 155. Agar v Hyde (2000) 201 CLR 552 at 557; Trade Practices Commission v David Jones (Australia) Pty Ltd (1985) 7 FCR 109 at 112–14. Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 149–50. Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 155. Crampton v Nugawela (1996) 41 NSWLR 176 at 183; Hadzel v de Waldrof (1970) 16 FLR 174 at 182. Crampton v Nugawela (1996) 41 NSWLR 176 at 183; Hadzel v de Waldrof (1970) 16 FLR 174 at 182. Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; (1998) 193 CLR 519 at 533. See also Prichard v Krantz (1984) 37 SASR 379 at 386; Taylor v Jecks (1993) 10 WAR 309 at 317–18. Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; (1998) 193 CLR 519 at 532. Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; (1998) 193 CLR 519 at 534, 545–6 and 580–1. C Dickens, Bleak House, Chapter 1, cited in Burrows v Knightley (1987) 10 NSWLR 651 at 654. Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; (1998) 193 CLR 519 at 578 (Kirby J); Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 149–151 (Kirby P); John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50 at [84] (Kirby J); Favell v Queensland Newspapers Pty Ltd [2005] HCA 52 at [20]–[22] (Kirby J). Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 162. Sutherland v Australian Consolidated Press Publishing Pty Ltd [2000] NSWSC 1139 at [20]. D Levine, ‘The UTS Law Review’ [2000] UTSLawRw 15; (2000) 2 University of Technology Sydney Law Review 214. See also Young v Munro (SC (NSW), Levine J, 12 May 1995, unreported), BC9504565 at 11–13; Hughes v Seven Network (SC (NSW), Levine J, 13 November 1998, unreported), BC9806166 at 6; Levine J, ‘Defamation Practice: Change & Reform: plus ça change …’, UNSW Law School CLEC, 16 March 2003. (2002) 54 NSWLR 165. Compare Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255. Greek Herald Pty Ltd v Nikolopoulos (2002) 54 NSWLR 165 at 172–3; Ahmed v John Fairfax Publications Pty Ltd [2006] NSWCA 6 at [14]. Greek Herald Pty Ltd v Nikolopoulos (2002) 54 NSWLR 165 at 173. See Second Reading Speech, NSW Parliament Defamation Bill, 13 September 2005, AttorneyGeneral Rob Debus MLA. David Syme & Co Ltd v Hore-Lacy (2000) 1 VR 667; Setka v Abbott [2014] VSCA 287. Fairfax Media Publications Pty Ltd v Bateman [2015] NSWCA 154. Favell v Queensland Newspapers Pty Ltd [2005] HCA 52 at [6]; Favell v Queensland Newspapers Pty Ltd [2004] QCA 135 (McPherson JA); General Steel Industries v Commissioner for Railways (NSW) (1964) 112 CLR 125. Sergi v Australian Broadcasting Commission [1983] 2 NSWLR 669 at 674; see also Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 164–5; Malcolm v Nationwide News Pty Ltd [2007] NSWCA 254 at [20].

154. 155. 156. 157. 158. 159. 160. 161.

162. 163.

164. 165. 166. 167. 168. 169. 170. 171. 172. 173. 174. 175. 176. 177. 178. 179. 180. 181. 182. 183.

Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 at [136]. Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 at [135]–[136]. [2005] HCA 52. Favell v Queensland Newspapers Pty Ltd [2005] HCA 52 at [14]. Favell v Queensland Newspapers Pty Ltd [2005] HCA 52 at [21]. Favell v Queensland Newspapers Pty Ltd [2005] HCA 52 at [22] (Kirby J). Uniform Civil Procedure Rules 2005 (NSW) Pt 14 r 14.30. See Appendix III. Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148; John Fairfax & Sons Ltd v Foord (1988) 12 NSWLR 706; Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135; Saravinovski v Fairfax Media Publications Pty Ltd [2014] NSWSC 919 at [10]–[15]. Holmes v TCN Channel Nine Ltd [2007] NSWDC 137 at [8]. Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137; see also Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682; Sergi v Australian Broadcasting Commission [1983] 2 NSWLR 669 at 671. Gacic v John Fairfax Publications Pty Ltd [2006] NSWCA 175 at [119]; John Fairfax Publications Pty Ltd v Gacic [2007] HCA 28 at [174]. Malcolm v Nationwide News Pty Ltd [2007] NSWCA 254 at [30]; David v Abdishou [2007] NSWSC 1195 at [5]; Fairfax Media Publications Pty Ltd v Cummings [2012] ACTCA 36 at [72]. Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 at [137]–[138]. Fairfax Media Publication Pty Ltd v Kermode [2011] NSWC 174 at [43]–[45]; Toben v Milne [2014] NSWCA 200 at [8]; Fairfax Media Publications Pty Ltd v Alex [2014] NSWCA 273 at [20]–[23]. Lewis v Daily Telegraph Ltd [1964] AC 234 at 282. Singleton v John Fairfax & Sons Pty Ltd (SC (NSW), Hunt J, 20 February 1980, unreported); Business and Research Management Pty Ltd v Flude [2002] NSWSC 318 at [28]. Purcell v Cruising Yacht Club of Australia Pty Ltd [2003] NSWSC 245; Viney v TCN Channel Nine Pty Ltd [2006] NSWSC 1273 at [27]. Lucas-Box v News Group Newspapers Ltd [1986] 1 WLR 147; Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; (1998) 193 CLR 519 at 543. Slim v Daily Telegraph Ltd [1968] 2 QB 157 at 175, 185. See 19.8. Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; (1998) 193 CLR 519; Advertiser-News Weekend Publishing Co Ltd v Manock [2005] SASC 82 at [76]–[77]. Advertiser-News Weekend Publishing Co Ltd v Manock [2005] SASC 82 at [80]–[81]. Advertiser-News Weekend Publishing Co Ltd v Manock [2005] SASC 82. Mooney v Nationwide News Pty Ltd [2014] NSWSC 938 at [8]–[9]. Viney v TCN Channel Nine Pty Ltd [2006] NSWSC 1273 at [15]. Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 771. Nationwide News Pty Ltd v Warton [2002] NSWCA 377. Nationwide News Pty Ltd v Warton [2002] NSWCA 377 at [61]; Hayward v Barratt [2001] NSWSC 8. Ward v Lewis [1955] 1 WLR 9; Trade Practices Commission v Allied Mills Industries Pty Ltd (1980) 32 ALR 570 at 579; Younan v Nationwide News Pty Ltd [2004] NSWSC 740. Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 771; Singleton v Ffrench (1986) 5 NSWLR 425 at 428–9.

184. Parker v Laws [2002] NSWSC 311 at [12]. 185. Parker v Laws [2002] NSWSC 311 at [13]. The test formulated by Hunt J in Hepburn v TCN Channel Nine Pty Ltd [1984] 1 NSWLR 386 at 398 is useful but not always determinative: Reading v Australian Broadcasting Corporation [2003] NSWSC 716. See also McGregor v Gregory (1843) 11 M&W 287; 152 ER 811; Fleming v Dollar (1889) 23 QBD 388. 186. Anderson v Mirror Newspapers Ltd (No 1) (1986) 6 NSWLR 99 at 103. See also Morgan v John Fairfax & Sons Pty Ltd (No 2) (1991) 23 NSWLR 374 at 390–1. 187. Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 at 641. 188. Slatyer v Daily Telegraph Newspaper Co Ltd (1908) 6 CLR 1; Hough v London Express Newspaper Ltd [1940] 2 KB 507 at 515; Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 at [51]. 189. Grubb v Bristol United Press Ltd [1963] 1 QB 309 at 328–9, 338–9. 190. Livingstone-Thomas v Associated Newspapers Ltd [1969] 1 NSWR 771 at 781; Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 at 301. 191. Burrows v Knightley (1987) 10 NSWLR 651 at 656. 192. John Fairfax Publications Pty Ltd v Rivkin [1999] NSWCA 164 at [4]. 193. Burrows v Knightley (1987) 10 NSWLR 651 at 657. 194. Nicholson v Seidler (1990) 5 BR 363. 195. Nicholson v Seidler (1990) 5 BR 363 at 367. 196. Hall v Mostyn (SC (NSW), Hunt J, 18 March 1983, unreported). 197. Nicholson v Seidler (1990) 5 BR 363. 198. Grappelli v Derek Block (Holdings) Ltd [1981] 1 WLR 822; Baltinos v Foreign Language Publications Pty Ltd (1986) 6 NSWLR 85. 199. Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 at 301; Readers Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 506. See also Parmiter v Coupland (1840) 6 M&W 105 at 108; 151 ER 340 at 342; Lewis v Daily Telegraph Ltd [1964] AC 234 at 258, 285; Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; (1998) 193 CLR 519 at 573.

[page 197]

CHAPTER 10 DEFAMATION INTRODUCTION THE LEADING CASES GUIDANCE FREE FORM COMMUNIS STANDARDS COMMON DEFAMATORY ACCUSATIONS REPUTATION

10.1 10.2 10.3 10.4 10.5 10.6 10.7

INTRODUCTION 10.1 The test of what is defamatory at common law has been formulated by reference to an objective or reasonable standard. The High Court has confirmed on a number of occasions that the test to be applied in Australia is whether the published matter is likely to lead an ordinary reasonable person to think less of the plaintiff.1 The test is directed to the effect of the publication on the ordinary reasonable person amongst the recipients and whether that effect has the tendency to injure the reputation of the plaintiff. A person’s reputation may be said to be injured when the esteem in which that person is held by the community is diminished in some respect.2 Evidence of the actual effect on the recipients of the publication is not relevant. The test derives from the earliest formulation of the common law cause of action for slander, in or about 1528, that the plaintiff was reputed amongst good and serious men to be of good name and fame and that the words spoken harmed the plaintiff in his dealings with honest persons.3 The common law test depends upon the ordinary reasonable person applying

his or her general knowledge and experience of worldly affairs. The alleged defamation [page 198] depends upon general community standards by which the ordinary reasonable person evaluates the imputation he or she understands to have been made. This standard by which to judge the defamatory character of that imputation is a standard common to society generally.4 The common law test does not define ‘reputation’, nor does it satisfactorily define ‘defamation’. However, it has been said that disparagement of reputation is the essence of an action for defamation.5 The concept of ‘reputation’ in the law of defamation comprehends all aspects of a person’s standing in the community and no distinction is drawn between a personal reputation and a business or professional reputation so far as the test is concerned as to whether the person has been defamed. It is the same test that applies, whether the publication will cause people to think the less of that person in that aspect of their reputation.6 The Defamation Act 2005 does not define ‘defamatory matter’. Unless the Act otherwise provides, it does not affect the common law tort of defamation: s 6(2).

THE LEADING CASES 10.2 The following formulations have been thought to identify particular aspects that make a publication defamatory: (a) Parmiter v Coupland:7 a publication is defamatory ‘if, without justification or lawful excuse, it is calculated to injure the reputation of another by exposing him to hatred, contempt or ridicule’;8 (b) Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd:9 a publication is defamatory ‘if it tends to make the plaintiff be shunned and avoided and that without any moral discredit on [the plaintiff’s] part’;10

Sim v Stretch:11 a publication is defamatory if it tends ‘to lower the plaintiff in the estimation of right-thinking members of society generally’.12 In Parmiter v Coupland,13 Parmiter was the local Mayor of Winchester. The defendants had published in the Hampshire Advertiser that he had engaged in corrupt (c)

[page 199] conduct and was ignorant of his duties. The court held that there was a difference between publications relating to public and private individuals: Every subject has a right to comment on those acts of public men which concern him as a subject of the realm, if he do not make his commentary a cloak for malice and slander: but any imputation of wicked or corrupt motives is unquestionably libellous …14

The formulation of ‘hatred, contempt or ridicule’ was already well established at the time of this case in 1840 and is seen as the traditional test or ‘ancient formula’.15 It came to be considered as too narrow a test.16 Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd17 concerned the film Rasputin, the Mad Monk. The plaintiff, Princess Irina Alexandrovna, was a member of the Russian Royal House depicted in the film as Princess Natasha. She complained that the film imputed that she was ‘seduced or ravished’ by Rasputin. The trial judge had directed the jury that, if they thought the plaintiff was seduced, she might be entitled to a certain amount of damages, and if they thought she had been ravished they might conceivably give her less. MGM argued that to suggest that the Princess had been raped and not seduced was not defamatory. Although it was not clear that the jury had determined that the imputation was one of rape, it was clear that they found the film was defamatory and awarded £25,000 in damages. In the Court of Appeal Slesser LJ observed: When this woman is defamed in her sexual purity I do not think that the precise manner in which she has been despoiled of her innocence and virginity is a matter which a jury can properly be asked to consider.18

He found that a publication is defamatory not only if it brings the plaintiff into hatred, ridicule or contempt by reason of some moral discredit on the

plaintiff’s part, but also if it tends to make the plaintiff be shunned and avoided, without any moral discredit on the plaintiff’s part. Persons who have been alleged to have been insane, or to be suffering from certain diseases, or other cases where no direct moral responsibility could be placed upon them, have been held to be entitled to bring an action to protect their reputation and their honour.19 Sim v Stretch20 concerned a dispute between neighbouring residential estates over the services of a general maid, Edith Saville. Edith had been employed by the owners of the ‘Old Barton’ estate, the Sims. She went to work for the Stretches, the owners of ‘The Twiggs’ estate. The Sims persuaded Edith to come back and work at ‘Old Barton’ and when she returned they sent the Stretches a telegram asking that Edith’s possessions and the money the Stretches had borrowed from her together with her wages be sent to ‘Old Barton’. Mrs Stretch complained that the suggestion that [page 200] she had borrowed money from her general maid imputed that she was in financial difficulties and that she was a person to whom no one ought to give credit. The House of Lords considered the traditional test of hatred, ridicule and contempt too narrow in the circumstances, as the question was complicated by having to consider the person or class of persons whose reaction to the publication was relevant. An exhibition of bad manners or discourtesy was not defamatory and should not be placed on the same level as an attack on reputation.21 Lord Atkin settled on the test: ‘Would the words tend to lower the plaintiff in the estimation of right-thinking members of society generally?’22 Applying this test, the House of Lords held that the telegram sent to the Stretches was not defamatory.

GUIDANCE 10.3 The common law test does not provide a clear guide of what is defamatory. The concept of defamation is a mystery to many people (a ‘Delphic

criterion’ similar in application to the concept of ‘proximity’ in the law of negligence).23 While it is clear that a defamatory statement injures or has the tendency to injure reputation, the reason it does so is not apparent from the test itself. The nature or quality of the defamatory act or condition (that is, the imputation) has been in ‘free form’ since libel separated as a tort from slander. A libel of whatever nature was presumed to cause damage because of its permanent form and capacity to be widely distributed. By contrast, only certain categories of slander were presumed to cause damage and they indicated why damage was presumed and therefore why reputation was injured.24 Those categories were: (a) a crime committed by the plaintiff (and punishable by imprisonment); (b) disparagement in the conduct of the plaintiff’s office, profession, trade or business; (c) the plaintiff has a contagious or infectious disease or other stigma. Imputations of a crime generally have the ‘tendency’ or effect of damaging reputation and the common law presumed such damage to flow. This is not an absolute rule, however, and may depend on the nature of the crime itself, the circumstances in which it is committed and the circumstances of the person who committed it. The category of disparagement of a person in the conduct of office, profession, trade or business could be too vague, but it has been held that words of this nature are defamatory if they impute lack of qualification, knowledge, skill, capacity, judgement or efficiency [page 201] in the conduct of those activities.25 An imputation of dishonesty in the conduct of one’s office, profession, trade or business could reasonably be expected to be defamatory.26 In each case where the words reflect upon the person’s fitness or ability to undertake what is necessary to that business, profession or trade, the injury caused is to the person’s reputation where it is defamatory.27 It is defamatory of traders to impute that they knowingly sell defective goods,

but there will be no action for defamation available if the words carry no imputation against the character or conduct of the plaintiff.28 It is defamatory of traders to impute that they have been negligent or careless in the manufacture of goods.29 The words must carry an imputation of misconduct or malpractice on the part of the plaintiff. Defamatory statements about a product do not necessarily carry any defamatory imputation against the maker or retailer of it,30 but they may provide an action for injurious falsehood where there is a false statement made about the product which is maliciously intended to and does cause loss to the business.31 Under the repealed Queensland Code,32 ‘defamatory matter’ was defined to include words which were likely to injure the plaintiff in the person’s profession or trade, even though the words neither imputed disgraceful conduct to the plaintiff nor any lack of skill or efficiency in the conduct of the person’s trade or business or professional activity.33 An action for defamation could have therefore arisen where there was an imputation published of the plaintiff whether disparaging or not, provided it was likely to injure the plaintiff in that person’s profession or trade.34 Under the Defamation Act 2005, that is no longer the case. The essence of the action for defamation is disparagement of reputation and a person’s reputation may be disparaged in different respects such as their personal, business or professional reputation.35 The general test for defamation should apply to an imputation concerning any aspect of a person’s reputation, and the concept of ‘reputation’ comprehends all aspects of a person’s standing in the community.36 An imputation that defames a person in their [page 202] professional or business reputation does so because it causes people to think less of that person in that aspect of their reputation but, importantly, satisfies the test that the person’s reputation has been lowered.37 An allegation that a person has a contagious or infectious disease is likely to be damaging to reputation in the sense that it has the effect of excluding the person from society.

Although sexual immorality or misconduct was not presumed at common law in an action for slander to cause damage, words of this kind may be defamatory. This will depend upon community attitudes. A jury, for example, did not consider an imputation that a person had had an extramarital ‘association’ was defamatory,38 or that a person was homosexual was defamatory.39 Prior to the Defamation Act 2005, legislation deemed it to be slander for spoken words imputing a want of chastity in Victoria and South Australia.40

FREE FORM 10.4 The boundary of what is defamatory is in ‘free form’ and is left to the tribunal of fact to decide. The boundary is particularly difficult to define in cases where no imputation of fault is made against the plaintiff, such as those involving ridicule. In Berkoff v Burchill,41 the English Court of Appeal held that the suggestion that a person was ‘hideously ugly’ was capable of being defamatory and it was a matter for the jury to determine whether it was in fact defamatory. The judges found the exact borderline difficult to define. According to Neill LJ, it was a question of fact in the context of the publication or the circumstances of the publication as to whether the words complained of have passed beyond mere abuse and become defamatory by exposing the plaintiff to ridicule or by causing him to be shunned or avoided.42 Lord Justice Phillips agreed that these words could expose the plaintiff to ridicule and should be left to the jury, but did not consider that statements about a person’s physical condition fall into the category of cases tending to make people shun or avoid the plaintiff.43 In dissent, Millett LJ held that the description of a man as ‘hideously ugly’ was nothing more than mockery and not capable of defaming the plaintiff.44 In Boyd v Mirror Newspapers Ltd45 the court considered that an imputation that the plaintiff was so fat as to appear ridiculous as he came onto the field to play a first grade rugby league match was capable of being defamatory even though there was no suggestion

[page 203] of fault on the plaintiff’s part.46 The court also held that an imputation that the plaintiff had so allowed his physical condition to degenerate that he was a hopeless second row forward in first grade rugby league was capable of being defamatory, as it was capable of suggesting that the plaintiff had been at fault for allowing his physical condition to degenerate. A third imputation, that the plaintiff was so fat and slow that he could not properly play in his position as a second row forward in first grade rugby league football, was held not to be capable of being defamatory as it was not disparaging of the plaintiff personally and did not have any suggestion of blameworthiness on his part or was not otherwise capable of tending to make people shun or avoid him or capable of displaying him in a ridiculous light. However, the court allowed the plaintiff to re-plead the imputation to the effect that he had so allowed his physical condition to degenerate that he could not properly play in his position as a second row forward in first grade rugby league football.47 In Norman v Future Publishing Ltd48 a magazine reported that the plaintiff, who was a famous opera singer, became trapped in swing doors and was told to ‘turn sideways’. She reportedly responded, ‘Honey, I ain’t got no sideways’. The English Court of Appeal considered that there was a thin line between mockery and insults distinct from defamatory ridicule. The court held that in its context the article portrayed the plaintiff in a favourable light and had not exposed the plaintiff to ridicule in the eyes of reasonable readers. Prior to the introduction of the Defamation Act 2013 (UK), it had been held in England that whatever definition of ‘defamatory’ was adopted, it should include a qualification or ‘threshold of seriousness’, so as to exclude trivial claims.49 In accordance with the House of Lords’ formulation in Sim v Stretch50 and Article 10 of the Human Rights Act 1998 and the principle of proportionality, the court favoured the formulation ‘the publication may be defamatory of the plaintiff because it affects in an adverse manner the attitude of other people towards him or her or has a tendency so to do’.51 This includes a threshold of seriousness by the use of the words ‘affects’ and ‘adverse’ and the word ‘attitude’ suggests that right thinking persons would be likely to treat the plaintiff unfavourably, or less favourably than they would otherwise have done and they would do so by their actions not just their thoughts or opinions.52 This

definition nevertheless supports the presumption of damage suffered by the plaintiff by reason of the publication having the tendency to have an adverse effect upon the plaintiff.53 Section 1 of the Defamation Act 2013 (UK) requires the plaintiff to prove that the publication has caused or is likely to cause ‘serious harm’ [page 204] to the plaintiff’s reputation. Such a threshold removes the presumption of damage, placing the onus on the plaintiff, and would raise a question in Australia about the utility of the defence of triviality in s 33 of the Defamation Act 2005.

COMMUNITY STANDARDS 10.5 Evidence is not admissible to show that the imputations complained of are defamatory. The standard by which the defamatory character of an imputation is determined is not amenable to evidentiary proof. It is preeminently a matter for the jury to give effect to a standard which they consider to accord with the attitude of society generally.54 It has been said that the jury are taken to share a moral or social standard by which to judge the defamatory character of the imputation,55 being a standard common to society generally, and which necessarily changes over time.56 However, the High Court has made it clear that the test should not be taken to refer to the application by the ordinary reasonable person of moral or social standards but should be taken to describe the application of general community standards, at the least implying a standard of decency in a person in society who abides by its standards, values and rules, distinct from a person who does not.57 There are many standards held within the general community which are not of a moral or ethical kind but which may be relevant to an assessment of whether a person’s standing in the community has been lowered. The standards which might be applied by the ordinary reasonable person will vary according to the nature of the imputation.58

Although the defamatory nature of the imputation is ascertained by reference to general community standards, not by reference to sectional attitudes,59 it has been held that there is no reason in principle why evidence should not be admitted to show the gravity of the damage done to the plaintiff’s reputation by the publication of the defamatory imputation. In assessing general damages, evidence may assist to show that the making of the defamatory imputation had an especially adverse impact upon the plaintiff’s reputation in the eyes of some group or class in the community. For example, Rupert Murdoch gave evidence as chief executive of the group of newspaper companies for which the plaintiff worked as a journalist.60 Murdoch’s evidence was held to be admissible to prove the impact of the defamatory imputation upon the plaintiff’s reputation among journalists and the extent and reality of the fear that the plaintiff had for his employment as a result [page 205] of the publication of the defamatory imputations. The evidence was not admissible as relevant to whether the conduct attributed to the plaintiff amounted to a breach of the code of ethics as a journalist, as those standards did not reflect general community standards, but rather the standard of a particular group or class. The issue of whether a statement is defamatory is determined objectively in the context of current community standards. In some cases, reference is made to ‘right-thinking’ members of the community.61 This is not intended to suggest some moral majority, but rather a person of ‘fair average intelligence’,62 and is used in the sense of ‘general community standards’ not ‘sectional attitudes’63 and refers to ordinary decent persons.64 In Hepburn v TCN Channel Nine Pty Ltd,65 the question arose as to whether the imputation that the plaintiff as a registered medical practitioner was an abortionist, could be considered to be defamatory to the extent to which it related to lawful terminations. The general community standards test was rephrased to be an ‘appreciable and reputable section of the community’ so that, even if an abortion conducted lawfully might not lower the opinion of a minor section of the community, it would still be regarded as defamatory by an

appreciable and reputable section of the community.66 It was held that the term ‘ordinary reasonable person’ denotes an appreciable or substantial section of the community in relation to the word ‘ordinary’ while the word ‘reasonable’ relates to a reputable section of the community.67 On this basis, conduct in respect of a moral issue may be defamatory if that view is held by an appreciable and reputable section of the community. The view of the general community inevitably differs on moral issues, particularly issues involving race, religion or sexuality. In 1840, a man was seen on his hands and knees day after day crawling along a public road in Manchester, England. When asked by the police what he was doing, he said he had been required to do it by the local Catholic priest as penance for his sins. The police insisted that he stop, but he refused and resisted violently, taking the policeman’s stick and beating him. At a public meeting about the establishment of a Catholic college in the local vicinity, the defendant referred to the incident as evidence of the Catholic religion’s cruel and perverse practices, in opposition to the proposed college. The local priest sued for defamation and the jury found it was defamatory. On appeal, the judges found that they were not aware and could take no judicial notice of the conduct by which a Catholic priest ought to impose penance and, therefore, the statement was not defamatory.68 [page 206] In another case, the question of whether the colour of a person’s skin could be defamatory was raised, but the view expressed by the judges was that such an imputation ‘implied nothing worse than being a black; a great misfortune perhaps but no crime’.69 During the Victorian period, sexual morality reached its high point when ‘in some houses legs of tables were actually draped and rather stricter females never referred as such to gentlemen’s legs but called them their “understandings”’.70 The imputation of homosexuality may still continue to raise a moral issue and judges have differed as to whether it is capable of being defamatory: In 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 themselves as having a different sexual orientation, such an imputation could, depending on the circumstances, still sometimes be defamatory.71

To some extent anti-discriminatory legislation has had the effect of making society more tolerant of conduct involving a different race, religion or sexuality. The focus upon moral or ethical standards, in discussions about standards of the community, reflects the fact that they are standards most often identified as relevant in actions for defamation but there are other standards which may be applicable such as the behaviour expected of persons within the community, which may not involve a sense of wrongdoing.72 The common law test does not depend for its exercise upon the existence of standards but on the loss of reputation.73 An acceptable direction to a jury would be that the imputations as to the plaintiff’s reputation were to be adjudged by reference to whether they would be likely to make an ordinary reasonable person think less of the plaintiff and in doing so they were to assume that that hypothetical person applied whatever community standards as were appropriate and relevant to the imputations.74 [page 207] In Radio 2UE Sydney Pty Ltd v Chesterton,75 the plaintiff, Ray Chesterton, was a journalist at the time of the following radio broadcast on the John Laws Morning Show by radio host, John Laws: Laws: Well that bombastic, beer-bellied buffoon Ray Chesterton, writes a column in the Telegraph called ‘The Final Word’. Well it’s not the final word today. What’s the matter with you Ray? I mean, you know, I also knew you were a bit of creep, but why can’t you get over it? He was fired by 2UE and blames me for it. He’s never got over it and he talks about the Joey Johns saga and say (sic) ‘Meanwhile the Johns saga is starting to run out of motivation. You know that when 70 year old disc jockeys are drawn into the fray to support the argument.’

I talked to Joey Johns because I wanted to, because he is a friend of mine, a word you probably wouldn’t understand because I doubt you’d have any, and those that you do have call you ‘ankles’ and for a very good reason. I don’t know. Why can’t you get over it Ray? I mean, you used to enjoy going to my farm and I used to give you the house and you used to take your family and your children up there. I was very happy that all that took place. But why can’t you get over it? Well, I suppose you have some kind of inferiority complex. Well, I have to tell you, I have never met a man who deserved one more.

The High Court reviewed the following imputations which the plaintiff alleged injured him in his profession as a journalist: (a) The plaintiff is a bombastic, beer-bellied buffoon; (b) That as a journalist the plaintiff is not to be taken seriously; (c) The plaintiff was fired from Radio 2UE. The High Court held that it was necessary that the jury in the case be told that the imputations as to the plaintiff’s professional reputation were to be adjudged by reference to whether they would be likely to make an ordinary reasonable person think less of the plaintiff. In doing so they were to assume that that hypothetical person applied whatever community standards as were appropriate and relevant to the imputations.76 The High Court concluded: The general test for defamation is relevant to all imputations which are said to have injured a plaintiff’s reputation in some respect. The likelihood that the ordinary reasonable person may think the less of a plaintiff because of the imputations is assessed by reference to that person’s general knowledge and their knowledge of standards held by the general community, as they may apply to what is said about the plaintiff. Because such a person can be expected to apply the standards of the general community he or she may be described as ‘decent’. The standards are not limited to those of a moral or ethical kind. That a particular imputation may not require the application of a community standard does not render the general test inapplicable. The enquiry as to the effect upon reputation remains.77

[page 208] The High Court also held that provided the jury applied the general test they might consider two different aspects of a plaintiff’s reputation; namely, his personal reputation distinct from his professional reputation. However, where an imputation required knowledge of particular facts within a business or

profession, then special facts might need to be pleaded and led in evidence in support of a true innuendo as the jury could only apply the knowledge or attitudes of the hypothetical referee being the ordinary reasonable person.78

COMMON DEFAMATORY ACCUSATIONS 10.6 Studies have been carried out to determine what defamatory imputations or accusations are most commonly found in the courts. Studies into defamation litigation in the United States reported that the three most common categories of accusations alleged to cause harm to reputations in both media and non-media cases were charges of crime, serious moral failings, or incompetence in trade or profession, or some combination of these.79 Another study of pleadings filed in defamation actions in the Supreme Court of New South Wales reported the most common accusations as being criminal behaviour, serious moral failings, incompetence in a trade, profession or public office, and corruption or malfeasance, accounting for 85.4 per cent of the accusations made.80 Classification in this way of imputations that might tend to harm a plaintiff must be read subject to the formulation by the High Court that the test to be applied is that of general community standards. As the court held, this test at the least implies a standard of decency in a person in society who abides by its standards, values and rules, distinct from a person who does not, and is not necessarily a moral judgement about the plaintiff because of what is said about that person.81 Subject to this test, the following classification of defamatory imputations may be helpful: (a) criminality: the commission of a crime including violent acts causing death or injury, sexual related offences, corruption, bribery, conspiracy but also including minor offences such as shop lifting and drink driving; (b) dishonesty: deceitful conduct taking many forms which include misrepresentation, misappropriation, stealing, fraud;

[page 209] (c)

misuse of position: misconduct in employment or office, abuse of office, unethical behaviour, conflicts of interest, bias, harassment, discriminatory employment practice; (d) incompetence: unprofessional behaviour, negligence, an inability to carry out one’s responsibilities with due care and skill — usually related to an occupation, trade or profession; (e) sexual immorality: including adultery, sexual deviance, prostitution; (f) stigma: a final catch all classification of community averse conditions such as insanity, contagious diseases, alcoholism, ugliness or obesity. These classifications are necessarily arbitrary but may provide some guidance as to what may be defamatory under the general test. In this context it is relevant that the common law of slander presumed damage where imputations concerned the commission of a crime (punishable by imprisonment), disparagement in the conduct of profession, trade, or business, and the condition of a contagious or infectious disease.

REPUTATION 10.7

The plaintiff’s good reputation is presumed. See Chapter 4.

____________________ 1.

2. 3. 4. 5. 6. 7. 8.

Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 at 638–49; Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; (1998) 193 CLR 519 at [57]; John Fairfax Publications Pty Ltd v Gacic (2007) 230 CLR 291 at [190]; Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 at [5]. Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 at [3]. See 2.16. Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 506; Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 at [7]. Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 at [32]. Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 at [36]. (1840) 6 M&W 105; 151 ER 340. Parmiter v Coupland (1840) 6 M&W 105 at 107; 151 ER 340 at 342. See also Capital & Counties Bank Ltd

9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34.

35. 36. 37. 38. 39. 40.

v George Henty & Sons (1882) 7 App Cas 741 at 771. (1934) 50 TLR 581. Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581 at 587. [1936] 2 All ER 1237. See also Slatyer v Daily Telegraph Newspaper Co Ltd (1908) 6 CLR 1 at 7. Sim v Stretch [1936] 2 All ER 1237 at 1240. (1840) 6 M&W 105; 151 ER 340. Parmiter v Coupland (1840) 6 M&W 105 at 108. See 2.16; Tournier v National Provincial & Union Bank of England Ltd [1924] 1 KB 461 at 477. Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 at [4]. (1934) 50 TLR 581. Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581 at 588. Compare Galea v Amalgamated Television Services Pty Ltd (SC (NSW), Levine J, 20 February 1998, unreported). [1936] 2 All ER 1237. Clay v Roberts (1863) 8 LT 397. Sim v Stretch [1936] 2 All ER 1237 at 1240. See also Slatyer v Daily Telegraph Newspaper Co Ltd (1908) 6 CLR 1 at 7. See Hawkins v Clayton (1988) 164 CLR 539 at 555 (Brennan J). Compare Jaensch v Coffey (1984) 155 CLR 549 at 584 (Deane J). See 2.8. Drummond-Jackson v British Medical Association [1970] 1 All ER 1094 at 1104. See, for example, Cinevest Ltd v Yirandi Productions Ltd [2001] NSWCA 68. See, for example, Mularczyk v John Fairfax Publications Pty Ltd [2001] NSWCA 467; Charlwood Industries Pty Ltd v Brent [2002] NSWCA 201. Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 at [10]. Solomon v Lawson (1846) 8 QB 823; 115 ER 1084; Evans v Harlow (1844) 5 QB 624 at 631–2. Griffiths v Benn (1911) 27 TLR 346. Aqua Vital Australia Ltd v Swan Television and Radio Broadcasters Pty Ltd (1995) Aust Torts Reports 81-364. Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 at [11]. Defamation Act 1889 (Qld) s 4. Berkoff v Burchill [1996] 4 All ER 1008 at 1013. Sungravure Pty Ltd v Middle East Airlines Airliban SA (1975) 134 CLR 1. See also Murphy v Australian Consolidated Press Ltd [1968] 3 NSWR 200 at 205; Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 at [12]. Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 at [33]. Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 at [36]. Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 at [36]. Cairns v John Fairfax & Sons Ltd [1983] 2 NSWLR 708. Harris v Perkins (1993) A Def R 51-070; Costello v Random House Australia Pty Ltd (1999) 137 ACTR 1; Kelly v John Fairfax Publications Pty Ltd [2003] NSWSC 586. Wrongs Act 1958 (Vic) s 8; Civil Liability Act 1936 (SA) s 5.

41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58. 59. 60. 61. 62. 63. 64. 65. 66. 67. 68. 69. 70. 71. 72. 73. 74. 75. 76.

[1996] 4 All ER 1008. Berkoff v Burchill [1996] 4 All ER 1008 at 1017–18. Berkoff v Burchill [1996] 4 All ER 1008 at 1020–1. Berkoff v Burchill [1996] 4 All ER 1008 at 1019. [1980] 2 NSWLR 449. Cook v Ward (1830) 6 Bing 409; 130 ER 1338; Dunlop Rubber Company Ltd v Dunlop [1921] 1 AC 367; Burton v Crowell Pub Co 82F 2d 154 (1936) at 155. See also Ettingshausen v Australian Consolidated Press Ltd (1991) 23 NSWLR 443. [1999] EMLR 325. Thornton v Telegraph Media Group Ltd [2010] EWHC 1414 at [89]. [1936] 2 All ER 1237 at 1242. Berkoff v Burchill [1996] 4 All ER 1008 at 1018; Thornton v Telegraph Media Group Ltd [2010] EWCH 1414 at [91]–[92]. Thornton v Telegraph Media Group Ltd [2010] EWCH 1414 at [91]. Thornton v Telegraph Media Group Ltd [2010] EWCH 1414 at [93]. Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 506; Cairns v John Fairfax & Sons Ltd [1983] 2 NSWLR 708 at 720; John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50. Byrne v Deane [1937] 1 KB 818 at 833. Miller v David (1874) LR 9 CP 118; Myroft v Sleight (1921) 125 LT 622; Tolley v JS Fry & Sons Ltd [1930] 1 KB 467 at 479. Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 at [37]–[40]. Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 at [42]–[50]. Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 507. Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500. Sim v Stretch [1936] 2 All ER 1237 at 1240 (Lord Atkin). Slatyer v Daily Telegraph Newspaper Co Ltd (1908) 6 CLR 1 at 7. Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 505–6 (Brennan J); Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 at [6]–[7]. Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 at [40]. [1983] 2 NSWLR 682. Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682 at 694. Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682 at 686, 692. Hearne v Stowell (1840) 12 Ad & E 719; 113 ER 986. Hoare v Silverlock (1848) 12 QB 624 at 630. R v Martin Secker & Warburg Ltd [1954] 1 WLR 1138 at 1141. John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50 at [140] (Kirby J). See also Kelly v John Fairfax Publications Pty Ltd [2003] NSWSC 586. Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 at [47]. Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 at [48]. Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 at [53]. [2009] HCA 16. Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 at [53].

77. Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 at [60]. 78. Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 at [60]; Chesterton was awarded $90,000 at the subsequent trial: see Chesterton v Radio 2UE Sydney Pty Ltd [2010] NSWSC 982. 79. M A Franklin, ‘Winners and Losers and Why? A Study of Defamation Litigation’ (1980) 5 American Bar Foundation Research Journal 455 at 481–2; see also M A Franklin, ‘Suing Media for Libel: A Litigation Study’ (1981) American Bar Foundation Research Journal 795. 80. M Newcity, ‘The Sociology of Defamation in Australia and the United States’ (1991) 26 Texas International Law Journal 1 at 46. 81. Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 at [37]–[40].

[page 211]

CHAPTER 11 PARTICULAR DEFAMATORY MEANINGS SUSPICION AND GUILT ALLEGATIONS AND RUMOURS CONTRADICTIONS — ‘BANE AND ANTIDOTE’ PHOTOGRAPHS AND JUXTAPOSITION QUESTIONS, DENIALS AND COMPARISONS ABUSE HUMOUR AND RIDICULE FICTION BUSINESS REPUTATION

11.1 11.2 11.3 11.4 11.5 11.6 11.7 11.8 11.9

SUSPICION AND GUILT 11.1 The common law draws a distinction between a suggestion that there is (1) a reasonable basis for suspicion that a person has committed a crime (which would justify an arrest); (2) a reasonable belief that the person has committed the crime based upon proper material (such as incriminating evidence of the person’s conduct or a report of judicial proceedings); and (3) the person is guilty of committing the crime.1 In England, three similar tiers of gravity of defamation in this context have been accepted. The lowest of the three tiers of gravity is that there were grounds merely for investigation of the plaintiff’s conduct; the second tier is that there were reasonable grounds for suspecting that the plaintiff was guilty of a crime; and the most serious of the three defamatory meanings is that the plaintiff was guilty of a crime.2

[page 212] Reports of criminal investigations by the police or reports of criminal proceedings carry the risk of the defamatory meaning that the plaintiff is guilty of the criminal offence. That meaning would be clearly defamatory, as it might also be a contempt of court having a tendency, as a matter of practical reality, to interfere with the due administration of justice in the particular case, pending trial.3 A report simply that a person has been arrested and charged with a criminal offence is not by itself capable of conveying an imputation that the person is guilty or probably guilty of that offence.4 The ordinary reasonable reader is mindful of the principle that a person charged with a crime is presumed innocent until it is proved that he or she is guilty, and that guilt or innocence is a question to be determined by a court, generally by a jury. In this situation, the reader will view the plaintiff with suspicion, concluding that the plaintiff is a person suspected by the police of having committed the offence, and that the police have grounds for laying a charge. Such a statement is still capable of conveying a defamatory imputation to the effect that the police suspected the person of having committed the criminal offence and that the plaintiff had so acted as to have warranted that suspicion, and that the police had reasonable cause for having that suspicion based upon the plaintiff’s actions.5 This imputation can be justified if the defendant proves the arrest, that a charge has been laid and that the plaintiff was suspected by the police with reasonable cause of having committed the offence. The area of difficulty for a defendant is whether the reasonably warranted suspicion is based on the conduct of the plaintiff, or more likely based upon allegations by third parties of that conduct. Such an imputation would be difficult to justify without evidence of the plaintiff’s actual conduct rather than the statements of others about the conduct.6 There needs to be evidence to establish that there are objectively reasonable grounds to suspect the plaintiff, not merely that some person, such as a law enforcement agency, suspected or believed the plaintiff was guilty.7 This is known as the ‘conduct rule’ which requires the evidence to show some conduct on the plaintiff’s part to give rise to the grounds of suspicion.8 However, strong circumstantial evidence can itself contribute to reasonable grounds for suspicion and the rule is not absolute.

[page 213] Whether a report of an arrest and charge goes on to say or suggest that the charge was well-founded and impute that the plaintiff was guilty depends upon what the ordinary reasonable reader would understand to be conveyed by the report. At the least it is accepted that the ordinary reasonable reader would understand the imputation of suspicion, but the ordinary reasonable reader will need to have regard to the context of the report, including any headlines, the layout, content, general tenor and prominence of the report, in determining whether the report conveys an imputation of guilt.9 It will be rare for the media to limit the report to the fact of ‘arrest and charge’. To the extent that the publisher goes beyond such a factual report, it permits a finding that the imputation is not just that the accused has been arrested and is a suspect, but that the accused is also guilty of the offence charged. The more melodrama and sensation, or prejudicial comment, in a news report, the more ready the court will be to permit the plaintiff to plead an imputation of guilt.10 ‘An article which gives otherwise irrelevant prominence to the existence of smoke may be found to suggest the existence of fire.’11 In Lewis v Daily Telegraph Newspaper Co Ltd12 Lord Devlin made a similar point: It is not, therefore, correct to say as a matter of law that a statement of suspicion imputes guilt. It can be said as a matter of practice that it very often does so, because although suspicion of guilt is something different from proof of guilt, it is the broad impression conveyed by the libel that has to be considered and not the meaning of each word under analysis. A man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also fire; but it can be done. One always gets back to the fundamental question: what is the meaning that the words conveyed to the ordinary man; a rule cannot be made about that. They can convey a meaning of suspicion short of guilt: but loose talk about suspicion can very easily convey the impression that it is a suspicion that is well founded.13

In Rigby v John Fairfax Group Pty Ltd14 Kirby J made the observation that, apart from the citizen’s consideration of the legal presumption of innocence, the citizen will also know that an expert professional police and prosecution service will ordinarily not cause a person to be charged unless they have what they feel is sufficient evidence to support proof of the charge, that the whole weight of the state is then pitched against the accused and that the overwhelming majority of

people charged either plead guilty or are found guilty. In his view it should be left to the tribunal of fact in every case to decide what the ordinary reasonable reader, listener or viewer would understand to be [page 214] the imputations of the matter published in these circumstances and that, accordingly, the court should adopt a broader view of the arguable imputations which a plaintiff in a defamation action seeks to urge upon the tribunal of fact for its acceptance.15 It will often be much easier for a defendant to justify a suspicion imputation than a guilt imputation, and if a plaintiff does succeed on a suspicion imputation alone, the damages ought to be less than for a guilt imputation.16 If the statements are made in circumstances unrelated to, or remote from, the operation of the criminal justice system, namely the arrest and charge of a person, it is unlikely that the ordinary reasonable reader would be mindful of the presumption of innocence.17 Consequently, the ordinary reasonable reader may infer guilt from such a publication. A report of a newspaper’s investigation into alleged criminal activity is likely to convey a more serious imputation of guilt than a report of a police investigation, as the ordinary reasonable reader would be aware that the police are under a duty to investigate a reported crime whereas newspapers are not.18 The timing of the report is also important. In 1997 radio announcer John Laws, in his talkback radio program on Sydney radio station 2UE, had understood that a plea of manslaughter had been accepted by the prosecution in criminal proceedings and that the defendant only remained to be sentenced by the judge. In fact, the prosecution had refused to accept the defendant’s plea of manslaughter and continued to prosecute him for the charge of murder of an 18-month-old child. On the third day of the trial, under this mistaken belief, Laws referred to the defendant as ‘absolute scum’ and after describing the injuries to the child asked, ‘Could somebody tell me how that is not murder?’. In the circumstances, the New South Wales Court of Appeal found Laws and radio station 2UE guilty of contempt.19

A report that allegations in civil proceedings are correct may be defamatory.20 Such a report may be justified if the publisher can prove that the allegations are true or, if a report of proceedings, is protected under a fair and accurate report defence. Problems may arise where there is a report of pleadings or witness statements, particularly if they have not been admitted into evidence or used in court. It will be necessary to prove the truth of the allegations contained in those documents, if not properly qualified by saying that the allegation is disputed and that the outcome of the proceedings remains to be determined. Reports of already existing defamation proceedings may be a contempt of court if they have the tendency to exert improper pressure on the [page 215] plaintiff to discontinue or compromise the defamation proceedings, and the pressure is improper if the report disparages or vilifies the plaintiff without justification.21

ALLEGATIONS AND RUMOURS 11.2 The report or repetition of an allegation or rumour does not excuse the publisher from conveying a defamatory meaning. The general principle is that by doing so the publisher gives his or her imprimatur to the rumour — by passing it on and giving it credence, he or she implies that it is well-founded or that it may be true.22 The law implies that the publisher has adopted the statement but the context may refute or contradict that adoption and give rise to a ‘bane and antidote’.23 Similarly, a report of a third person’s statement may constitute republication as may an indirect report or hearsay statement such as ‘Mr X has told me that’. The repetition of other media reports may in the context be a republication which is defamatory. A defendant who repeats an allegation of a defamatory nature about a plaintiff can only succeed in justifying it by proving the truth of the underlying allegation, not merely the fact that the allegation was made.24

The fact that the police announced that they believed certain allegations or thought certain facts were suspicious does not make the belief or suspicion ‘reasonable’ in order for them to be repeated about the plaintiff without facts, objectively judged, that reasonably give rise to the belief or suspicion.25

CONTRADICTIONS — ‘BANE AND ANTIDOTE’ 11.3 A defamatory statement followed by a contradictory statement or qualification such as ‘but there is nothing to prove that it is true’ will not prevent the statement from being defamatory, depending upon the context.26 The court will construe the publication as a whole. The mere presence of a denial of a defamatory statement does not make the publication as a whole incapable of conveying the defamatory imputation even if denied, where the reader is presented with two conflicting assertions, with [page 216] the choice of accepting either.27 The ordinary reasonable reader need not give equal weight to every part of the publication and may take into account the emphasis of the publisher on such matters as the headline, headings and captions.28 It is a principle of law that the ‘bane and antidote’ must be taken together.29 There are cases in which the denial or refutation of the defamatory statement is of such a nature that, taken as a whole, the publication is incapable of conveying the defamatory imputation — where, for example, the imputation arises by way of inference only, and the publication itself contains an express disclaimer of any intention to convey such an imputation30 or where the denial consists of a statement of fact destructive of the entire basis upon which the defamatory imputation relies.31 If something disreputable is attributed to the plaintiff, it must be removed by the conclusion and the antidote ‘swamp’ the bane.32 As a general rule, if a statement conveys a defamatory imputation but then purports to dispel it or disclaim it, it will only be in the ‘very clearest of cases’ that it achieves the latter.33

In Charleston v News Group Newspapers Ltd34 a newspaper published photographs of two well-known actors in England. The photographs were pornographic, but the plaintiffs’ faces had been superimposed on the bodies of others. The headline read ‘Porn Shocker for Neighbours Stars’. The text of the article next to the photographs stated clearly that the makers of a pornographic computer game had produced the pictures in this way. The House of Lords considered that the antidote in the article was sufficient to neutralise any bane in the photographs. When considered as a whole, the photographs and the article were not defamatory, even though the plaintiffs argued that a significant proportion of readers of the newspaper would only look at the photographs and not the article and therefore would understand the matter was defamatory of the plaintiffs. In Chakravarti v Advertiser Newspapers Ltd35 Kirby J criticised the House of Lords’ decision stating that the decision ignored changes in media technology and presentation and removed remedies from people whose reputations may be greatly damaged by casual or superficial perception of such publications. He did not consider that the purpose of defamation law was to reserve remedies to those cases only where [page 217] detailed and thorough analysis of the matter complained of had been undertaken, because this was not the way recipients of matters published in the mass media were likely to read material.

PHOTOGRAPHS AND JUXTAPOSITION 11.4 The publication must be considered in its context. This means that a newspaper article must be read as a whole, including headlines, photographs or any other accompanying material.36 The same principle applies to television and radio, and for this reason a transcript of the broadcast is not appropriate for consideration at the trial.37

QUESTIONS, DENIALS AND COMPARISONS 11.5 There are instances of questions which by their nature imply a defamatory meaning. For example, in Truth (NZ) v Bowles38 a newspaper report of a murder trial suggested that a witness had been asked at the trial whether she was a drug addict, a prostitute and an abortionist. The New Zealand Court of Appeal considered that many readers would actually know, and others would sense, that aspersions of this gravity are never flung about in court by responsible counsel without some foundation. The questions alone would carry the inference that the plaintiff’s background and conduct had provoked them. The words carried so high a level of suspicion that they would convey to normal fairminded readers an impression indistinguishable from guilt.39 In the same way a report of a denial of a defamatory imputation may be defamatory in itself, conveying the impression that the denial is untrue. A comparison of a person with a notorious person such as Bin Laden or Hitler may be defamatory, suggesting the person acts or conducts himself or herself in that manner. Similarly, the suggestion that a person is a member of a widely despised group such as the Nazis or Al Qaeda or ISIS may be defamatory. The suggestion that a person was associated with another person of bad reputation can be defamatory if it constitutes a ‘scandalous association’. For example, to say that a person’s father was a murderer or his mother was a whore might be capable of being defamatory, whereas saying that a person’s father was a voluntary patient at a mental hospital was not so capable.40 [page 218] The capacity of a publication to defame a person is less when the sting of the article is primarily directed at some other person, touching the plaintiff only by reason of his relationship with that person.41

ABUSE

11.6 It has become quite common for material to be published, particularly on social media, in an abusive and offensive way. Words can be abusive, vulgar or objectionable without being defamatory. Words might injure a person’s pride without injuring his or her reputation.42 If the words are understood as only ‘vulgar abuse’, they are not capable of being defamatory. Whether such words are capable of conveying a defamatory meaning depends on the usual test of whether the matter is likely to lead an ordinary reasonable person to think less of the plaintiff. However, there is no dichotomy between vulgar abuse and matter which is defamatory.43 There will be instances in which the position is clear enough to conclude that abusive words are incapable of conveying any defamatory meaning. ‘Your mother was a hamster and your father smelt of elderberries’ was the Frenchman’s insult in the Monty Python film The Holy Grail but was obviously incapable of being defamatory.44 In Polias v Ryall,45 the plaintiff was described on Facebook as ‘You are a lying, cheating, stealing, selfish, incredibly negative, self-pitying, bad person. Susan deserves better than you and you deserve to have no friends’. The defendant argued that this was mere vulgar abuse but the judge considered that it was not incapable of being defamatory on that account alone. In Piscioneri v Brisciani,46 the defendant published posts about the plaintiff which were vulgar, abusive, offensive and derogatory. The court found that they conveyed serious defamatory imputations of unethical conduct against the plaintiff.

HUMOUR AND RIDICULE 11.7 A publication which is humorous or ridiculous may still be defamatory, if it would be understood as defamatory by the ordinary reasonable person. It may do so where the plaintiff is exposed to hatred, contempt or ridicule.47 It does not matter what the defendant intended the words to mean, and it is no defence to say ‘They [page 219]

were meant in jest’.48 However, if the material is understood as a joke, it may not have the tendency to injure the person’s reputation.49 In Australian Broadcasting Corporation v Hanson50 a song was broadcast on Triple J radio entitled Back Door Man, satirising the politician Pauline Hanson. The words were actually spoken by her, but were digitally manipulated in a staccato way which made fun of her and her policies for the One Nation Party. Hanson obtained an injunction on the basis that the song imputed that she was a paedophile, homosexual and prostitute. The court considered that the song was grossly defamatory of her and it was no excuse for the Australian Broadcasting Corporation to argue that it should not be taken seriously by the ordinary reasonable listener. In Berkoff v Burchill51 the plaintiff was an actor, director and writer, well known for his work on stage, screen and television. The first defendant was a journalist writing for the Sunday Times. The plaintiff had directed a film, The Age of Innocence, and in the course of her review the defendant, Ms Burchill, noted that ‘film directors, from Hitchcock to Berkoff, are notoriously hideous looking people …’.52 Nine months later Burchill reviewed a film, Frankenstein. The film had a character called ‘the Creature’ which she described as ‘scarred and primeval’. She continued: ‘… it’s a very new look for the Creature — no bolts in the neck or flat top hairdo — and I think it works; it’s a lot like Stephen Berkoff, only marginally better looking’.53 Berkoff sued, complaining that the articles imputed that he was hideously ugly. The defendants applied to strike out the statement of claim on the basis that the meaning was not capable of being defamatory. In the English Court of Appeal, Neill LJ noted that the practice of pleading inferential meanings was to be encouraged where appropriate, but there may be cases (of which this was perhaps one) where the inferential meaning may not provide a wholly adequate paraphrase for the words complained of.54 Lord Justice Neill held that words may be defamatory even though they neither impute disgraceful conduct to the plaintiff nor any lack of skill or efficiency in the conduct of trade or business or professional activity, if they hold the plaintiff up to contempt, scorn or ridicule or tend to exclude him or her from society. On the other hand, insults which do not diminish a person’s standing among other people do not found an action for libel or slander. The exact borderline may often be difficult to define.55 It is a question of fact in the context of the publication, or the circumstances of

the publication, as to whether the words complained of have passed beyond mere abuse and become defamatory by exposing the plaintiff to ridicule or by causing the [page 220] person to be shunned or avoided. Lord Justice Neill56 held that the remarks in their context gave the impression that Berkoff was not merely physically unattractive in appearance, but actually repulsive. He considered that someone in the public eye who makes their living in part at least as an actor is capable of having their reputation lowered in the estimation of the public and of being made an object of ridicule.57 Lord Justice Phillips58 disagreed to the extent that the words related to the plaintiff’s physical condition or appearance, particularly as it was hearsay based upon the journalist’s subjective appreciation of the plaintiff’s features. He noted that statements about a person’s physical condition which have been held to be defamatory have been allegations of fact — illness, madness, filthiness or defilement. Statements disparaging, however strongly, a person’s features have never been the subject of a successful claim for defamation. He held that a statement that a person is ‘hideously ugly’ does not fall into the category of cases tending to make people shun or avoid the plaintiff. By the same token, whether the words damage a plaintiff’s reputation by exposing him to ridicule depends upon the actual words used and the circumstances in which they are used. For this reason, he decided that the question should be left to the tribunal of fact. In a dissenting judgment, Millett LJ59 said he had no doubt that the words complained of were intended to ridicule Berkoff, but he did not think that they made him look ridiculous or lowered his reputation in the eyes of ordinary people. He observed that defamation has never been satisfactorily defined. All attempts at definitions were illustrative and could be misleading if they caused one to forget that defamation is an attack on reputation, an attack on a person’s standing in the world. The words will not be actionable if no one will take them to be meant seriously. The question is how the words would be understood, not how they were meant. The line between mockery and defamation may sometimes be difficult to draw, in which case it should be left to the tribunal of

fact to draw it. He did not consider that the description of a man as ‘hideously ugly’ was anything more than mockery, which was not capable of defaming Berkoff.60 Words may be defamatory if an imputation displays the plaintiff in a ridiculous light, notwithstanding the absence of any moral blame on the plaintiff’s part.61 In Ettingshausen v Australian Consolidated Press Ltd62 the plaintiff, who was a well-known rugby league footballer, appeared in a photograph in HQ magazine. The photograph showed the plaintiff in the shower after a football game. He sued on the imputation that the publication suggested he was ‘a person whose genitals have been exposed to the readers of the defendant’s magazine HQ, a publication with a widespread [page 221] readership’.63 Although the imputation did not assert any moral blame by the plaintiff for the exposure, the imputation was defamatory as it held the plaintiff up to ridicule. The formulation of an imputation which ascribes an act or condition to amount to ridicule can be difficult and will not be capable of being defamatory if it merely alleges the consequence of the publication of the defamatory imputation itself by suggesting that the plaintiff was held up to ridicule or was shunned and avoided.64 These types of cases demonstrate that there is a fine line between holding someone up to public ridicule and mere mockery, the latter not being defamatory. At the end of the day, the question is whether the plaintiff’s reputation is harmed by the publication. The understanding of words which mock a plaintiff in a literal way may lead to the crossing of that line. If the ordinary person cannot understand the use of irony or the use of other satirical methods to convey the meaning, the words are likely to convey a defamatory imputation. The context of the publication is the most important aspect in this regard in determining the meaning of the words and whether they may be understood in a humorous light rather than an attack on reputation.65 Even if the ordinary reasonable person would understand that the matter complained of was not to be taken literally but was plainly intended as a joke, it

may still be capable of being defamatory whether it is facetious or offensive. The critical question is what the joke says about a person and whether what is said is defamatory.66 This is essentially an evaluative judgement and one informed by social context and community values.67 The analysis may be to distinguish between a statement which was understood as seriously intended in every respect and one which was understood as a joke either about a true fact or about a nonsensical fact.68 If it concerns a statement of true fact, the defendant will need to establish the truth of the statement of fact but if it concerns a nonsensical fact, it may be argued that the matter does not have a defamatory meaning in the context. In Smith v Lucht,69 the plaintiff was a solicitor who agreed to act for his daughter-in-law in family law proceedings against her former husband, the defendant. The plaintiff claimed that the defendant had defamed him in an email to the plaintiff’s daughter-in-law and in two conversations with members of the plaintiff’s family in which the defendant called him ‘Dennis Denuto’. The reference to Denuto arose from the popular Australian film The Castle which was a story about Dale Kerrigan and his family who were fighting against the compulsory [page 222] acquisition of their home next to an airport. Denuto was the Kerrigan’s lawyer. He made the submission to the court that the acquisition should not be allowed on the basis ‘It’s the vibe of the thing your Honour’. The trial judge in this case held that the meaning of the words ‘Dennis Denuto’ would include by implication or inference the defamatory imputation that the plaintiff was an incompetent and unprofessional solicitor and that if damages were awarded, $10,000 including interest was reasonable.70 In Ecclestone v Telegraph Media Pty Ltd,71 the plaintiff commenced proceedings for defamation for a statement attributed to her by the newspaper that ‘I am not a veggie and I don’t have much time for people like the McCartneys and Annie Lennox [who are]’. In the course of a summary application to strike out the pleading for absence of defamatory meaning, the

court noted that it should exercise great caution before concluding that words were incapable of a defamatory meaning. However, it was hard to distill any meaning defamatory of the plaintiff from a reference to her allegedly saying she was not a vegetarian or that she did not have much time for public figures who were. The court held that the ordinary reasonable reader would think that this was unremarkable and nor would they think less of the plaintiff as a result. In Mossimani by his tutor Karout v Daily Mail.com Australia Pty Ltd,72 the plaintiff was described by the defendant as becoming an ‘internet sensation’ because of his ‘hair-larious’ mullet hairstyle which had resulted in ‘hilarious memes’ and the plaintiff’s friends were ‘loving the attention’. The court took the view that expressions of views concerning hairstyle were insufficient without more of imputing actionable defamatory meanings unless there was some defamatory act or condition capable of being conveyed in circumstances where the absence of darker meanings was ‘palpable’.73 By contrast, in Carey v Nationwide News Pty Ltd,74 the defendant had published an article about the plaintiff who was an indigenous Australian enjoying a successful surfing career, and repeated a statement from Surfing Life magazine which described him as having an apeish face like a Cro-Magnon. The court held that the description of any person of aboriginal or black heritage as ape-like or Cro-Magnon like was diminishing to that person’s reputation because it invited shunning and contempt that was damaging to their standing in the community and thus to their reputation.75 The court referred to the damage possible from contempt, amounting to racial vilification, saying that one of the most contemptuous forms of commentary on another person or group was to describe them in sub-human terms, by likening them to insects, vermin or animals,76 and to the possible damage from ridicule, saying that to compare an [page 223] aboriginal to an ape or to Cro-Magnon man was to belittle that person’s achievements, standing and reputation.77 The defendant asserted that while the terms were ‘insensitive’, the article had proceeded to describe the plaintiff’s pride in his aboriginal heritage and that it was in effect seeking to be the

plaintiff’s friend and coming to his aid. The court adopted the comment ‘with friends like these, who needs enemies?’.78 In Falkenberg v Nationwide News Pty Ltd,79 a cartoonist depicted Satan with the words ‘For a good time, call 5551232’ and ‘Satan is a warm and tender guy’. This was the plaintiff’s phone number coincidentally and she sued claiming that the cartoon had led people to believe that she was ‘akin to the devil’ and pretended to be a ‘pleasant person when in fact she is evil with evil intentions’. The court held that the ordinary reasonable reader knowing the relevant facts would not understand these imputations to be conveyed. ‘What must have been a great deal of weird people who merely called the telephone number’ was not sufficient to identify and defame the plaintiff. In Mohareb v Fairfax Media Publications Pty Ltd,80 a poster described the plaintiff by saying that he ‘may or not be related to Satan’. The plaintiff pleaded an imputation ‘The plaintiff is such an evil man that he is probably related to Satan’. The court observed that the principle that an imputation must specify with clarity and precision an act or condition allegedly attributed to the plaintiff by the defamatory matter complained of implicitly assumes that the imputation will be something capable (in theory) of being true. An imputation based on material which it was impossible for the reader to take literally would, in all likelihood, not be capable of being factually true or false.81 The plaintiff argued that many people believe Satan is not a mythical character and that he is in fact the progenitor of all evil. The court noted that that proposition may be a matter of faith and not fact, but even so, the imputation was not capable of being literally true in that it sought to attribute the plaintiff with being probably related to Satan. The court held that whatever belief one had as to the status of Satan, the proposition that a human being could be related to him is one the court was comfortably satisfied was incapable of being literally true. It was an attribution of shared genetic material, the impossibility of which did not turn on the existence or otherwise of any god or devil. It was not capable of being literally true and the imputation was struck out. In Hanson-Young v Bauer Media Ltd,82 the defendant published images of the plaintiff’s head superimposed onto the body of a young woman striking a seductive pose and accompanied by text which connected the plaintiff’s political stance on asylum seekers with her pose in lingerie. The plaintiff who was a senator brought proceedings but had difficulty formulating the imputation. The

court held that a publication plainly intended as a joke will not necessarily be incapable of being [page 224] defamatory on that account but that a rhetorical imputation, which is one merely appealing to rhetoric without identifying any actual condition allegedly attributed to the plaintiff by the matter complained of, would be liable to be struck out as being bad in form.83 However, the court allowed imputations pleaded that ‘the plaintiff is a joke’ and ‘the plaintiff by reason of her asylum seeker stance had justifiably exposed herself to the ridicule of the defendant’.84 In Kenny v Australian Broadcasting Corporation,85 the plaintiff was depicted in a satirical program The Hamster Decides as ‘strangling a dog while having sex with it’. The plaintiff pleaded the literal meaning that the plaintiff was a pervert who had sexual intercourse with a dog. The court considered that having regard to the tone and context of the program as satiric or comedic in nature, the ordinary reasonable viewer could not possibly have concluded that such a lightweight show would be the forum for exposing actual instances of bestiality and the images were clearly concocted or fake. On that basis, the literal meaning was not capable of being conveyed by the broadcast. Nevertheless, the court considered that the image that was portrayed was ‘a massive exercise in ridicule that was vastly out of all proportion to that which preceded’.86 Regardless of whether the ordinary reasonable viewer would find it funny or not, the images and accompanying words spoken were clearly capable of saying something far worse about the plaintiff than merely expressing displeasure over his conduct as a journalist, and the imputation that he was a contemptible person or disgusting person was capable of being conveyed. The court also considered an imputation was capable of being conveyed to the effect that the plaintiff’s attacks on the ABC were so dishonourable and disgusting that he deserved to be compared to a person who has had sexual intercourse with a dog. Even though the imputation was not specific about the aspect of the plaintiff’s conduct that warranted or justified the portrayal in an offensive manner, the court considered that it was sufficient in this case because the defendant had left the matter hanging and in a case of extreme ridicule

where the defendant does not delve into the detail as to why the plaintiff should be portrayed in a humiliating way, the implication is still there that there is something about them or their conduct which means that they deserve it.87 The plaintiff appealed the striking out of the literal imputation, arguing that even if a statement was made as a joke or an image was presented as a fake, that did not preclude the matter published from conveying a meaning that was defamatory.88 In the course of the program, the plaintiff was verbally referred to as a ‘Dog Fucker’ on [page 225] three occasions and while the court considered the issue of capacity on the basis of whether the ordinary reasonable viewer would understand the portrayal and words about the plaintiff as being true or would believe them to be true, a moot point arises as to whether the truth of the matter is what causes the plaintiff to be held up to hatred, contempt or ridicule. The case was settled before the hearing of the appeal. It is relevant to that case that complaints were made by viewers to the Australian Communications & Media Authority (ACMA) about the segment. ACMA concluded that there had been a breach of the ABC Code of Practice.89 Its reasoning is important in this context, even though the test for defamation is different. ACMA noted that although clearly manipulated, the images displayed an implied act of bestiality which remained a strong social and legal taboo with what looked like a real dog. The image was conceptually strong and connected a named individual in a highly demeaning manner in circumstances of a direct attack on that individual. It had the potential both to be immediately offensive and to risk leaving a lasting impression with viewers. The presentation had the potential to create a legacy for the individual given the active and long-lasting social media environment in which the program consciously operated. As a result, the joke had a disturbingly bullying character and this remained so even if directed at him as a public and vocal target of the ABC. ACMA found that while the ironic and comedic context clearly signalled hyperbole and mitigated some of these concerns to an extent, nevertheless, a strong capacity for likely

offence to the individual and to others remained and the ABC was in breach of the Code. In humour and ridicule cases as well as abuse cases, comparisons are often made or images used to show the plaintiff in a contemptible or ridiculous light and even though the ordinary reasonable recipient would know it is not literally true, it may still have the tendency or effect of damaging the plaintiff’s reputation. It is not a simple test of whether the recipient believes or disbelieves the statement to be true.90 The meaning and effect on the ordinary reasonable recipient of that meaning is a matter to be determined by the tribunal of fact based on the test of reasonableness and informed by community values.91

FICTION 11.8 A publication which is published as fiction may still be sufficient to identify and defame a person. The test is whether the matter is such as reasonably in the circumstances would lead persons acquainted with the plaintiff to believe that he or she was the person referred to.92 This may occur by placing a real person in a work of fiction, by name or otherwise identifiable, even if not named or given a fictitious [page 226] name. It is an essential element of the plaintiff’s case to prove that he or she was the person referred to and therefore defamed by the publication. In Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd,93 a film about Rasputin depicted him raping a Russian princess by the name Princess Natasha. The plaintiff who was a princess in the Russian Royal Family successfully sued Metro-Goldwyn-Mayer, calling witnesses who said that they identified the princess in the film as the plaintiff. In Sungravure Pty Ltd v Middle Eastern Airlines,94 the plaintiff, Middle Eastern Airlines, brought proceedings over a short story in a magazine which depicted ‘fictional’ Middle Eastern Airlines being highjacked by two Israeli terrorists. The plaintiff claimed that the story led readers to believe that Middle Eastern

Airlines was more likely to be highjacked than other airlines. The proceedings went to the High Court which held that the imputation was incapable of being conveyed. In Hatfield v TCN Channel Nine Pty Ltd,95 the television series Underbelly, The Golden Mile, depicted a female police officer known as Constable Wendy as having had a sexual relationship with a Kings Cross nightclub owner, which the plaintiff claimed was sufficient to identify her. Gina Rinehart also sued Channel Nine over the broadcast of the semifictional TV mini-series House of Hancock.96 She brought proceedings for injurious falsehood, misleading and deceptive conduct and for breach of privacy. She claimed that amongst other things the depiction of her was false including where her father called her a ‘slothful, vindictive, devious baby elephant’. The case ultimately settled.

BUSINESS REPUTATION 11.9 The ‘ancient formula’ of ‘hatred, ridicule or contempt’ has been said to be too narrow, and it has also been said that the word ‘defamatory’ extends to imputations that might injure the plaintiff’s reputation in business.97 Words may be defamatory of a trader or business person or a professional, although they do not impute any moral fault or defect of personal character. They can be defamatory of the plaintiff if they impute lack of qualification, knowledge, skill, capacity, judgement or efficiency in the conduct of the plaintiff’s trade or business or professional activity.98 However, it is the general test for defamation which applies to imputations concerning a person’s business or professional reputation, as well as the personal reputation or any other aspect of the person’s reputation.99 [page 227] Therefore, if the ordinary decent person in the community would be likely to think less of the plaintiff in respect of their professional or business reputation as a result of the publication, it would be defamatory.

Where an imputation is conveyed in respect of the plaintiff’s professional or business reputation, which is different from that conveyed to the ordinary decent person in the community, the plaintiff may need to plead a true innuendo. In that event, evidence may be called to show that with the aid of special facts, known to those to whom the matter was published, the true innuendo would be conveyed to the ordinary decent person. This is required where the special facts are not within the general knowledge of the hypothetical referees.100 ____________________ 1.

2.

3. 4. 5.

6.

7. 8. 9.

10. 11. 12. 13. 14.

Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 at 300–1; Favell v Queensland Newspapers Pty Ltd [2005] HCA 52 at [12]; Malcolm v Nationwide News Pty Ltd [2007] NSWCA 254 at [15]–[17]; West Australian Newspapers Ltd v Elliott [2008] WASCA 172 at [49]. Lewis v Daily Telegraph Ltd [1964] AC 234 at 282; Bennett v News Group Newspapers [2002] EMLR 39; Chase v News Group Newspapers Ltd [2003] EMLR 11; Jameel v Wall Street Journal Europe [2005] All ER (D) 38; S, DJ v Channel Seven Adelaide Pty Ltd [2006] SASC 268 at [22]; West Australian Newspapers Ltd v Elliott [2008] WASCA 172 at [44]–[49]; Lord McAlpine v Bercow [2013] EWHC 1342 at [66]. Victoria v Australian Building Construction Employees’ & Builders Labourers’ Federation (1982) 152 CLR 25. Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 at 300; Favell v Queensland Newspapers Pty Ltd [2005] HCA 52 at [12]. Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 at 301; Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148 at 160; Rigby v John Fairfax Group Pty Ltd (CA (NSW), 1 February 1996, unreported), BC9600073 at 12; Favell v Queensland Newspapers Pty Ltd [2005] HCA 52 at [12]–[15]; Malcolm v Nationwide News Pty Ltd [2007] NSWCA 254 at [17]. Shah v Standard Chartered Bank [1999] QB 241 at 261; King v Telegraph Group Ltd [2004] EWCA Civ 613; Channel Seven Adelaide Pty Ltd v S, DJ [2007] SASC 117 at [41]; Greig v WIN Television NSW Pty Ltd [2009] NSWSC 632 at [79]–[84]. King v Telegraph Group Ltd [2004] EWCA Civ 613 at [22]. King v Telegraph Group Ltd [2004] EWCA Civ 613 at [22]; Fallon v MGN Ltd [2006] EWHC 783 at [18]. Sartor v John Fairfax Group Pty Ltd (SC (NSW), Levine J, 1 April 1993, unreported); Butler v John Fairfax Group Pty Ltd (1994) 1 MLR 106; Favell v Queensland Newspapers Pty Ltd [2005] HCA 52 at [12]–[14]; Channel Seven Adelaide Pty Ltd v S, DJ [2006] SASC 10 at [18]–[25]. Rigby v John Fairfax Group Pty Ltd (CA (NSW), 1 February 1996, unreported), BC9600073 at 3 (Kirby P). Favell v Queensland Newspapers Pty Ltd [2005] HCA 52 at [14]. [1964] AC 234. [1964] AC 234 at 285; Favell v Queensland Newspapers Pty Ltd [2005] HCA 52 at [12]–[15]; Malcolm v Nationwide News Pty Ltd [2007] NSWCA 254 at [16]. (CA (NSW), 1 February 1996, unreported), BC9600073 at 3 (Kirby P).

15. Rigby v John Fairfax Group Pty Ltd (CA (NSW), 1 February 1996, unreported), BC9600073 at 2–4. 16. Rigby v John Fairfax Group Pty Ltd (CA (NSW), 1 February 1996, unreported), BC9600073 at 11; Rakhimov v Australian Broadcasting Corporation [2001] NSWSC 10; Chase v News Group Newspapers Ltd [2003] EMLR 218 at [45]; Sands v Channel Seven Adelaide Pty Ltd [2005] SASC 182. 17. John Fairfax Publications Pty Ltd v Obeid [2005] NSWCA 60 at [70]. 18. Charman v Orion Publishing Group Ltd [2005] EWHC 2187 at [16]. 19. Attorney-General (NSW) v Radio 2UE Sydney Pty Ltd (CA (NSW), 16 October 1997, unreported). 20. Ross McConnel Kitchen & Co Pty Ltd v John Fairfax & Sons Pty Ltd [1980] 2 NSWLR 845 at 850. 21. Commercial Bank of Australia Ltd v Preston [1981] 2 NSWLR 554; Harkianakis v Skalkos (1997) 42 NSWLR 22. 22. Rochfort v John Fairfax & Sons Ltd [1972] 1 NSWLR 16 at 21–2; Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 at 300; Hopman v Mirror Newspapers Ltd (1960) NSWR 559 at 561. 23. John Fairfax Publications Pty Ltd v Obeid [2005] NSWCA 60 at [98]–[99]; Molan v Fairfax Media Publications Pty Ltd [2017] NSWSC 800 at [8]–[14]. 24. King v Telegraph Group Ltd [2004] EWCA Civ 613 at [22]. 25. King v Telegraph Group Ltd [2004] EWCA Civ 613 at [23]; Greig v WIN Television NSW Pty Ltd [2007] NSWSC 1118 at [15]. 26. Morosi v Broadcasting Station 2GB Pty Ltd [1980] 2 NSWLR 418; Sergi v Australian Broadcasting Corporation (1989) 4 BR 315. 27. Farquhar v Bottom [1980] 2 NSWLR 380 at 387–8. 28. John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50 at [26]; Malcolm v Nationwide News Pty Ltd [2007] NSWCA 254 at [18], [23]–[29]; Corby v Allen & Unwin Pty Ltd [2014] NSWSC 227 at [146]. 29. Chalmers v Payne (1835) 2 CM&R 156 at 159; 150 ER 67; Charleston v News Group Newspapers Ltd [1995] 2 AC 65 at 73–4; Charman v Orion Publishing Group Ltd [2005] EWHC 2187 at [12]; Malcolm v Nationwide News Pty Ltd [2007] NSWCA 254 at [10]. 30. Stubbs Ltd v Russell [1913] AC 386 at 393. 31. Bik v Mirror Newspapers Ltd [1979] 2 NSWLR 679 at 682. 32. Chalmers v Payne [1835] 150 ER 67 at 68; Ahmed v John Fairfax Publications Pty Ltd [2006] NSWCA 6 at [16]. 33. Jameel v Times Newspapers Ltd [2004] EWCA Civ 983; John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50 at [26]; Cruise v Express Newspapers Plc [1999] QB 931 at 939–41; see also Corby v Allen & Unwin Pty Ltd (No 2) [2013] NSWSC 617 at [22]–[23]. 34. [1995] 2 AC 65. 35. [1998] HCA 37; (1998) 193 CLR 519 at 574–5. 36. John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50 at [26]–[27], [187]; Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652 at [26]. 37. Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 at 647; Charleston v News Group Newspapers Ltd [1995] 2 AC 65; Reading v Australian Broadcasting Corporation [2003] NSWSC 716. See 7.10. 38. [1966] NZLR 303. 39. Truth (NZ) v Bowles [1966] NZLR 303 at 305. 40. Livingstone-Thomas v Associated Newspapers (1969) 90 WN (Pt 1) (NSW) 223 at 231–2. 41. Ell v Milne [2011] NSWSC 645 at [16].

42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58. 59. 60. 61. 62. 63. 64.

65. 66. 67. 68. 69. 70. 71. 72. 73. 74. 75. 76. 77. 78. 79.

Munday v Askin (1982) 2 NSWLR 369 at 372. Bennett v Cohen [2005] NSWCA 341 at [51]; Tory v Megna [2007] NSWCA 13. Polias v Ryall [2013] NSWSC 1267 at [15]. [2013] NSWSC 1267 at [15]–[16]. [2015] ACTSC 106. Parmiter v Coupland (1840) 6 M&W 105 at 108; 151 ER 340 at 342. Cornes v The Ten Group Pty Ltd [2011] SASC 104 at [12]. Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 664 at 667. [1998] QCA 306. [1996] 4 All ER 1008. Sunday Times, 20 January 1994. Sunday Times, 6 November 1994. Berkoff v Burchill [1996] 4 All ER 1008 at 1011. Berkoff v Burchill [1996] 4 All ER 1008 at 1013. Berkoff v Burchill [1996] 4 All ER 1008 at 1018. Berkoff v Burchill [1996] 4 All ER 1008 at 1018. Berkoff v Burchill [1996] 4 All ER 1008 at 1020–1. Berkoff v Burchill [1996] 4 All ER 1008 at 1018–21. Berkoff v Burchill [1996] 4 All ER 1008 at 1020. Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 449 at 452–3. (1991) 23 NSWLR 443. Ettingshausen v Australian Consolidated Press Ltd (1991) 23 NSWLR 443 at 445. Scali v John Fairfax Group Pty Ltd (SC (NSW), Levine J, 15 April 1993, unreported); Mossimani by his tutor Karout v DailyMail.com Australia Pty Ltd [2016] NSWDC 264 at [19]; see also (No 2) [2016] NSWDC 357. Berkoff v Burchill [1996] 4 All ER 1008. Hanson-Young v Bauer Media Ltd [2013] NSWSC 1306 at [8]–[9]. Hanson-Young v Bauer Media Ltd [2013] NSWSC 1306 at [10]–[11]. Cornes v The Ten Group Pty Ltd [2011] SASC 104 at [82]–[85]. [2015] QDC 289. [2015] QDC 289 at [59]. [2009] EWHC 2779. [2016] NSWDC 357. [2016] NSWDC 357 at [17]. [2014] NSWDC 73. [2014] NSWDC 73 at [13]. [2014] NSWDC 73 at [12]; see also Trad v Jones (No 3) [2007] NSW ADT 318 at [174]. [2014] NSWDC 73 at [12]; Mundine v Brad (No 6) [2010] NSWSC 1285. [2014] NSWDC 73 at [15]; adopted from Morosi v Broadcasting Station 2GB Pty Ltd (1980) 2 NSWLR 418 at [16]. (SC (NSW), 1994, unreported), BC9403516.

80. 81. 82. 83. 84. 85. 86. 87. 88. 89. 90. 91. 92. 93. 94. 95. 96. 97. 98. 99. 100.

[2017] NSWSC 288. [2017] NSWSC 288 at [12]. [2013] NSWSC 1306; and see (No 2) [2013] NSWSC 2029. Hanson-Young v Bauer Media Ltd [2013] NSWSC 1306 at [32]. Hanson-Young v Bauer Media Ltd (No 2) [2013] NSWSC 2029 at [29]; see also Kelly v John Fairfax Publications Pty Ltd [2003] NSWSC 586. [2014] NSWSC 190. [2014] NSWSC 190 at [32]. [2014] NSWSC 190 at [49]. McDonald v The North Queensland Newspaper Company Ltd [1996] QCA 115; Hanson-Young v Bauer Media Pty Ltd [2013] NSWSC 1306 at [8]–[9]. ACMA 2013/1447, Australian Broadcasting Corporation, Investigation Report No 3119. Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1246. Hanson-Young v Bauer Media Pty Ltd [2013] NSWSC 1306 at [10]–[11]. David Syme & Co v Canavan (1918) 25 CLR 234 at 238; Prince v Malouf [2014] NSWCA 12 at [102]. [1934] 50 TLR 669. [1975] 134 CLR 1. [2010] NSWCA 69. See Rinehart v Nine Entertainment Co Holdings Ltd [2015] NSWSC 239. Tournier v National Provincial & Union Bank of England Ltd [1924] 1 KB 461 at 477, 486–7. Drummond-Jackson v British Medical Association [1970] 1 All ER 1094 at 1104. Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 at [36]. Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 at [51].

[page 229]

CHAPTER 12 CAPACITY TO SUE — PLAINTIFFS INTRODUCTION BANKRUPTS COMPANIES DECEASEDS ELECTED INSTITUTIONS AND POLITICIANS FOREIGN PERSONS GROUPS PARTNERSHIPS STRANGERS UNINCORPORATED ASSOCIATIONS

12.1 12.2 12.3 12.4 12.5 12.6 12.7 12.8 12.9 12.10

INTRODUCTION 12.1 The plaintiff must have capacity to sue. It is the plaintiff’s reputation which the action for defamation protects and the right of action belongs to the plaintiff personally. It cannot be assigned or vested in third parties.1 Any damages, as and when recovered, however, may be assigned.2

BANKRUPTS 12.2 An undischarged bankrupt is entitled to bring an action for defamation, whether published before or after the bankruptcy.3 Upon bankruptcy, the property of the bankrupt will normally vest in the trustee in bankruptcy.4 Reputation being a strictly personal asset, the action for defamation (and any damages recovered) does

[page 230] not vest in the trustee in bankruptcy.5 The damages recovered belong to the bankrupt; other causes of action relied upon may vest in the trustee.6 Even if the damage caused by the defamation has been the reason for the person’s bankruptcy, the trustee does not have standing to bring the action for defamation.7 In certain circumstances, however, a trustee can bring an action on behalf of the bankrupt’s estate for slander of title or slander of goods.8

COMPANIES 12.3 Under s 9(1) of the Defamation Act 2005, many corporations do not have a cause of action for defamation. A ‘corporation’ is defined to include any body corporate or corporation constituted by or under a law of any country (including by exercise of a prerogative right), whether or not a public body: s 9(6). A ‘public body’ is defined to mean a local government body or other governmental or public authority constituted by or under a law of any country: s 9(6). An individual associated with a corporation, such as a member, officer or employee, may still bring proceedings for defamation where the defamatory matter is published about the individual even if the publication of the same matter also defames the corporation: s 9(5). The prohibition does not extend to ‘excluded’ corporations at the time of the publication: s 9(1). A corporation is an excluded corporation if either: (a) the objects for which it is formed do not include obtaining financial gain for its members or corporators; or (b) it employs fewer than 10 persons and is not related to another corporation, and the corporation is not a public body: s 9(2). In counting employees for this purpose, part-time employees are to be taken into account as an appropriate fraction of a full-time equivalent: s 9(3). The issue is whether or not, as a matter of fact, the number of persons whose services the corporation uses in its business is fewer than 10 at the time of

publication. The word ‘persons’ includes individuals under a contract of employment and those who are not. It has been said that the word ‘employs’ was not intended in an industrial sense referable to a relationship of master and servant under a contract of service. The nature of the arrangement or understanding under which a person provides services, and whether or not the arrangement or understanding is legally enforceable, [page 231] and whether or not the person is paid for the services or is a volunteer are irrelevant considerations.9 Only small corporations are entitled to assert a cause of action for defamation. If a narrow construction of s 9(2)(b) were permitted, a corporation could arrange its operations to avoid its application by engaging independent contractors or by outsourcing employment requirements by contracting work outside the corporation rather than employing in-house staff.10 In determining whether a corporation is related to another corporation for the purpose of s 9(2)(b), s 50 of the Corporations Act 2001 (Cth) applies as if references to bodies corporate in that section were references to corporations within the meaning of this section of the Act: s 9(4). A subsidiary is such a related body corporate whereby the other body corporate holds more than 50 per cent of the shares of the subsidiary.11 Subject to s 9 of the Defamation Act 2005, at common law, a company may sue for defamation which reflects on the management of its trade or business.12 However, the company may only recover damages for loss to its pocket, being loss of income or goodwill, and cannot recover for hurt to feelings.13 It has been held that a corporation must plead or particularise facts which would establish that it has suffered loss to its pocket or otherwise its claim will be struck out.14 However, in the absence of a claim for special damages or actual economic loss, a corporation may claim damage to its trading or business reputation which might not be suffered by way of loss of income but as loss of a capital asset.15 A corporation’s reputation is part of what enables it to earn money. An injury to that reputation diminishes its capacity to earn because it reduces the corporation’s ability to induce others to do business with it.16

Where material reflects solely upon a director or officer of a company, the company itself cannot complain of its publication.17 However, an imputation concerning a director or officer may in many cases reflect also upon the company itself; whether it does so must depend upon the part that the director or officer is alleged to have played [page 232] in the operations of the company and upon the extent to which the one is identified with or considered to be the alter ego of the other.18 Where a non-trading corporation, which is not engaged in business for profit, has the right to acquire property which may be the source of income, at common law it may sue for defamation which damages its property or financial position.19 Local government bodies are, by statute in New South Wales, (governmental) corporations. The fact that a governmental corporation is a democratically elected institution means that through a process of political debate, criticism and decision, the citizens in the community govern themselves. The governing reputation of an elected governmental body is not something which the common law of defamation sets out to protect.20 Prior to the Defamation Act 2005, a corporation generally had no cause of action for the publication of a defamation in New South Wales.21 However, an individual who was a member of the corporation could bring a cause of action for defamation where the publication was defamatory of the individual as well as the corporation.22 There was an exception, that where a corporation employed fewer than 10 persons at the time of publication of the matter23 and had no subsidiaries (as defined in the Corporations Act 2001 (Cth)) at that time,24 the corporation had a cause of action for defamation. In a House of Lords decision it was noted that 95 per cent of all businesses in England have fewer than 10 employees.25 Most Australian corporate bodies are small companies.26 These small corporate bodies were still able to sue for defamation in New South Wales. Section 8A of the Defamation Act 1974

(NSW) was introduced as a result of anecdotal evidence that there was a practice of corporate plaintiffs using defamation proceedings against individuals/community groups as a means of silencing them (known as ‘SLAPP’ suits in the United States — Strategic Litigation Against Public Participation).27 No other state or territory amended the common law to prevent a corporation from having a cause of action for defamation prior to the Defamation Act 2005. [page 233] The Commonwealth proposal (July 2004) for a national code did not propose any restrictions on the capacity of corporations to sue. The Commonwealth did not consider there was any justification for restricting corporations in this way because, while corporations’ reputations may be somewhat different from those belonging to individuals, corporations have reputations which can be defamed. The loss that arises from persons deciding not to trade or associate with a corporation that has been defamed is very difficult to prove and the exceptions allowing certain small corporations to sue are arbitrary. The consideration of the size of the corporation should be irrelevant, as is the consideration whether the plaintiff is wealthy or whether defendants have ‘deep pockets’. The Commonwealth proposal therefore maintained the common law position with respect to corporations, entitling them to sue.28 Section 9 does not prevent a corporation from bringing an action for the tort of injurious falsehood.29

DECEASEDS 12.4 Under s 10 of the Defamation Act 2005, the legal representative of a deceased person, or any other person, cannot assert, continue or enforce a cause of action for defamation in relation to the publication of defamatory matter about the deceased person, whether published before or after his or her death: s 10(a). Tasmania declined to adopt this provision on the basis that living relatives should be able to bring or maintain an action to protect a deceased’s reputation. At common law, where a statement is published which is defamatory of a

dead person, there is no cause of action given to the deceased’s estate or to members of their family to sue on their behalf, although they may sue on their own behalf if they are defamed indirectly.30 The common law rule is that the death of either the plaintiff or the defendant leads to the extinction of the cause of action and abatement of any proceedings on foot31 (although an appeal from a verdict could be continued after death).32 Section 2(1) of the Law Reform (Miscellaneous Provisions) Act 1944 (NSW) expressly did not allow the survival of causes of action in defamation. This was the position in all Australian jurisdictions except Tasmania where the Administration and Probate Act 1935 (Tas) applies and the action for defamation survives death.33 There was a view that an action could be brought on behalf of the dead in Queensland and Tasmania under the Codes that previously applied in those states. The code defined [page 234] ‘defamatory matter’34 as concerning ‘any person, or any member of his family, whether living or dead’. However, the definition referred to the reputation of ‘that person’ likely to be injured, and only allowed the living relative to sue if it conveyed a defamatory imputation against him or her.35 The position therefore was the same as the common law.

ELECTED INSTITUTIONS AND POLITICIANS 12.5 Democratically elected institutions such as local government authorities do not have a reputation protected by the common law of defamation.36 This principle also appears to apply to all tiers of government in the Commonwealth, based upon the Constitution’s implication of freedom of communication about government or political matters.37 However, the individual members of these government bodies, the politicians as individuals, do have a personal reputation which is recognised and protected at common law subject to the defence of qualified privilege as extended in Lange v Australian Broadcasting Corporation.38

There is no proposal, either at state or Commonwealth level, to introduce by legislation a public figure test,39 or test based on the identity of the individual.40 The extent to which a statutory authority, for example, supplying electricity or water (a purely trading corporation established by statute and funded from consolidated revenue), may have a reputation protected by the common law has not been determined. It would appear that its governmental function rather than its trading activity determines its legal character.41

FOREIGN PERSONS 12.6 A foreigner, whether a natural person or trading corporation, may bring a cause of action for defamation in a jurisdiction within Australia subject to the rules of court42 and issues such as security for costs, choice of law and choice of forum. The [page 235] amount of damages will be limited or nominal where the foreigner has no significant reputation, interest or residence within the jurisdiction.43

GROUPS 12.7 Any individual member of a group which is defamed may bring an action for defamation provided there is something in the matter which points to a particular member of that group or the group is so small that an individual member may be identified under common law principles.44

PARTNERSHIPS 12.8 A partnership, distinct from or in addition to the individual partners, may bring an action for defamation in the name of the partnership.45 The action

relates to the harm to the business or trading reputation of the partnership.46 A partnership, like a company, has no feelings and therefore cannot recover damages for injury to feelings.47

STRANGERS 12.9 Having regard to the cost of bringing or defending proceedings for defamation, parties are often funded by a stranger to the proceedings. At common law this practice, known as ‘maintenance’, consisting of unjustifiable financial support to a party in which the stranger has no direct or legitimate interest, was a tort (and a crime). ‘Champerty’ is another form of maintenance, which was also illegal, consisting of an agreement to share in the outcome of the proceedings. These torts were abolished by statute in New South Wales,48 Victoria49 and South Australia.50 The High Court has held that there is no general rule against maintaining actions at common law, which has removed the issue in other jurisdictions.51 [page 236] In some instances, a plaintiff will seek financial support from the company, political party or organisation which he or she represents in order to bring proceedings for defamation. Although it is an internal matter for each of these organisations, it may be questionable whether an organisation has the power within its articles of association or constitution to agree to pay for the costs of the plaintiff, or to indemnify the costs and verdict if the person is a defendant. It is clear that government funds should not be provided to assist a plaintiff in defamation proceedings. It may be possible to justify financial assistance for the defence of a member of parliament or politician sued for defamation, published in the course of his or her duties. One further consideration for strangers to proceedings in providing financial support is whether the court has power to order the stranger to pay the other party’s costs of the proceedings.52 In many instances a defendant will be entitled to indemnity under an

insurance policy. Most major media organisations are self-insured.

UNINCORPORATED ASSOCIATIONS 12.10 An unincorporated association cannot sue in its own name for defamation.53 An association has no personality recognised by law, unless it registers under relevant state or territory legislation providing for incorporation.54 ____________________ 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13.

14. 15. 16. 17.

May v Lane (1894) 64 LJ QB 236 at 238; Dawson v Great Northern Railway [1904] 1 KB 277 at 281. See also Defries v Milne [1913] 1 Ch 98 at 109. Glegg v Bromley [1912] 3 KB 474. Bankruptcy Act 1966 (Cth) s 60(4). Bankruptcy Act 1966 (Cth) s 58(1). Benson v Flower (1629) WJo 215; Re Wilson; Ex parte Vine (1878) 8 Ch D 364; Sands v State of South Australia [2015] SASCFC 36 at [138]. Holmes v Goodyear Tyre & Rubber Co (Aust) Ltd (1984) 55 ALR 594; Sands v State of South Australia [2015] SASCFC 36 at [139]. Howard v Crowther (1841) 8 M&W 601 at 604; 151 ER 1179. Hodgson v Sidney (1866) LR 1 Ex 313; Morgan v Steble (1872) LR 7 QB 611. Redeemer Baptist School Ltd v Glossop [2006] NSWSC 1201 at [20]–[24]; Heartcheck Australia Pty Ltd v Channel Seven Sydney Pty Ltd [2007] NSWSC 555 at [7]. Redeemer Baptist School Ltd v Glossop [2006] NSWSC 1201 at [24]. Corporations Act 2001 s 46(a)(iii); see Heartcheck Australia Pty Ltd v Channel Seven Sydney Pty Ltd [2007] NSWSC 555 at [9]–[10]. South Hetton Coal Company Ltd v NorthEastern News Association Ltd [1894] 1 QB 133 at 141; Derbyshire County Council v Times Newspapers Ltd [1993] AC 534 at 547. Lewis v Daily Telegraph Ltd [1964] AC 234 at 262; Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 at 254–6. See also Australian Broadcasting Corporation v Comalco Ltd (1986) 68 ALR 259 at 333–4, 346–8; The Royal Society for the Prevention of Cruelty to Animals v 2KY (1988) A Def R 50-030; Ballina Shire Council v Ringland (1994) 33 NSWLR 680 at 685; New South Wales Aboriginal Land Council v Jones (1998) 43 NSWLR 300. New South Wales Aboriginal Land Council v Jones (1998) 43 NSWLR 300 at 308; Development and Environmental Professionals’ Association v John Fairfax Publications Pty Ltd [2004] NSWSC 92. Feo v Pioneer Concrete (Vic) Pty Ltd [1999] 3 VR 417 at [57]; Commissioner of Taxation v Sydney Refractive Surgery Centre Pty Ltd [2008] FCAFC 190 at [12]. Commissioner of Taxation v Sydney Refractive Surgery Centre Pty Ltd [2008] FCAFC 190 at [13]. Bognor Regis Urban District Council v Campion [1972] 2 QB 169 at 175.

18. Bargold Pty Ltd v Mirror Newspapers Ltd [1981] 1 NSWLR 9 at 11. 19. Church of Scientology of California Inc v Reader’s Digest Services Pty Ltd [1980] 1 NSWLR 344 at 356. 20. Ballina Shire Council v Ringland (1994) 33 NSWLR 680 at 691; Derbyshire County Council v Times Newspapers Ltd [1993] AC 534; New South Wales Aboriginal Land Council v Jones (1998) 43 NSWLR 300. 21. Defamation Act 1974 (NSW) s 8A(1). 22. Defamation Act 1974 (NSW) s 8A(2). 23. Defamation Act 1974 (NSW) s 8A(3)(a). 24. Defamation Act 1974 (NSW) s 8A(3)(b). 25. Royal Bank of Scotland v Etridge [2002] 2 AC 773 at [34]. 26. Australian Bureau of Statistics, Small Business in Australia (at No 3401.0, ABS, Canberra), May 2001, 1321.0.4.001 (2001). 27. See New South Wales Attorney-General Task Force Report 2002 at 13–14. 28. Australian Government, Attorney-General’s Department, Revised Outline of a Possible National Defamation Law, July 2004, pp 38–9. 29. See 15.2. 30. Krahe v TCN Channel Nine Pty Ltd (1986) 4 NSWLR 536 at 541. 31. Price v Ikin [2004] NSWSC 706; Stead v Foster (SC (NSW), 4 September 1998, unreported). 32. Calwell v Ipec Australia Ltd (1975) 135 CLR 321 at 325–6. 33. Section 27(1) and (2). 34. Defamation Act 1889 (Qld) s 4; Defamation Act 1957 (Tas) s 5. 35. Livingstone-Thomas v Associated Newspapers Ltd [1969] 1 NSWR 771. The plaintiff’s father had been a patient at a mental hospital. 36. Ballina Shire Council v Ringland (1994) 33 NSWLR 680 at 691. 37. Australian Capital Television Pty Ltd v Commonwealth (No 2) (1992) 177 CLR 106; Nationwide News Pty Ltd v Wills (1992) 177 CLR 1. 38. (1997) 189 CLR 520 at 568. 39. New York Times Company v Sullivan 376 US 254 (1964). 40. Recommendation 17, Standing Committee of Attorneys-General, Proposal for Uniform Defamation Laws, July 2004. 41. R v Trade Practices Tribunal; Ex parte St George County Council (1974) 130 CLR 533; Ballina Shire Council v Ringland (1994) 33 NSWLR 680 at 690, 707: Die Spoorbond v South African Railways [1946] AD 999; Argus Printing & Publishing Company Ltd v Inkatha Freedom Party [1992] 3 SA 579. 42. See Pisani v Lawson (1839) 6 Bing NC 90; 133 ER 35. 43. Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575 at [53]; Jameel v Dow Jones & Co Inc [2005] All ER (D) 43. 44. See, generally, 8.4. 45. Le Fanu v Malcolmson (1848) 1 HLC 637 at 666–7. 46. Todd v Swan Television and Radio Pty Ltd [2001] 25 WAR 284 at 298. 47. Haythorn v Lawson (1827) 3 C&P 195 at 197; 172 ER 384. 48. Maintenance Champerty and Barratry Abolition Act 1993 (NSW) s 4. See Fostif Pty Ltd v Campbells Cash and Carry Pty Ltd (2005) 218 ALR 166.

49. Wrongs Act 1958 (Vic) s 32. 50. Criminal Law Consolidation Act 1935 (SA) s 11. 51. Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd [2006] HCA 41; Mobil Oil Australia Pty Ltd v Trendlen Pty Ltd [2006] HCA 42. 52. Knight v FP Special Assets Ltd (1992) 174 CLR 178; Gore v Justice Corp Pty Ltd (2002) 189 ALR 712; Singh v The Observer Ltd [1989] 2 All ER 751 and [1989] 3 All ER 777. 53. Cother v John Fairfax & Sons Pty Ltd (1947) 64 WN (NSW) 154. 54. See the uniform Association Incorporation Act in each state and territory.

[page 237]

CHAPTER 13 CAPACITY TO BE SUED — DEFENDANTS INTRODUCTION AGENTS AND EMPLOYEES ANONYMOUS BLOGGERS BANKRUPTS THE CROWN DECEASEDS FOREIGN PERSONS SOURCES STRANGERS UNINCORPORATED ASSOCIATIONS

13.1 13.2 13.3 13.4 13.5 13.6 13.7 13.8 13.9 13.10

INTRODUCTION 13.1 The proper person to be sued as defendant is the person who published the defamatory matter or caused that matter to be published. Any person who participates in the publication is prima facie liable to be sued.1 This includes the journalist, editor, printer, proprietor or distributor of a newspaper.

AGENTS AND EMPLOYEES 13.2 A principal or employer is liable for the defamation published by its agent or employee, provided that the defamation was published in the course of

the agency or employment. Whether the publication is found to be in the course of agency or employment is a question of fact depending upon what the agent or employee is [page 238] engaged to do, and it then may be taken that he or she has authority to do or say anything which may be reasonably necessary for effectively carrying out his or her duties.2 Once this is established, the principal is liable for the agent’s acts of malice, as principal and agent will be seen as one in the eye of the law.3 However, the agent is entitled to the privilege available to the principal.4 Proof that the principal is malicious will not defeat the agent’s (independent) privilege.5

ANONYMOUS BLOGGERS 13.3 The internet has enabled people to publish material without inhibition and without trace, identified only anonymously, under a pseudonym, or falsely, under someone else’s name. It is possible, however, to trace such a person through an email address, a domain name register (where the identity of the person can be established through a website which logs client details for domain names) or the IP address which identifies a specific computer corresponding to the time when the information was distributed. An IP address can be established from encrypted data of an external email. This occurs every time the user accesses a website and the IP address of the user is recorded by the website. The IP address can, however, be cloaked by using ‘anonymisers’ and proxy servers. These methods involve communicating through a buffer to the website and/or server to which the person is connecting. It may also be possible to identify an anonymous source by obtaining the author’s ‘set of identifiers’ used online. An identifier is a piece of information that names or indicates a person, a process, an application, a location (such as a

place on earth or a CPU memory address), a tangible object (such as a book, a text file or a device), or any other type of entity or grouping of entities.6 The usual means of court-assisted identification of an anonymous blogger is through preliminary discovery sought from the Internet Service Provider or the Internet Content Host or a suspected source. In Khochaiche v Kamaleddine,7 anonymous emails had been sent to parents attacking the plaintiff’s management of a childcare centre. The plaintiff inquired of the first defendant whether the second defendant had sent the emails, which was denied. The plaintiff applied for [page 239] an order that the first defendant attend court for examination under the process of preliminary discovery.8 Before the application was heard, the second defendant admitted publication.9 Courts may also be prepared to assist plaintiffs with service of court documents and orders for injunctions to restrain publication even though the defendant has not been identified. The question is whether there is sufficient evidence to satisfy the court that the nominated means of alternative service are likely to result in the documents coming to the intended recipient’s attention in a timely fashion.10 If the evidence in support of the application demonstrates that the person is active on social media, the court may make the order for substituted service through that means.11 The ACT Supreme Court ordered a default judgment to be served on the defendants via Facebook informing the defendants of the entry of judgment and the terms.12 In the United Kingdom, the High Court of England permitted service of an injunction via Twitter against an anonymous user who falsely established a Twitter account in the name of Donald Blaney, a right-wing lawyer/commentator.13 The High Court issued an injunction requiring the user to stop posting. The message sent by Twitter was ‘You are hereby ordered by the High Court of Justice to read and comply with the following order’. The message contained a link to a web page containing the full court order. The anonymous user clicked on the link and obeyed the order. There are, however, jurisdictional difficulties with this approach in relation

to persons outside Australia.14 The English High Court allowed service by email on ISPs for disclosure of persons responsible for publishing defamatory statements. In this case, service was permitted outside the United Kingdom and by email to the United States to the defendants which operated the Wikipedia and Wordpress websites and the Denver Post newspaper.15 Service in the United States may lead to objections being raised as to jurisdiction. Applications for preliminary discovery against website operators or search engines such as Google Inc, Facebook Inc and Twitter Inc, which are all incorporated in the United States, may face difficulties. These sites are subject to the Stored Communications Act (US).16 This Act prohibits electronic communication service [page 240] providers from disclosing electronically stored data of a private nature to any non-government entity without the consent of the account user or subscriber. Nevertheless, these sites may provide basic subscriber information such as the identity of the user to a party to civil litigation where a subpoena is validly issued.17 Arguments about the right to privacy have been made in opposition to disclosure of the identity of the anonymous blogger.18 In Applause Store Productions Ltd and Matthew Firsht v Raphael,19 the defendant had set up a false Facebook profile in the name of the plaintiff (Matthew Firsht) which was, on the evidence, set up using a computer with the defendant’s IP address and linked to the profile by hyperlink ‘Has Matthew Firsht Lied to You?’. After Mr Firsht became aware of the false profile and group page, he requested Facebook to take it down, which it did. Mr Firsht then obtained a Norwich Pharmacal20 order against Facebook for disclosure of the registration data provided by the user responsible for creating the false material, including email addresses, and the IP addresses of all computers used to access Facebook by the owner of those email addresses. Facebook provided evidence showing that the profile was created on a computer using an IP address which belonged to the defendant and the group was created on a computer using that same IP

address. The evidence showed that there were two computers that used the IP address, the defendant’s desktop computer and a laptop computer belonging to the defendant’s girlfriend which the defendant often used. Both computers used a wireless router to connect to the internet and the router employed the IP address which Facebook disclosed pursuant to the order.21 The defendant denied that he was responsible for posting the false profile and group. The defendant claimed that a complete and random stranger visited the defendant’s flat for the first time, went into the defendant’s study and started using his computer without his permission over a period of about an hour without being seen. He then created a false and hurtful Facebook profile about someone whom the defendant knew well and had fallen out with which contained private information about Mr Firsht which few people, apart from the defendant, would have known and searched from that profile for a number of people known to the defendant. The court rejected the defendant’s proposition as ‘utterly implausible’.22 The judge awarded Mr Firsht damages for defamation of £15,000 and for breach of privacy £2,000 (with an award of £5,000 to the plaintiff company for defamation). [page 241] In the United Kingdom, there is an accepted practice, particularly in relation to the cause of action for misuse of private information, to commence proceedings against ‘Persons Unknown’ in order to obtain an injunction and in doing so, the claimant may need to notify non-parties or media defendants upon whom it is intended to serve the injunction.23 It is necessary for the unknown persons to be identified by description in such a way as to identify with certainty those who are included within it and those who are not. Accordingly, the usual formulation is ‘persons unknown responsible for the operation and publication of the (website)’. For example, in Smith v Unknown Defendant Pseudonym LikeICare,24 the defendants were named in this way. The claimant was a former borough councillor in England and the defendants were operators of the website Encyclopedia Dramatica or users of that website. The website was satirical and used the Wiki software which enabled it to anonomise itself, hiding the country

in which it operated and the real IP address of the servers. Editors and staff used pseudonyms. The claimant was active as a ‘McKenzie Friend’ dealing with child protection matters. Particular users of the website amended various articles concerning the claimant and changed them to suggest he was a paedophile and child rapist. The claimant issued proceedings against the ‘persons unknown’ as formulated and proceeded to judgment in the absence of a response from one particular user who remained anonymous and refused to respond to the court process. In Australia, an application for preliminary discovery can be made under specific court rules such as the Uniform Civil Procedure Rules 2005 (NSW) Pt 5 r 5.2. These rules enable preliminary discovery to be ordered by the court where a person may have information or documents that tend to assist in ascertaining the source’s identity or whereabouts. The court retains a discretion to refuse to make an order for disclosure unless it is shown to be ‘necessary in the interests of justice’.25 If the evidence in support of the application demonstrates that the person is active on social media, the court may make the order for substituted service through that means. The use of the procedure of naming defendants as ‘persons unknown’ has not occurred regularly in Australia but proceedings can be brought against the names of defendants ‘John Doe’ or ‘Jane Doe’. It is possible to seek damages and an injunction to restrain further publication in such proceedings.26 The court will be concerned to ensure that the relevant procedural safeguards are applied and ensure that the unknown defendants have been duly served with the proceedings and with any application for interim or final relief.27 [page 242] It may be prudent for the plaintiff to make an application for a protection order of anonymity where the particular publication is so damaging that the public right of access to the court would be unjust if the plaintiff’s name was known.28 In McKeogh v John Doe 1 (user name Daithii4U),29 the plaintiff applied to the court ex parte and did not seek an order for anonymity. He sought orders for the immediate removal from YouTube of video footage which was defamatory of him as well as from any other internet sites on which it might be

viewed. He also sought orders requiring the defendants to provide the plaintiff with the identity of the web users who had defamed him by their websites so that he would be able to take steps against them for damages. The video footage had been posted on YouTube by an Irish taxi driver who sought to expose the identity of the passenger after the passenger had left the taxi without paying his fare. In response a person using the pseudonym Daithii4U wrongly identified the plaintiff by name as the culprit. This led to ‘the most appalling stream of vile, nasty, cruel, foul, and vituperative internet chatter and comment’ on YouTube and Facebook directed against this entirely innocent plaintiff, who had at the time been thousands of miles away in Japan and could not be the person depicted exiting the taxi on that day.30 When the matter was heard in court, various media outlets reported the proceedings and the continued publication of the video footage increased showing the defamatory abuse directed at the plaintiff (uncorrected). The judge observed that the court did not have a magic wand and the damage had already been done. It was impossible to ‘un-ring’ the bell that had sounded so loudly. The genie was out of the bottle and the media were entitled to report the proceedings provided the report was fair and accurate.

BANKRUPTS 13.4 A bankrupt can be sued for defamation, even if enforcement of the judgment may prove difficult or unproductive,31 but a plaintiff cannot be a creditor for the purposes of the bankruptcy for the damages awarded unless he or she has signed judgment before the date of bankruptcy.32 A statutory claim for contribution or indemnity may be a debt provable in the bankruptcy.33 The bankrupt’s discharge does not preclude a plaintiff from pursuing an action against the bankrupt for defamation published before or during the bankruptcy because the claim is not a debt provable in the bankruptcy at the date of bankruptcy.34 [page 243]

THE CROWN 13.5 At common law, the Crown was immune from liability because it was inconsistent for the sovereign to be subject to his or her own courts. Under s 5 of the Defamation Act 2005, the Crown is bound in each jurisdiction. This means that each state and territory government and their statutory corporations which are part of the Crown, including their respective servants or agents (in so far as the legislative power of the parliament or legislature permits), are bound by the Act. The Act is not limited to the Crown in right of the state or territory in which the Act is passed, but extends to the Crown in all its capacities including the Commonwealth.35

DECEASEDS 13.6 At common law, if the defendant to an action for defamation died before verdict, the action also died with the defendant and the proceedings abated in each jurisdiction in Australia (except Tasmania) and such action was unaffected by survival of actions legislation which expressly excluded actions for defamation. The action could not be continued against the personal representatives of the deceased defendant either. Under s 10 of the Defamation Act 2005, a person cannot assert, continue or enforce a cause of action for defamation in relation to the publication of defamatory matter by a person who has died since publishing the matter: s 10(b). Tasmania declined to adopt this provision and is governed by the Administration and Probate Act 1935 (Tas) s 27, so that the cause of action against him or her survives against the estate.

FOREIGN PERSONS 13.7 A foreigner may be sued for defamation in a jurisdiction within Australia subject to the long-arm jurisdiction of the rules of court. An Australian court will not decline to exercise jurisdiction on the ground of forum non conveniens where the long-arm jurisdiction provisions of the rules of court

have been complied with or personal service has been effected, unless it is shown that the forum whose jurisdiction is invoked by the plaintiff is clearly inappropriate.36 [page 244]

SOURCES Apportionment 13.8 A source who provides false information to the media for publication may be sued for contribution or indemnity as a joint tortfeasor by the media publisher under the relevant legislation.37 The court has a wide discretion to apportion the damage suffered by the plaintiff amongst those who participated in causing the damage by publication. It involves a comparison of the degree to which each party has departed from the standard of what is reasonable and the relative importance of the acts of the parties causing the damage.38 However, even where the source has provided deliberately false information for publication by the media, the court may only apportion a relatively minor amount as just and equitable for the acts of the source, where the media fails to act reasonably before putting it out for public consumption. In Rinaldi v Cobbittee Publications Pty Ltd39 it was held that as a matter of practical reality and common sense it was the publication of the false information by the magazine which was the operative conduct in causing the damage to the plaintiff’s reputation. The court apportioned responsibility to the magazine of 80 per cent compared with 20 per cent to the sources.40

Preliminary discovery/Newspaper rule Where the source is not known by the plaintiff or is not identifiable from the publication, the plaintiff may be able to obtain the identity of the source by discovery in the proceedings or by an application for preliminary discovery before action under the rules of court.41 At common law, a journalist has no public interest immunity from being

required to disclose the identity of the source of information when such disclosure is necessary in the interests of justice.42 Once defamation proceedings are commenced, a rule of practice known as the ‘newspaper rule’ protects a media defendant in the proceedings, except in special circumstances (where necessary in the interests of justice), from being required to disclose the identity of the source of its information through discovery or interrogatories [page 245] prior to the trial of the action.43 This is not a rule of law or evidence and is subject to the discretion of the court. Under the newspaper rule, the protection against disclosure exists only prior to the hearing of the action and does not exist at the trial.44 Special circumstances giving rise to the necessity to do justice between the parties may exist for disclosure where there has been identification of the source ‘in a general way’, and reliance on that source ‘to point up the authenticity of the imputations’.45 Special circumstances existed where the source was described as a ‘well known Townsville citizen’ and the report and its source were invested with a degree of independent authority that might have been absent if it had been known that the source was in fact another journalist employed by the defendant newspaper whom the defendant proposed to call to give evidence.46 Where the defendant had already disclosed 25 out of 26 of its sources and identified its sources in a general way as employees or former employees of the plaintiff, and in such a way as to authenticate the allegations by virtue of the relationship between them and the plaintiff, special circumstances to require disclosure existed.47 The newspaper rule was developed in the King’s Bench Division in the latter half of the nineteenth century in relation to interrogatories in libel actions. The interrogatory was a common law procedure first introduced by the Common Law Procedure Act 1854,48 which reflected the equity procedure of the bill of discovery. The interrogatory enabled the plaintiff prior to trial to seek answers on oath from the defendant on matters material to the plaintiff’s case. However, the judges introduced an exception, a rule of practice, where newspapers were

sued by a plaintiff in respect of information provided by a confidential source. The rule was that the newspaper would not be required to answer an interrogatory to disclose the identity of the source prior to the trial.49 It was considered that the responsibility of the newspaper for the republication of what was published to it by a source was ‘necessarily co-extensive’ with the responsibility of the source for what had been published in the newspaper and it was generally undesirable and unnecessary for plaintiffs at the interlocutory stage of proceedings to have disclosure of the identity of the source.50 [page 246] However, where the defence of fair comment or qualified privilege had been raised, a question arose as to whether it was permissible to interrogate a defendant not only as to the information on which the statements had been based, but also as to the source from which that information had been obtained, as this was a matter relevant to the issue of malice. Where malice was alleged, an important factor would be not merely what inquiry the defendant made into the truth of the statements published but to whom such inquiry was addressed.51 This has continued to be a contentious issue under the newspaper rule. The common law rule has been displaced by statute or by court rules. Section 12 of the New South Wales Defamation Act 1912 provided that where a plaintiff had commenced a libel action against a newspaper, the plaintiff may make application to a judge who ‘may if he sees fit’ direct that the name and address of the person who supplied the defamatory article to the defendant be disclosed. The section gave the judge a discretion but was exercised only in special circumstances.52 Disclosure was ordered in circumstances where it had been shown that an anonymous campaign of vilification was being carried on53 or where the newspaper proprietor was a man of straw.54 A similar discretion was provided by statute in the Sydney City Council (Disclosure of Allegations) Act 1953 (NSW). It provided that where a statement had been published suggesting that a member or servant of council had been guilty of offering or accepting a bribe or secret commission, a judge had the discretion to order disclosure of the source of the information. In Re Calman and John Fairfax & Sons Pty Ltd,55 an application was made for an order directing the

publishers of the Sydney Morning Herald newspaper to disclose the names of two aldermen who, according to an editorial in the newspaper, had made allegations of council graft and corruption. The application was dismissed on the basis that the statute did not apply to disclosure of information by a ‘corporation’ distinct from a ‘person’.56 The Act was short lived and repealed within four months of its commencement.57 An application for preliminary discovery may be made prior to commencement of proceedings for disclosure of the identity or whereabouts of the confidential source for a defamatory publication from a person who may be able to assist58 or for preliminary discovery of documents from a prospective defendant which might enable the applicant to decide whether to pursue defamation proceedings against [page 247] that prospective defendant.59 The rules of court set out threshold factual matters that must be established before the discretion is considered.60 The court should approach the construction of the rules beneficially so far as the words of the rules allow. The proper brake on an excessive use of the rules lies in the fact that the court has a discretion as to whether to make an order even if the threshold questions required by the rules are established.61 The court rules displace the newspaper rule which has no operation to an application prior to the commencement of proceedings for the very purpose of identifying the source. The court will exercise its discretion to order disclosure, pursuant to an application for preliminary discovery, where it is necessary in the interests of justice.62 The court recognises the importance of the free flow of information to journalists and to the public, but it must balance the public interest in a free press and in freedom of information against the right of an individual to have an effective remedy in respect of defamatory imputations published in the media.63 If it appears that the applicant for disclosure has an ‘effective remedy’ against the newspaper or journalist without the necessity of ordering discovery, the court may exercise its discretion to refuse to order disclosure of the identity of the source.64

It is the identity of the source or informant, not the information given, which (notwithstanding its relevance) is protected from disclosure by the media defendant.65 The information will be protected from disclosure only where its disclosure would also disclose the identity of the informant and where as a practical measure the identity cannot be redacted. The assessment of whether the applicant has an effective remedy may be influenced by the defences pleaded by the newspaper to the claim. In John Fairfax & Sons Ltd v Cojuangco,66 an article was published in the Sydney Morning Herald newspaper under the headline ‘Corruption as an Art Form’ concerning a Filipino businessman, Eduardo Cojuangco. Mr Cojuangco sought preliminary discovery from John Fairfax & Sons Ltd (‘Fairfax’) under the then applicable court rules, enabling an order for disclosure of confidential sources prior to commencing proceedings. At first instance, Hunt J in the Supreme Court of New South Wales ordered disclosure on the basis [page 248] that Fairfax might well succeed with a statutory qualified privilege defence which was open to be pleaded and which was not available to the sources.67 After an appeal to the High Court which upheld the order for disclosure, Fairfax undertook not to call the journalist to give evidence at the trial of any defamation action brought against it. On that basis, Hunt J agreed to set aside the order, taking the view that Mr Cojuangco now had an effective remedy against the newspaper.68 After a further appeal to the New South Wales Court of Appeal, Fairfax refined its undertaking and undertook not to rely upon the statutory qualified privilege defence at all. The Court by a majority held that Mr Cojuangco’s appeal should be dismissed.69 Mahoney JA held that once Fairfax had abandoned its qualified privilege defence, the interests of justice did not require a preliminary discovery order because Mr Cojuangco had an effective remedy against Fairfax without the necessity of such an order. Handley JA held that effective remedy in this context meant a remedy against the newspaper ‘no less effective’ than an action against the sources. This meant that the plaintiff in the

action against the newspaper must not be faced with any defence in addition to those that would be available to the sources if they were sued. It has subsequently been observed that the factors to be taken into account in deciding whether, in the exercise of the court’s discretion (in relation to the newspaper rule), it is necessary in the interests of justice to require disclosure of a confidential source, will depend on the facts and circumstances of the particular case, but they will ordinarily include the following factors: (a) the common law’s recognition of the public interest in the free flow of information by the imposition of restraints on the disclosure of the identity of the confidential source of information at the interlocutory stage of defamation and related actions notwithstanding the relevance of the identity of the source to the issues to be determined at trial; (b) whether in the particular case, the information which the source has revealed, on a confidential basis, appears to be a matter of genuine public interest, including whether the information discloses an iniquity; (c) the manner in which the information was obtained, including whether it was obtained by lawful means; (d) the pleadings in the pending proceedings, including the elements of the plaintiff’s cause of action, any admissions by the defendant, and the apparent reasonableness or unreasonableness of any denials or non-admissions in the defence; (e) whether the plaintiff is likely to experience real and substantial difficulty in proving any element of any cause of action without the disclosure of the identity of the confidential source; (f) whether any difficulty in proof as a result of the non-disclosure of the identity of the source is likely materially to complicate the trial or unduly to [page 249] extend its length, to involve significant expense for the plaintiff or to cause significant inconvenience to a proposed witness;

(g) the apparent importance to the plaintiff and generally of the rights which he or she seeks to vindicate in the pending proceedings.70 In Herald & Weekly Times Ltd v Guard Dog Owners’ and Friends’ Association,71 the media defendant relinquished the defences of qualified privilege and fair comment at common law so that the plaintiff had just as effective a remedy against the media defendant as it did against the unnamed source. Preliminary discovery was therefore not required in the interests of justice.72 If a defendant puts in issue the identity and integrity of its sources by way of defence, the defendant may be acting inconsistently with its entitlement to enforce the newspaper rule. For example, if the defendant positively raises the identity and integrity of its confidential source to assert as part of a qualified privilege defence, that it had acted reasonably in its publication of the article, the weight to be attributable to the public interest in disclosure for the proper administration of justice may be correspondingly increased.73 In Bateman v Fairfax Media Publications Pty Ltd,74 the defendant pleaded defences of honest opinion under s 31(3) of the Defamation Act 2005 and fair comment at common law in respect of comments by a third party commentator or ‘a stranger’. The defendant refused to provide particulars identifying the persons whose opinion or comment was relied upon and at the same time invoked the newspaper rule. As a result, the plaintiff sought to strike out the defences and the judge put the defendants to an election to provide the particulars required under the rules identifying the person whose opinion or comment the relevant matter was alleged to be, failing which that part of the defence would be struck out.75 In Liu v The Age Company Ltd,76 the applicant brought a preliminary discovery application in the Supreme Court of New South Wales to establish the identity of the sources for certain articles published in The Age newspaper based on documents which the applicant said were fabricated or falsely attributed to her. The Age had published an article with the headline ‘Fitzgibbon’s $150,000 from Chinese developer — former Defence Minister cultivated over years’. It alleged that Ms Helen Liu, whom the newspaper referred to as a Chinese Australian businesswoman, had made substantial payments to the former Defence Minister, Mr Joel Fitzgibbon, as part of ‘a campaign to cultivate him as an agent of political and business influence’.

[page 250] Justice McCallum held that as the newspaper did not relinquish its statutory qualified privilege defence and the extended common law defence of qualified privilege in respect of political discussion, she was satisfied that those defences might well succeed and, accordingly, Ms Liu may not have an effective remedy against the newspaper.77 Her Honour also considered that if Ms Liu was unable to identify the sources, she would in effect be left without the opportunity to pursue a remedy which would see the issue of the alleged forgery of the documents fully litigated and determined and that she would be unable to vindicate her reputation and nail the lie.78 Justice McCallum observed that ‘the present case sits poised uncomfortably on the fault line of strong, competing public interests’.79 The competing public interests are the public interest in the administration of justice weighed against the public interest in freedom of speech.80 After an appeal to the Court of Appeal and a special leave application to the High Court, Fairfax returned before McCallum J to seek a stay of the order on the basis that Fairfax undertook not to rely upon the defences of qualified privilege. Her Honour, noting the undertaking and considering costs may be adequate compensation to Ms Liu for the prejudice suffered, stayed her earlier order. Ms Liu appealed to the Court of Appeal which held that her Honour had fallen into error in staying the order and re-exercised the discretion and refused the stay. The court held, inter alia, that given the knowledge that Fairfax had of the course taken in Cojuangco’s case, by not providing the undertaking at the first hearing before McCallum J, Fairfax flouted the principle that a litigant should put its best case forward in any interlocutory application and had failed to discharge its duty to assist the court to further the overriding purpose of the Civil Procedure Act and the Rules to facilitate the just, quick and cheap resolution of the real issues in the proceedings.81 In McColl JA’s view, ‘to entertain Fairfax’s stay application and undertake, in effect, the re-litigation of the preliminary discovery application, albeit with the goal posts moved to suit Fairfax, countenanced an approach to litigation by

Fairfax which was not in the interests of justice, and fell foul of the principles of case management.’82 The Court of Appeal also held that whether, absent disclosure of documents sought to be shielded by the newspaper rule, a potential plaintiff has an effective remedy turns not only on the likely recovery of damages but upon any difficulty in proof occasioned by the non-disclosure. The nature of the documents Fairfax based the articles on was relevant to whether Ms Liu should have access to the documents. By attributing the articles to documents allegedly either written by Ms Liu or sourced to her company’s records, Fairfax accorded to the imputations an ‘aura of [page 251] their verisimilitude’ which Ms Liu should be given the opportunity to test, both by confronting her accusers and having the best opportunity to demonstrate the documents they provided were forgeries.83 Because it was not raised before McCallum J on the stay application, the Court of Appeal did not deal with an issue concerning a cause of action Ms Liu had pleaded against the sources under the Australian Consumer Law but which she did not have against the newspaper and its journalists because of the immunity which exists under that legislation in their favour as information providers. In that cause of action, Ms Liu would bear the onus of proof of the misleading and deceptive conduct against the sources but, absent the identification of those sources, she would not have an effective remedy in respect of that cause of action because Fairfax had a complete defence which was not available to the sources. Shield legislation is now in place in some jurisdictions which provides a journalist’s privilege from disclosure of the identity of sources.84 Under s 126K(1) of the Evidence Act 1995 (NSW), a journalist is not compellable to disclose the identity of a confidential source unless on the application of a party, the court determines that the public interest in the disclosure of the identity of the source outweighs the likely adverse effect of disclosure upon the source or others and the free flow of facts and opinion to the news media.

The statutory protection provided by the Evidence Act replaces the common law’s uncertainty under the newspaper rule.85 The Act applies not only to interlocutory proceedings, but also extends the application of the privilege to preliminary discovery applications.86 The privilege does not preclude a plaintiff from commencing proceedings against an unknown defendant and seeking orders for substituted service on the media defendant which is in communication with the unidentified source and knows where to find him or her.87 Such an order involves no disclosure of the source’s true identity but in accordance with the rule would bring the pleading to the attention of the source. Once served, it is a matter for the source to decide what steps to take to protect his or her interests.88 If the journalist’s privilege is relied upon at the trial, an issue may arise as to whether the claim of privilege provides a sufficient basis to exclude a Jones v Dunkel89 inference against the journalist because the witness has failed to give evidence that on the question of reasonableness of publication he or she could be expected to give. [page 252] Section 126K(2) of the Evidence Act 1995 (NSW) defines the circumstances in which the court’s power to override the privilege is to be exercised. The court must be satisfied that having regard to the issues to be determined in the proceedings, the public interest in the disclosure of the identity of the informant outweighs: (a) any likely adverse effect of the disclosure on the informant or any other person; and (b) the public interest in the communication of facts and opinion to the public by the news media and accordingly, also in the ability of the news media to access sources of facts. Under s 126K(3) of the Evidence Act 1995 (NSW), an order requiring disclosure may be made subject to such terms and conditions (if any) as the court thinks fit.

It is clear that the statutory privilege protects the strong public interest behind the free flow of information in a democratic society and prima facie outweighs other public interests which apply in relation to the production of documents for the purposes of litigation.90 In Madaferri v The Age Company Ltd,91 The Age and its journalists claimed journalists’ privilege in relation to pleaded qualified privilege defences to which the plaintiff sought further and better particulars including details of the sources. The claim was made under s 126K of the Evidence Act 2008 (Vic) and the newspaper rule. Justice John Dixon refused disclosure of the identity of the sources in the circumstances where he accepted there were genuine fears of very serious adverse consequences to the sources and to the journalists if the sources were named. Mr Madaferri claimed that the articles conveyed very serious defamatory imputations against him of violent criminal conduct including murder, extortion and drug trafficking and alleged that he was the head of the Mafia in Melbourne. The judge did not accept that the confidential sources were the key to the defendant’s qualified privilege defence and their identity was not the critical matter as to whether the publication was reasonable in the public interest under the qualified privilege defence.92 One compelling consideration in terms of effective remedy and competing public interests is the limitation period of 12 months from publication to commence defamation proceedings, although there is discretion in certain circumstances to extend the limitation period up to three years. If the plaintiff does not know the identity of the source, he or she will be unable to commence proceedings against the source before being statute barred, so that the only effective remedy thereafter would be against the newspaper and it might be futile to order disclosure of the identity of the source after expiry of the limitation period. However, not knowing the identity of the source may be a ground for extension of the limitation period. If no proceedings have been commenced against the newspaper [page 253] within 12 months, the only effective remedy in that event would be against the source, subject to an extension of the limitation period.

Compulsory disclosure A plaintiff may not sue for defamation upon a document of which he or she became aware only in the course of discovery in proceedings between the parties.93 The rationale for this rule is that a full and frank disclosure of documents in the discovery process would be discouraged if documents produced on discovery could be used otherwise than in the conduct of those particular proceedings.94 There is an implied undertaking to the court that documents obtained as a result of the compulsory processes of the court will only be used for the purpose for which they were disclosed and not for a collateral or ulterior purpose.95 This collateral purpose includes using the documents in different proceedings between the same parties96 or providing the documents to the media.97 Similarly, a plaintiff may not sue for defamation upon a document of which he or she became aware only through inspection of documents produced on subpoena, either by another party to the proceedings or by a stranger to the proceedings. The use of those documents is restricted to the proceedings in which the subpoena was issued. Such safeguards are imposed in relation to documents produced in obedience to a subpoena to encourage honest compliance with its terms notwithstanding the absence of any interest in the proceedings by the person under the obligation to produce the documents for use in the proceedings.98 However, a plaintiff may be able to sue for defamation upon a document produced on discovery or by subpoena in the subject proceedings in which the document is produced. The use of the document in this way is for the purpose of the proceedings themselves, for which the processes of discovery and subpoena have been established.99 The court has a discretion to release a party from the implied undertaking.100 Special circumstances should exist before the discretion is exercised.101 [page 254] At common law the implied undertaking ceases to apply when the document is read in open court or is tendered in evidence.102

The rules of court in New South Wales103 and in the Federal Court104 impose an express obligation not to use discovered documents other than for the purpose of the proceedings except by leave of the court. A plaintiff may not sue for defamation if legislation expressly or impliedly prohibits the action. For example, the Freedom of Information Act 1989 (NSW) s 64(1)(a) protects public officials from liability for republication of defamatory matter pursuant to the Act. Section 64(1)(b) extends that protection to the author and other persons, but its protection is limited to ‘any publication involved in, or resulting from, the giving of access’ under the Act. Protection is not given to the author or other person merely because the plaintiff became aware of the document by obtaining access to it under the Act and would not otherwise have known that he or she had been defamed.105

STRANGERS 13.9

See 12.9.

UNINCORPORATED ASSOCIATIONS 13.10 An unincorporated association (not registered under the uniform Associations Incorporation Act) cannot be sued for defamation since it cannot publish nor cause the defamation to be published.106 ____________________ 1. 2. 3.

4. 5. 6.

Webb v Bloch (1928) 41 CLR 331 at 363–4. NSW Country Press Co-operative Co Ltd v Stewart (1911) 12 CLR 481 at 500. Pearson v Lord Mayor of Dublin [1907] AC 351 at 358, 359; Webb v Bloch (1928) 41 CLR 331 at 365; Roberts v Bass (2002) 212 CLR 1 at 66 [182]. Compare Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211 at 254–5. Baker v Carrick [1894] 1 QB 838. Egger v Viscount Chelmsford [1965] 1 QB 248; Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211 at 254–5. Stefan Brands, ‘Secure User Identification Without Privacy Erosion’ (2006) 3 University of Ottawa Law and Technology Journal 205 at 208.

7. 8. 9.

10. 11. 12. 13. 14. 15. 16. 17. 18.

19. 20. 21. 22. 23.

24. 25. 26.

27. 28. 29. 30. 31. 32. 33. 34. 35. 36.

[2009] NSWSC 1219. Uniform Civil Procedure Rules 2005 (NSW) Pt 5 r 5.2(2)(a). See also Airways Corporation of NZ Ltd v Pricewaterhouse Coopers Legal [2002] NSWSC 138; Boniface v SMEC Holdings Ltd [2006] NSWCA 351; Smith v Williams [2006] EWHC 860; Gentoo Group Ltd v Hanratty [2008] EWHC 627. Flo Rida v Mothership Music Pty Ltd [2013] NSWCA 268 at [38]. Wakim v Criniti [2016] NSWSC 1723. MKM Capital Pty Ltd v Corbo (SC (ACT), Master Harper, 12 December 2008, unreported); Graves v West [2013] NSWSC 641 (via LinkedIn). Blaney v Persons Unknown (EWHC ChD, Lewinson J, October 2009, unreported). Macquarie Bank v Berg [1999] NSWSC 526; Flo Rida v Mothership Music Pty Ltd [2013] NSWCA 268 at [31]. Bacon v Automatic Inc [2011] EWHC 1072. 18 USC Chapter 121, 2701. Crispin v Christian Audigier Inc (Case No CV 09-09509-MMM-JEMx, United States District Court, CD California, 26 May 2010). The Author of a Blog v Times Newspapers Ltd [2009] EWHC 1358; Clift v Clarke (EWHC 18 February 2011, unreported); see also Totalise plc v The Motley Fool Ltd [2001] EMLR 29; Mitsui Ltd v Nexen Petroleum Ltd [2005] EWHC 625. [2008] EWHC 1781. Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133. Applause Store Productions Ltd and Matthew Firsht v Raphael [2008] EWHC 1781 at [10]. Applause Store Productions Ltd and Matthew Firsht v Raphael [2008] EWHC 1781 at [62]. Bloomsbury Publishing Group Plc v Newsgroup Newspapers Ltd [2003] 1 WLR 1633; X v Persons Unknown [2006] EWHC 2783; WER v REW [2009] EWHC 1029; G and G v Wikimedia Foundation Inc [2009] EWHC 3148; Terry v Persons Unknown [2010] EWHC 119. [2016] EWHC 1775. The Age Company Pty Ltd v Liu [2013] NSWCA 26; Liu v The Age Company Ltd [2012] NSWSC 12. Bret Wilson LLP v Persons Unknown, responsible for the operation and publication of the website www.solicitorsfromhelluk.com [2015] EWHC 2628; Smith v Unknown Defendant Pseudonym LikeICare [2016] EWHC 1775. Kerner v XY [2015] EWHC 178; [2015] EWHC 1247. AB Ltd v Facebook Ireland Ltd [2013] NIQB 14 at [1]; HL (a minor) by her father and next friend AL v Facebook Inc [2013] NIQB 25. [2012] IEHC 95. [2012] IEHC 95. Lamount v Dwyer [2008] ACTSC 125 at [3]; Bankruptcy Act 1966 (Cth) s 60. Re Newman; Ex parte Brooke (1876) 3 Ch D 494. Re W A Brown & Sons Pty Ltd [1964–65] NSWR 575. Bankruptcy Act 1966 (Cth) s 82. See Judiciary Act 1903 (Cth) s 64. Compare Commonwealth v Bogle (1953) 89 CLR 229 at 259, 260. Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575.

37. 38. 39. 40. 41.

42. 43.

44. 45. 46. 47. 48. 49.

50. 51. 52.

53. 54. 55. 56. 57. 58. 59. 60. 61. 62.

Law Reform (Miscellaneous Provisions) Act 1946 (NSW) s 5 and equivalent in other jurisdictions. Wynbergen v Hoyts Corporation Pty Ltd (1997) 149 ALR 25 at 29. [2006] NSWSC 1498 at [47]. Rinaldi v Cobbittee Publications Pty Ltd [2006] NSWSC 1498 at [49]. Uniform Civil Procedure Rules 2005 (NSW) Pt 5 r 5.2. See also Court Procedure Rules 2006 (ACT) r 650; Supreme Court Rules 1987 (NT) O 32.03; Uniform Civil Procedure Rules 1999 (Qld) r 229; Supreme Court Rules 2006 (SA) r 32; Supreme Court Rules 2000 (Tas) r 403C; Supreme Court (General Civil Procedure) Rules 1996 (Vic) O 32; Rules of Supreme Court 1971 (WA) O 26A r 3; Federal Court Rules 2011 (Cth) r 7.22. John Fairfax & Sons Ltd v Cojuangco (1988) 165 CLR 346 at 354; West Australian Newspapers Ltd v Bond [2009] WASCA 127 at [45]; Hatfield v TCN Channel Nine Pty Ltd [2010] NSWCA 69 at [105]. McGuinness v Attorney-General (Vic) (1940) 63 CLR 73 at 102–5; British Steel Corp v Granada Television Ltd [1981] AC 1096 at 1170, 1179–80; West Australian Newspapers Ltd v Bond [2009] WASCA 127 at [45]; Liu v The Age Company Ltd [2016] NSWCA 115 at [121]. Wran v Australian Broadcasting Corporation [1984] 3 NSWLR 241 at 252–3; West Australian Newspapers Ltd v Bond [2009] WASCA 127 at [60]–[70]. John Fairfax & Sons Ltd v Cojuangco (1988) 165 CLR 346 at 358. Kerrisk v North Queensland Newspapers Company Pty Ltd [1992] 2 Qd R 398. Thiess v TCN Channel Nine Pty Ltd (No 1) [1991] 2 Qd R 715. 17 & 18 Victoria c 125 s 51. Hennessy v Wright (1890) 24 QBD 445; Hope v Brash (1897) 2 QB 188; Plymouth Mutual Co-Operative & Industrial Society Ltd v Traders Publishing Association Ltd (1906) 1 KB 403; Lyle-Samuel v Odhams Ltd (1920) 1 KB 135. Liu v The Age Company Ltd [2016] NSWCA 115 at [121]. White & Co v Credit Reform Association and Credit Index Ltd [1905] 1 KB 653. Hollingsworth v Hewitt (1911) 13 CLR 20; Peat v Eley (1915) 32 WN (NSW) 96; Meyer v Humphries (1916) 33 WN (NSW) 126; Campbell v John Fairfax & Sons Ltd (1935) 52 WN (NSW) 154; Goodhew v Daniel Bros & Co Pty Ltd (1948) 65 WN (NSW) 133. Meyer v Humphries (1916) 33 WN (NSW) 126; Goodhew v Daniel Bros & Co Pty Ltd (1948) 65 WN (NSW) 133. Meyer v Humphries (1916) 33 WN (NSW) 126. (1954) 71 WN (NSW) 79. Re Calman and John Fairfax & Sons Pty Ltd (1954) 71 WN (NSW) 79 at 84. G Masterman, ‘The Sydney City Council (Disclosure of Allegations) Act 1953’ [1954] Sydney Law Review 24. Uniform Civil Procedure Rules 2005 (NSW) Pt 5 r 5.2. Uniform Civil Procedure Rules 2005 (NSW) Pt 5 r 5.3; see Papaconstuntinos v Holmes à Court [2006] NSWSC 945. Nagle v Chulov [2001] NSWSC 9; The Age Company Ltd v Liu [2013] NSWCA 26 at [52]–[53]. St George Bank Ltd v Rabo Australia Ltd (2004) 211 ALR 147; [2004] FCA 1360; Hatfield v TCN Channel Nine Pty Ltd [2010] NSWCA 69 at [124]. John Fairfax & Sons Ltd v Cojuangco (1988) 165 CLR 346 at 354–5; Liu v The Age Company Ltd [2016] NSWCA 115 at [123].

63. Liu v The Age Company Ltd [2016] NSWCA 115 at [123]. 64. Madafferi v The Age Company Ltd [2015] VSC 687 at [30]. 65. Wran v Australian Broadcasting Commission [1984] 3 NSWLR 241 at 252–3; Liu v The Age Company Ltd [2016] NSWCA 115 at [122]. 66. (1998) 165 CLR 346. 67. Re Application of Cojuangco [1986] 4 NSWLR 513 at 525. 68. Application of Eduardo Murphy Cojuangco (No 2) (SC (NSW), Hunt J, 6 January 1999, unreported), BC8902633. 69. Cojuangco v John Fairfax & Sons Ltd (No 2) [1990] ADef R 51-005. 70. West Australian Newspapers Ltd v Bond [2009] WASCA 127 at [88]–[90]. 71. [1990] VR 451. 72. See also Grove v Herald & Weekly Times Ltd (1991) A Def R 51-010; Kerrisk v North Queensland Newspapers Company Pty Ltd [1992] 2 Qd R 398; Hodder v Queensland Newspapers Pty Ltd [1994] 1 Qd R 49; MacNamara v Australian Broadcasting Corporation (1993) A Def R 51-085. 73. Madaferri v The Age Company Ltd [2015] VSC 687 at [67]. 74. [2014] NSWSC 400. 75. Bateman v Fairfax Media Publications Pty Ltd [2014] NSWSC 400 at [27]; see also Cowper v Fairfax Media Publications Pty Ltd [2016] NSWSC 1614. 76. [2012] NSWSC 12. 77. Liu v The Age Company Ltd [2012] NSWSC 12 at [154]–[156]. 78. Liu v The Age Company Ltd [2012] NSWC 12 at [159]–[160]; John Fairfax & Sons Ltd v Cojuangco [1987] 8 NSWLR 145 at [151]. 79. Liu v The Age Company Ltd [2012] NSWSC 12 at [168]. 80. Compare R v National Post [2010] ISCR 477. 81. Liu v The Age Company Ltd [2016] NSWCA 115 at [215]. 82. Liu v The Age Company Ltd [2016] NSWCA 115 at [219]. 83. Liu v The Age Company Ltd [2016] NSWCA 115 at [219], [223]. 84. Evidence Act 1995 (NSW) s 126K; Evidence Act 1995 (Cth) s 126K; Evidence Act 2008 (Vic) s 126K; Evidence Act 2011 (ACT) s 126K; Evidence Act 1906 (WA) s 20H. 85. Ashby v Commonwealth of Australia [2012] FCA 766 at [17]. 86. Evidence Act 1995 (NSW) s 131A. 87. Ultrasonic Slimming Pty Ltd v Fairfax Media Publications Pty Ltd [2013] NSWSC 547 at [19]. 88. Ultrasonic Slimming Pty Ltd v Fairfax Media Publications Pty Ltd [2013] NSWSC 547 at [21]. 89. [1959] 101 CLR 298. 90. Hancock Prospecting Pty Ltd v Hancock [2013] WASC 290 at [174]. 91. [2015] VSC 687. 92. Madaferri v The Age Company Ltd [2015] VSC 687 at [133]. 93. Riddick v Thames Board Mills Ltd [1977] QB 881. 94. Riddick v Thames Board Mills Ltd [1977] QB 881 at 896, 902 and 912; Church of Scientology of California v Department of Health & Social Security [1979] 1 WLR 723 at 735, 743 and 746; Kimberley Mineral Holdings Ltd (in liq) v McEwan [1980] 1 NSWLR 210 at 215–16. 95. Harman v Secretary of State for Home Department [1983] 1 AC 280 at 307; Hearne v Street (2008) 235

96. 97. 98. 99. 100. 101.

102. 103. 104. 105. 106.

CLR 125 at [96]. Re Marshall Bell Hawkins Ltd [2003] FCA 833 at [7]. Harman v Secretary of State for Home Department [1983] 1 AC 280. Registrar, Supreme Court of New South Wales v McPherson [1980] 1 NSWLR 688 at 694, 695; Miller v R L Polk & Co (Australia) Pty Ltd (SC (NSW), Hunt J, 4 July 1985, unreported), BC8500728. Allstate Life Insurance Co v Australia & New Zealand Banking Group Ltd (1995) 57 FCR 360 at 378–80; Sybron Corp v Barclays Bank plc [1985] Ch 299 at 327. Crest Homes Plc v Marks [1987] AC 829 at 854; Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576. Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 at 225; Minister for Education v Bailey (2000) 23 WAR 149; Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3 at [31]. Ainsworth v Hanrahan (1991) 25 NSWLR 155; Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 at 32–3. Uniform Civil Procedure Rules 2005 (NSW) Pt 21 r 21.7. Federal Court Rules r 20.03. Ainsworth v Burden (2003) 56 NSWLR 620. Compare Morgan v Mallard (2001) 216 LSJS 143. London Association for Protection of Trade v Greenlands Ltd [1916] 2 AC 15 at 20.

[page 255]

CHAPTER 14 PRIVACY INTRODUCTION TECHNOLOGICAL CHANGE — WIRELESS RIGHT TO PRIVACY RECOGNISED CAUSES OF ACTION FREEDOM OF OBSERVATION MISUSE OF PRIVATE INFORMATION LENAH GAME MEATS INVASION OF PRIVACY A COMMON LAW TORT A STATUTORY TORT RIGHTS OF ROYAL CONFIDENCE

14.1 14.2 14.3 14.4 14.5 14.6 14.7 14.8 14.9 14.10 14.11

INTRODUCTION 14.1 There must have been a moment, in the course of time, when people first realised that they were naked. It was at that moment that they sensed a need for privacy and began to hide their nakedness. According to Biblical tradition, that moment came in the Garden of Eden when Adam and Eve took the fateful bite from the fruit of the forbidden tree. The fruit gave them the knowledge of ‘what was good and what was evil’. They then became aware of their nakedness and sewed fig leaves together to cover themselves.1 According to evolutionary theory, the realisation may have come when our ancestors lost the fur on their backs and needed to cover up, probably not so much through modesty but through cold.

There was a similar epiphany no doubt when they discovered that sex was not just instinctive but pleasurable, to be engaged in privately. While Eve, for her part in [page 256] committing the original sin, was inflicted with the pain of childbirth,2 Adam realised that Eve was not just a spare rib. That ancient realisation of privacy still guides our community behaviour today. What is considered private may, however, differ between cultures, religions, genders and age groups. In 1764, Blackstone in his Commentaries on the Laws of England noted that the law accepted that a man’s house was his castle and that his house was entitled to be protected from ‘eaves droppers and nuisancers’.3 However, this was a statement of the right to private property rather than a right to privacy. In 1890, the Harvard Law Review published an article by Samuel D Warren and Louis D Brandeis titled ‘The Right to Privacy’.4 They argued, from English and American cases in the areas of property, copyright, trusts and contract, that the common law implicitly recognised a right of privacy. They argued that invasions of privacy subjected a person to mental pain and distress far greater than could be inflicted by mere bodily injury and that people needed to be protected: The press is overstepping in every direction the obvious bounds of propriety and of decency. Gossip is no longer the resource of the idol and of the vicious, but has become a trade, which is pursued with industry as well as effrontery. To satisfy a prurient taste the details of sexual relations are spread broadcast in the columns of the daily papers …5

Their argument was rejected by the courts initially6 but gained acceptance in the United States during the course of the twentieth century with the advance of technology. In our time we have seen the obsessive pursuit of celebrities and public figures, with the pursuers intent on intruding upon privacy and exposing that which lies beneath. We have also seen the mass adoption of social media and the misuse of private information that that can facilitate. The common law has struggled to establish a legal right to protect a person’s

privacy from that intrusion, let alone to establish a balance between what should remain private and what should be made public. The common law of Australia, as developed by the courts, has not clearly recognised a legal right to privacy. That is not to say that no such right exists, rather that there are conflicting views expressed by different courts as to whether the right exists at law or not. In that context, Australian courts may proceed to recognise this right in the absence of statutory reform. [page 257] If the common law has otherwise provided any protection for privacy, it has been incidental to laws which provide protection for other rights such as property and personal security. A breach of these rights at common law amounts to a tort, that is, a ‘wrong’, for which damages may be payable. Equity protects intellectual property rights and confidential information. The courts in the United Kingdom have extended protection against the misuse of personal information in certain circumstances with reference to the rights under the European Convention on Human Rights.7

TECHNOLOGICAL CHANGE — WIRELESS 14.2 The question of whether a cause of action for breach of privacy exists at common law in Australia was raised for the first time in 1937 in the High Court in Victoria Park Racing and Recreation Grounds Company Ltd v Taylor.8 With the advent of ‘wireless’ or radio in the 1930s, the High Court considered that, although it might be desirable that there be some limitation upon invasions of privacy, no general right of privacy existed.9 This remained the settled position until the issue was re-opened in the 1990s. The case concerned a plaintiff company (Victoria Park) which owned a racecourse. A fence was erected around the course, up to four metres high, to prevent members of the public watching the race without payment of an admission fee. Across the road a Mr Taylor owned land on which he permitted

a radio station, Radio 2UW, to erect a scaffold five metres high with an observation platform. From there 2UW broadcast a call of the races held on the plaintiff’s racecourse. Victoria Park sought an injunction restraining Taylor from allowing his land to be used for this purpose, and 2UW from broadcasting descriptions of race meetings. Victoria Park claimed that the broadcasting was intended to cause, and had caused, a large number of people, who would otherwise have attended the race meetings and paid for admission to the racecourse, to listen to the ‘wireless’ broadcast description of the races. Victoria Park argued that the defendants’ actions had deprived it, at least in part, of the use of its land for a racecourse and that therefore this was a case of nuisance, as an unlawful interference with the use and enjoyment of land. Chief Justice Latham said that the court had not been referred to any principle of law which prevented a person from describing anything which the person sees anywhere if the person does not make defamatory statements, infringe the law as to offensive language, breach a contract or wrongfully disclose confidential information.10 The law [page 258] did not by injunction erect fences (in effect) which the plaintiff itself was not prepared to provide. Victoria Park also argued that the law recognised a right of privacy. Chief Justice Latham noted that, however desirable some limitation upon invasions of privacy might be, no authority was cited which showed that any general right of privacy existed.11 The High Court majority was 3:2. Justice Rich (in the minority) took the view that merely because a precedent could not be found, it did not follow that a principle did not exist to support the plaintiff’s right of privacy. He said (notably in 1937) that: … the prospects of television make our present decision a very important one, and I venture to think that the advance of that art may force the courts to recognize that protection against the complete exposure of the doings of the individual may be a right indispensable to the enjoyment of life.12

RIGHT TO PRIVACY 14.3 Privacy has been accepted internationally as one of the most basic human rights and is recognised in Article 17 of the International Covenant on Civil and Political Rights 1966 (ICCPR).13 Commonwealth legislation has been passed for the protection of data and information collected by government and business.14 In the United Kingdom, the right is recognised in Article 8 of the European Convention on Human Rights. Pursuant to the Human Rights Act 1998 (UK), English courts are required to give appropriate effect to the rights recognised under the European Convention. In the United States, there is a recognised right to privacy which owes its genesis, it is generally acknowledged, to the article published by Warren and Brandeis in 1890, ‘The Right to Privacy’.15 The United States common law developed the right to privacy to cover the following acts interfering with the right of the plaintiff ‘to be let alone’: (a) intrusion upon the plaintiff’s seclusion or solitude, or into their private affairs; (b) public disclosure of embarrassing private facts about the plaintiff; (c) publicity which places the plaintiff in a false light in the public eye; and (d) appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness.16 [page 259]

RECOGNISED CAUSES OF ACTION 14.4 In the absence of a common law right to privacy in Australia and in the absence of legislative reform, people have turned to rights under other recognised causes of action for protection such as the law of: (a) trespass to person (assault/battery) or trespass to property;17 (b) nuisance;18

(c) defamation;19 (d) breach of confidence;20 (e) statutory rights prohibiting listening devices,21 telephone interception22 or optical surveillance; (f) copyright or other intellectual property rights;23 (g) data processing under the Privacy Act 1988 (Cth) (the media is exempt); (h) misleading or deceptive conduct under the Competition and Consumer Act 2010 (Cth)24 (again, the media is exempt); (i) statutory rights under anti-discrimination legislation for sexual harassment, homosexual vilification or racial vilification.

FREEDOM OF OBSERVATION 14.5 Observation in our daily lives is free and uninhibited, dependent upon our ability to see and hear. Observation provides the foundation for much of our speech and it can be argued that the freedom to observe is just as important as freedom of speech with all the same concerns about restraint and censorship. [page 260] The need or compulsion to observe others is not new. ‘People watching’ is a familiar and popular activity from the cafés on the streets of Paris. Chairs seated facing outwards enable patrons to watch passers by. Activity of those in a public place, seen by the naked eye, can be observed freely.25 The random eye witness is often the most independent verification of the truth of events that we have. The limits on observation have had more to do with custom and morality than law traditionally but as observation becomes more assisted by technology or more covert, the law has been required to adapt to restrict the activities over which observation may freely be made. To the extent that the law does not prohibit it, the observation of people, their

activities, their communications and their personal information remains ‘free’. Laws against spying, cybercrime and child pornography, for example, provide reasons for society to limit the freedom. The common law in Australia has had difficulty in recognising a right to privacy because of the lack of precedent and has had difficulty in adapting to new advances in technology which the law has not anticipated within known or existing conditions. The law has historically protected property rights. This is reflected in the law, for example, prohibiting a person ‘in, on or near a building’ without reasonable cause with intent to peep or pry upon another person.26 There is an indirect protection for a person’s privacy in that instance but it relates to the physical object of a building. The law of trespass relates to physical interference with a person’s property or a person’s body by way of the torts of trespass to land and trespass to person (assault and battery). Where there is a physical element of interference with a person’s property or body, the law will indirectly protect the person’s privacy and provide a remedy if the physical interference takes place. There is no common law recognition of a right to the protection of a person’s private or personal information. Information is not a physical or tangible thing. Rights of this nature, however, can exist in equity as equitable rights, where confidential information used without authority has led to the development of the law to protect confidences.27 Those who breach or threaten to breach the confidence of another can be brought to equity and be subject to equitable remedies designed to stop them from engaging in such conduct or profiting from it. [page 261] In the United Kingdom, as a result of the adoption of the European Convention on Human Rights under the Human Rights Act 1998, the action for breach of confidence has developed to include an action in tort for ‘misuse of private information’.28

In Australia, the action for breach of confidence is well established and has been applied in circumstances where a videotape of a couple’s sexual activities was released by one of them as revenge for the breakup of the relationship.29 The cases in Australia and the United Kingdom have in general concerned disclosure of private information. This is to be expected because disclosure is usually the point at which damage is sustained through the person’s embarrassment and distress at knowing that others are aware of their private information. The collection or observation of that personal information has often taken place much earlier and remains undetected by the person concerned. Max Mosley has argued that there is a duty on the media to warn a person of the prospect of disclosure in order to give the person, in all fairness, the opportunity to seek protection of that private information by way of injunction through the courts. The European Court of Human Rights has refused to accept that proposition as a matter of principle.30 Nevertheless, it is worth identifying the means of collection of private information prior to disclosure or threatened disclosure in Australian and United Kingdom cases: (1) Contractual relationship — by reason of the duties of an employee or agent, he or she is granted access or unrestricted observation of an employer’s or principal’s information or activities;31 or vice versa;32 (2) Sexual relationship — parties to the relationship share private activity which may be recorded;33 (3) Lawful observation for a legitimate purpose but the use of the information is inconsistent with that purpose;34 (4) Unlawful observation — through surveillance or trespass of property, record is made of private information without the knowledge or consent of the person targeted;35 [page 262] (5)

Private places — photography of persons in a private setting or area restricted from the public;36

(6)

Public places — camera or surveillance device may collect private information about a person without their knowledge or consent in a public place.37

MISUSE OF PRIVATE INFORMATION 14.6 In 1994 the Supreme Court of Victoria determined that a general right of privacy was not recognised by the law in Australia.38 In that case, Tom Cruise and Nicole Kidman applied for an injunction to restrain the publication of photographs of one of their adopted children in New Idea magazine. Photographs of the child with Cruise and Kidman had been taken at a small family gathering and were purchased by New Idea from an unidentified source. The injunction was sought to restrain publication on the basis that the photographs had been stolen or illegally obtained, that their publication would be in breach of confidence, that they were defamatory in that members of the public might believe that Cruise and Kidman had placed them in the magazine for publicity for their child, or that publication would be in breach of copyright. Justice Gray refused the injunction, but expressed his great sympathy for the applicants and their desire to maintain their family privacy. Cricketer Shane Warne made a similar application in 1996 which also failed.39 The position was similar in England. The English Court of Appeal held in 1991 that there was no enforceable right to personal privacy in English law, but called for the introduction of privacy legislation.40 In GS v News Ltd41 the plaintiff asserted a cause of action for breach of the ‘human right to privacy’ under Article 17 of the ICCPR and its adoption under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) s 47. The New South Wales Court of Appeal had previously noted that this Act would be construed by a [page 263] court in a way to ensure, so far as appropriate, that it carried into effect

Australia’s obligations under international law.42 Justice Levine observed that the case focused: … upon the simple relationship between an individual in the community to whom reference is made in the media and the media itself as a component of society, its accountability, the astonishing power of the technology available to it for the dissemination of information and the immediacy thereof.43

He held that the present application was not an appropriate vehicle for the resolution of the law, if it existed, in relation to the right to privacy as understood in the community generally. He stressed, however, that this did not amount to a finding as a matter of law that there was no ‘human right to privacy’ or no independent discrete right arising from an infringement of ‘a human right to privacy’.44 In Donnelly v Amalgamated Television Services Pty Ltd45 Hodgson J granted an injunction in the Supreme Court of New South Wales, restraining a television station from broadcasting a video recording made of the plaintiff in his mother’s home. The plaintiff had been arrested and charged with offences involving the use of a telephone to menace or harass other persons. He had pleaded guilty to the charges and was awaiting sentence. In the course of their investigations, the police had executed a search warrant at the plaintiff’s mother’s home. A video was taken inside the house by the police when the police gained access pursuant to the warrant. The video was not shown in court in the prosecution of the plaintiff or otherwise made public. Channel Seven used an excerpt from the video to advertise an upcoming segment on Today Tonight. It showed the plaintiff in his underpants in his bedroom in his mother’s house and a police officer saying to the plaintiff ‘you are under arrest’. It was clear that the television station had obtained the video from the police, although there was no evidence as to precisely how that had happened. Justice Hodgson considered that, while the police had the power to enter private premises and take video for the purpose of exercising a search warrant and/or arrest, the use of the video for a purpose other than that for which it was intended could be restrained as an abuse of the exercise of that power. Accordingly, if the police in exercising powers under a search warrant entered private property and obtained documents containing valuable confidential information, they could in a proper case be restrained on the

application by the owner of the documents from later using that information to their own advantage or to the disadvantage of the owner, or passing the information on to other persons for them to use in that way. Those other persons could likewise be restrained if they knew the circumstances of the acquisition of the information by the police. Justice Hodgson considered that the same principle applied to material obtained which was gratuitously humiliating rather than confidential, particularly where [page 264] there was no basis put forward to suggest that the dissemination of the material was required for the legitimate purpose of publicising the investigation, prosecution or disposal of the criminal matter. This plaintiff was in a particularly difficult position for it to be suggested that damages would be an adequate remedy. The plaintiff’s reputation was already damaged by conviction and sentence and there would be gratuitous public humiliation in the broadcast of the material. An injunction was granted to restrain the publication of the ‘images and sound-recording of the plaintiff in the home of his mother’. In 2000 a news story appeared in the Sydney Morning Herald under the headline ‘The Billionaire, His Lover, Their Nanny and Her Hush Money’. Channel Nine proposed to broadcast the story on A Current Affair. The mistress sought an injunction to restrain the broadcast on the basis that the information was obtained in breach of a duty of confidentiality owed by a former nanny who had been employed by the plaintiff. The plaintiff did not rely upon a cause of action in privacy, but upon a breach of a duty of confidentiality arising in contract with a person engaged for domestic service, and upon an equitable obligation to keep matters confidential in the absence of an express contractual provision. Justice Austin observed that the law will hold domestic employees to their contractual promises not to disclose private information and will impose a duty of confidentiality in some cases even if no promise has been made. He said: People are entitled to choose not to live their lives in the spotlight, however rich they may be and however they may conduct their sexual relationships and discharge their parental responsibilities.

The fact that their lifestyle may be interesting or titillating to the public, or the subject of envy or gossip or scandal, does not oblige them to justify themselves to the media. Nor does it entitle their employees to disregard their duties by disclosing the employers’ personal, private information to the media. Where the subject of disclosure is private conduct, newsworthy only because of the wealth and lifestyle of those involved, there is no overriding public interest which demands disclosure.46

His Honour found that in this case the actual contract of employment was not sufficiently clear to protect the information from disclosure, but since a person engaged for domestic service was subject to an implied contractual or equitable obligation to keep certain matters confidential, the injunction was granted. At the time of this decision, an appeal was pending in the High Court of Australia from the Supreme Court of Tasmania, which had granted an interlocutory injunction to restrain the Australian Broadcasting Corporation from broadcasting a television program about the processing of possum meat for export. Trespassers had filmed the killing of Tasmanian brush tail possums within the premises of an abattoir run by Lenah Game Meats and supplied the footage by a third party to the Australian Broadcasting Corporation. This was the first opportunity for the High Court to review its decision in Victoria Park and will be considered in 14.7. In the meantime, English law changed direction as it became governed by the Human Rights Act 1998 (UK) and the application of the European Convention [page 265] on Human Rights. The following sequence sets out the development of the cause of action for misuse of private information in the United Kingdom. In 2000 film stars Michael Douglas and Catherine Zeta-Jones held their wedding at the Plaza Hotel in New York. They contracted to give OK! magazine exclusive rights to the coverage of the wedding for £1 million. Extensive security arrangements were put in place to ensure that access to the ceremony and reception would be limited to family members and friends who had been invited, and the staff employed by the hotel, all of whom had been put on notice or on terms to keep the wedding confidential. The wedding couple selected their own photographers to take the pictures and retained control over the selection of the pictures to be released to OK!

Unknown to those present, a freelance photographer found his way in and surreptitiously took a number of photographs which he sold for publication to rival magazine Hello! for £125,000. Douglas, Zeta-Jones and OK! obtained an interim injunction in England to restrain publication of the photographs. On appeal, the Court of Appeal accepted that although there was a right of personal privacy, and in this case breach of confidence, it lifted the interim injunction pending a final hearing and allowed Hello! to publish the photographs.47 Lord Justice Sedley48 considered that English law had reached the point ‘at which it can be said with confidence that the law recognises and will appropriately protect a right of personal privacy’. The basis upon which it could do so was that equity and the common law were now in a position to respond to an increasingly invasive social environment by affirming that everybody has a right to some private space and that, in any event, the Human Rights Act 1998 (UK) required the courts of England to give appropriate effect to the right to respect for private and family life set out in Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms: What a concept of privacy does, however, is accord recognition to the fact that the law has to protect not only those people whose trust has been abused but those who simply find themselves subjected to an unwanted intrusion into their personal lives. The law no longer needs to construct an artificial relationship of confidentiality between intruder and victim: it can recognise privacy itself as a legal principle drawn from the fundamental value of personal autonomy.49

Lord Justice Keene50 accepted that in the current state of English law a duty of confidence could arise from the circumstances in which the information was obtained, so that Hello! as the recipient was precluded from disclosing it to others, and if the case concerned a truly private occasion, this would be appropriate. He held, however, that in this case it was not a purely private wedding warranting protection, as the claimants had chosen to lessen the degree of privacy attaching to the occasion, which had to be balanced against the impact on the defendants of an injunction restraining publication and prior restraint. In such a case damages could adequately compensate them. [page 266] Lord Justice Brooke51 considered that the unauthorised images were taken on this private occasion in breach of a duty of confidence arising from the effort

made by the claimants to inform everyone who entered the hotel that the occasion had characteristics of confidentiality. The photographs therefore constituted confidential information as to what happened at the wedding and wedding reception. However, if (as was later shown to be the case) the photographer was an intruder with whom no relationship of trust or confidence had been established, the court had to consider whether the law of privacy applied in circumstances where the photographs had been taken surreptitiously, in which the photographer would be taken to have known that the occasion was a private one, and taking of photographs by outsiders was not permitted. His Honour said that if on some private occasion the prospective claimants make it clear, expressly or impliedly, that no photographic images are to be taken of them, then all those who are present will be bound by the obligations of confidence created by their knowledge (or imputed knowledge) of this restriction. Lord Justice Brooke said that English law had not yet been willing to recognise that an obligation of confidence may be relied upon to preclude such unwarranted intrusion into people’s privacy when those conditions did not exist. It was therefore a matter of balancing the respective rights available to the plaintiffs and the defendants under the Human Rights Act 1998 (UK). The existence of those statutory provisions, coupled with the wording of the relevant privacy code, meant that in any case where the court was concerned with issues of freedom of expression it was bound to pay particular regard to any breach of the rules set out in the privacy code, especially where none of the public interest claims set out in the preamble to the code were asserted. Accordingly, a newspaper which flouted the code was likely in those circumstances to have its claim to an entitled right to freedom of expression ‘trumped’ by the right to privacy. At the final hearing the trial judge, Lindsay J, held that the photographs were a kind of commercial confidence or trade secret, that the defendants had acted unconscionably, and that by reason of breach of confidence they were liable to the extent of the detriment suffered by the claimants. He declined to hold that there was an existing law of privacy under which the claimants were entitled to relief, leaving that issue to be resolved by parliament. In his view the claimants would not, even if there were a law of privacy, be able to make any recovery greater than that which was open to them under the law of confidence.52

Justice Lindsay applied the necessary components of a successful claim for breach of confidence, collected by Megarry J in Coco v AN Clark (Engineers) Ltd:53 (a) the information itself must have the necessary quality of confidence about it; [page 267] (b) the information must have been imparted in circumstances importing an obligation of confidence; and (c) there must be an unauthorised use or misuse of that information to the detriment of the party communicating it. OK! magazine was awarded in excess of £1 million as compensation for loss of revenue from the sales it might otherwise have expected. Douglas and ZetaJones were awarded a mere £3,750 each for distress and £7,000 for additional costs incurred by having to authorise the photographs to appear early in OK! magazine.54 In A v B plc55 A was a footballer with an English Premier League football club. C was one of two women with whom A, who was a married man, had had affairs. C and another woman, D, had sold the story of their affairs to B, a national newspaper. A obtained an interim injunction restraining the newspaper from publishing the stories in order to prevent his wife learning of his adultery. The judge, in granting the interim injunction, had held that the protection of confidentiality which applied to sexual relations in marriage should, in the context of modern sexual relations, also be applied outside marriage. The English Court of Appeal considered the fact that the injunction was being sought to protect the privacy of the claimant, and that without it he might be deprived of the only remedy which would be of any value. This was a relevant consideration, but had to be weighed against the newspaper’s right to freedom of expression. The court set out a number of guidelines which are intended to assist the judiciary and parties to deal with the majority of applications for interim injunctions.56 The court considered it was most unlikely that any purpose would be served by a judge seeking to decide whether there

existed a new cause of action in tort which protected privacy. In their view an action for breach of confidence would, where this was appropriate, provide the necessary protection. Accordingly, the court held that the law as to confidentiality was reasonably clear, as was the need for the existence of a confidential relationship: A duty of confidence will arise whenever the party subject to the duty is in a situation where he either knows or ought to know that the other person can reasonably expect his privacy to be protected … If there is an intrusion in a situation where a person can reasonably expect his privacy to be respected then that intrusion will be capable of giving rise to liability in an action for breach of confidence unless the intrusion can be justified … [W]here the information relates to a situation where there is a sexual relationship between two parties, and one of the parties informs the media about the relationship without the consent of the other party … the conflict between one party’s right to privacy and the other party’s right to freedom of expression is especially acute.57

[page 268] In Campbell v Mirror Group Newspapers Ltd58 the English Court of Appeal held that, provided publication of particular confidential information was justified in the public interest, the publisher would be given a reasonable latitude as to the manner in which the information was conveyed to the public, and that that would not amount to a breach of the duty of confidence. Naomi Campbell, an internationally famous fashion model, said in interviews with the media that she did not take drugs, stimulants or tranquillisers. This was untrue. She had in fact become addicted to drugs, on one occasion entering a clinic and being treated for drug abuse. Campbell brought an action against the Daily Mirror for disclosing that she was a drug addict and was receiving therapy with Narcotics Anonymous. She sued for breach of confidence and/or invasion of privacy. At the trial she did not pursue the claim for breach of privacy, but relied upon breach of confidence. The trial judge awarded her £2,500 (plus £1,000 in aggravation) on the basis that, although the newspaper was entitled to publish the fact that she was a drug addict and was receiving treatment for her addiction, it was not entitled to publish the additional information conveyed by the newspaper articles and photographs.

The Court of Appeal held that, where a public figure chooses to make untrue pronouncements about his or her private life, the press would normally be entitled to put the record straight. However, the court noted that the fact that an individual has achieved prominence on the public stage does not mean that the person’s private life can be laid bare by the media. The court accepted that some categories of information are well recognised as confidential, including details of a medical condition or treatment. The court took the view that it was not obvious that the peripheral disclosure of Campbell’s attendance at Narcotics Anonymous was, in its context, of sufficient significance to shock the conscience of the ordinary person, and was not sufficiently significant to amount to a breach of duty of confidence owed to her. The court also held that, provided the publication of particular confidential information is justifiable in the public interest, the publishers must be given reasonable latitude in the manner in which that information is conveyed to the public. In Wainwright v Home Office59 the House of Lords declared that there was no common law tort of invasion of privacy. Lord Hoffmann observed that there was a great difference between identifying privacy as a value that underlay the existence of the rule of law similar to freedom of speech as a value (which might point the direction in which the law should develop) and privacy as a principle of law in itself. The case concerned a strip search of the plaintiffs who had gone to visit a relative in prison. The search had not been conducted in accordance with the prison rules and was carried out in a manner which was calculated (in an objective sense) to humiliate and cause distress to the plaintiffs. To the extent that there was physical touching of the plaintiffs, there was a battery, a trespass at common law.60 It remained to be decided at [page 269] common law whether the publication of words calculated to cause physical (including psychiatric) harm or intended to cause distress entitled the recipient to compensation.61 Lord Hoffmann interpreted the observations of Sedley LJ in Douglas v Hello! Ltd62 as not advocating the creation of a high level principle of invasion of

privacy, but rather a plea for the extension and possible renaming of the old action for breach of confidence. This was an area which required a detailed approach to be achieved only by legislation rather than ‘the broad brush of common law principle’.63 Subsequently, the House of Lords was asked to review the decision in Campbell v Mirror Group Newspapers Ltd (above). By a 3:2 majority, the House of Lords held that the Daily Mirror had breached a confidence in the circumstances.64 Their Lordships were in agreement that the cause of action for breach of confidence was not constrained by the need for proof that there was a confidential relationship. Instead, the law imposes a ‘duty of confidence’ whenever a person receives information he or she knows or ought to know is fairly and reasonably to be regarded as confidential. Indeed, the cause of action would be better known as ‘misuse of private information’ as the information about an individual’s private life is ‘private’ rather than ‘confidential’. Having regard to the protection of freedom of expression, the touchstone of private life to be protected by the courts is whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy. Their Lordships, however, differed as to whether the details of Campbell’s treatment and the photographs of her leaving a meeting of Narcotics Anonymous with other addicts was a misuse of this private information, a majority holding that the publication of the information amounted to a ‘breach of confidence’. The case of Douglas v Hello! Ltd went on appeal. Hello! contended that the Douglases had no cause of action for breach of confidence or privacy as a result of the publication of the unauthorised photographs.65 The Court of Appeal held that, in so far as private information is concerned, the cause of action formerly described as breach of confidence was the appropriate vehicle, although the court found it unsatisfactory ‘to be required to shoehorn within the cause of action of breach of confidence claims for publication of unauthorised photographs of a private occasion’.66 Applying the general principles for the creation of a duty of confidence, the first requirement was that the information should be confidential in nature and the second was that it should have been imparted in circumstances importing a duty of confidence. The second requirement is not necessary if it is plain that the information is confidential or private. In the court’s view, ‘private information’

must include information that is personal to the person who possesses it and that he or she does not intend shall be imparted to the general public. [page 270] The nature of the information, or the form in which it is kept, may suffice to make it plain that the information satisfies these criteria.67 Special considerations attach to photographs: [Photographs] are not merely a method of conveying information that is an alternative to verbal description. They enable the person viewing the photograph to act as a spectator, in some circumstances voyeur would be the more appropriate noun, of whatever it is that the photograph depicts. As a means of invading privacy, a photograph is particularly intrusive. This is quite apart from the fact that the camera, and the telephoto lens, can give access to the viewer of the photograph to scenes where those photographed could reasonably expect that their appearances or actions would not be brought to the notice of the public.68

The Court of Appeal held that photographs of the wedding plainly portrayed aspects of the Douglases’ private life and fell within the protection of the law of confidentiality as extended to cover private or personal information. It was clear that those acting for Hello! knew that the information depicted by the unauthorised photographs was fairly and reasonably to be regarded as confidential or private.69 Hello! had argued that once the Douglases had committed themselves by the OK! contract to putting photographs of the wedding into the public domain, it was no longer possible for them to claim that the events at the wedding were private or confidential. The Court of Appeal observed that, in general, once information is in the public domain it will no longer be confidential or entitled to the protection of the law of confidence, but this may not always be true and the same applies to private information of a personal nature. Once intimate personal information about a celebrity’s private life has been widely published it may serve no useful purpose to prohibit further publication. The same, however, is not necessarily true of photographs. There may be a fresh intrusion of privacy when each additional viewer sees the photograph by enabling the viewer to focus on intimate personal detail: To take an example, if a film star were photographed, with the aid of a telephoto lens, lying naked by her private swimming pool, we question whether widespread publication of the

photograph by a popular newspaper would provide a defence to a legal challenge to repeated publication on the ground that the information was in the public domain.70

The court said that a photograph is not to be treated simply as a means of conveying factual information. It can capture every detail of a momentary event in a way which words cannot, but a photograph can also portray, not necessarily accurately, the personality and the mood of the subject of the photograph. Further, the objection to the publication of unauthorised photographs taken on a private occasion is not simply that the images that they disclose convey secret information or impressions that are unflattering. It is that they disclose information that is private. The offence is caused [page 271] because what the claimant could reasonably expect would remain private has been made public. The intrusion into the private domain is of itself objectionable. However, to the extent that an individual authorises photographs taken on a private occasion to be made public, the potential for distress at the publication of other, unauthorised, photographs taken on the same occasion will be reduced, but this is relevant when considering the amount of damages.71 It does not, however, provide a defence to the claim brought under the law of confidence for the publication of unauthorised photographs. The Douglases did not challenge the sum of £3,750 awarded to them in respect of the distress caused by the unauthorised photographs and the Court of Appeal noted that there was no ground for interfering with this head of damage.72 Since the European Convention on Human Rights came into force in the United Kingdom, the courts have been influenced by Article 8 of the Convention and by the Strasbourg jurisprudence interpreting that Article.73 English courts engage in a two-part balancing exercise when considering a case involving the unlawful publication of private information. The court first establishes whether the information is private ‘in the sense that it is in principle protected by Article 8’ and if so, the court then asks ‘in all the circumstances,

must the interests of the owner of the private information yield to the right of freedom of expression conferred on the publisher by Article 10?’74 When considering the first question, the person alleging a breach of Article 8 must establish that interference with private life was of ‘some seriousness’ before Article 8 applies.75 In considering the second question, neither Article 8 nor Article 10 of the Convention has precedence over the other. The balancing test is considered in the context of the facts of the particular case. The court must take into account the justification for interfering with or restricting each right and the proportionality test must be applied to each.76 In Von Hannover v Germany77 Princess Caroline of Monaco brought an action against German magazines for publishing photographs of her with her children, on holidays and at a restaurant. The court recognised the ‘fundamental importance of protecting private life from the point of view of the development of every human being’s personality’.78 The court noted that the protection ‘extends beyond the private [page 272] family circle and also includes a social dimension … anyone, even if they are known to the general public, must be able to enjoy a “legitimate expectation” of protection of and respect for their private life’.79 The issue of when photographs may be taken of persons engaged in everyday activities outside their homes was considered in Murray v Express Newspapers plc.80 The plaintiff, also known as J K Rowling (the author of the Harry Potter books), and her husband brought proceedings against a photo agency on behalf of their 18-month-old son. Covert photographs had been taken by the agency of the couple and their son on a public street in Edinburgh. The photograph was published in a newspaper and showed her son’s face. The plaintiffs claimed the photograph breached their son’s right to privacy and that its publication was a misuse of private information. The case was dismissed before trial but on appeal, the English Court of Appeal found that the child had a right to privacy distinct from that of his parents and overturned the order striking out the action. The court said that

routine acts such as a visit to a shop or a ride on a bus, depending on the circumstances, could attract a reasonable expectation of privacy.81 In a similar case at about this time, the Court of Appeal of New Zealand in Hosking v Runting82 was asked to consider the publication of photographs of 18month-old twins taken in a public street. The parents were a ‘celebrity’ couple and applied to restrain New Idea from publishing the photographs. The court held by a 3:2 majority that there was in the common law of New Zealand a tort of invasion of privacy where there were facts in respect of which there was a reasonable expectation of privacy, and publicity given to those private facts would be considered highly offensive to an objective reasonable person. The majority judges also held that there should be available a defence enabling publication to be justified by a legitimate public concern in the information. Applying the principles to this case, the court held that the parents and the children did not have a reasonable expectation of privacy as the photographs were taken in a public place and there was no evidence to suggest there was a serious risk to the children if publication occurred. Also the publication of the photographs would not be highly offensive or objectionable to a person of ordinary sensibilities, even bearing in mind that young children were involved. It was therefore unnecessary to consider whether a defence that there was a legitimate public concern in publishing the photographs was available. In another case,83 the children of a well-known musician and former band member of ‘The Jam’ and ‘The Style Council’, Paul Weller, brought an action for misuse of private information against Associated Newspapers Ltd which had published photographs of Mr Weller and his children shopping and relaxing in a café. The eldest [page 273] child was 16 at the time while the two other children, who were twins, were aged 10 months. The court held that the children had a reasonable expectation of privacy in relation to the unpixelated images of their faces contained in the photographs and awarded the eldest child £5,000 and each of the twins £2,500. In the English Court of Appeal, the court held that a child does not have a separate right to

privacy merely by virtue of being a child. However, although the broad approach that must be adopted to answer a question whether there is a reasonable expectation of privacy is the same for children and adults, there are several considerations which are relevant to children (but not to adults) which may mean that in a particular case a child has a reasonable expectation of privacy where an adult does not. In the case of children (as in the case of adults), all the circumstances of the case should be taken into account when deciding whether there is a reasonable expectation of privacy. These factors include the attributes of the child, the nature of the activity and the place where it happened, the nature and purpose of the intrusion, whether there has been any consent, and the effect on the claimant.84 The court observed that the fact that a child had the right to an expectation of privacy did not automatically mean the rights as to public interest would be trumped by the need to consider the best interests of a child. While a child may have a reasonable expectation of privacy, it did not mean that they have a guarantee of privacy. The balancing exercise must always be undertaken in children’s cases as in adult cases.85 Even though a child’s right is not a trump card in the balancing exercise, the best interests of a child means that where a child’s interests would be adversely affected, they must be given considerable weight. The court does not necessarily require evidence of the harm that may be caused to a child by an invasion of privacy, but it makes the judgement applying common sense and its own experience.86 The Court of Appeal upheld the decision that the children had a reasonable expectation of privacy in the photographs and the balance was clearly in the children’s favour. In Mosley v News Group Newspapers Ltd,87 the News of the World published in its newspaper and on its website an article ‘F1 Boss Has Sick Nazi Orgy With 5 Hookers’. It said Mosley was a ‘secret sadomasochist sex pervert’ who had been secretly filmed ‘romping with 5 hookers at a depraved NAZI-STYLE orgy in a torture dungeon’. It said that he barked orders in German as he lashed girls wearing mock death camp uniforms and enjoyed being whipped until he bled. The source for the story provided photographs and video recordings, taken without Mosley’s knowledge. The court noted that under equitable principles, the Human Rights Act 1998 and the European Convention on Human Rights, the law affords protection to information in respect of which there is a

reasonable expectation of privacy, even in circumstances where there is no preexisting relationship giving rise of itself to an enforceable duty of confidence. [page 274] The law is concerned to prevent the violation of a citizen’s autonomy, dignity and self-esteem.88 The court found that generally anyone indulging in sexual activity is entitled to a degree of privacy, especially if it is on private property and between consenting adults (paid or unpaid).89 The court also observed that, in the ordinary way, those who participate in sexual or personal relationships may be expected not to reveal private conversations or activities, notwithstanding the nature of the activities in this case. The court said that people’s sex lives are to be regarded as essentially their own business provided at least that the participants are genuinely consenting adults and there is no question of exploiting the young or vulnerable.90 If there is a reasonable expectation of privacy, the court said that it is required to carry out the next step of weighing any relevant competing Convention rights in the light of an ‘intense focus’ upon the individual facts of the case and decide whether some countervailing consideration of public interest may be said to justify any intrusion which has taken place.91 This balancing test has been recognised as turning to a large extent upon proportionality, namely whether the intrusion, or perhaps the degree of the intrusion, into the claimant’s privacy was proportionate to the public’s interest supposedly being served by it.92 The basis upon which the public interest was argued by the News of the World was, first, that the conduct involved criminal activity. The court found that this was not the case as the conduct was consensual. The second basis was that the conduct was ‘immoral, depraved and adulterous’, but the court found that they were not matters of genuine public interest, as the modern approach to personal privacy and to sexual preferences and practices is to accord respect to an individual’s right to conduct his or her personal life without state interference or condemnation. A third basis for public interest was that the claimant had for entertainment and sexual gratification been ‘mocking the humiliating way the Jews were treated’ or ‘parodying holocaust horrors’. The court said that this

might have satisfied the test of public interest at least to the extent that Mosley was the President of F1 World Racing. In that role, he was required to deal with many people of all races and religions and had spoken out against racism in the sport. If he had been behaving in the way described, it would for many people call seriously into question his suitability for his role. However, the court found that there was no such behaviour and there was no legitimate public interest to justify either the intrusion of secret filming or the subsequent publication in the newspaper and on the website. In the circumstances, the court found that Mosley had a reasonable expectation of privacy in relation to sexual activities (albeit unconventional), carried on between consenting adults on private property. In the absence of any public interest, or other [page 275] justification for the clandestine recording, for the publication of the information and photographs in the newspaper and the placing of video extracts on the website, it was necessary to afford an adequate financial remedy for the purpose of acknowledging the infringement and compensating to some extent for the injury to feelings, the embarrassment and distress caused to Mosley. Accordingly, the court awarded him the sum of £60,000.93 Mosley applied to the European Court of Human Rights, arguing that his right to privacy under Article 8 of the Convention was violated by English law that did not require journalists to notify the subject of their publications before publishing. Mosley claimed that the law specifically failed to impose a legal duty on the newspaper to notify him in advance in order to allow him the opportunity to seek an interim injunction and thus prevent publication of material which violated his right to respect for his private life. The European Court concluded that although the newspaper was open to severe criticism for its conduct, Article 8 did not require a legally binding pre-notification requirement having regard to the chilling effect to which such a requirement might give rise, to the significant doubts as to the effectiveness of any prenotification requirement, which might involve criminal or punitive fines, and to

the ‘wide margin of appreciation’ or discretion the United Kingdom had in determining the steps to be taken to ensure compliance with the Convention.94 In ETK v News Group Newspapers Ltd,95 the plaintiff, ‘ETK’, applied for an injunction to stop the publishers of the News of the World ‘publishing or communicating or disclosing to any other person’ information relating to the identity of ETK or the details of a sexual relationship between ETK and a woman (‘X’) named in the confidential schedule to the application. They had both worked for the same employer in the entertainment industry. ETK was married and his wife had discovered the relationship with X and confronted him about it. He admitted it. It was deeply distressing for his wife, and for the sake of their two teenage children, they determined to rebuild her trust and their marriage. ETK ended the sexual relationship with X. She was later informed by her employer that her services were no longer required. The English Court of Appeal summarised the principles which govern the application for an interim injunction to restrain publicity of private information as follows: (1) Whether the applicant has a reasonable expectation of privacy so as to engage Article 8 of the European Convention on Human Rights; if not, the claim fails. (2) Whether or not there is a reasonable expectation of privacy in relation to the information: ‘… is a broad one, which takes account of all the circumstances of the case. They include the attributes of the claimant, the nature of the activity in which the claimant was engaged, the place at which it was [page 276] happening, the nature and purpose of the intrusion, the absence of consent and whether it was known or could be inferred, the effect on the claimant and the circumstances in which and the purposes for which the information came into the hands of the publisher’.96 The test established in Campbell v Mirror Group Newspapers Ltd97 is to ask whether a reasonable person of ordinary sensibilities, if placed in the

same situation as the subject of the disclosure, rather than the recipient, would find the disclosure offensive. (3) The protection may be lost if the information is in the public domain. There is potentially an important distinction between information which is made available to a person’s circle of friends or work colleagues and information which is widely published in the newspaper.98 This is a matter of fact and degree for determination in each case depending on the specific circumstances. (4) If Article 8 is engaged, then the second stage of the inquiry is to conduct ‘the ultimate balancing test’ which has the following four features — neither Article 8 nor Article 10 has precedence as such over the other; where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary; the justifications for interfering with or restricting each right must be taken into account; the proportionality test must be applied to each.99 (5) The decisive factor in balancing the protection of private life against freedom of expression should lie in the contribution that the information makes to a debate of general interest.100 (6) Pursuant to s 12(3) of the Human Rights Act 1998 (UK), an interim injunction should not be granted unless a court is satisfied that the applicant is likely — in the sense of more likely than not — to obtain an injunction following a trial.101 In this case, the court found that ETK had a reasonable expectation of privacy notwithstanding that the relationship had become known to those with whom ETK and X had worked with the result that knowledge spread in the workplace, reaching to the higher echelons of management. In the court’s view, the sexual relationship remained a private matter and the knowledge of work colleagues did not put the information into the public domain. ETK was reasonably entitled to expect that his colleagues would treat as confidential the information about the relationship. [page 277]

Accordingly, a reasonable person of ordinary sensibilities would find the disclosure of the relationship offensive. The court observed that it was in the interests of democratic society, and the court must ensure, that the press are freely able to inquire, investigate and report on matters of public interest. ‘To restrict publication, simply to save the blushes of the famous, fame invariably being ephemeral, could have the wholly undesirable chilling effect on the necessary ability of publishers to sell their newspapers.’102 In considering the circumstances, the court considered that weight must be given not only to the right to respect the private and family life of the applicant himself but also to the rights of X and in addition the rights of the applicant’s wife and his children. The court noted in particular the recognition of the rights of children in several international human rights instruments, and while the interests of children do not automatically take precedence over the Convention rights of others, it was clear that when balancing the rights between Article 8 and Article 10, the court should accord particular weight to the Article 8 rights of any children likely to be affected by the publication, if that would be likely to harm their interests. However, the force of the public interest will also be highly material, and the interests of affected children cannot be treated as a trump card. In this case, the court observed that there was no political edge to the publication. The organisation of the economic, social and political life of the country, so crucial to democracy, was not enhanced by publication. The intellectual, artistic or personal development of members of society was not stunted by ignorance of the sexual frolics of figures known to the public. Accordingly, the benefits to be achieved by publication in the interests of free speech were wholly outweighed by the harm that would be done through the interference with the rights to privacy of all those affected, especially where the rights of the children were in play. The decisive factor, however, was the contribution the published information would make to a debate of general interest and in this case, the reason for X’s employment being terminated may be of interest to some members of the public but the matters were not of ‘public interest’. Publication might satisfy public prurience but that was not a sufficient justification for interfering with the private rights of those involved.103 In AMC v News Group Newspapers Ltd,104 the court granted an injunction after balancing the rights of the claimants against the rights of the newspaper

and its sources. AMC was a prominent and successful professional sportsman now married to KLJ. He sought to restrain a national newspaper from publishing a story to be recounted by a source about a sexual relationship between AMC and her. At the time of the relationship, he was not married to KLJ but she had been his girlfriend for a while. The source claimed that she met with AMC at times when he should have been preparing for sports events. In balancing the rights of the parties, the court [page 278] came to the view that the interference with the claimants’ rights as to an expectation of privacy as proposed by the sources was not a proportionate means of achieving a legitimate aim.105 In Google Inc v Vidal-Hall,106 the English Court of Appeal held that the cause of action for misuse of private information should be recognised as a tort, separate from the cause of action for breach of confidence.107 In Representative Claimants v MGN Ltd,108 the English Court of Appeal held that damages for breach of a person’s private rights for misuse of private information include an award to compensate for distress and hurt feelings because the person’s private information had been exploited and for the loss or diminution of the right to control the use of the person’s private information.109 In PJS v News Group Newspapers Ltd,110 the English Supreme Court was asked to consider continuing an interim injunction until trial in circumstances where there had been significant internet and social media coverage, and limited hard copy publication outside the jurisdiction, which had already invaded the privacy of the claimant and his family. The claimant, PJS, was described in the judgment as being in the entertainment business and was married to YMA, a well-known individual in the same business. They had young children. The claimant met AB and started to have occasional sexual encounters. AB had a partner CD who with AB engaged in a three way sexual encounter with PJS. AB and CD approached the editor of the Sun on Sunday and informed him of the sexual encounters with PJS. As a result, PJS applied for an interim

injunction on the basis of a breach of confidence and invasion of privacy. The application was initially refused but the Court of Appeal allowed the appeal and restrained publication of the relevant names and details of the relationship.111 Notwithstanding the injunction, AB took steps to get the story published in the United States and as a result a magazine there published an account of PJS’s sexual activities naming those involved. PJS’s solicitors made representations to the magazine which then restricted publication to hard copy editions only and ‘geo blocked’ online publication so as to restrict this to the United States. Similar articles followed in Canada and in a Scottish newspaper and whatever the source, details started to appear on numerous websites as well as in social media hashtags. In the light of the evidence available, the Supreme Court proceeded upon the assumption that a significant body of internet material identifying those involved [page 279] by name and reproducing details from the original American publication about the alleged activities still existed and would continue to do so for the foreseeable future. The Supreme Court took the view that there was not, without more, any public interest in a legal sense in the disclosure or publication of purely private sexual encounters, even though they involve adultery or more than one person at the same time. Any such disclosure or publication will on the face of it constitute the tort of invasion of privacy. Repetition of such a disclosure or publication on further occasions is capable of constituting a further tort of invasion of privacy, even in relation to persons to whom disclosure or publication was previously made — especially if it occurs in a different medium.112 The court considered that there was a qualitative difference in intrusiveness and distress likely to be involved in what was now proposed by way of unrestricted publication by the English media in hard copy as well as on their own internet sites and there was little doubt that there would be a media storm. It would involve not merely disclosure of names and generalised description of the nature of the sexual activities involved but the most intimate details. This

would be likely to add greatly and on a potentially enduring basis to the intrusiveness and distress felt by PJS, his partner and by way of increased media attention now and/or in the future their children.113 Accordingly, the Supreme Court held that the case should be approached on the basis that the claimant was likely at trial to establish that the proposed disclosure and publication was likely to involve further tortious invasion of privacy rights of himself and his partner as well as of their children who had no conceivable involvement in the conduct in question. The invasion would on the present evidence be ‘clear, serious and injurious’. Those interested in a prurient story could if they tried probably read about the identities of those involved and in some cases about the detail of the conduct according to where they may find it on the internet. There was, on the present evidence, no public interest in any legal sense in the story, however much the newspapers may hope that one may emerge on further investigation and/or in evidence at trial, and it would involve significant additional intrusion into the privacy of the claimant, his partner and their children.114

LENAH GAME MEATS 14.7 Australian courts have not followed English authority at this stage to develop an action for misuse of private information. One reason for this is that the European Convention on Human Rights does not apply in Australia. In Australia, the law of breach of confidence protects confidential information and is based on traditional equitable principles: (a) the information has the requisite quality of confidence; [page 280] (b) the information was obtained or received in circumstances importing an obligation of confidence; and (c) the information was disclosed (or is likely to be disclosed) in an unauthorised manner.115

In addition, the information must be identified by the plaintiff with specificity and not merely in global terms.116 There is no general defence of public interest to excuse breach of confidentiality under Australian law.117 There is a defence of ‘iniquity’ to excuse the breach of confidence where the: subject matter of the confidence is the existence or real likelihood of the existence of any iniquity in the sense of a crime, civil wrong or serious misdeed of public importance, and the confidence is relied upon to prevent disclosure to a third party with a real and direct interest in redressing such crime, wrong or misdeed.118

In Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd,119 the High Court was required to consider a case involving the illegal recording by unknown persons trespassing on the plaintiff’s property, and the proposed television broadcast of that recording by the Australian Broadcasting Corporation. The plaintiff company operated an abattoir in Tasmania and a film was made surreptitiously and unlawfully for the purpose of exposing the plaintiff’s operations at a ‘brush tailed possum processing facility’. The plaintiff obtained an injunction in the Supreme Court of Tasmania to prevent the Australian Broadcasting Corporation from broadcasting the material on the video tape, after it had advertised the program in advance. The injunction was granted on the basis that it would be ‘unconscionable’ for the Australian Broadcasting Corporation to broadcast a video which it knew was the result of a trespass. It was common ground that the operations that were filmed were not secret, and that there were no requirements of confidentiality imposed upon people who might see the operations. Rather, like many other lawful animal slaughtering activities, if displayed to the public, the activities would cause distress to some viewers. The plaintiff argued that the Australian Broadcasting Corporation should be restrained on the basis of a tort of invasion of privacy. The High Court was not [page 281] prepared to accept or reject that such a tort existed or should be developed. With only Callinan J dissenting, the court set aside the injunction. Chief Justice Gleeson considered that if the activities filmed were private,

then the law of breach of confidence was adequate to cover the case.120 He said that he would regard images and sounds of private activities, recorded by the methods employed in this case, as confidential. There would be an obligation of confidence upon the persons who obtained them, and upon those into whose possession they came, if they knew, or ought to have known, the manner in which they were obtained. Chief Justice Gleeson considered that the law should be more astute than in the past to identify and protect interests of a kind which fall within the concept of privacy, but he noted that the lack of precision of the concept of privacy and the tension that exists between interests in privacy and interests in free speech are reasons for caution in declaring that a new tort of privacy exists:121 There is no bright line which can be drawn between what is private and what is not … Certain kinds of information about a person, such as information relating to health, personal relationships, or finances, may be easy to identify as private; as may certain kinds of activity, which a reasonable person, applying contemporary standards of morals and behaviour, would understand to be meant to be unobserved. The requirement that disclosure or observation of information or conduct would be highly offensive to a reasonable person of ordinary sensibilities is in many circumstances a useful practical test of what is private.122

His Honour considered it was unnecessary for the purposes of this case to enter upon the question of whether and in what circumstances a corporation may invoke privacy. However, the foundation of much of what is protected, where rights of privacy as distinct from rights of property are acknowledged, is human dignity. He said that this may be incongruous when applied to a corporation. Justices Gummow and Hayne123 (with whom Gaudron J agreed)124 considered that the Victoria Park125 case did not stand in the path of the development of a cause of action for the tort of unjustified invasion of privacy. However, rather than search to identify the ingredients of such a tort, the better course was to look to the development and adaptation of recognised forms of action to meet new situations and circumstances. The right sought to be protected in Victoria Park was ‘pocketbook’ sensitivity or a tort concerning unfair competition which is not known under Australian law.126 [page 282]

The judges considered the four distinct kinds of invasion of privacy, recognised in the United States and categorised by Professor Prosser in 1960 and later published under the topic of ‘Privacy’ in the Restatement of the Law.127 These included: (a) unreasonable intrusion upon seclusion; (b) unreasonable publicity given to private life; (c) unreasonable publicity placing a person in a false light; (d) appropriation of name or likeness. Justices Gummow and Hayne considered that one or more of the four invasions of privacy would, in Australia, in many instances, be actionable at general law under recognised causes of action. The categories of disclosure of private facts and unreasonable intrusion upon seclusion come closest to reflecting Sedley LJ’s concern for privacy.128 However, a company, which is an artificial legal person, lacks the sensibilities, offence and injury which any developing law of privacy might protect. They observed that common law in Australia should not depart from the course which has been worked out over a century in the United States that, except for the appropriation of one’s name or likeness, an action for invasion of privacy can be maintained only by a living individual whose privacy is invaded.129 They concluded that the development of a tort of invasion of privacy may be best achieved by looking across the range of already established legal and equitable wrongs. Alternatively, in some respects these may be seen as representing species of a genus, being a principle protecting the interests of the individual in leading, to some reasonable extent, a secluded and private life ‘free from the prying eyes, ears and publication of others’.130 Justice Kirby131 considered that, since the majority decision of the High Court in Victoria Park,132 it had generally been accepted that a cause of action for breach of privacy did not exist in the common law of Australia. He preferred to postpone considering whether, so many years after Victoria Park, and all that had followed, it would be appropriate for the High Court to declare the existence of an actionable wrong of invasion of privacy. Justice Callinan133 made a number of observations about the practices of modern publishing and the entertainment and media industries. He considered that it was ultimately for parliament and not the media to draw the borders

between confidentiality and disclosure, and to decide the extent to which protection should be given to people who reveal matters, the revelation of which might otherwise be [page 283] illegal. He also considered that there would be disagreement as to where the line should be drawn and as to what is or is not a public affair.134 His Honour was prepared to uphold the injunction on equitable grounds.135 Had there been a pre-existing relationship between Lenah Game Meats and the Australian Broadcasting Corporation, he said that it would no doubt have been governed by these conditions, namely a relationship of entry on premises, or a relationship of confidence or of a fiduciary type. The Australian Broadcasting Corporation argued that, because there was no such relationship, it was free to do whatever it wished with the film illegally obtained by another, who also had no lawful relationship with Lenah Game Meats. Justice Callinan considered136 that the making, use and custody of the film placed the parties in a relationship with each other. The film was an item of property that came into existence in infringement of one of Lenah Game Meats’ proprietary rights, its right to exclusive possession of its abattoir and to control what might be done inside it. It was a tangible item of property. The circumstances in his view were ones to which equity should attach a constructive trust. Equity should and was right to (indeed it had no choice but to) regard the relationship created by the Australian Broadcasting Corporation’s possession of a tangible item of property obtained in violation of Lenah Game Meats’ right of possession, and the exploitation of which would be to its detriment, and to the financial advantage of the Australian Broadcasting Corporation, as a relationship of a fiduciary kind and of confidence. The ultimate remedy to which a plaintiff would be entitled is delivery up of the film, and an account of any profits made from it.137 It was not necessary for Callinan J (because of his conclusion as to unconscionability) to deal with the claim for relief based upon an intrusion upon privacy, but he expressed some tentative views about it.138 He said that although Victoria Park139 was authority for the proposition that there was no tort of

intrusion of privacy in Australia, it was decided by a narrow majority, and the time may be approaching, if it had not already arrived, for the recognition of a form of property in a spectacle. It is also distinguishable from the case where there has been physical interference with the plaintiff’s property. Justice Callinan140 did not rule out the possibility that in some circumstances, despite its existence as a non-natural statutory creature, a corporation might be able to enjoy the same or similar rights to privacy as a natural person, not inconsistent with its accountability and obligations of disclosure, reporting and otherwise. His Honour would also not rule out the possibility that a government or a government agency [page 284] might enjoy a similar right to privacy. He said that any principles for an Australian tort of privacy would need to be worked out on a case-by-case basis in a distinctly Australian context and would not involve acceptance of all or indeed any of the jurisprudence of the United States which is complicated by the First Amendment. Ultimately the questions involved are ones of proportion and balance. The value of free speech and publication in the public interest must be properly assessed, but so too must be the value of privacy. The appropriate balance would need to be struck in each case.141

INVASION OF PRIVACY 14.8 As a consequence of the High Court decision in Lenah Game Meats, a District Court judge in Queensland took the step of upholding the first case in Australia of an actionable right of an individual person to privacy. In Grosse v Purvis,142 Senior Judge Skoien stated that it was not his task or his intent to state the limits of the cause of action, or any special defences other than was necessary for the purposes of the case. He considered the essential elements would be: (a) a willed act by the defendant; (b) which intrudes upon the privacy or seclusion of the plaintiff;

in a manner which would be considered highly offensive to a (c) reasonable person of ordinary sensibilities; and (d) which causes the plaintiff detriment in the form of mental, psychological or emotional harm or distress or which prevents or hinders the plaintiff from doing an act which the plaintiff is lawfully entitled to do.143 Having found the conduct of the defendant in that case was ‘willed acts’, it was unnecessary for him to decide in an action for breach of privacy whether a defendant would be liable for negligent acts. He also expressed the opinion that it seemed that a defence of public interest should be available and it was unnecessary to decide whether a defence of actual intention to protect, or cause a benefit to, the plaintiff should be a defence. The case concerned a mayor of a local council on the Queensland Sunshine Coast, Alison Grosse, and her relationship with Robert Purvis.144 Grosse alleged that there was a persistent course of loitering by Purvis at or near her places of residence, work or recreation, instances of spying on her private life, instances of unauthorised entry to her house and yard, instances of unwelcome physical contact, instances of repetitious offensive phone calls to her, some at unreasonable times, instances of the use by him [page 285] of offensive and insulting language to her, and instances of his offensive behaviour to her friends and relatives. In addition to a cause of action for intrusion on her privacy, she also relied on actions for harassment, intentional infliction of physical harm, nuisance, trespass, assault, battery and negligence. The judge found that Purvis had committed many acts which intruded upon the privacy or seclusion of Grosse, causing her to suffer embarrassment, hurt, distress and post-traumatic stress disorder. Accordingly, he awarded a total of $178,000 damages plus two per cent interest for past damages (excluding awards for future economic loss and costs and exemplary damages). Included within that award was $20,000 in compensatory damages for ‘wounded feelings’ and

$10,000 in aggravated compensatory damages. There was an appeal from the judgment, but the matter settled before the hearing of the appeal. The circumstances of Jane Doe v Australian Broadcasting Corporation145 advanced the tort of breach of privacy in Australia. It is an offence under the Judicial Proceedings Reports Act 1958 (Vic) to publish information identifying a victim of a sexual offence. The plaintiff’s husband was convicted of raping her. The ABC reported the sentencing in a number of radio news bulletins, identifying the husband by name and reporting that he had been convicted of rape within marriage. The broadcast also revealed the offences had occurred in the plaintiff’s home, named the suburb and described the part of Melbourne where that suburb was. In one bulletin, in addition to this information, the ABC referred to the plaintiff by name and identified her as the victim. She had reverted to her maiden name after the rape and it was that name which was broadcast. The reporters were convicted of publishing information in breach of the Act and the plaintiff brought proceedings against the ABC and the reporters for breach of statutory duty, negligence, breach of confidence and breach of privacy. Judge Hampel in the Victorian County Court found that the defendants were liable for publishing the personal information about the plaintiff in circumstances where there was no public interest in publishing it and where there was a prohibition on its publication. The defendants had failed to exercise the care which could be reasonably required of them to protect the plaintiff’s privacy and comply with the prohibition on publication imposed by the Act. This, coupled with the absence of public interest, the clearly private nature of the information and the prohibition on publication, all pointed to the publication being unjustified. In Judge Hampel’s view, a formulation of ‘unjustified’ rather than ‘wilful’ in these circumstances provided a fair balance between freedom of speech and the protection of privacy. The plaintiff was awarded the sum of $234,190 (including $118,332 for past lost earnings), $5,858 for medical and like expenses, $85,000 general damages for psychiatric injury and $25,000 for the hurt, distress, embarrassment, humiliation, shame and guilt experienced as a result of the broadcast. [page 286]

Despite concerns about the manner in which the case for the defendants was conducted, the judge did not consider it was appropriate to order exemplary damages and found that there was no evidence that the conduct had aggravated the harm suffered by the plaintiff. An appeal was filed but the matter settled before hearing. Other courts have expressed doubts that the law in Australia has developed to the point where a tort of invasion of privacy exists.146 In Giller v Procopets,147 the parties lived in a de facto relationship, during which the defendant videotaped their sexual activities. The plaintiff was initially unaware of this but after becoming aware, she acquiesced in further taping of their activities. Following the termination of the relationship, the defendant sent a copy of the video to the plaintiff’s father and threatened to send it to her friends and employer. The plaintiff sought damages for invasion of privacy, breach of confidence and intentional infliction of harm. In the Victorian Court of Appeal, Ashley JA held that a generalised tort of invasion of privacy was not yet recognised in Australia,148 while Neave JA (with Maxwell P agreeing) considered that it was unnecessary to decide whether Australian law recognised a tort of invasion of privacy.149 Instead the court awarded the plaintiff the sum of $40,000 damages for breach of confidence for the mental distress she suffered as a result of publication, including $10,000 in aggravated damages. The award for breach of confidence was made as equitable compensation for ‘distress’ not amounting to, or in the absence of evidence of, psychiatric injury. The court held that the award should include a component for aggravation given Mr Procopets’ deliberate purpose of humiliating, embarrassing and distressing Ms Giller. The court did not consider it appropriate to make a punitive monetary award for breach of confidence, without deciding whether there was power to award exemplary or punitive damages for equitable wrongs.150 In Saad v Chubb Security Australia Pty Ltd,151 photographs of a female employee from CCTV footage taken by security cameras installed in her workplace were uploaded to a Facebook page. The plaintiff complained that the photographs were accompanied by ‘humiliating commentary’ and she brought a claim for breach of confidence against her employer based on the unjustified invasion of privacy. The defendant sought to strike out the plaintiff’s claim but

it was refused on the basis that it was at least arguable that the unauthorised images of the plaintiff amounted to an interference in what was essentially an activity forming part of her private, although not secret, life associated with her employment. The court held that having regard [page 287] to the photographic images, the limited purpose for which they were obtained and the nature of them, it was not open to conclude that the cause of action for breach of confidence based on invasion of privacy would be futile or bad in law.152 In Doe v Yahoo!7 Pty Ltd; Wright v Pagett153 the plaintiffs claimed against Yahoo7 and Pagett for invasion of privacy through social media. The plaintiffs claimed that Pagett had impersonated one plaintiff online using her name and photo which he obtained from a publicly available online source and sent harassing emails to the other plaintiff using various Yahoo7 accounts which Yahoo7 failed to deactivate in a timely manner after it was brought to its attention. The court refused to strike out the cause of action on the basis that there was an arguable case for invasion of privacy.154 In Candy v Bauer Media Ltd,155 Holly Candy (Valance) was photographed through a telephoto lens on a private boat with Princess Beatrice near Portofino, Italy. The photos of Holly in a bikini showed that she was pregnant, before she had informed others including family and friends. Despite a warning to Woman’s Day magazine not to use the photos, it proceeded to distribute magazines with the photos under the headline ‘Holly’s Big News – YES I’M PREGNANT!’. On an application for an interlocutory injunction, the court held that there was a serious question to be tried for breach of confidence but refused the injunction on the basis that it would be futile to stop publication when a number of magazines had already been distributed. In Wilson v Ferguson,156 the defendant published sexually explicit photographs and videos of his former partner on Facebook which were made available to more than 300 of the defendant’s Facebook friends. The court determined that the intimate photos and videos were taken in private and shared between two lovers which would ordinarily bear a confidential character

and be implicitly provided on condition that they not be shown to any third party.157 Even though material had been distributed to a number of the defendant’s Facebook friends, the court held that the material was not in the public domain. The court awarded damages by way of equitable compensation for the embarrassment, anxiety and distress and taking into account the release of the photos was an act of retribution by the defendant and intended to cause the plaintiff harm. The amount awarded was $35,000.

A COMMON LAW TORT 14.9 The extent to which privacy may be seen to be invaded or interfered with can depend upon the sensitivity of the individual concerned. A sense of privacy may differ between individuals, genders, age groups and cultures. What may be considered [page 288] ‘private’ to someone when disclosed to the world at large may change if only disclosed to a group of work colleagues or friends. It is necessary therefore to identify an objective standard for privacy, if a law of invasion of privacy is to be developed as a tort, and consider the context in which the invasion is said to have occurred. Chief Justice Gleeson in Lenah Game Meats attempted to identify the nature of privacy: ‘There is no bright line which can be drawn between what is private and what is not …’.158 The Privacy Act 1988 (Cth) protects ‘personal information’ from disclosure. The term is defined under s 6 of the Act as any information or opinion (whether true or not) from which an individual’s identity is apparent or can reasonably be ascertained. Private organisations and government agencies are required to meet certain minimum standards for the collection, use, disclosure, quality and security of personal information. Pursuant to these standards, sensitive information must not be collected unless the individual consents or it is required by law or in emergencies.

‘Sensitive information’ is defined to include information about an individual’s sexual preferences or practices, health or genetic information, racial or ethnic origin and religious beliefs (among other matters). Media organisations are exempt from the Act for conduct ‘in the course of journalism’, provided the organisation is publicly committed to observe published standards dealing with privacy. Where there is an actual or apprehended physical intrusion upon the plaintiff’s person, settled causes of action of trespass to person, such as assault or battery, would be applicable. Where the intrusion is a direct and intentional interference with the land or premises owned by the plaintiff or in the plaintiff’s possession, there is a settled cause of action for trespass of land. A cause of action for nuisance may exist where there is a real and substantial interference with the plaintiff’s use and enjoyment of land. Where there is a publication of (embarrassing) private facts as a result of the acquisition or recording of those private facts from an interference with the plaintiff’s personal or property rights, or a breach of confidence arising from a relationship recognised at common law or in equity, then remedies may be available under existing causes of action or statutory prohibitions. However, it is unsettled the extent to which a legal right exists, in the absence of a physical intrusion upon the plaintiff’s person or property, and in particular where it relates to the use or disclosure of information about a person. For example, recording images of a person in a public place or in a place to which the plaintiff has no right of property is not generally protected by law, thereby enabling others to see or hear or otherwise interact with the person without that person having legal right or objection. The friction point of the development of the law concerns the publication by the media of private facts. Where the information is not obtained through a relationship of confidentiality, but is private, such as the photographs at private gatherings [page 289]

(the Douglas case, the Cruise/Kidman case, the Warne case), Australian law has not (yet) accepted that these publications should be protected. If English law is followed, the law of confidentiality would be extended to include information for which the media either knows or ought to know that the plaintiff can reasonably expect his or her privacy to be protected.159 This test is less onerous than that proposed by Gleeson CJ in Lenah Game Meats. The ‘highly offensive to a reasonable person’ test he put forward suggests a stricter test of private information than a reasonable expectation of privacy. Also, the ‘highly offensive’ formulation brings in questions of degree or proportionality such as the degree of intrusion into private life and the extent to which publication was a matter of proper public concern. Further, the English test is not applicable to the reasonable person reading or receiving the information, but rather the reasonable person affected by the collection, (mis)use of the information and its disclosure. Because of the inadequacy of damages in these actions, an injunction may be considered to be an appropriate remedy.160 The reason is that a plaintiff may not by compensation be able to be restored to the position he or she was in prior to disclosure. An injunction carries with it the threat of contempt establishing a liability to a fine or court order and, in some cases, damages would not only be inadequate but also futile, particularly if disclosure created a physical risk. In England, for example, injunctions were granted to prevent disclosure of the identities of child killers.161 Thompson and Venables had been young boys when they lured a small boy away from a shopping centre and murdered him. Their actions of taking the small boy by the hand were recorded on film at the shopping centre and the television broadcast of their actions caused enormous public outrage. They were given new identities and injunctions were issued to prevent disclosure of their identities until they reached the age of 18. However, as they approached that age it became clear that, if their identities and whereabouts were revealed, they were at great risk of being killed or would be a constant source of public disorder or violence. For that reason, injunctions to restrain disclosure of their names and addresses were granted. Similar cases are likely to arise in relation to informers and whistleblowers. In PJS v News Group Newspapers Ltd,162 the English Supreme Court continued an interim injunction until trial of the identity and details of sexual encounters in which the claimant had participated in circumstances where the

internet and social media were providing the identification of the claimant and the details without restraint. The court held that if the interim injunction was not continued, there would be further invasions of privacy involved in the further disclosure and publication in the [page 290] English media, and consequently any award of damages however assessed would be an inadequate remedy. Whether the confidentiality or privacy arises by reason of the relationship of the parties or the expectation of a reasonable person (of which the media is cognisant) in relation to the information, the courts in Australia could be willing to provide a remedy under existing causes of action. In Maynes v Casey,163 the New South Wales Court of Appeal observed that statements in Lenah Game Meats as to the proper effect of Victoria Park Racing ‘may well lay the basis for development of liability for unjustified intrusion on personal privacy, whether or not involving breach of confidence’. However, Australian courts may prefer that parliament legislate any specific right of privacy. Given the causes of action that already provide some protection indirectly to privacy, such a tort covering the field, described as a ‘blockbuster’ tort, could give rise to as many problems as it might solve.164

A STATUTORY TORT 14.10 In the absence of a clearly established common law right, there is growing momentum to introduce a statutory right of privacy in Australia. At this stage legislation at state and federal level provides protection principally for data privacy.165 However, Australia’s international obligations, in particular Article 17 of the ICCPR to which Australia became a signatory in 1980, require a law protecting privacy. The ICCPR itself is not part of the common law of Australia. The Australian Law Reform Commission (ALRC) in 1979 discussed the concept of a statutory tort providing protection of privacy in its paper Unfair

Publication: Defamation and Privacy.166 The Report was, however, left ignored and unimplemented, due in large part to the failure of powerbrokers to agree on how the Australian defamation laws should be reformed. Changes to the defamation laws in 2005 nationally under the (Uniform) Defamation Acts reignited the debate about a need for a privacy law. The defence of truth in defamation actions had previously been burdened in some states by the additional requirement of ‘public interest’ or ‘public benefit’. Truth is now a complete defence to defamatory actions. However, the public disclosure of private embarrassing facts which had been protected in some states for more than a century is now a matter within the discretion of the media, a position seen in some quarters as too heavily weighted in favour of freedom of speech against the freedom of the private interests of the individual. [page 291] In 2008 the ALRC published a report recommending that federal legislation should provide for a statutory cause of action for a serious invasion of privacy.167 In 2009 the New South Wales Law Reform Commission (NSWLRC) published a report supporting a number of the ALRC recommendations.168 The ALRC recommended that the cause of action be implemented by way of a separate statute to the Privacy Act 1988 (Cth). The NSWLRC sought uniformity across the states and territories by legislation enacted in each jurisdiction by agreement. In 2010, the Victorian Law Reform Commission published a report recommending statutory causes of action for misuse of private information and for intrusion upon seclusion.169 In 2014, the ALRC issued a report Serious Invasions of Privacy in the Digital Era recommending a statutory cause of action for the tort of serious invasion of privacy.170 In 2016, the NSW Parliament Legislative Council Standing Committee on Law tabled a report Remedies for the Serious Invasion of Privacy in New South Wales, recommending the introduction of the statutory cause of action for invasion of privacy based on the ALRC proposal.171

Statutory cause of action In its 2014 report, the ALRC recommended a statutory cause of action for serious invasion of privacy which would be a new tort introduced by legislation in a Commonwealth Act. The Act would provide that the plaintiff must prove that his or her privacy was invaded in one of the following ways: (a) intrusion upon seclusion, such as by physically intruding into the plaintiff’s private space or by watching, listening to or recording the plaintiff’s private activities or private affairs; or (b) misuse of private information, such as by collecting or disclosing private information about the plaintiff. The Act would provide that ‘private information’ includes untrue information, but only if the information would be private if it were true. The new tort would be actionable only where a person in the position of the plaintiff would have had ‘a reasonable expectation of privacy’, in all of the circumstances. The Act would provide that, in determining whether a person in the position of the plaintiff would have had ‘a reasonable expectation of privacy’ in all of the circumstances, the court may consider, among other things: [page 292] (a)

the nature of the private information, including whether it related to intimate or family matters, health or medical matters, or financial matters; (b) the means used to obtain the private information or to intrude upon seclusion, including the use of any device or technology; (c) the place where the intrusion occurred, such as in the plaintiff’s home; (d) the purpose of the misuse, disclosure or intrusion; (e) how the private information was held or communicated such as in private correspondence or a personal diary; (f) whether and to what extent the private information was already in the public domain; (g) the relevant attributes of the plaintiff, including the plaintiff’s age,

occupation and cultural background; and (h) the conduct of the plaintiff, including whether the plaintiff invited publicity or manifested a desire for privacy. The new tort would be confined to intentional or reckless invasions of privacy. It would not extend to negligent invasions of privacy, and would not attract strict liability. The Act would provide that an apology made by the defendant did not constitute an admission of fault or liability and would not be relevant to the determination of fault or liability. The Act would provide that a plaintiff had an action under the new tort only where the invasion of privacy was ‘serious’, having regard, among other things, to: (a) the degree of any offence, distress or harm to indignity that the invasion of privacy was likely to cause to a person of ordinary sensibilities in the position of the plaintiff; and (b) whether the defendant was motivated by malice or knew the invasion of privacy was likely to offend, distress or harm the dignity of the plaintiff. The plaintiff would not be required to prove actual damage to have an action under the new tort. The Act would provide that, for the plaintiff to have a cause of action, the court should be satisfied that the public interest in privacy outweighed any countervailing public interest. A separate public interest offence would therefore be unnecessary. The Act would include the following list of countervailing public interest matters which a court may consider, along with any other relevant public interest matter: (a) freedom of expression, including political communication and artistic expression; (b) freedom of the media, particularly to responsibly investigate and report matters of public concern and importance; (c) the proper administration of government; (d) open justice; (e) public health and safety;

(f) national security; and (g) the prevention and detection of crime and fraud. [page 293] The Act would provide that the defendant had the burden of adducing evidence that suggested that there was a countervailing public interest for the court to consider. The Act would also provide that the plaintiff had the legal onus to satisfy the court that the public interest in privacy outweighed any countervailing public interest that was raised in the proceedings. It was recommended that federal, state and territory courts should have jurisdiction to hear an action for serious invasion of privacy under the Act. Consideration would also be had to giving jurisdiction to appropriate state and territory tribunals. The new tort would only be actionable by natural persons. A cause of action for serious invasion of privacy would not survive for the benefit of the plaintiff’s estate or against the defendant’s estate. A person would not be able to bring an action under the new tort after the earlier of: (a) one year from the date on which the plaintiff became aware of the invasion of privacy; or (b) three years from the date on which the invasion of privacy occurred. In exceptional circumstances, the court may extend this limitation period, but the period would expire no later than six years from the date on which the invasion occurred. Consideration would be given to extending the limitation period where the plaintiff was under 18 years of age when the invasion of privacy occurred. Consideration would be given to enacting a ‘first publication rule’, also known as a ‘single publication rule’. This would limit the circumstances in which a person may bring an action in relation to the publication of private information, when that same private information had already been published in the past. The Act would provide the following defences:

(a) the defendant’s conduct was required or authorised by law; (b) the conduct was incidental to the exercise of a lawful right of defence of person or property, where that conduct was proportionate, necessary and reasonable; (c) necessity; (d) consent; (e) absolute privilege; (f) publication of public documents; and (g) fair report of proceedings of public concern. The Act would also provide for an exemption for children and young persons. The Act would provide that the courts may award damages, including damages for emotional distress. The Act would set out the following nonexhaustive list of factors that a court may consider when determining the amount of damages: (a) whether the defendant had made an appropriate apology to the plaintiff; (b) whether the defendant had published a correction; (c) whether the plaintiff had already recovered compensation, or had agreed to receive compensation in relation to the conduct of the defendant; (d) whether either party took reasonable steps to settle the dispute without litigation; and [page 294] (e)

whether the defendant’s unreasonable conduct following the invasion of privacy, including during the proceedings, had subjected the plaintiff to particular or additional embarrassment, harm, distress or humiliation. The Act would provide that the court may not award a separate sum as

aggravated damages. The Act would provide that a court may award exemplary damages in exceptional circumstances. The Act would provide for a cap on damages. The cap would apply to the sum of both damages for non-economic loss and any exemplary damages. This cap would not exceed the cap on damages for non-economic loss in defamation. The Act would provide that a court may award an account of profits. The Act would also provide that the court may at any stage of proceedings grant an interlocutory or other injunction to restrain the threatened or apprehended invasion of privacy, where it appeared to the court to be just or convenient and on such terms as the court thought fit. The Act would provide that when considering whether to grant injunctive relief before trial to restrain publication of private information, a court should have particular regard to freedom of expression and any other matters of public interest. The Act would provide that courts may order the delivery up and destruction or removal of material. It would also provide that the courts may, where false private information had been published, order the publication of a correction. The Act would provide that courts may order the defendant to apologise or that courts may make a declaration. The ALRC recommended that if a statutory cause of action for serious invasion of privacy was not enacted, appropriate federal, state and territory legislation should be amended to provide that, in an action for breach of confidence that concerns a serious invasion of privacy by the misuse, publication or disclosure of private information, the court may award compensation for the plaintiff’s emotional distress. It also recommended a number of measures in relation to surveillance laws. This included that the Commonwealth Government should enact surveillance legislation to replace existing state and territory device laws. Surveillance legislation should be technology neutral. It should regulate surveillance through the use of listening devices, optical devices, tracking devices, date of surveillance devices, and other devices and systems. The Commonwealth Government should consider consolidating telecommunications surveillance laws with the new Commonwealth surveillance legislation. Surveillance legislation should not contain a defence or exception for participant monitoring. Surveillance legislation should provide a defence for responsible journalism relating to matters of public concern and importance and should provide that a

court may order remedial relief, including compensation, for a person subjected to unlawful surveillance. Workplace surveillance laws should be made uniform throughout Australia. State and territory governments should give jurisdiction to appropriate courts and tribunals to hear complaints about the installation and use of surveillance devices that can monitor neighbours on residential property. [page 295] The ALRC recommended that if a statutory cause of action for serious invasion of privacy was not enacted, state and territory governments should enact uniform legislation creating a tort of harassment.

RIGHTS OF ROYAL CONFIDENCE 14.11 The members of the Royal Family are the subject of immense public curiosity. Recent history reflects the lengths to which some will go to invade their privacy. As far back as 1850, the signs were there with the growing circulation of newspapers. Queen Victoria’s consort, Prince Albert, brought an action for breach of confidence to restrain the publication of a catalogue of etchings drawn by the Queen. They had been entrusted to a printer for printing but an employee made copies without permission and sold them to a journalist. The court granted an injunction on the basis of breach of trust, breach of confidence and breach of contract.172 Turning to the modern era, in 1953 the Royal Princess, Elizabeth Windsor, was crowned Queen Elizabeth II at Westminster Abbey. The coronation was the first ever broadcast on television, with an estimated television audience of 20 million. In all its pomp and ceremony, the coronation raised the spirits of a nation and a people who had endured the grief of the war years. As with the radio broadcasts of those years, this new form of communication to the masses was extraordinarily effective in capturing public loyalty, affection and support.

Some frowned upon such populism. Sir Winston Churchill conveyed the unanimous view of the Cabinet to the Princess that she should not agree to be subjected to the ‘ordeal’ of live television during the coronation. She reminded him that she was the one who was being crowned not the Cabinet and she felt all her subjects should have the opportunity of seeing it. The Queen embraced the modern media and in 1957 broadcast her Christmas message on television for the first time. In view of her popularity, the Queen invited the BBC to film a television special Royal Family in 1969. The documentary showed the Queen and her family in their ‘living room’ behaving like normal people, just like her subjects. Throughout the 1970s the media speculated about who Prince Charles might marry and one day make queen. In September 1980 an upper-class 19-year-old from Kensington moved into the frame. Lady Diana Spencer was photographed at the Pimlico Young England Kindergarten where she was a teacher and was identified by the media as the Prince’s love interest. The early photographs of Diana show a shy and innocent figure. By January 1981 she was engaged and in July 1981 became the ‘Fairytale Princess’ with her marriage to Prince Charles. The wedding in St Paul’s Cathedral was televised live worldwide, with an estimated television audience of 750 million, and was received [page 296] with as much, if not more, enthusiasm and celebration as the Queen’s coronation almost 30 years earlier. Less than a year later, in June 1982, Diana gave birth to an heir, Prince William. While pregnant, she was photographed in her bikini on holiday and the photographs made the front page of the Daily Star. The Queen was not amused — she was furious and summoned the national newspaper editors to Buckingham Palace to demand that they not harass her new daughter-in-law. It had a temporary effect. Diana photographed well — publicity about her sold very well. The public appetite for information about Diana was insatiable throughout the rest of her

life. Her story is a lesson in the shifting sands of celebrity and privacy. She was to many people around the world a glamorous, beautiful, generous person, a goddess of the modern age, and as Tony Blair, the then Prime Minister, expressed it at the time of her death, ‘the People’s Princess’. Yet in private this young woman was deeply troubled, anxious and depressed by the circumstances in which she found herself. It was Diana who took the initiative to reveal the secrets to the public and was the source for Andrew Morton’s book Diana: Her True Story, published in June 1992. The book disclosed that her marriage with Charles was over, the concluding chapter being ‘I Did My Best’ with an Appendix ‘Could Charles and Diana Divorce?’. A few months later, in August 1992, perhaps by coincidence, a taped car telephone conversation between Diana and James Gilbey on New Year’s Eve 1989 was released to the media: Male:

OK then, Squidgy. I am sorry you have had low times … try, darling, when you get these urges — you just try to replace them with anger like you did on Friday night, you know.

Female: I know. But you know what’s really quite um … whatever the word is? His grandmother is always looking at me with a strange look in her eyes. It’s not hatred, it’s sort of interest and pity mixed in one. I am not quite sure. I don’t understand it. Every time I look up, she’s looking at me and then looks away and smiles …173

In January 1993, a report of a late night taped telephone conversation in December 1989 between Charles and Camilla Parker-Bowles surfaced, published in New Idea magazine,174 which was as embarrassing to read as was the disclosure itself. In 1993, Diana obtained an ex parte injunction against the Sunday Mirror after seven pages of photographs taken of her in a London gym were published under the headline ‘Di Spy Sensation’. The photographs showed the Princess in a leotard and cycling shorts on a leg press exercise machine. They were taken by a camera hidden in the ceiling, set up by the manager of the gym without Diana’s knowledge. The photographs were then sold to the newspaper for £125,000. Circulation of the newspaper reportedly increased by 80,000 copies. The newspaper justified publication [page 297]

on the basis that the photographs showed a lapse in security and that the secret camera could easily have been a bomb planted by the IRA. Diana sued for invasion of privacy, together with breach of contract and breach of confidence.175 The case was settled before trial. In 1995 Diana gave the ‘Queen of Hearts’ interview on the BBC, claiming that there had always been three people in her marriage. In 1996 the Royal couple divorced. On 31 August 1997 Diana was tragically killed in a car accident. The final indignity for Diana was being photographed in her dying moments at the crash scene in Paris. In 2006 an Italian magazine Chi published photographs of Diana, showing her receiving oxygen in the wreckage at the scene. Some of the other photographs were later published, as a result of the inquest conducted into the circumstances of her death, although not all photographs were publicly released. The tragedy of these years was one of Shakespearian proportions. The invasions of privacy which Diana endured in life called loud and clear for a change in the law to protect such people from those in pursuit as well as protect such people from themselves. The Queen released this statement on the day before Diana’s funeral: Since last Sunday’s dreadful news we have seen, throughout Britain and around the world, an overwhelming expression of sadness at Diana’s death … I want to pay tribute to Diana myself. She was an exceptional and gifted human being. In good times and bad, she never lost her capacity to smile and laugh, nor to inspire others with her warmth and kindness … No-one who knew Diana will ever forget her. Millions of others who never met her, but felt they knew her, will remember her. I for one believe there are lessons to be drawn from her life and from the extraordinary and moving reaction to her death.

The subsequent acceptance of the European Convention on Human Rights allowed that change to occur and led English courts to develop an action for misuse of private information. The intrusions into the Royal Family continued nevertheless. In 2003, a former Royal household employee made allegations to the media that Prince Charles had engaged in homosexual conduct with a former Royal valet. The valet obtained injunctions to restrain English newspapers from publishing the allegations, while Prince Charles’s press secretary briefed the media on his behalf denying the allegations, without specifying what they were. These attempts to prevent disclosure of the allegations proved fruitless as they were published in continental publications and on the internet. Later, the former

employee admitted that the allegations were lies and that he had been paid money for the false disclosure. In the same year, the Queen, through the Attorney-General, obtained an injunction against the Daily Mirror from publishing articles by a reporter who had pretended to be a footman in the Royal household. There was a strict confidentiality clause in his employment contract with the Palace. The newspaper had already published details [page 298] of how the Queen’s cornflakes and porridge were laid out in Tupperware on her breakfast table, how the Queen’s toast was spread lightly with marmalade and how she fed most of it to her corgis. The newspaper’s defence was that the publication was in the public interest, claiming that it was a most serious security breach and that the Queen could have been poisoned. The injunction was granted under well-established principles of contract law. In 2005, the Mail on Sunday published extracts from Princes Charles’s travel diaries. The newspaper had obtained a copy of the diaries from a former employee in Prince Charles’s Private Office who provided them to the newspaper in breach of her contract of employment and in breach of the duty of confidence she owed.176 The diary extract recorded his visit to Hong Kong at the time of the transfer of sovereignty of Hong Kong to China, which he described as ‘The Great Chinese Takeaway’. The court struck out the newspaper’s defence on the basis that there was an unanswerable claim for breach of a confidential relationship. In late 2005, the News of the World reported that Prince William had a knee injury. Only a few persons within the Royal household knew this at the time. After complaint was made to the police about this disclosure, the newspaper’s royal reporter was arrested together with a private investigator for hacking into voicemails of the Royal household. They were subsequently convicted. This was the first evidence that the newspaper had engaged in the practice of mobile phone hacking which was later found to be a widespread activity interfering with the phones of celebrities, public figures and people caught up in the news of the day. This scandal led to closure of the newspaper in 2011 in disgrace.

In evidence at the Leveson Inquiry,177 a journalist from the News of the World, Paul McMullan, described his attitude to the pursuit of private information of celebrities which put the invasion of the Royals’ privacy over the Diana years in context. McMullan explained how he would park his van, equipped with surveillance technology and scanners, outside a celebrity’s home and intercept their phone calls or hack their voicemails. The phones, mobiles and cordless landlines, were at that time like radio transmitters capable of interception on the right frequency. McMullan described phone hacking as a ‘schoolyard trick’ practised by many teenagers across the country: It is simply the act of ringing up a mobile phone, pressing 9 to tell the phone that you are the owner and then, in the old days, you just put in 0000 because that was the default code for Vodafone. So a great many people from, you know, wives thinking their husbands were staying out late, for example, may have a little listen …

Asked about celebrities, he said that he was required to get the stories ‘at all costs’ for the ‘News of the Screws’. He described how the News of the World had a set of cars to pursue celebrities. [page 299] I absolutely loved giving chase to celebrities, I must admit. It was… before Diana died, you know, it was such good fun. I mean how many jobs can you actually have car chases in? It was great.

Asked about whether there should be such a thing as privacy he said: Privacy is the space bad people need to do bad things in. Privacy is particularly good for paedophiles, and if you keep that in mind, privacy is for paedos, fundamental, no one else needs it, privacy is evil.

In 2011, the new generation of Royals took centre stage with the wedding of Prince William and Kate Middleton. The estimated television audience was 2 billion people worldwide, with the broadcast also carried by YouTube. The couple requested time to settle into married life and that their privacy be respected. It was a short time before the Duke and Duchess of Cambridge came to realise photographers would be paid well to capture their most embarrassing

moments. In 2012, the French Magazine Closer published photographs of the Duchess sunbathing topless at a private resort in France. The Duchess sued the magazine for the ‘grotesque’ and ‘unjustifiable’ act, but the magazine’s editor claimed that the resort’s pool was in full view of a public road and easily seen by the public. In fact, the resort at Chateau d’Autet is in a secluded woodland setting and hundreds of metres from the closest public road but still observable through a long distance telephoto lens. A French judge injuncted the magazine from continued publication of the photographs. The Duchess also sought damages from the French courts. In 2014, the Australian magazine Woman’s Day and the Italian magazine Chi published photos of the pregnant Duchess in a bikini on holiday. Again, the justification was that the photos were taken on a public beach. The couple were holidaying on the island of Mustique which is regarded as a private holiday resort. Shortly afterwards, the German tabloid Bild published photos of the Duchess’ naked bottom when the wind from a helicopter lifted her dress while she was touring in the Blue Mountains, New South Wales. Likewise, Prince Harry was embarrassed when the United States website TMZ published photographs of him naked in a hotel room playing pool with friends in Las Vegas. In 2016, Kate’s sister, Pippa Middleton, obtained an injunction178 to restrain publication of material held on her iCloud account which had been hacked and sought to be sold to the media. Orders were made against ‘Persons Unknown’.179 The Royals also began to take proactive steps to complain about intrusive conduct, first, in 2015 in relation to an increasing number of incidents of photographers/paparazzi harassing Prince George and the tactics being used which were considered increasingly dangerous. The Palace complained of the unauthorised photography of the children, noting that the vast majority of publications around the world and all British publications had refused to fuel the market for such photos. The Duke and [page 300] Duchess said that they were pleased that leaders in the media industry had

shared their view that every child, regardless of their future public role, deserved a safe, happy and private childhood. They sought to protect Prince George and Princess Charlotte from harassment and surveillance from paparazzi photographers. They listed a number of incidents which were increasingly becoming a real security risk. In 2016, Prince Harry took a similar step when his relationship with his new girlfriend, Meghan Markle, was revealed publicly. This prompted the Prince to issue a media statement and complain of a ‘wave of abuse and harassment which included the smear on the front page of a national newspaper, the racial tones of comment pieces and the outright sexism and racism of social media trolls and web article comments.’ He noted that some of it had been hidden from the public including the nightly legal battles to keep defamatory stories out of papers, attempts of reporters and photographers to gain illegal entry to her home and substantial bribes offered by papers to her ex-boyfriend. He expressed concern about her safety and said that he was deeply disappointed that he was not able to protect her. He asked for the statement to be issued in the hope that the press which had been driving the story could pause and reflect before any further damage was done. He expressed the hope that fair-minded people would understand why he had felt it necessary to speak publicly and said ‘This is not a game — it is her life’. ____________________ 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13.

Genesis 3:7–3:10. Genesis 3:16. Blackstone’s Commentaries on the Laws of England (1764) Book IV, Chapter 16, p 223. Samuel D Warren and Louis D Brandeis, ‘The Right to Privacy’ (1890) 4 Harvard Law Review 193. Samuel D Warren and Louis D Brandeis, ‘The Right to Privacy’ (1890) 4 Harvard Law Review 193. Atkinson v John E Doherty & Co 121 Mich 372; 80 NW 285 (1899). Douglas v Hello! Ltd [2001] QB 967; Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22; Ash v McKennitt [2007] 3 WLR 194. (1937) 58 CLR 479. Victoria Park Racing and Recreation Grounds Company Ltd v Taylor (1937) 58 CLR 479 at 495–6. Victoria Park Racing and Recreation Grounds Company Ltd v Taylor (1937) 58 CLR 479 at 496. Victoria Park Racing and Recreation Grounds Company Ltd v Taylor (1937) 58 CLR 479 at 496. See also Malone v Metropolitan Police Commissioner [1979] Ch 344 at 372–81. Victoria Park Racing and Recreation Grounds Company Ltd v Taylor (1937) 58 CLR 479 at 505. See 3.10.

14. Privacy Act 1988 (Cth). 15. Samuel D Warren and Louis D Brandeis, ‘The Right to Privacy’ (1890) 4 Harvard Law Review 193. 16. See W Prosser, ‘Privacy’ (1960) 48 California Law Review 383 at 389; see also Second Restatement of the Law, Torts 1977 (US) 652B, 652C, 652D, 652E. 17. See Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR 457; Bathurst City Council v Saban [1985] 2 NSWLR 704; Emcorp v Australian Broadcasting Corporation [1988] 2 Qd R 169; WhiskiSoda Pty Ltd v HSV Channel Seven Pty Ltd (1994) 1 MLR 59; Holiday Concepts Management Pty Ltd v General Television Corp Pty Ltd (1996) 3 MLR 62; TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333; Craftsman Homes Pty Ltd v TCN Channel Nine Pty Ltd [2006] NSWSC 519; Brigthen Pty Ltd v Nine Network Australia Pty Ltd [2009] NSWSC 319. 18. See Raciti v Hughes (1996) 3 MLR 46; Khorasandjian v Bush [1993] QB 727; Bernstein of Leigh (Brown) v Skyviews & General Ltd [1978] QB 479; Hunter v Canary Wharf Ltd [1997] AC 655. 19. See Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153; Ettingshausen v Australian Consolidated Press Ltd (1991) 23 NSWLR 443. 20. See Duchess of Argyll v Duke of Argyll [1967] Ch 302; HRH Princess of Wales v Mirror Group Newspapers Ltd (1993) 1 MLR 21; Hitchcock v TCN Channel Nine Pty Ltd (No 2) (CA (NSW), 24 March 2000, unreported), BC200001955; Giller v Procopets [2008] VSCA 236. 21. DPP (NSW) v Fordham [2010] NSWSC 795. 22. Telecommunications (Interception and Access) Act 1979 (Cth). 23. Prince Albert v Strange [1849] EWHC ChJ 20. 24. Previously known as the Trade Practices Act 1974. 25. Entick v Carrington (1765) Howell’s State Trials 1030 at 1066: ‘the eye cannot by the laws of England be guilty of a trespass’. 26. See Crimes Act 1900 (NSW) s 547C. 27. Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109; Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199. 28. Google Inc v Vidal-Hall [2015] EWCA Civ 311. 29. Giller v Procopets [2008] VSCA 236. 30. Mosley v United Kingdom [2011] ECHR 774 (No 48009/08) at [130]–[132]. 31. Hitchcock v TCN Channel Nine Pty Ltd (2000) Aust Torts Reports 81-550; Associated Newspapers Ltd v Prince of Wales [2006] EWCA Civ 1776. 32. Saad v Chubb Security Australia Pty Ltd [2012] NSWSC 1183. 33. Giller v Procopets [2008] VSCA 236; A v B Plc [2003] QB 195; Mosley v News Group Newspapers Ltd [2008] EWHC 1777; ETK v News Group Newspapers Ltd [2011] EWCA Civ 439; Wilson v Ferguson [2015] WASC 15; AMC v News Group Newspapers Ltd [2015] EWHC 2361; PJS v News Group Newspapers Ltd [2016] UKSC 26. 34. Donnelly v Amalgamated Television Services Pty Ltd (1998) 45 NSWLR 570; Doe v Australian Broadcasting Corporation [2007] VCC 281. 35. Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; Grosse v Purvis (2003) Aust Torts Reports 81-706; Representative Claimants v MGN Ltd [2015] EWCA Civ 1291. 36. Douglas v Hello! Ltd [2001] QB 967 (wedding in hotel). 37. Campbell v Mirror Group Newspapers Ltd [2004] 2 AC 457; Von Hannover v Germany (2004) 40 EHRR 1; Hosking v Runting [2005] 1 NZLR 1; Murray v Express Newspapers Plc [2007] EWHC 1908. See also Murray v Big Pictures (UK) Ltd [2008] EWCA Civ 446; Axel Springer AG v Germany [2012] ECHR 227

38. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58. 59. 60. 61. 62. 63. 64. 65. 66. 67. 68. 69. 70. 71. 72.

(No 39954/08); Von Hannover v Germany (No 2) [2012] ECHR 228 (No 40660/08; 60641/08); Candy v Bauer Media Ltd [2013] NSWSC 979; Weller v Associated Newspapers Ltd [2015] EWCA Civ 1176. Cruise and Kidman v Southdown Press Pty Ltd (1993) 26 IPR 125. Compare Church of Scientology v Woodward (1982) 154 CLR 25 at 68. Warne v Genex Corporation Pty Ltd (1996) 35 IPR 284. See also Ettingshausen v Australian Consolidated Press Ltd (1993) 1 MLR 2 (CA (NSW), 13 October 1993), BC9302147. Kaye v Robertson [1991] FSR 62. (SC (NSW), Levine J, 20 February 1998, unreported), BC9800296. John Fairfax Publications Pty Ltd v Doe (1995) 37 NSWLR 81 at 97–8. (SC (NSW), Levine J, 20 February 1998, unreported), BC9800296 at 45. GS v News Ltd (SC (NSW), Levine J, 20 February 1998, unreported), BC9800296 at 45. (1998) 45 NSWLR 570. Hitchcock v TCN Channel Nine Pty Ltd (2000) Aust Torts Reports 81-550 at [12]. Douglas v Hello! Ltd [2001] QB 967. Douglas v Hello! Ltd [2001] QB 967 at 1001. Douglas v Hello! Ltd [2001] QB 967 at 1001. Douglas v Hello! Ltd [2001] QB 967 at 1012–13. Douglas v Hello! Ltd [2001] QB 967 at 984–5. See also Shelley Films Ltd v Rex Features Ltd [1994] MLR 134; Creation Records Ltd v News Group Newspapers Ltd [1997] EMLR 444. Douglas v Hello! Ltd [2003] EWHC 2629 (Ch). [1969] RPC 41 at 47. See also Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 at 281. Douglas v Hello! Ltd [2003] EWHC 2629 (Ch). [2003] QB 195. A v B plc [2003] QB 195 at 204–10. A v B plc [2003] QB 195 at 207. [2003] QB 633. [2004] 2 AC 406. Collins v Wilcock [1984] 1 WLR 1172 at 1178; Wilson v Pringle [1987] QB 237. Wilkinson v Downton [1897] 2 QB 57; Janvier v Sweeney [1919] 2 KB 316; Victorian Railway Commissioners v Coultas (1888) 13 App Cas 222. [2001] QB 967 at 1021. Wainwright v Home Office [2004] 2 AC 406 at 423. Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22. Douglas v Hello! Ltd [2005] EWCA Civ 595. Douglas v Hello! Ltd [2005] EWCA Civ 595 at [53]. Douglas v Hello! Ltd [2005] EWCA Civ 595 at [83]. Douglas v Hello! Ltd [2005] EWCA Civ 595 at [84]. Douglas v Hello! Ltd [2005] EWCA Civ 595 at [94]–[95]. Douglas v Hello! Ltd [2005] EWCA Civ 595 at [105]. Douglas v Hello! Ltd [2005] EWCA Civ 595 at [107]. Douglas v Hello! Ltd [2005] EWCA Civ 595 at [110].

73. Ash v McKennitt [2007] 3 WLR 194 at [11]. 74. Ash v McKennitt [2007] 3 WLR 194 at [11]; Associated Newspapers Ltd v Prince of Wales [2006] EWCA Civ 1776 at [24]; Terry v Persons Unknown [2010] EWHC 119 at [55]–[56]. 75. Ash v McKennitt [2007] 3 WLR 194 at [12]; M v Secretary of State For Work & Pensions [2006] 2 AC 91 at [83]. 76. Ash v McKennitt [2007] 3 WLR 194 at [46]. 77. (2004) 40 EHRR 1. 78. Von Hannover v Germany (2004) 40 EHRR 1 at [69]. 79. Von Hannover v Germany (2004) 40 EHRR 1 at [69]. 80. [2007] EWHC 1908. 81. Murray v Big Pictures (UK) Ltd [2008] EWCA Civ 446 at [56]–[57]. 82. [2005] 1 NZLR 1; see also Rogers v TVNZ [2007] NZSC 91. 83. Weller v Associated Newspapers Ltd [2015] EWCA Civ 1176. 84. Weller v Associated Newspapers Ltd [2015] EWCA Civ 1176 at [29]–[30]. 85. Weller v Associated Newspapers Ltd [2015] EWCA Civ 1176 at [39]. 86. Weller v Associated Newspapers Ltd [2015] EWCA Civ 1176 at [40]–[41]. 87. [2008] EWHC 1777. 88. Mosley v News Group Newspapers Ltd [2008] EWHC 1777 at [7]. 89. Mosley v News Group Newspapers Ltd [2008] EWHC 1777 at [98]. 90. Mosley v News Group Newspapers Ltd [2008] EWHC 1777 at [100]. 91. Mosley v News Group Newspapers Ltd [2008] EWHC 1777 at [10]–[12]. 92. Mosley v News Group Newspapers Ltd [2008] EWHC 1777 at [14]–[15]. 93. [2008] EWHC 1777 at [232]–[236]; see also Terry v Persons Unknown [2010] EWHC 119. 94. Mosley v United Kingdom [2011] 53 EHRR 30; [2011] ECHR 774, 10 May 2011, no 48009/08 at [130]– [132]. 95. [2011] EWCA Civ 439. 96. Murray v Express Newspapers [2009] Ch 481 at [36]; DFT V TFD [2010] EWHC 2335 at [15]–[18]; Hutcheson v News Group Newspapers Ltd [2011] EWCA Civ 808 at [24]–[27]. 97. [2004] UKHL 22; Ntuli v Donald [2010] EWCA Civ 1276 at [11]. 98. Browne v Associated Newspapers Ltd [2008] QB 103 at [61]. 99. In Re S (A Child) (Identification: Restrictions on Publication) [2005] 1 AC 593 at [17]; Ntuli v Donald [2010] EWCA Civ 1276 at [10]; Hutcheson v News Group Newspapers Ltd [2011] EWCA Civ 808 at [28]–[29]; AMC v News Group Newspapers Ltd [2015] EWHC 2361 at [10]–[14]; Weller v Associated Newspapers Ltd [2015] EWCA Civ 1176 at [15]–[18]. 100. Von Hannover v Germany (2004) 40 EHRR 1 at [76]. 101. ETK v News Group Newspapers Ltd [2011] EWCA Civ 439 at [10]; see also Hutcheson v News Group Newspapers Ltd [2011] EWCA Civ 808 at [31]. 102. ETK v News Group Newspapers Ltd [2011] EWCA Civ 439 at [13]. 103. ETK v News Group Newspapers Ltd [2011] EWCA Civ 439 at [23]; see also Ntuli v Donald [2010] EWCA Civ 1276 at [14]–[17]. 104. [2015] EWHC 2361. 105. AMC v News Group Newspapers Ltd [2015] EWHC 2361 at [29].

106. 107. 108. 109. 110. 111. 112. 113. 114. 115.

116. 117. 118.

119. 120. 121. 122. 123. 124. 125. 126. 127. 128. 129. 130. 131. 132. 133. 134. 135. 136. 137. 138. 139.

[2015] EWCA Civ 311. Google Inc v Vidal-Hall [2015] EWCA Civ 311 at [51]. [2015] EWCA Civ 1291. Representative Claimants v MGN Ltd [2015] EWCA Civ 1291 at [48]. [2016] UKSC 26. PJS v News Group Newspapers Ltd [2016] EWCA Civ 100. PJS v News Group Newspapers Ltd [2016] UKSC 26 at [32]. PJS v News Group Newspapers Ltd [2016] UKSC 26 at [35]. PJS v News Group Newspapers Ltd [2016] UKSC 26 at [44]. See Coco v AN Clark (Engineers) Ltd [1969] RPC 41 at 47; Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 at 281; Armstrong Strategic Management and Marketing Pty Ltd v Expense Reduction Analysts Group Pty Ltd [2012] NSWCA 430 at [99]. Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 14 FCR 434 at 443; Streetscape Projects (Australia) Pty Ltd v City of Sydney [2013] NSWCA 2 at [159]. Sullivan v Sclanders (2000) 77 SASR 419 at [44]–[45]; AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 1395 at [20]. Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 14 FCR 434 at 454; Sullivan v Sclanders (2000) 77 SASR 419 at [45]; Australian Football League v The Age Company Ltd (2006) 15 VR 419; British American Tobacco Company Australian Ltd v Gordon [2009] VSC 619 at [103]–[119]; AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 1395 at [20]. (2001) 208 CLR 199. Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at [39]; see also Hellewell v Chief Constable of Derbyshire [1995] 1 WLR 804 at 807; Douglas v Hello! Ltd [2001] QB 967. Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at [41]. Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at [42]. Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at [107]. Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at [58]. Victoria Park Racing and Recreation Grounds Company Ltd v Taylor (1937) 58 CLR 479. Moorgate Tobacco Company Ltd v Philip Morris Ltd (No 2) (1984) 156 CLR 414 at 444–5. Restatement of the Law, 2nd ed, American Law Institute Publishers, 1977, pp 383–94. Douglas v Hello! Ltd [2001] QB 967 at 1021. Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at [129]. Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at [132]. Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at [186]. Victoria Park Racing and Recreation Grounds Company Ltd v Taylor (1937) 58 CLR 479. Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at [251]–[277]. Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at [276]. Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at [295]. Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at [296]–[297]. Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at [314]. Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at [314]–[336]. Victoria Park Racing and Recreation Grounds Company Ltd v Taylor (1937) 58 CLR 479.

140. 141. 142. 143. 144. 145. 146.

147. 148. 149. 150. 151. 152. 153. 154. 155. 156. 157. 158. 159.

160. 161. 162. 163. 164. 165. 166. 167. 168. 169. 170. 171. 172. 173. 174.

Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at [328]. Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at [332]. (2003) Aust Torts Reports 81-706. Grosse v Purvis (2003) Aust Torts Reports 81-706 at [444]. See also NRMA Insurance Ltd v John Fairfax Publications Pty Ltd [2002] NSWSC 563. Grosse v Purvis (2003) Aust Torts Reports 81-706. [2007] VCC 281. Kalaba v Commonwealth of Australia [2004] FCAFC 326 at [6]; Seven Network (Operations) Ltd v Australian Broadcasting Corporation [2007] NSWSC 1289 at [8]; Giller v Procopets [2008] VSCA 236 at [167]–[168]. [2008] VSCA 236. Giller v Procopets [2008] VSCA 236 at [129], [167]–[168]. Giller v Procopets [2008] VSCA 236 at [447]–[452]. Giller v Procopets [2008] VSCA 236 at [437]. [2012] NSWSC 1183. Saad v Chubb Security Australia Pty Ltd [2012] NSWSC 1183 at [183]. [2013] QCD 181. Doe v Yahoo!7 Pty Ltd; Wright v Pagett [2013] QDC 181 at [310]. [2013] NSWSC 979. [2015] WASC 15. Wilson v Ferguson [2015] WASC 15 at [56]. Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at [42]. A v B plc [2003] QB 195; Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22; Douglas v Hello! Ltd [2005] EWCA Civ 595; Associated Newspapers Ltd v Prince of Wales [2006] EWCA Civ 1776 at [28]; Google Inc v Vidal Hall [2015] EWCA Civ 311. Douglas v Hello! Ltd [2005] EWCA Civ 595 at [256]. County Council v A [1985] 1 All ER 53; Venables v News Group Newspapers Ltd [2001] 1 All ER 908. [2016] UKSC 26. [2011] NSWCA 156 at [34]. Wainwright v Home Office [2002] 2 QB 1334 at 1351. Privacy Act 1988 (Cth). Australian Law Reform Commission, Unfair Publication: Defamation and Privacy, Report 11 (1979). Australian Law Reform Commission, For Your Information: Australian Privacy Law and Practice, Report 108 (May 2008), Volume 3, Chapter 74, Recommendation 74-1. New South Wales Law Reform Commission, Invasion of Privacy, Report 120 (2009). Victorian Law Reform Commission, Surveillance in Public Places, Report 18 (June 2010). Australian Law Reform Commission, Serious Invasions of Privacy in the Digital Era, Report 123 (2014). NSW Parliament Legislative Council Standing Committee on Law, Remedies for the Serious Invasion of Privacy in New South Wales, Report No 57 (2016). Prince Albert v Strange [1849] EWHC ChJ 20. B Palling (ed), The Book of Modern Scandal, Weidenfeld & Nicolson, London, 1995, p 414. 23 January 1993.

175. HRH Princess of Wales v Mirror Group Newspapers Ltd (1993) 1 MLR 21. 176. Associated Newspapers Ltd v Prince of Wales [2006] EWCA Civ 1776. 177. Lord Justice Leveson, The Leveson Inquiry: Report into the Culture, Practices and Ethics of the Press, 29 November 2012. 178. Middleton v Persons Unknown [2016] EWHC 2354. 179. Bloomsbury Publishing Group Plc v News Group Newspapers Ltd [2003] 1 WLR 1633.

[page 301]

CHAPTER 15 OTHER CAUSES OF ACTION INTRODUCTION INJURIOUS FALSEHOOD MISLEADING OR DECEPTIVE CONDUCT NEGLIGENCE CONTEMPT OF COURT COPYRIGHT ANTI-DISCRIMINATION

15.1 15.2 15.3 15.4 15.5 15.6 15.7

INTRODUCTION 15.1 The publication of material may be the subject of a variety of causes of action, depending upon the rights at common law or under statute that may be infringed. The cause of action for defamation is often used as a substitute or an alternative to other more appropriate causes of action in the circumstances. The issue of privacy has been considered in Chapter 14. The following are other common causes of action arising from publication.

INJURIOUS FALSEHOOD 15.2 At common law, there is a tort of ‘injurious falsehood’ where a false statement is published about or affecting another person, the statement is published maliciously and causes the plaintiff actual damage.1 The modern foundation of the tort was stated in Ratcliffe v Evans: … [T]hat an action will lie for written or oral falsehoods, not actionable per se nor even defamatory, where they are maliciously published, where they are calculated in the ordinary

course of things to produce, and where they do produce, actual damage, is established law. Such an action is not one of libel or of slander, but an action on

[page 302] the case for damage wilfully and intentionally done without just occasion or excuse, analogous to an action for slander of title.2

The difference between the action for injurious falsehood and the action for defamation is evident in Barrett v Associated Newspapers Ltd.3 The Daily Mail had published an article about the plaintiff’s house saying that it was haunted. A tenant claimed that there were strange knockings and rappings in the house and that his study door would open soundlessly. The local tradition was that a farmer had strangled a child many years before in the vicinity of the house. The court held that there was a distinction between the interest protected by a claim for defamation (the plaintiff’s personal reputation) and the interest protected by the action for injurious falsehood (the plaintiff’s business as a landlord). Accordingly, the article was not defamatory and the plaintiff’s action of injurious falsehood failed because he did not lead any evidence of actual damage. The plaintiff must prove the following elements in the action for injurious falsehood:4 (a) A false statement of or concerning the plaintiff’s goods or business — it need not be disparaging of the plaintiff’s reputation.5 The question has been raised as to whether the action extends beyond concepts of business or property to extend to false statements which interfere with a prospective advantage to the plaintiff even of a non-commercial kind.6 If the article in the Daily Mail had alleged not only that the plaintiff’s house was haunted, but also that he knew it and was concealing it from prospective tenants, it would be defamatory of the plaintiff and an action for defamation could be brought in the alternative to the action for injurious falsehood.7 The definition of ‘defamatory matter’ was previously sufficient in the Code states of Queensland and Tasmania to cover statements that

were likely to injure a person in their trade or profession even though the codes expressly preserved the actionable wrong commonly called slander of title.8 (b) The publication of the statement by the defendant to a third person. (c) Malice on the part of the defendant — the defendant must have intended to cause the harm. Reasonable foreseeability of harm is not a part of the cause of action. Where it is established by evidence that the defendant [page 303] intended to cause the harm that was suffered, that is sufficient to prove this element. Evidence may also be given from which the court may infer the requisite intention. As a general rule, a person is presumed to intend the natural consequences of his or her acts. In this context, the question of whether there is a sufficient relation between the damage ‘intended’ and the damage suffered will generally depend upon whether the damage suffered was the ‘natural and probable result’ of the false statement, knowingly published by the defendant.9 Malice may be evident from personal spite or knowledge of the falsity of what was said,10 or evident by an evil or harmful state of mind.11 (d) Proof of actual damage (which may include a general loss of business) which was the intended result by the defendant or was the natural and probable result of the intentionally false statement by the defendant. The ‘grapevine effect’ may provide the means by which a court may conclude that a given result was natural and probable. This will depend upon a variety of factors, such as the nature of the false statement and the circumstances in which it was published. The grapevine effect does not operate in all cases so as to establish that any republication is the natural and probable result of the original publication. The cause of action requires the elements of malice and special damage to be shown. As such an injunction may be granted for the tort of injurious falsehood,

when an injunction for an alternative action for defamation, if available, might not.12 While the plaintiff is burdened with proving these elements, by reason of this tort protecting proprietary and commercial rather than personal interests, the inhibition upon the use of the injunction to restrain further publication of defamatory material relating to the public interest or freedom of speech does not apply to injurious falsehood.13 The action for injurious falsehood concerning false statements made to other persons about the plaintiff, whereby the plaintiff suffers loss through the reaction of those other persons, is closely aligned to the action for deceit where the false statement is made to the plaintiff by which he or she is induced to act to his or her own loss.14 [page 304] Other relevant advantages of an action for injurious falsehood compared to a defamation action include that a corporation can bring a claim for injurious falsehood, a jury is not required, the limitation period remains at six years and exemplary damages may be awarded. It is also not necessary to show that the plaintiff has been identified by the injurious statement and the defences to a defamation action generally do not apply. The basic reason for the difference is that the onus of proof resting on a plaintiff to establish the cause of action for injurious falsehood is high, requiring proof of falsity, malice and actual loss.

MISLEADING OR DECEPTIVE CONDUCT 15.3 A publication which is misleading or deceptive or likely to mislead or deceive,15 to persons (whether it be to the plaintiff or to other persons) in trade or commerce,16 may constitute conduct17 in breach of s 18 of the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Cth)18 (Sch 2 s 18). This section applies to a publication made by any person and is not restricted to publications to consumers. There are equivalent provisions in the Fair Trading Acts of each state or territory.

While the conduct to which the section applies is very broad, it is restricted by the requirement that the conduct be ‘in trade or commerce’. The term is defined by s 2 of the Australian Consumer Law to mean trade or commerce within Australia, or between Australia and places outside Australia, and includes any business or professional activity (whether or not carried on for profit). The term can be construed as referring ‘only to conduct which is itself an aspect or element of activities or transactions which, of their nature, bear a trading or commercial character’.19 It includes promotional activities in relation to or for the purposes of the supply of goods or services to actual or potential customers, whether they are identified or merely an unidentifiable section of the public.20 It does not extend to all conduct regardless of its nature in which persons might engage in the course of or for the purposes of their overall trading or commercial activities. It may be relevant to consider the subject matter of the statements, the persons about whom the statements are made, or the persons by whom the statements are [page 305] made, but none of these factors is determinative of whether the conduct is ‘in trade or commerce’, distinct from ‘in respect of trade or commerce’. The fact that a statement was made by a politician about a plaintiff whose profession was a historian was not sufficient to amount to a business or professional activity and to amount to conduct in ‘trade or commerce’.21 A statement made by a minister at an international trade conference, while relevant to matters of trade or commerce, was held not to be conduct which was actually ‘in trade or commerce’.22 An email sent by a doctor to a government department concerning the business of the plaintiff was also held not to be conduct ‘in trade or commerce’.23 The conduct must by its nature have a trading or commercial character not be merely conduct which may be in some way connected to commercial activity. Statements made at public meetings intended to raise funds for further investigation would not by themselves amount to conduct in trade or

commerce.24 The conduct must be ‘in’ trade or commerce and not merely related to it. Conduct by which a person sought interviews for a documentary film was held to be conduct in the course of carrying on a commercial activity even though there was no direct commercial relationship between the parties.25 An interview with the media may involve a commercial aspect where, for example, the interviewee seeks or is offered a financial incentive which is likely to be ‘in trade or commerce’. Media outlets, newspapers, radio or television, usually conduct their activities ‘in trade or commerce’ as part of the media and communications industries. It follows that statements made by a person intended to be published through such media outlets bear the risk of liability for misleading or deceptive conduct. By reason that publications in the media were held to be in trade or commerce,26 the statutory provisions were amended so as not to apply to a ‘prescribed publication of matter’ by a ‘prescribed information provider’.27 The exemption is intended to apply to newspaper, magazine and television publishers as an ‘information provider’ is defined as a person who carries on a business of providing information.28 It is broad enough to apply to other publishers of ‘information’ such as book publishers.29 While media outlets are exempt for statements made ‘in trade or commerce’ providing information, those who participate in the publications may not have the same [page 306] protection. Interviewees and commentators may not be covered by the exemption and need to be careful with respect to this risk.30 The exemption does not apply where the information is published pursuant to an arrangement between the media and a supplier of goods or services by which the information is adopted by the media and misleading representations are made in relation to ‘goods or services of that kind’.31 Such adoption may occur through infomercials, advertorials or endorsement by favourable news items.32 The exemption does not apply to interviews obtained on false pretences,33 or the publication of an advertisement, and may not apply to media advertising of forthcoming programs.34 A defence is available to such an action

for misleading or deceptive advertisements35 where the publisher did not know and had no reason to suspect that the publication would be in breach.36 The term ‘prescribed information provider’ has been extended to include a freelance journalist,37 as well as employed journalists.38 It has been argued that the term does not apply to the publisher of fictional material.39 Attempts have also been made to overcome the exemption by the provisions of the legislation prohibiting aiding and abetting40 but to do so would require proof of the publisher’s knowledge of the alleged falsity of the statements made by the source.41

NEGLIGENCE 15.4 An action for negligence is available where a person publishes a statement to the plaintiff, or other persons, where the publisher owes a duty of care to the plaintiff and breaches that duty by failing to exercise reasonable care in publishing the statement, causing the plaintiff loss which was reasonably foreseeable even if that loss was only [page 307] economic loss.42 An action for negligence may be brought in the alternative to an action for defamation.43 However, where statements are made that affect a person’s reputation, the appropriate action should be defamation, not negligence.44 In Sattin v Nationwide News Pty Ltd,45 the newspaper published a photograph of a man and a woman under the caption: ‘Newlyweds David Lesley and Jeanette Sattin enjoyed a celebratory drink at the Beach Bistro’. The plaintiff was not married to David Lesley but to someone else. She brought proceedings for defamation alleging that the publication suggested she was a bigamist to those who knew her true marital status. She sought to amend her claim to bring an action for negligence. The court rejected the application on the basis that the law of defamation is one of compromises involving questions of freedom of

speech and it would be unacceptable to introduce a common law duty of care upon the media in effect to ‘get a publication right’.46 In GS v News Ltd,47 the plaintiff brought proceedings for negligence in respect of the publication of her name and photograph in The Australian newspaper. She pleaded an action for breach of privacy which was struck out. As the plaintiff had no cause of action for defamation, because the information published was true, the action for negligence was not struck out. In a similar case, Doe v Australian Broadcasting Corporation,48 Doe was identified in radio broadcasts in breach of the Judicial Proceedings Reports Act 1958 (Vic). It was held that she was entitled to bring an action for negligence as the ABC owed her a duty of care not to inflict psychiatric injury through its negligent publication. The plaintiff also brought an action for breach of privacy and breach of confidence but there was no action for defamation as the information published was true. These may be exceptional cases. In Australia, the High Court has expressed the view that there is a need to preserve legal coherence between the action for defamation and other actions such as negligence which is a relevant factor to determine whether a duty of care exists in relation to publication by the media. The law of defamation has well-developed principles to determine the resolution of the competing interests of the parties for such publications.49 [page 308]

CONTEMPT OF COURT 15.5 The publication of a report of allegations made in proceedings or in court may constitute a contempt of court. This is not a cause of action but a criminal offence requiring proof beyond reasonable doubt. The publication must have a real or clear and definite tendency, as a matter of practical reality, to interfere with the administration of justice in the particular case, such as prejudice a fair trial50 or impede the course of justice in the proceedings by deterring potential witnesses from giving evidence.51 Once there are proceedings before the court (that is, they are sub judice), a

report of those proceedings carries the risk of contempt. Proceedings are sub judice following the arrest and charge of the accused and remain so even on appeal.52 Generally, publications are unlikely to have this tendency or risk where judges or magistrates are determining questions of fact in the proceedings. Judges are assumed to be able to put out of their minds the influence of pre-trial publicity.53 Jurors, on the other hand, are more likely to be influenced, which could have the risk of affecting an impartial verdict based on the evidence at trial.54 Trial judges give juries directions that they should base their decisions only on the evidence heard in the court room and should ignore media reporting of the case and not make their own inquiries independent of the courtroom. However, jurors are no longer regarded as exceptionally fragile and prone to prejudice as a result of pre-trial publicity. Instead, they are regarded as approaching their task properly, being true to their oath and complying with the trial judge’s directions, in particular to determine guilt only on the evidence before them.55 Pre-trial statements about the guilt (or innocence) of an accused in criminal proceedings are likely to be a contempt.56 Likewise, the publication of prior convictions, which are usually not admissible as evidence in the trial of the person’s guilt of the particular [page 309] criminal charge, is likely to be a contempt.57 An article published by the website owned by Yahoo!7 during a murder trial referred to a history of the accused’s violence toward the victim whom he was alleged to have murdered. This history was not part of the trial and disclosure of it publicly during the trial was held to have a real and definite tendency to prejudice the fair trial of the accused. Yahoo!7 was fined $300,000 for contempt.58 Charges of contempt by publication require the court to balance the public interest in freedom of speech with the public interest in the administration of justice.59 The importance of minimal interference with freedom of speech requires the summary jurisdiction to punish for contempt to be exercised ‘with great caution’.60 Subject to the constraints imposed by the law of contempt,

members of society are free to express their views in relation to the adequacy and propriety of the systems and processes used in the administration of justice.61 The pre-judgement of issues to be determined in civil proceedings in the media is unlikely to have an effect on a judge amounting to a contempt. While the issue was raised in Victoria v Australian Building Construction Employees’ & Builders’ Labourers Federation,62 it was not resolved.63 However, contempt may be found because of the effect on the parties64 or the effect on witnesses.65 The publication of interviews with witnesses may be a contempt.66 The report of proceedings in court can be a contempt.67 However, if the report is confined to an account of the evidence and submissions based on the evidence, is a report of what has taken place in open court, is not published in breach of a suppression order or the like, and is accurate and fair, it will be protected from the law of contempt. The report must be published in good faith and without malice and must be reasonably contemporaneous with the proceedings.68 [page 310] The publication of statements which criticise judges or courts is tolerated to a degree, but not if it shakes the confidence of litigants and the public in the decisions of the court and weakens the spirit of obedience to the law.69 Contempt is more likely if the criticism is that a judge has acted with bias or with impropriety.70 It may be possible to raise a defence of fair comment in the circumstances.71 The implied freedom of political communication under the Constitution does not override the principles of contempt of court.72 Where defamation proceedings are on foot, further media reports will not be a contempt if the court is satisfied that the defamation proceedings were commenced with the sole purpose of providing the plaintiff with the legal basis of stopping further publication.73

COPYRIGHT

15.6 The publication of material owned by or belonging to another person may be a breach of copyright under the Copyright Act 1968 (Cth). It is copying the form or expression of the publication that is prohibited, not the idea or method. The owner of the copyright has a moral right of attribution, to be acknowledged as the author or creator of the work. False attribution of ownership to another person may be a breach of the Copyright Act.74 The owner may have a right of integrity not to have the work subjected to derogatory treatment, demeaning the owner’s reputation.75 This is a right not to have the work altered or presented in a manner that prejudicially affects the author’s honour or reputation. Copyright, however, is restricted by the provisions of fair dealing for the purposes of: (a) research or study;76 (b) criticism or review whether of the copyright material or of other material provided sufficient acknowledgment is made;77 (c) the reporting of news;78 [page 311] (d) judicial proceedings or the report of judicial proceedings;79 or (e) the giving of professional advice by a legal practitioner or registered attorney.80

ANTI-DISCRIMINATION 15.7 A publication which is ‘reasonably likely’ to insult, offend, humiliate or intimidate individuals or groups of people on account of their race, colour, national or ethnic origin may be in breach of the Racial Discrimination Act 1975 (Cth) s 18C.81 The scope of the right to those who might be affected under s 18C has become a matter of political debate with proposals for broadening it to the ordinary reasonable person test and not the narrower test of the group affected.

There are, however, exemptions under s 18D from breach where the publication is made in good faith, inter alia, in the course of any publication for any genuine purpose in the public interest, or a fair and accurate report of a matter of public interest, or fair comment on a matter of public interest. The West Australian published a cartoon under the title ‘Alas Poor Yagan’. Yagan was an Aboriginal leader in the 1830s in Western Australia. He was arrested in connection with the killing of a white settler, but escaped. He was declared an outlaw, with a reward of £30 for his capture, dead or alive, and was shot dead in 1833. Yagan’s head was removed from his body and sent to England for display in a museum. In 1997, Yagan’s head was recovered and returned to Western Australia by a delegation of Aboriginal Elders. There was acrimony within the indigenous community over who had the appropriate cultural claims, by descent, to bring the head back for burial. In this context, the newspaper published the cartoon ‘Alas Poor Yagan’ which reflected on the mixed ancestry of some of the people involved and implied an unseemly desire to take advantage of public funding of the trip to England amongst other matters. A complaint was made about the cartoon to the Human Rights and Equal Opportunity Commission for breach of the Racial Discrimination Act. It was held by the Commission that the cartoon fell within the exemption contained in s 18D of the Racial Discrimination Act and that the publication of the matter was not unlawful.82 A journalist, Andrew Bolt, wrote two articles in the Herald Sun newspaper and blog articles on the Herald Sun website criticising some people who he said were choosing to identify as Aboriginal, naming 18 people as evidence of this trend. The applicant complained that the articles breached s 18C of the Racial Discrimination Act 1975 by conveying the offensive message that these people who were fair skinned were not genuinely Aboriginal but were choosing to identify [page 312] falsely as Aboriginal so they could access benefits. The journalist claimed that he had sought to highlight a trend whereby persons of mixed genealogy chose to

identify as Aboriginal which led to the undesirable consequences of emphasising racial differences rather than common humanity.83 The court held that a person with mixed heritage but with some Aboriginal descent who identified as an Aboriginal person and had communal recognition as such satisfied what was conventionally understood to be an ‘Australian Aboriginal’. Australian Aboriginal people have a long shared history and a culture distinctly their own. They are a race and have a common ethnic origin. Whether the conduct was reasonably likely to offend a group of people for the purposes of s 18C(1)(a) was to be analysed from the point of view of a hypothetical representative of that group.84 Section 18C is not concerned with tasteless jokes or smart alec remarks unless there is a likelihood that it will in all the circumstances offend, insult, humiliate or intimidate the members of the relevant group.85 The phrase ‘offend, insult, humiliate or intimidate’ in s 18C(1)(a) necessarily involves a public mischief beyond personal hurt, and refers to conduct that has profound and serious effects, not to be likened to mere slights.86 The defence under s 18D was unavailable in this case because some of the facts on which the view was expressed were untrue and/or deficient. In Prior v Queensland University of Technology,87 three students entered the computer lab in the Oodgeroo unit at the Queensland University of Technology campus. The applicant, who was an administration officer, approached them and asked if they were indigenous. When they replied they were not, she said that it was an indigenous space for indigenous students at the QUT and that there were other computer labs in the university which they could use. The students left the lab. One of the students logged on to his Facebook account and accessed a Facebook page called QUT Stalker Space. He posted the following comment: ‘Just got kicked out of the unsigned indigenous computer room. QUT stopping segregation with segregation …?’ Various comments then followed including one by another student ‘I wonder where the white supremacists computer lab is …’. The applicant claimed against the students alleging a breach of s 18C and sought an apology and damages. The students applied to strike out the claim on the basis that the applicant did not have reasonable prospects of prosecuting her claim that the words complained of were reasonably likely to have the effect required under s 18C. The court considered the student’s Facebook post and noted that the first

sentence consisted of a statement of fact which was accurate. That statement was therefore not reasonably [page 313] likely to infringe s 18C. The second sentence was a statement of opinion arguably posed as a question and in its context, the word ‘segregation’ had a racial tone. It plainly referred to the separation of people into ethnic or racial groups. Historically, the use of that word in that way had a negative connotation but to the extent that the sentence carried a negative connotation because of the word ‘segregation’, the negative connotation was directed towards the QUT. To determine whether those words were reasonably likely to breach s 18C, it was necessary to consider the perspective of the hypothetical person in the applicant’s position or the group which the applicant claimed was reasonably likely to be offended by those words in all the circumstances. The court held it was not reasonably likely that such persons would feel offended, insulted, humiliated or intimidated by the words. This was so because the words were directed to the QUT and its actions, and the words were rallying against racial discrimination.88 The proceedings were dismissed. In addition to protection from discrimination on grounds of race, some states provide legislation to prohibit vilification on grounds of sexuality and religion.89 ____________________ 1. 2. 3. 4.

5. 6. 7. 8.

Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388. Ratcliffe v Evans [1892] 2 QB 524 at 527. (1907) 23 TLR 666. See Ballina Shire Council v Ringland (1994) 33 NSWLR 680 at 692. These elements have been accepted by the High Court in Hall-Gibbs Mercantile Agency Ltd v Dun (1910) 12 CLR 84 at 95; Sungravure Pty Ltd v Middle East Airlines Airliban SA (1975) 134 CLR 1 at 21–5; Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388 at 404–16; AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd (2010) NSWSC 1395 at [31]–[32]. Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 at 639. See, for example, Anon (1706) 11 Mod Rep 99; 88 ER 921; Ballina Shire Council v Ringland (1994) 33 NSWLR 680. Ballina Shire Council v Ringland (1994) 33 NSWLR 680 at 694. Defamation Act 1889 (Qld) s 2; Defamation Act 1957 (Tas) s 4(a).

9. Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388 at [80]. 10. Australand Holdings Ltd v Transparency & Accountability Council Incorporated [2008] NSWSC 669 at [159]. 11. Born Brands Pty Ltd v Nine Network Australia Pty Ltd [2011] NSWSC 642 at [21]. 12. Australian Broadcasting Corporation v O’Neill [2006] HCA 46 at [56]. 13. Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388 at [58]; Kaplan v Go Daddy Group [2005] NSWSC 636 at [43]–[44]; Swimsure (Laboratories) Pty Ltd v McDonald [1979] 2 NSWLR 796 at 801; Australand Holdings Ltd v Transparency & Accountability Council Incorporated [2008] NSWSC 669 at [169]; Beechwood Homes (NSW) Pty Ltd v Camenzuli [2010] NSWSC 521 at [18]. 14. Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388 at [59]. 15. Beechwood Homes (NSW) Pty Ltd v Camenzuli [2010] NSWSC 521 at [24]; Higgins v Sinclair [2011] NSWSC 163 at [192]–[198]. 16. Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17 at [7]; Beechwood Homes (NSW) Pty Ltd v Camenzuli [2010] NSWSC 521 at [20]. 17. Webb v Bloch (1928) 41 CLR 331; Beechwood Homes (NSW) Pty Ltd v Camenzuli [2010] NSWSC 521 at [22]. 18. Previously Trade Practices Act 1974 s 52. 19. Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17 at [7]. 20. Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17 at [8]. 21. Toben v Mathieson [2013] NSWSC 1530 at [24]. 22. Unilan Holdings Pty Ltd v Kerin [1992] FCA 211. 23. Templar v Watt [2016] NSWSC 1230. 24. Plimer v Roberts (1997) 80 FCR 303. 25. Hearn v O’Rourke [2003] FCAFC 78. 26. Australian Ocean Line Pty Ltd v West Australian Newspapers Ltd (1983) 66 FLR 453; Global Sportsman Pty Ltd v Mirror Newspapers Ltd (1984) 2 FCR 82. 27. Competition and Consumer Act 2010 (Cth) Sch 2 s 19, previously Trade Practices Act 1974 (Cth) s 65A(1). 28. Competition and Consumer Act 2010 (Cth) Sch 2 s 19(5). 29. See, for example, Krahe v Freeman (1988) ATPR 40-871; Horwitz Grahame Books v Performance Publications (1987) ATPR 40-764. 30. Advanced Hair Studio Ltd v TVW Enterprises Ltd (1987) 18 FCR 1 at [102]–[108]. 31. ACCC v Channel Seven Brisbane Pty Ltd [2009] HCA 19. 32. ACCC v Channel Seven Brisbane Pty Ltd [2009] HCA 19 at [49]. 33. TCN Channel Nine Pty Ltd v Ilvary Pty Ltd (2008) 71 NSWLR 323. 34. Sun Earth Homes Pty Ltd v Australian Broadcasting Corporation (1993) 45 FCR 265. 35. Competition and Consumer Act 2010 (Cth) Sch 2 s 251, previously Trade Practices Act 1974 (Cth) s 85(3). 36. See Typing Centre of NSW v Northern Business College (1989) ATPR 40-943. 37. Carlovers Carwash Ltd v Sahathevan [2000] NSWSC 947. 38. Bond v Barry (2008) 173 FCR 106 at 113–14. 39. Gianni Versace SpA v Monte [2002] 119 FCR 349.

40. Competition and Consumer Act 2010 (Cth) Sch 2 s 224(1)(c), previously Trade Practices Act 1974 (Cth) s 75B. 41. Advanced Hair Studios Pty Ltd v TVW Enterprises Ltd (1987) 77 ALR 615; Fastway Couriers (Aust) Pty Ltd v Australian Broadcasting Corporation (FCA, Gummow J, 27 March 1995, unreported). 42. Hedley Byrne v Heller & Partners [1964] AC 465; Shaddock v Associates Pty Ltd v Parramatta City Council (1981) 150 CLR 225; Perre v Apand Pty Ltd (1999) 198 CLR 180; Tepko Pty Ltd v Water Board (2001) 206 CLR 1. 43. Spring v Guardian Assurance plc [1995] 2 AC 296 at 334–5, 337, 346–7 and 350–1; Wade v State of Victoria [1999] 1 VR 121. 44. Tame v New South Wales (2002) 211 CLR 317; Annetts v Australian Stations Ltd (2002) 191 ALR 449 at 457, 463 and 478–9. 45. (1996) 39 NSWLR 32. Compare Spring v Guardian Assurance plc [1995] 2 AC 296. 46. See also Sun Earth Homes Pty Ltd v Australian Broadcasting Corporation (1993) 45 FCR 265; Griffith v Australian Broadcasting Corporation [2004] NSWSC 582. 47. (1998) Aust Torts Reports 81-466. 48. [2007] VCC 281. 49. Sullivan v Moody (2001) 207 CLR 562 at 580; Tame v New South Wales (2002) 211 CLR 317 at 335. 50. Attorney-General (NSW) v John Fairfax & Sons Pty Ltd (1985) 6 NSWLR 695 at 697; Hinch v AttorneyGeneral (Vic) (1987) 164 CLR 15 at 18; R v Glennon (1992) 173 CLR 592 at 605; Western Australia v Armstrong [2007] WASCA 204 at [7]; General Television Corporation Pty Ltd v DPP [2008] VSCA 49; DPP v Johnson & Yahoo!7 Pty Ltd [2016] VSC 699 at [2], [23]. 51. Attorney-General v MGN Ltd [2011] EWHC 2074. 52. James v Robinson (1963) 109 CLR 593; Attorney-General v Bailey (1917) 17 SR (NSW) 170 at 197; Ex parte Bread Manufacturers Ltd; Re Truth and Sportsman Ltd (1937) 37 SR (NSW) 242. 53. State of Victoria v Australian Building Construction Employees’ & Builders’ Labourers Federation (1982) 152 CLR 25 at 102; Civil Aviation Authority v Australian Broadcasting Corporation (1995) 39 NSWLR 540. 54. Attorney-General (NSW) v John Fairfax & Sons Ltd (1985) 6 NSWLR 695. 55. John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 695 (and authorities cited there). 56. Attorney-General (NSW) v Radio 2UE Sydney Pty Ltd (CA (NSW), 16 October 1997, unreported); see also DPP v Wran [1987] 7 NSWLR 616 at 626. 57. Attorney-General (NSW) v Willessee [1980] 2 NSWLR 143; Hinch v Attorney-General (Vic) (1987) 164 CLR 15. 58. DPP v Johnson & Yahoo!7 Pty Ltd [2016] VSC 699; [2017] VSC 45. 59. Ex parte Bread Manufacturers Ltd; Re Truth and Sportsman Ltd (1937) 37 SR (NSW) 242 at 249; R v West Australian Newspapers Ltd (1996) 16 WAR 518 at 538. 60. John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351 at 370–1. 61. Western Australia v Armstrong [2007] WASCA 204 at [12]–[13]. 62. (1982) 152 CLR 25 at 96 and 167. 63. See also Civil Aviation Authority v Australian Broadcasting Corporation (1995) 39 NSWLR 540. 64. Harkianakis v Skalkos (1997) 42 NSWLR 22; Y & Z v W [2007] NSWCA 329 at [37]. See also Commercial Bank of Australia Ltd v Preston [1981] 2 NSWLR 554.

65. Attorney-General (NSW) v Time Inc Magazine Company Pty Ltd (CA (NSW), 7 June 1994 and 15 September 1994, unreported); Farahbakht v Midas Australia Pty Ltd [2006] NSWSC 1322 at [42]. 66. Attorney-General (NSW) v Mirror Newspapers Ltd [1980] 1 NSWLR 374 at 387; Civil Aviation Authority v Australian Broadcasting Corporation (1995) 39 NSWLR 540. 67. Attorney-General (NSW) v X (2000) 49 NSWLR 653; Hinch v Attorney-General (Vic) (1987) 164 CLR 15 at 25. 68. Ex parte Terrill; Re Consolidated Press Ltd (1937) 37 SR (NSW) 255; Attorney-General (NSW) v John Fairfax & Sons Ltd (1985) 6 NSWLR 695 at 714; Hinch v Attorney-General (Vic) (1987) 164 CLR 15 at 25. 69. R v Dunbabin; Ex parte Williams (1935) 53 CLR 434; Gallagher v Durack (1983) 152 CLR 238 at 241–5; Western Australia v Armstrong [2007] WASCA 204 at [12]. 70. R v Dunbabin; Ex parte Williams (1935) 53 CLR 434 at 442; Attorney-General (NSW) v Mundey [1972] 2 NSWLR 887 at 910–11; Gallagher v Durack (1983) 152 CLR 238. 71. R v Nicholls (1911) 12 CLR 280; R v Hanson [2003] QCA 488. 72. John Fairfax Publications Pty Ltd v Doe (1995) 37 NSWLR 81 at 109–11. 73. Harkianakis v Skalkos (1997) 42 NSWLR 22 at 64–5. See also John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351 at 370–1. 74. See Copyright Act 1968 (Cth) s 195AO. 75. See Copyright Act 1968 (Cth) s 195AQ. 76. See Copyright Act 1968 (Cth) ss 40 and 103C. 77. See Copyright Act 1968 (Cth) ss 41 and 103A. 78. See Copyright Act 1968 (Cth) ss 42 and 103B. 79. See Copyright Act 1968 (Cth) ss 43(1) and 104(a). 80. See Copyright Act 1968 (Cth) ss 43(2) and 104(b) and (c). 81. McGlade v Lightfoot (2002) 124 FCR 106 at [46]–[53]; Eatock v Bolt [2011] FCA 1103. 82. Bropho v Human Rights and Equal Opportunity Commission (2004) 204 ALR 761; see also Catch the Fire Ministries Inc v Islamic Council of Victoria Inc (2006) 15 VR 207; Burns v Laws [2008] NSW ADTAP 32; Trad v Jones [2009] NSW ADT 318. 83. Eatock v Bolt [2011] FCA 1103. 84. Eatock v Bolt [2011] FCA 1103 at [250]–[255]. 85. Prior v Queensland University of Technology [2016] FCCA 2853 at [66]. 86. Eatock v Bolt [2011] FCA 1103 at [267]–[268]. 87. [2016] FCCA 2853. 88. Prior v Queensland University of Technology [2016] FCCA 2853 at [49]. 89. See, for example, Anti-Discrimination Act 1977 (NSW) s 49ZT (homosexual vilification unlawful); Racial and Religious Tolerance Act 2001 (Vic) s 8 (religious vilification unlawful).

[page 315]

PART THREE RESOLUTION OF CIVIL DISPUTES WITHOUT LITIGATION

[page 317]

CHAPTER 16 ALTERNATIVE SOLUTIONS INTRODUCTION OFFER TO MAKE AMENDS CONTENT OF THE OFFER FORM OF THE OFFER TO PAY COMPENSATION TIME OF THE OFFER REASONABLENESS OF THE OFFER ACCEPTANCE OF THE OFFER A DEFENCE FOR THE PLAINTIFF’S FAILURE TO ACCEPT THE OFFER INADMISSIBLE STATEMENTS AND ADMISSIONS APOLOGIES MEDIATION ARBITRATION

16.1 16.2 16.3 16.4 16.5 16.6 16.7 16.8 16.9 16.10 16.11 16.12

INTRODUCTION 16.1 It is possible before litigation is commenced that a party might change his or her perception of the other’s position through an exchange of views with the other party. The position taken by one may be accommodated by the other when the complaint is discussed face to face. In this way, parties can resolve their disputes through direct negotiation or communication. If the dispute cannot be resolved by this means, the option of seeking a determination of the dispute by the court system (that is, litigation) has been the obvious and usual path. The use of a neutral third party to facilitate the resolution of the dispute by mediation is also now well-known and accepted. The use of a neutral third party to determine the dispute by arbitration is less

well-known, but is increasingly used for the resolution of commercial disputes and international disputes. Under s 3(d) of the Defamation Act 2005 it is an express object of the Act to promote speedy and non-litigious methods of resolving disputes about the publication of defamatory matter. Litigation should be considered to be a dispute resolution method [page 318] of last resort. Part 3 of the Act (Resolution of Civil Disputes without Litigation) Div 1 introduces an ‘offer to make amends’ procedure. The procedure for offers to make amends may be used instead of the provisions of any rules of court or any other law concerning payment into court or offers of compromise: s 12(2). Importantly, the Act does not direct that they must be used, as the ultimate benefit of the statutory procedure is to provide the publisher with a defence. The complainant may therefore choose to use alternative procedures to seek a resolution of the claim which may not provide a defence but rather be influential in relation to an award of costs. The provisions under the Act apply if a person (‘the publisher’) publishes matter (‘the matter in question’) that is, or may be, defamatory of another person (‘the aggrieved person’): s 12(1). The procedure does not prevent a publisher or an aggrieved person from making or accepting a settlement offer otherwise than in accordance with the provisions set out in this Division of the Act: s 12(3).

OFFER TO MAKE AMENDS 16.2 Under s 13(1), a publisher may make an ‘offer to make amends’ to an aggrieved person. The offer may be in relation to the matter in question generally, or limited to any particular defamatory imputations that the publisher accepts that the matter in question carries: s 13(2). If two or more persons published the matter in question, an offer to make amends by one or more of them does not affect the liability of the other or others: s 13(3). An offer to make amends is taken to be made without prejudice, unless the

offer provides otherwise: s 13(4). This is to be read subject to the availability of a defence for the plaintiff’s failure to accept the offer, where the terms of the offer would need to be disclosed to the court (see s 18), and where evidence is required to determine an issue relating to the offer of amends procedure: s 19(2).

CONTENT OF THE OFFER 16.3 There are a number of specific requirements to be met in order to make a legitimate offer: s 15. In particular, an offer must: (a) be in writing: s 15(1)(a); (b) be readily identifiable as an offer to make amends under this Division of the Act: s 15(1)(b); (c) state whether the offer is limited to any particular defamatory imputations and, if so, particularise the defamatory imputations to which the offer is limited: s 15(1)(c); (d) include an offer to publish, or join in publishing, a reasonable correction of the matter in question or, if the offer is limited to any particular defamatory imputations, the defamatory imputations to which the offer is limited: s 15(1)(d); [page 319] (e)

include an offer to take, or join in taking, reasonable steps to tell the person to whom the matter has been given by the publisher or with the publisher’s knowledge, that the matter is or may be defamatory of the aggrieved person: s 15(1)(e); (f) include an offer to pay the expenses reasonably incurred by the aggrieved person before the offer was made and the expenses reasonably incurred by the aggrieved person in considering the offer: s 15(1)(f). The offer to make amends may also include any other kind of offer, or particulars of any other action taken by the publisher, to redress the harm

sustained by the aggrieved person because of the matter in question and may include (but not be limited to): (i) an offer to publish, or join in publishing, an apology in relation to the matter in question or, if the offer is limited to any particular defamatory imputations, the defamatory imputations to which the offer is limited: s 15(1)(g)(i); (ii) an offer to pay compensation for any economic or non-economic loss of the aggrieved person: s 15(1)(g)(ii); or (iii) the particulars of any correction or apology made, or action taken, before the date of the offer: s 15(1)(g)(iii). It is not mandatory that an apology be offered.1

FORM OF THE OFFER TO PAY COMPENSATION 16.4 An offer to pay compensation may comprise or include any one or more of the following: (a) an offer to pay a stated amount: s 15(2)(a); (b) an offer to pay an amount to be agreed between the publisher and the aggrieved person: s 15(2)(b); (c) an offer to pay an amount determined by an arbitrator appointed, or agreed on, by the publisher and the aggrieved person: s 15(2)(c); (d) an offer to pay an amount determined by a court: s 15(2)(d).

TIME OF THE OFFER 16.5 The publisher cannot make an offer to make amends if 28 days have elapsed since the publisher was given a ‘concerns notice’ by the aggrieved person, or a defence has been served by the publisher in an action brought by the aggrieved person against the publisher in relation to the matter in question: s 14(1). A ‘concerns notice’ is a notice in writing, informing the publisher of the defamatory imputations that the aggrieved person considers are or may be

carried about the aggrieved person by the matter in question: s 14(2). There is no formula for such notice [page 320] set out in the Act and time may begin to run where the substance of the defamatory imputations alleged are set out by letter to the publisher.2 If the ‘concerns notice’ fails to particularise the imputations of concern adequately, the publisher may give the aggrieved person a ‘further particulars notice’ in writing, requesting the aggrieved person to provide reasonable further particulars about the imputations of concern as specified in the further particulars notice: s 14(3). An aggrieved person to whom a further particulars notice is given must provide the reasonable further particulars specified in the notice within 14 days (or any further period agreed between the parties) after being given the notice: s 14(4). An aggrieved person who fails to provide the reasonable further particulars in a further particulars notice within the applicable period is taken not to have given the publisher a ‘concerns notice’: s 14(5). There is scope for negotiations to continue beyond these strict time limits, including making a renewed offer. An offer to make amends may be withdrawn before it is accepted by notice in writing given to the aggrieved person (s 16(1)); and may also be renewed if withdrawn (in which case it is to be treated as a new offer): s 16(2) and (4). It may (but need not) be in the same terms as the withdrawn offer (s 16(3)) and, if not in the same terms, the renewed offer must represent a genuine attempt by the publisher to address matters of concern raised by the aggrieved person about the withdrawn offer and must be made within 14 days after the withdrawal of the withdrawn offer or any other period as the parties may agree: s 16(5). An offer of amends may be left open for a fixed term of reasonable duration, including with the qualification of remaining open unless earlier withdrawn. The timing of the withdrawal may be unreasonable but that is a question of fact to be determined in the circumstances.3

REASONABLENESS OF THE OFFER 16.6 In deciding whether an offer to make amends is reasonable, a court must have regard to any correction or apology published before any trial arising out of the matter in question, including the extent to which the correction or apology is brought to the attention of the audience of the matter in question, taking into account: (a) the prominence given to the correction or apology as published in comparison to the prominence given to the matter in question as published; and (b) the period that elapses between publication of the matter in question and publication of the correction or apology: s 18(2)(a). It is not mandatory that a correction or apology be published prior to the trial, but the court may have regard to any correction or apology published after there has [page 321] been a failure to accept the offer of amends and the defendant asserts the offer was reasonable.4 In determining whether the offer was reasonable, the court may have regard to later events.5 The matters set out above do not limit the matters the court may take into account in deciding whether an offer to make amends was reasonable (s 18(2)) and the court may have regard to: (a) whether the aggrieved person refused to accept an offer that was limited to any particular defamatory imputations because the aggrieved person did not agree with the publisher about the imputations that the matter in question carried; and (b) any other matter that the court considers relevant: s 18(2)(b). The ‘court’ to determine reasonableness is the tribunal of fact at the trial, and in jury trials, the question will be determined by the jury.6

ACCEPTANCE OF THE OFFER 16.7 Acceptance of the offer to make amends amounts to an agreement to settle the aggrieved person’s complaint. The Act makes provision for assistance from a court to enforce the terms of the agreement. Accordingly, if an offer to make amends is accepted, a court may, on the application of the aggrieved person or publisher, determine: (a) the amount of compensation to be paid, if the offer provides for a court to determine the amount of compensation payable under the offer: s 15(3)(a); and (b) any other question that arises about what must be done to carry out the terms of the offer: s 15(3)(b). The powers conferred on a court under s 15(3) are exercisable, if the aggrieved person has brought proceedings against the publisher in any court for defamation in relation to the matter in question, by that court in those proceedings (s 15(4)(a)) or by the Supreme Court of the jurisdiction: s 15(4)(b). The court may hear an application and determine any question under s 15(3) in the absence of the public.7 If the publisher carries out the terms of an offer to make amends (including payment of any compensation under the offer that is accepted), the aggrieved person cannot assert, continue or enforce an action for defamation against the publisher in relation to the matter in question, even if the offer was limited to any particular defamatory imputations: s 17(1). [page 322] If an offer to make amends is accepted, a court may (but need not): (a) order the publisher to pay the aggrieved person the expenses reasonably incurred by the aggrieved person as a result of accepting the offer: s 17(1)(a); (b) order any costs incurred by the aggrieved person that form part of those expenses to be assessed on an indemnity basis: s 17(2)(b). The ‘court’ is a reference to the court in which proceedings for defamation

have been brought or to the Supreme Court: s 17(3).

A DEFENCE FOR THE PLAINTIFF’S FAILURE TO ACCEPT THE OFFER 16.8 If an offer to make amends is made in relation to the matter in question but is not accepted, it is a defence to an action for defamation against the publisher in relation to the matter if: (a) the publisher made the offer as soon as practicable after becoming aware that the matter was or might be defamatory; (b) at any time before the trial the publisher was ready and willing, on acceptance of the offer by the aggrieved person, to carry out the terms of the offer; and (c) in all the circumstances the offer was reasonable: s 18(1). The reasonableness therefore of an offer to make amends under s 18 can provide a publisher with a defence to the action. It has been observed that while the defendant can apologise in aid of the defence with impunity (see s 13(4) and s 20 of the Act), a plaintiff who fails to accept a reasonable offer to make amends risks everything.8 The Act is therefore prescriptive as to the content and timing of the offer pursuant to s 14 and s 15 of the Act. There may be an argument on the facts of the case that the publisher’s awareness has occurred before receipt of a concerns notice. Where such notice is given, the Act provides 28 days within which to make an offer of amends under s 14(2). That period should constitute ‘as soon as practicable’ for the purpose of satisfying s 18(1)(a) of the Defamation Act 2005.9 The publisher must remain ready and willing to carry out the terms of the offer at any time before the trial if accepted. This may imply that the offer must remain open until the trial and a defence will not be available if the publisher puts a shorter time limit on the offer or withdraws the offer before trial. However, an offer of amends may provide a fixed term of reasonable duration or be qualified as remaining open unless earlier withdrawn.10

[page 323] The courts are often required to determine the reasonableness of an offer to settle proceedings in the context of costs.11 Section 18(2) sets out the matters relevant to a court in determining the reasonableness of the offer. Section 15(1) (a)–(g) sets out the strict requirements of the content of the offer. The reasonableness of an offer of amends is to be determined objectively, at the time it was made and not accepted.12 In doing so, the court may consider the publisher’s conduct by reference to later events including whether any correction or apology was subsequently published.13 The court in assessing the reasonableness of the offer of amends may take into account the seriousness of the defamatory imputations and the hurt they caused the plaintiff, the damage to the plaintiff’s business, the prominence afforded to the proposed correction and apology offered and the relative parity with the prominence given to the matter complained of (including the headline, overall size, font size, style and line spacing), the adequacy of the monetary offer and the likelihood of the proceedings being successful,14 taking into account the defences raised by the defendant. The adequacy of the monetary offer is not to be judged by reference to the range of damages that the plaintiff would receive at trial but is informed by the seriousness of the defamation and the other components of the offer, including any proposed apology, and the fact that acceptance of it would have made amends and obviated the need for a trial, and by the risk of the proceedings being successful, taking into account the defences raised by the defendant.15 The typical apology offered by media defendants was noted as being of ‘footnote size’ in Zoef v Nationwide News Pty Ltd16 and the observation was made that not only was the location of the proposed apology at the bottom of the page of the newspaper in the nature of a footnote, the proposed print style and size relative to the other material on the same page was considerably more dense and compacted than that in the defamatory article — which, with its adjoining photos, was spread across five columns — and had smaller line spacing than any other print on the same page let alone that on the page of the matter complained of. As such, it was not a reasonable offer. The defence under the 2005 Act is not stated in terms of the publisher’s

‘innocence’, that is, whether the publisher exercised reasonable care, or had an intention to publish or had knowledge of the defamatory matter. The provisions of the Defamation Act 2005 are based on Pt 2A of the Defamation Act 1974 (NSW), in which the offer of amends procedure required the defendant to show innocence in addition to making the offer. [page 324] Tasmania also had a statutory defence for an offer of amends where the publisher could establish innocence through lack of intention, lack of knowledge or lack of negligence in relation to the matter and its publication.17 The provisions were difficult to apply in practice, particularly given the mandatory nature of their procedures. Part 5.2 of the Civil Law (Wrongs) Act 2002 (ACT) previously enabled aggrieved persons to apply to the Supreme Court for an order to vindicate their reputation if an offer to make amends was not made or no reasonable offer of amends was made.18 The aggrieved person had to give the publisher at least seven days’ written notice of the intention to apply to the Supreme Court and the notice had to contain sufficient information to identify the matter in question.19 A vindication order did not prevent the aggrieved person from bringing an action.20

INADMISSIBLE STATEMENTS AND ADMISSIONS 16.9 Evidence of any statement or admission made in connection with the making or acceptance of an offer to make amends is not admissible as evidence in any legal proceedings (whether criminal or civil): s 19(1). This does not prevent the admission of evidence in any legal proceedings in order to determine any issue arising under, or relating to the application of, a provision of the offer to make amends procedure, or costs in defamation proceedings: s 19(2).

APOLOGIES 16.10 Under s 20 of the Defamation Act 2005, an apology made by or on behalf of a person in connection with any defamatory matter alleged to have been published by the person: (a) does not constitute an express or implied admission of fault or liability by the person in connection with that matter; and (b) is not relevant to the determination of fault or liability in connection with that matter. Evidence of an apology made by or on behalf of a person in connection with any defamatory matter alleged to have been published by the person is not admissible in any civil proceedings as evidence of the fault or liability of the person in connection with that matter: s 20(2). [page 325] While an apology is not relevant to the determination of fault or liability, it may remain relevant to damages as a matter to be taken into account in mitigation or, in its absence, in appropriate circumstances in aggravation: s 20(3). With the assistance of these provisions, there is now strong reason for a publisher to publish an apology to an aggrieved person as the apology does not constitute an admission of fault or liability. However, this provision may only protect the words of the apology and not the admissions, for example of falsity of facts, underlying the apology. There are concerns about the practicality of admitting the statements made about the plaintiff were untrue and apologising for the imputations which arose but then continuing to defend the claim to trial where these matters remain in issue. The apology is inadmissible on the question of liability. Where a settlement has been reached in defamation proceedings, a party may, with the leave of the court, make a statement about the proceedings in open court as has been approved by the court in private.21

MEDIATION 16.11

A mediation is:

… an informal process aimed at enabling the parties to a dispute to discuss their differences in total privacy with the assistance of a neutral third party (mediator) whose task it is first to help each party to understand the other party’s view of the matters in dispute and then to help both parties to make a dispassionate, objective appraisal of the total situation. As part of the process the mediator talks confidentially with each party. The object is to help the parties negotiate a settlement. The discussions are wholly without prejudice. Nothing that is said by either party can be used or referred to in any later proceedings (eg in a Court case). The mediator arranges and chairs the discussions and acts as an intermediary to facilitate progress towards settlement.22

The parties may agree to mediate after the dispute has arisen or, more often, after litigation has been commenced. In New South Wales, if it considers the circumstances appropriate, the court may order the parties to mediate with or without their consent.23 The court’s overriding consideration is to facilitate the ‘just, quick and cheap resolution of the real issues in the proceedings’.24 The mediator may be appointed by the parties or, if they cannot agree, by the court.25 In Waterhouse v Perkins26 Levine J ordered the plaintiff to participate in a mediation where he was unwilling. The plaintiff’s counsel submitted that his client would rather [page 326] die than accept a mediator selected and forced on him by the defendants, and it would not matter whether it was the ‘Archangel Gabriel’. Justice Levine noted that the defendants had not offered the Archangel as a mediator. His Honour observed that the obligation to participate in good faith in a mediation was imposed under s 110L of the Supreme Court Act 1970 (NSW)27 and arose consequent upon the making of an order of the court. He said that it was feasible that, if a party did not act in good faith, one sanction that might apply was contempt of court, although the judge expressly refrained from making a determination on this point.28 The mediation process is confidential.29 The confidentiality applies to the mediation session as a whole, the underlying basis of the confidentiality being the protection or privilege given to without prejudice communications. Public

policy makes those discussions privileged from disclosure in a court.30 The facts referred to or documents produced in mediation are not made inadmissible if they were otherwise admissible.31 Evidence may also be given as to the fact that an agreement or arrangement has been reached and the substance of the agreement or arrangement.32 Section 131 of the Evidence Act 1995 (NSW) provides that negotiations to settle, including a document prepared in connection with an attempt to negotiate settlement, are not admissible unless they come within the exceptions set out in s 131(2), such as where the communication or document is ‘relevant to determining liability for costs’.33 This provision allows Calderbank letters34 to be admitted into evidence on the question of costs. The Evidence Act 1995 (NSW) allows the without prejudice offer to be used in relation to the question of costs even where there is no express Calderbank reservation.35 A failure to agree to participate in mediation can have adverse cost consequences, at the discretion of the court,36 as may the unexplained withdrawal by a party from an agreed mediation.37 However, the onus is on the unsuccessful party to show why [page 327] there should be a departure from the general rule that costs follow the event, and in particular why the successful party acted unreasonably in refusing to mediate.38

ARBITRATION 16.12 The parties can agree to have the dispute determined by arbitration under the Commercial Arbitration Act 2010 (NSW)39 after the dispute has arisen40 or an arbitration can be ordered by the court.41 The court may, of its own motion or on application, order that the proceedings be referred for determination.42 The advantage of arbitration is the possible speed and flexibility of the procedure.

The procedure to be applied in an arbitration is to be determined by the arbitrator, subject to the requirements of the relevant Act and any directions given by the court. The arbitrator is not necessarily bound by the rules of evidence, but is required to act according to equity, good conscience and the substantial merits of the case without regard for technicalities or legal forms.43 The award of the arbitrator is final and conclusive and is to be taken to be a judgment of the court.44 A person aggrieved by an award may apply to the referring court for a rehearing of the proceedings.45 However, an award of an arbitrator is usually final and conclusive and not liable to be called into question unless the relief sought is on the grounds of lack of jurisdiction or denial of natural justice.46 Section 15(2)(c) of the Defamation Act 2005 expressly contemplates that the parties may agree to appoint an arbitrator to determine the amount to be paid in relation to an offer to pay compensation. ____________________ 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18.

Zoef v Nationwide News Pty Ltd [2016] NSWCA 283 at [81]–[83]. Barrow v Bolt [2014] VSC 599 at [79]. Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 at [101]; Zoef v Nationwide News Pty Ltd [2016] NSWCA 283 at [108]. Pedavoli v Fairfax Media Publications Pty Ltd [2014] NSWSC 1674 at [75]; Zoef v Nationwide News Pty Ltd [2016] NSWCA 283 at [83]–[84]. Zoef v Nationwide News Pty Ltd [2016] NSWCA 283 at [83]–[84]. Hunt v Radio 2SM Pty Ltd [2010] NSWDC 43; Louise v Nationwide News Pty Ltd [2015] NSWDC 63. Uniform Civil Procedure Rules 2005 (NSW) Pt 29 r 29.16. Pedavoli v Fairfax Media Publications Pty Ltd [2014] NSWSC 1674 at [34]. Zoef v Nationwide News Pty Ltd [2016] NSWCA 283 at [92]–[93]. Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 at [101]; Zoef v Nationwide News Pty Ltd [2016] NSWCA 283 at [108]. See 41.2 and 41.3. Zoef v Nationwide News Pty Ltd [2016] NSWCA 283 at [62]. Zoef v Nationwide News Pty Ltd [2016] NSWCA 283 at [83]–[84]. Zoef v Nationwide News Pty Ltd [2016] NSWCA 283 at [78]. Zoef v Nationwide News Pty Ltd [2016] NSWCA 283 at [74]. [2016] NSWCA 283 at [70]. Defamation Act 1957 (Tas) s 17. Civil Law (Wrongs) Act 2002 (ACT) s 54(1).

19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39.

40. 41. 42. 43. 44. 45. 46.

Civil Law (Wrongs) Act 2002 (ACT) s 54(2) and (3). Civil Law (Wrongs) Act 2002 (ACT) s 54(4). Uniform Civil Procedure Rules 2005 (NSW) Pt 29 r 29.15. Sir L Street, Mediation — A Practical Outline, 5th ed, Sydney, 2003, p 3. Civil Procedure Act 2005 (NSW) s 26(1). Civil Procedure Act 2005 (NSW) s 56; Amalgamated Television Services Pty Ltd v Marsden (No 2) (2003) 57 NSWLR 338 at [62]; Daya v CNA Reinsurance Co Ltd [2004] NSWSC 795. Civil Procedure Act 2005 (NSW) s 26(2). [2001] NSWSC 13. See also Singh v Singh [2002] NSWSC 852. See now Civil Procedure Act 2005 (NSW) s 27. See also Aiton Australia Pty Ltd v Transfield Pty Ltd (1999) 153 FLR 236; Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 427. Compare Harrison v Schipp [2002] NSWCA 27. Civil Procedure Act 2005 (NSW) s 30. See also Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd [2004] NSWSC 1091. Lukies v Ripley (No 2) (1994) 35 NSWLR 283; Rajski v Tectran Corporation Pty Ltd [2003] NSWSC 476. AWA Ltd v Daniels (SC (NSW), Rolfe J, 18 March 1992, unreported); Commonwealth Bank of Australia v McConnell (SC (NSW), Rolfe J, 10 July 1997, unreported). Civil Procedure Act 2005 (NSW) s 29(2). Evidence Act 1995 (NSW) s 131(2)(h). See The Silver Fox Co Pty Ltd v Lenard’s Pty Ltd [2004] FCA 1570. Calderbank v Calderbank [1975] 3 All ER 333 at 342. Bruinsma v Menczer (1995) 40 NSWLR 716. See also Chapter 41. Dunnett v Railtrack plc [2002] 2 All ER 850. Leicester Circuits Ltd v Coates Brothers plc (EWCA, 5 March 2003, unreported). See also 41.2. Halsey v Milton Keynes General NHS Trust; Steel v Joy and Halliday [2004] 4 All ER 920. See also Commercial Arbitration Act 1986 (ACT); Commercial Arbitration Act 2011 (SA); Commercial Arbitration Act 2011 (Vic); Commercial Arbitration (National Uniform Legislation) Act 2011 (NT); Commercial Arbitration Act 2011 (Tas); Commercial Arbitration Act 2012 (WA); and Commercial Arbitration Act 2013 (Qld). Defamation Act 2005 s 15(2)(c). Civil Procedure Act 2005 (NSW) s 38. Civil Procedure Act 2005 (NSW) Pt 5 Div 2. Civil Procedure Act 2005 (NSW) s 49. Civil Procedure Act 2005 (NSW) s 40. Civil Procedure Act 2005 (NSW) s 42. Civil Procedure Act 2005 (NSW) ss 40 and 41.

[page 329]

PART FOUR LITIGATION OF CIVIL DISPUTES — INCLUDING DEFENCES IN CIVIL PROCEEDINGS AND REMEDIES

[page 331]

CHAPTER 17 ROLE OF JUDGE AND JURY USE OF JURIES IN DEFAMATION TRIALS SECTION 7A TRIALS (NSW) REVIEW OF THE JURY’S DETERMINATION BY A COURT OF APPEAL

17.1 17.2 17.3

USE OF JURIES IN DEFAMATION TRIALS 17.1 In a number of jurisdictions, the Defamation Act 2005 gives a plaintiff or defendant in defamation proceedings the right to elect a trial before a jury, unless the court orders otherwise: s 21(1). The election must be made at the time1 and in the manner prescribed by the rules of court2 and accompanied by the prescribed fee for a requisition of a jury in that court: s 21(2). Once either party has made the election for a jury, it is irrevocable unless a party applies for an order to dispense with the jury.3 By making the election, the party acquires a ‘vested or accrued substantive right’ which cannot be unilaterally waived by that party or be dispensed with by the court in the absence of an application to do so.4 In considering whether the proceedings should not be tried by jury, a court may consider whether the trial requires a prolonged examination of records, or involves any technical, scientific or other issue that cannot be conveniently considered and resolved by a jury (s 21(3)), or any other relevant consideration (see below). [page 332] The jury in defamation proceedings is to determine whether the defendant

has published defamatory matter about the plaintiff and, if so, whether any defence raised by the defendant has been established: s 22(2). If the jury finds that the defendant has published defamatory matter about the plaintiff and that no defence has been established, the judicial officer and not the jury is to determine the amount of damages (if any) that should be awarded to the plaintiff and all unresolved issues of fact and law relating to the determination of that amount: s 22(3). If the proceedings relate to more than one cause of action for defamation, the jury must give a single verdict in relation to all causes of action on which the plaintiff relies unless the judicial officer orders otherwise: s 22(4). The Act does not affect any law or practice relating to special verdicts or require or permit a jury to determine any issue that, at general law, is an issue to be determined by the judicial officer: s 22(5). A jury of four is empanelled for defamation proceedings in New South Wales. The use of four jurors in civil trials rather than 12 was an innovation established in Tasmania in 1834 where 12 was considered to be too large a number to be practical in a small colony.5 New South Wales followed the concept in 18446 and it continues now under the Jury Act 1977 (NSW).7 There is discretion to order a jury of 12 where appropriate, such as where the increase in numbers would allow more representative views of the community as a whole.8 Where a person is a contentious figure or has a prominent public role, it is likely that he or she will be given a more dispassionate and fair trial by a jury of 12 rather than four.9 A larger jury is more likely to dilute the influence of any single juror whose passions or antipathies are aroused for or against one of the parties. This consideration must be balanced against the court’s direction to the jury to put aside personal prejudices and feelings and to indicate on selection if they cannot bring an impartial mind to the case as required under s 38(8) of the Jury Act 1977. A jury of 12 was ordered on the joint application of the parties in a case where an imputation of murder was sued upon and the defendant sought to justify and where the original criminal trial for murder had received a great deal of media attention.10 A jury of 12 was refused where it was suggested a smaller jury might succumb to prejudices expressed in media reporting about Muslims.11

[page 333] Juries have been all but abolished for all other aspects of civil trials in New South Wales.12 Queensland also has provision for four jurors.13 In Victoria and Western Australia, the number is six.14 Tasmania has provision for seven.15 In each of these jurisdictions a party could request or elect trial by jury to determine all factual issues in a defamation trial, including damages, prior to the Defamation Act 2005. In South Australia and the Australian Capital Territory, there is no provision for a jury in civil trials.16 In the Northern Territory a jury was previously not used unless specially ordered by the court,17 but now there are no juries used in defamation proceedings in that jurisdiction by express statutory provision. Courts in South Australia, Western Australia and the Australian Capital Territory and the Federal Court either have not used or have rarely used juries in defamation trials. The normal mode of trial in the Federal Court is by judge without a jury. The Federal Court retains a discretion to order a jury trial where the real substance of the matter is a claim for damages to reputation and a jury would be better able to reflect the attitude of society generally to the claim and defences than a judge alone.18 However, the normal mode of trial should proceed in the absence of special reasons to do otherwise and the historical mode of a defamation trial by jury may not be sufficient reason in cases of multijurisdictional publications.19 Where a party failed to file an application for a jury trial in the Federal Court, and failed to provide an explanation when it later made the application, the court declined to exercise its discretion to grant it.20 In jurisdictions which provide a right to a jury trial, the court’s discretion to dispense with a jury under s 21(1) of the Defamation Act 2005 is a broad one to be exercised in the interests of justice, having regard to the facts of the particular case and the issues which are to be determined by the jury.21 Section 21(3) provides some guidance as to specific features of a trial which the court may consider sufficient for the exercise of discretion. The words ‘or other issue’ in s 21(3)(b) should be construed as an issue of the same kind as technical or scientific issues referred to in the subsection.22

[page 334] Factors which apply to all jury trials are irrelevant to the exercise of the discretion. The Defamation Act 2005 provides a right to either party to elect to have a jury as the mode of trial, and factors such as the increased time of trial together with the increase in costs, the unpredictability of jury trials and the lack of reasons for the jury verdict are not relevant to the exercise of the discretion.23 Having regard to the specific factors that might lead to dispensing with the jury, it is relevant that juries are generally regarded as being quite robust.24 Juries therefore may, with the assistance of experienced counsel managing presentation, examine documents in a convenient manner. It is not a question of whether the issues could be more conveniently decided by a judge rather than by a jury but whether the trial raises issues that cannot be conveniently tried by a jury. This does not refer to the physical inconvenience that would occur if the case were tried by a jury but that there are circumstances of ‘unusual difficulty’ from the point of view of the jury apprehending the matters involved and, to a lesser degree, from the point of view of the judge summing up.25 An application to dispense with a jury on the basis of media reporting creating ‘overwhelming emotional and persistent prejudice’ against Muslims was rejected.26 The complexity of the issues in a defamation case such as the defences of honest opinion and qualified privilege cannot be said to necessarily amount to ‘unusual’ difficulty for a jury.27 The pleading of the Polly Peck defence with the variance of meaning may make the jury’s task too complex to permit the proceeding to go before a jury,28 although it has been held that this defence has been fashioned over time with the participation of a jury as the relevant trier of fact very much at the forefront of consideration.29 Section 21(3) may allow dispensation where there is a prolonged examination of records but the mere fact that an examination of documents may be prolonged or because a scientific investigation may involve competing experts does not necessarily mean that either cannot conveniently be made with a jury.30 The length of time in examining records or the number of documents to be considered may not amount to ‘prolonged’ examination if managed by the trial judge.31 If the nature and content of the records would be likely to make jurors feel discomfort,

[page 335] disgust or revulsion, such as pornographic images, that reason in itself would not lead to the dispensation of a jury.32 Juries are seen in some quarters as increasing the time involved in trials and the cost of proceedings. The effect may be unfair to plaintiffs where damages are capped and the costs either cannibalise a verdict or become the major risk for the parties in the outcome of the case. Juries are also seen as an unsophisticated method of applying complex law and as likely to be influenced by irrelevant or emotional factors in coming to a decision. In addition, they do not give reasons for their verdicts, and errors are more likely to go undetected than if the trial was determined by a judge. However, in other quarters juries are considered to be the touchstone of the community and the constitutional safeguard against injustice. This view stretches back to the right of the common man to determine what was defamatory, declared and accepted under Fox’s Libel Act 1792.33 Under the Defamation Act 2005, judges, not juries, determine the amount of damages in defamation trials, but the election to have a jury trial remains open in those jurisdictions where it is still available, and in those cases juries determine whether a publication is defamatory and whether the defendant has a defence.34 In the United Kingdom, s 11 of the Defamation Act 2013 requires that a trial for defamation will be held without a jury unless the court orders otherwise. Where both parties consent (or where the court considers it expedient), it is possible for the jury to determine the issue of defamatory meaning alone, leaving the defences to be determined by the trial judge if the jury finds the matter was defamatory.35 Where the issue of reasonableness arises under the defence of offer of amends under s 18,36 or the defence of qualified privilege under s 30 of the Defamation Act 2005, it is a question of fact for the jury under s 22(2) of the Act.37 However, there is contrary authority holding that the trial judge not the jury determines reasonableness for statutory qualified privilege and for those defences where relevant, the issue of public interest.38 It has been said that s 22(5) preserves the right of the judge to determine these issues as has

been the established practice at common law based on the balancing of competing interests in freedom of speech and the protection of reputation.39 [page 336] South Australia, the Australian Capital Territory and the Northern Territory did not make provision in the Act for the use of juries in defamation proceedings when the legislation was enacted. Where juries are used, an issue may arise as to whether they should be allowed to hear any evidence related to damages as that is irrelevant to their task and may be prejudicial to their determination of other issues. An application at trial to separate evidence relating to liability being heard by a jury from the evidence relating to damages was refused on the basis that matters of credibility and matters of reputation may be relevant to both issues and could not be separated even though the judge determines the question of damages.40

SECTION 7A TRIALS (NSW) 17.2 Section 7A of the Defamation Act 1974 (NSW) came into effect on 1 January 1995 and limited the jury’s role to determining whether the publication conveyed the imputations pleaded by the plaintiff and, if so, whether they were defamatory. The concept of separating these issues from the balance of the trial arose from matters of convenience, complexity and cost.41 Prior to this amendment, juries were required to determine all questions of fact in defamation actions in New South Wales. It was the practice that a judge would determine any issue as to whether the matter complained of was reasonably capable of carrying the imputation and, if so, whether the imputation was reasonably capable of bearing a defamatory meaning.42 If the judge determined those issues in the negative, a verdict was entered for the defendant in relation to the imputation pleaded. If the judge determined the issues in favour of the plaintiff, s 7A limited the jury’s role to determining

whether the matter complained of carried the imputation and, if so, whether the imputation was defamatory.43 If the jury found in favour of the plaintiff on those issues, the judge was required to determine whether any defence had been established44 and determine the amount of damages (if any) that should be awarded to the plaintiff.45 [page 337] The process under s 7A required at least two separate trials, one before a jury to determine defamatory meaning and a later trial before a judge to determine defences and damages. A separate preliminary trial (prior to a s 7A trial) might also have been heard before a judge to determine form and capacity issues.46 At a preliminary trial47 the orders the judge normally made were that: (a) if the imputation was bad in form, it was struck out (usually with leave to re-plead); (b) if the imputation was capable of being carried and was capable of being defamatory, it went to the jury (at a subsequent s 7A trial); (c) if the imputation was incapable of being carried or was incapable of being defamatory, a verdict was entered for the defendant on that imputation (with leave to re-plead if appropriate). Where the publication was oral or the meaning involved extrinsic facts, a preliminary determination of the imputation issues was usually inappropriate or impractical due to the need to call evidence.48 It was plain under s 7A that the jury was required to determine the issues of meaning and defamation. The procedure contemplated was that the jury would be empanelled, there would be a short opening from counsel for the plaintiff, and the matter would be placed before the jury. Then there would be short addresses, a short summing up by the judge, and the jury would give their decision. The aim was that the jury would obtain their impression of the material and give their verdict without their perception being clouded by

hearing extensive evidence — almost the same impression as would be gained if they read or watched it casually over breakfast.49 In many s 7A trials there was no oral evidence. Although the section was not clear, it was decided that the jury should determine issues of fact relating to the identification of the plaintiff,50 and liability for publication.51 It was held that juries should not determine the issue of translation,52 or the issue of republication.53 For a s 7A trial involving an action for slander, it was recommended that the parties dispense with the [page 338] jury.54 Also outside the jury’s function were questions of agency or vicarious liability or questions akin to foreseeability.55 Section 7A was limited to the issue of publication, being publication by the defendant to a third person, and to the issue of identification, whether the publication was of and concerning the plaintiff. Issues relating to the imputations, such as extrinsic facts going to true innuendo, could also be determined by the jury as part of its fact-finding function.56 It was common practice for the s 7A trial to be preceded by a preliminary trial on the form and capacity of the imputations. Indeed, s 7A(1) contemplated that a judge would determine whether the matter complained of was ‘reasonably capable of carrying the imputation pleaded by the plaintiff’ and ‘reasonably capable of bearing a defamatory meaning’. This ‘judicious filter’ could prevent the more imaginative and remote imputations of the pleader from coming before the jury at all.57 The contested imputations that the jury often considered were therefore not ‘raw and unconsidered’,58 but only those that were capable of being conveyed and capable of being defamatory, as a matter of law. The normal s 7A trial would come before a jury of four persons and a judge. There would usually be no evidence other than the publication — either the original newspaper, a video tape of the television program or sound tape of the radio program. The jury was to be placed, as best it could be done, in the same position as the ordinary reader, viewer or listener of the matter complained of.

Although television or radio programs are deemed to be published in ‘permanent’ form,59 and therefore deemed to be in the same form as a newspaper which may be read and reread a number of times, it was well established that the jury should not be permitted to see or hear the program more than once and should not be permitted to have a transcript of the broadcast.60 If a transcript was relevant to an issue as to whether the words were said or not, or would assist in understanding an unclear or inaudible recording or where a translation between languages was needed, a transcript might be permissible, but [page 339] otherwise the best evidence of what was said was the broadcast itself.61 The jury was required to assess the broadcast by the tone of voice, the visible actions of the persons involved and the captions and images displayed by television which would be lost or reduced in a transcript.62 Most of the time involved in a s 7A trial was taken up by the addresses of respective counsel. This was followed by the trial judge’s direction to the jury on the law that the jury was to apply. Usually the parties would have prepared and agreed the set of questions to be answered by the jury. The jury then retired, equipped with the publication complained of and the set of questions to be answered. They had no other evidence and would not usually be given the statement of claim or defence, which could tell them something about the reputation of the plaintiff and the plaintiff’s claim for damages. These issues were to be determined separately by the trial judge. If the s 7A trial was concluded in favour of the plaintiff, the trial judge would make orders and give directions for the further conduct of the case. Alternatively, if the s 7A trial was concluded in favour of the defendant, a verdict would be entered for the defendant (on some or all imputations).63 Where a trial judge, before entering the jury’s verdict, determined on sufficient cause being shown that the hearing be discontinued and a new trial be heard, sufficient cause was whether the verdict was one that no reasonable jury

could have decided, and not whether in the trial judge’s opinion the jury was right or wrong.64 Notwithstanding the repeal of the s 7A procedure, parties may still seek to separate the trial of the determination of the defamatory imputations and the determination of the defences and damages. Such an application in a trial under the Defamation Act 2005 has been refused in relation to a jury trial for reasons of complexity, inconvenience and cost.65 However, in Voelte v Australian Broadcasting Corporation66 the parties agreed to apply the separate trial procedure in a jury trial, by which the jury found that none of the imputations were conveyed and the trial concluded without consideration of the defences. [page 340]

REVIEW OF THE JURY’S DETERMINATION BY A COURT OF APPEAL 17.3 An appeal from the jury’s determination lies to the Court of Appeal in New South Wales as of right.67 However, that appeal does not mean that the court may substitute the answer that it would give to a question for that of the jury. Nor does it mean that a finding of the jury should be invested with no more than the authority of the trial judge to whom all questions, including of fact, have been assigned for answer:68 The jury has an especially significant constitutional role to play in those cases in which it participates. Both as a practical and legal matter, a jury’s decision on a factual question although by no means impregnable, does have an authority over and above that of a decision of a judge sitting alone to determine a factual question. The jury is representative of the community. Its members are better placed than judges to give meaning to, and evaluate, the spoken and written word and its impact upon the community. Nor should it be assumed that juries approach their task with heightened or lowered suspicion and prejudice. It may be accepted that the occasions for judicial correction of jury verdicts will be extremely rare.69

A finding of the jury may only be overturned if it is one that no reasonable jury could reach.70 Appellate courts have exercised severe restraint before disturbing juries’ conclusions. The courts have from time to time used different

language to state the appropriate test of review on appeal, but the test is now settled as being one of ‘reasonableness’.71 The majority of the High Court in John Fairfax Publications Pty Ltd v Rivkin72 rejected as the relevant test the test that the jury’s verdict must be perverse. The word [page 341] ‘perversity’, in its ordinary connotation, connoted ‘deliberate or blind contrariness, obduracy and idiosyncrasy’.73 This test was held to be too stringent. Rene Rivkin was ‘a stockbroker, a company director and a prominent member of the business and financial community in Australia’ in 1998 when the Sydney Morning Herald and the Australian Financial Review published articles about him. Rivkin commenced defamation proceedings against the newspapers in the Supreme Court of New South Wales alleging that the newspaper articles conveyed a number of imputations against him. A s 7A trial was held and the jury was asked to answer a series of questions as to whether the articles contained the imputations alleged and, if so, whether they were defamatory. The only evidence before the jury was copies of the articles. No oral evidence was called. After a short retirement, the jury held that Rivkin had not established that the articles conveyed any of the imputations alleged. The trial judge entered a verdict for the newspaper publisher. Rivkin appealed to the New South Wales Court of Appeal which held that nine answers given by the jury were reasonably open to them, but that no jury could reasonably have given six of the answers. The court ordered a new trial on all questions. Fairfax appealed to the High Court. The court held by majority that the jury had both misunderstood the nature of their task and acted unreasonably. The consistent and undiscriminating rejection of all of the imputations was in Callinan J’s view ‘astonishing’. Chief Justice Gleeson noted the following example: One of the publications, in the course of paragraphs bearing the headline ‘Death of a Model’, reported an unqualified and uncontradicted assertion that the deceased was suspicious of [Rivkin] because he ‘used to hang out with a whole stack of people at [a] café which … has a

reputation for being a hangout for ex drug dealers … [and] [s]ome of [Rivkin’s] closest cronies … have certain criminal backgrounds or are rumoured to have it’. The pleaded imputation was that ‘[Rivkin] was a close associate of criminals’. The negative answer to the question whether the matter published conveyed that imputation is, to use a familiar simile, like the thirteenth stroke of a clock: not only wrong in itself, but such as to cast doubt on everything that went before.74

The High Court ordered that there not be a complete retrial, but a retrial limited to the specific imputations that no reasonable jury could have found were not conveyed. Rivkin subsequently discontinued the action.75 In some cases, there is a real chance that the error which affects the jury verdict in relation to one aspect of its role affects its conclusions on another aspect, in which [page 342] case a general new trial may be ordered rather than a retrial limited to specific imputations.76 This combined error is known as ‘cross-infection’.77 In every case it remains for the appellate court to subject the jury verdict to analysis, allowing for difficulties inherent in the absence of reasons from the jury and in circumstances where only limited means are available to decide how the jury may have reached its conclusion. Nevertheless, the touchstone is and should be one of reasonableness.78 The issue is not whether the jury was right or wrong, but whether it was open to it to find as it did on a reasonable basis,79 or whether the jury’s finding was one which no reasonable jury could have reached.80 The appeal court must approach this question on the basis most favourable to the respondent to the appeal.81 A distinction has been drawn in the cases between the restraint expected of appellate courts in interfering with determinations of the meaning of the words compared with the restraint expected in relation to determinations that the imputations are defamatory. It has been accepted that it is more difficult to persuade an appellate court to set aside a jury’s verdict as to whether the publication was defamatory, as opposed to whether it conveyed a particular meaning.82 The jury retains a unique role as an arbiter of community standards. Evidence cannot be given of the moral or social standard by which the defamatory character of an imputation is determined.83

In Cairns v John Fairfax & Sons Ltd,84 a case concerning Dr Jim Cairns, former Commonwealth Treasurer and Deputy Leader of the Whitlam government, the jury had found that the following imputation was conveyed by a newspaper article: The plaintiff was improperly involved with his assistant, Junie Morosi, in a romantic or sexual association contrary to the obligations of his marriage and to that of Ms Morosi.85

However, the jury found that the imputation was not defamatory. The New South Wales Court of Appeal dismissed Cairns’s appeal against the jury verdict, saying that [page 343] although the verdict was unusual the determination of a jury as to what was the effect on reputations of misconduct in the field of correct sexual morality was not likely to be rejected by an appellate court.86 Justice Mahoney observed: There is, I think, a distinction between … cases … where the issue is the meaning of words and cases, such as the present, which depend upon community standards … In cases such as the present, the defamatory quality of the imputation depends upon the general community attitude to conduct of a particular kind. There is, I think, more difficulty in the court holding that a jury could not form a particular view as to general community standards than in deciding whether a word is capable of a non-defamatory meaning. In this sense, it will, in my opinion, be more difficult to persuade the court to set aside a jury’s verdict in a case of the former than of the latter kind.87

In Mularczyk v John Fairfax Publications Pty Ltd88 the jury had found that an imputation suggesting that teachers at a Sydney high school had behaved dishonestly in pretending to be suffering from stress in order to avoid being transferred to a new school was not defamatory. The Court of Appeal found that the suggestion of dishonesty amounted to the absence of a quality which must be taken as being an essential attribute of a teacher in the proper performance and discharge of his or her professional duties. This directly reflected on both the personal and professional character and qualities of persons in the position of the appellants and the imputation could only be, if conveyed, defamatory. Accordingly, the jury verdict in relation to the imputation was set

aside and a new trial ordered in respect of that imputation. There have been other examples.89 An appeal to the Court of Appeal from a judge’s decision as to capacity is by way of rehearing and it is the duty of the Court of Appeal to determine that issue for itself.90 ____________________ 1.

2.

3. 4. 5. 6. 7. 8.

9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21.

Uniform Civil Procedure Rules 2005 (NSW) Pt 29 r 29.2A (before a date has been fixed for hearing); see also Uniform Civil Procedure Rules 1999 (Qld) r 472; Supreme Court (General Civil Procedure) Rules 2005 (Vic) r 47.02; Supreme Court Rules 2000 (Tas) r 557; Rules of the Supreme Court 1971 (WA) O 32 r 3 (there is no right to elect a trial by jury in any other jurisdiction). Time may be extended under Uniform Civil Procedure Rules 2005 (NSW) Pt 1 r 1.12: Chel v Fairfax Media Publications Pty Ltd [2015] NSWCA 379 at [51]; see also Uniform Civil Procedure Rules 1999 (Qld) r 7; Supreme Court (General Civil Procedure) Rules 2005 (Vic) r 63.14; Supreme Court Rules 2000 (Tas) r 52; Rules of the Supreme Court 1971 (WA) O 3 r 5. Chel v Fairfax Media Publications Pty Ltd [2015] NSWCA 379 at [18]; compare Kencian v Watney [2015] QCA 212. Channel Seven Sydney Pty Ltd v Fierravanti-Wells [2011] NSWCA 246 at [50]. Jury Act 1834 5 Will IV No 11. Juries Act 1844 7 (Vic) No 29. Jury Act 1977 (NSW) s 20. Lang v Australian Consolidated Press Ltd (1967) 1 NSWR 157; O’Shaughnessy v Mirror Newspapers Ltd [1969] 1 NSWR 422; Hawke v Tamworth Newspapers Co Ltd [1983] 1 NSWLR 699 at 706–7; Waterhouse v The Age Company Ltd [2012] NSWC 1349 at [9]–[12]; Ra v Nationwide News Pty Ltd [2009] FCA 1308 at [35]; Wood v Channel Seven Sydney Pty Ltd [2014] NSWSC 1527. Ra v Nationwide News Pty Ltd [2009] FCA 1308 at [37]. Wood v Channel Seven Sydney Pty Ltd [2014] NSWSC 1527 at [9]. Cheikho v Nationwide News Pty Ltd [2016] NSWSC 29 at [15]. Courts Legislation Amendment (Civil Juries) Act 2001 (NSW); Supreme Court Act 1970 (NSW) s 85; District Court Act 1973 (NSW) s 76A. Juries Act 1927–1981 (Qld) s 18. Juries Act 1967 (Vic) s 14(1)(a); Juries Act 1957 (WA) s 29(2G). Juries Act 1899 (Tas) s 38. Juries Act 1927 (SA) s 5; Supreme Court Act 1933 (ACT) s 22. Juries Act 1980 (NT) s 7, but see s 6A which now provides no juries in defamation proceedings. Federal Court of Australia Act 1976 (Cth) ss 39, 40; Ra v Nationwide News Pty Ltd [2009] FCA 1308 at [25]–[26]; see also Gregg v Fairfax Media Publications Pty Ltd [2016] FCA 1470. Roozendaal v Fairfax Digital Australia and New Zealand Pty Ltd [2015] FCA 764 at [26]–[27]. Gregg v Fairfax Media Publications Pty Ltd [2016] FCA 1470. Ange v Fairfax Media Publications Pty Ltd [2010] NSWSC 1383 at [31]–[33].

22. Mallik v McGeown [2008] NSWSC 129 at [15]; Ange v Fairfax Media Publications Pty Ltd [2010] NSWSC 1383 at [30]. 23. Ange v Fairfax Media Publications Pty Ltd [2010] NSWSC 1383 at [36]. 24. R v Glennon (1992) 173 CLR 592 at 614–15; R v Bell (CCA (NSW), Spigelman CJ, 8 October 1998, unreported). 25. Mallik v McGeown [2008] NSWSC 129 at [31]–[32]. 26. Cheikho v Nationwide News Pty Ltd [2015] NSWSC 146. 27. Mallik v McGeown [2008] NSWSC 129 at [37]; Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd [2014] WASC 408 at [20]. 28. French v Herald & Weekly Times Ltd [2010] VSC 127 at [18]. 29. Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd [2014] WASC 408 at [19]. 30. Peck v Email Ltd (1987) 8 NSWLR 430 at 433–4; McBride v John Fairfax Publications Pty Ltd [2009] NSWSC 10 at [10]; Mallik v McGeown [2008] NSWSC 129 at [32]; Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd [2014] WASC 408 at [22]. 31. Ange v Fairfax Media Publications Pty Ltd [2010] NSWSC 1383 at [77]. 32. Ange v Fairfax Media Publications Pty Ltd [2010] NSWSC 1383 at [71]. 33. 32 George III c 60; see Ra v Nationwide News Pty Ltd [2009] FCA 1308 at [18]–[19]. 34. Defamation Act 2005 s 22. 35. Voelte v Australian Broadcasting Corporation [2016] NSWSC 1012; see also Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448 at 473–4. 36. Hunt v Radio 2SM Pty Ltd [2010] NSWDC 43 at [45]; Louise v Nationwide News Pty Ltd [2015] NSWDC 63. 37. Daniels v State of New South Wales [2015] NSWSC 1074. 38. Channel Seven Sydney Pty Ltd v Fierravanti-Wells [2011] NSWCA 246 at [130]; Davis v Nationwide News Pty Ltd [2008] NSWSC 699. 39. Hunt v Radio 2SM Pty Ltd [2010] NSWDC 43 at [37]–[38]. 40. Greig v WIN Television NSW Pty Ltd [2009] NSWSC 876; Ra v Nationwide News Pty Ltd [2009] FCA 1308 at [32]; see also Gregg v Fairfax Media Publications Pty Ltd [2016] FCA 1470 at [17]–[19]. 41. Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448; TCN Channel Nine Pty Ltd v Mahony (1993) 32 NSWLR 397. See also R Z Mines (Newcastle) Pty Ltd v Newcastle Newspapers Pty Ltd (SC (NSW), Hunt J, 16 November 1994, unreported). 42. Defamation Act 1974 (NSW) s 7A(1). 43. Section 7A(3). 44. Section 7A(4)(a). 45. Section 7A(4)(b). 46. Supreme Court Rules 1970 (NSW) Pt 31 r 2 (now see Uniform Civil Procedure Rules 2005 (NSW) Pt 28 r 28.2). See Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158. 47. Supreme Court Rules 1970 (NSW) Pt 31 r 2 (now see Uniform Civil Procedure Rules 2005 (NSW) Pt 28 r 28.2). 48. Love v Mirror Newspapers Ltd [1980] 2 NSWLR 112 at 123; Krahe v TCN Channel Nine Pty Ltd (1986) 4 NSWLR 536 at 542; Hayward v Barratt [2001] NSWSC 8. 49. NSWLRC Discussion Paper 32, 1993, [4.27]. 50. Cinevest Ltd v Yirandi Productions Ltd [1999] A Def R 53-050.

51. Bishop v State of New South Wales [2000] NSWSC 1042. 52. Chinatown Enterprises Pty Ltd v Maxims Entertainment Pty Ltd (SC (NSW), Levine J, 30 November 1995, unreported). 53. Griffith v Australian Broadcasting Corporation [2003] NSWSC 298. 54. Pursuant to s 89(2)(b) of the Supreme Court Act 1970 (NSW). See Hayward v Barratt [2001] NSWSC 8. 55. Speight v Gosnay (1891) 60 LJQB 231; Griffith v Australian Broadcasting Corporation [2003] NSWSC 298. 56. Griffith v Australian Broadcasting Corporation [2003] NSWSC 298. 57. John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50 at [86] (Kirby J). 58. John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50 at [87] (Kirby J). See also Favell v Queensland Newspapers Pty Ltd [2004] QCA 135. 59. Broadcasting Services Act 1992 (Cth) s 206. 60. Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448 at 472–3; TCN Channel Nine Pty Ltd v Mahony (1993) 32 NSWLR 397 at 400–1; Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 166; Goldsworthy v Radio 2UE Sydney Pty Ltd [1999] NSWSC 290; Griffith v Australian Broadcasting Corporation [2003] NSWSC 298; Nu-Tec v ABC [2010] NSWSC 711 at [12]; Voelte v Australian Broadcasting Corporation [2016] NSWSC 1012 at [16]. See 7.10. 61. Reading v Australian Broadcasting Corporation [2003] NSWSC 716; Foreign Media Pty Ltd v Konstantinidis [2003] NSWCA 161; Purcell v Cruising Yacht Club of Australia [2001] NSWSC 926. 62. But see Vacik Distributors Pty Ltd v Australian Broadcasting Corporation [1999] A Def R 53-045. 63. Sonda v Signorelli [2004] NSWCA 134. 64. Sonda v Signorelli [2004] NSWCA 134. 65. Greig v WIN Television NSW Pty Ltd [2009] NSWSC 876 at [10]–[13]; Trkulja v Google Inc [2012] VSC 533 at [10]. 66. [2016] NSWSC 1012. 67. Supreme Court Act 1970 (NSW) s 102. 68. John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50 at [184] (Callinan J). 69. John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50 at [184] (Callinan J). See also Saffron v John Fairfax Publications Pty Ltd [2004] NSWCA 254. 70. John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50 at [185] (Callinan J); Beran v John Fairfax Publications Pty Ltd [2004] NSWCA 107. 71. John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50. Compare previous tests — incontrovertible error: Evans v Davies [1991] 2 Qd R 498; an extreme case of unreasonableness: Grobbelaar v News Group Newspapers [2001] 2 All ER 437 at 487; a view no reasonable jury could hold: Australian Newspaper Company Ltd v Bennett [1894] AC 284 at 287; inherently wrong: Thompson v Truth and Sportsman Ltd (No 1) (1929) 31 SR (NSW) 129 at 135; unreasonableness: Cairns v John Fairfax & Sons Ltd [1983] 2 NSWLR 708 at 716; clear and beyond argument: Broome v Agar (1928) 138 LT 698 at 702; Harvey v John Fairfax Publications Pty Ltd [2003] NSWCA 70; unreasonable: Mechanical and General Inventions Company and Lehwess v Austin and the Austin Motor Company [1935] AC 346 at 373–5; unreasonable and almost perverse, overwhelming preponderance: Cox v English, Scottish and Australian Bank [1905] AC 168 at 170; an enormously strong case: Place v Searle [1932] 2 KB 497 at 515; wrong and completely unreasonable and unjust: Hocking v Bell (1945) 71 CLR 430 at 501. 72. [2003] HCA 50.

73. 74. 75. 76. 77. 78. 79. 80. 81. 82.

83. 84. 85. 86.

87.

88. 89. 90.

John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50 at [111] (Kirby J). John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50 at [5]. See also Beran v John Fairfax Publications Pty Ltd [2004] NSWCA 107. Harvey v John Fairfax Publications Pty Ltd [2003] NSWCA 70. See also Mularczyk v John Fairfax Publications Pty Ltd [2001] NSWCA 467. John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50 at [151] (Kirby J). Channel Seven Sydney Pty Ltd v Parras [2002] NSWCA 202 at [17]; Sonda v Signorelli [2004] NSWCA 134 at [42]; Pavy v John Fairfax Publications Pty Ltd [2004] NSWCA 177. Beran v John Fairfax Publications Pty Ltd [2004] NSWCA 107; Australian Broadcasting Corporation v Reading [2004] NSWCA 411; Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255. Beran v John Fairfax Publications Pty Ltd [2004] NSWCA 107. Broome v Agar (1928) 138 LT 698; Lockhart v Harrison (1928) 139 LT 521 at 523; Cairns v John Fairfax & Sons Ltd [1983] 2 NSWLR 708 at 720; John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50 at [19] (McHugh J). Readers Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 506; Australian Broadcasting Corporation v Reading [2004] NSWCA 411. [1983] 2 NSWLR 708. Cairns v John Fairfax & Sons Ltd [1983] 2 NSWLR 708 at 709. Cairns v John Fairfax & Sons Ltd [1983] 2 NSWLR 708 at 710. Cairns admitted shortly before his death in 2003 that he had had an affair with Junie Morosi, something that he had denied for almost 30 years. At Cairns’s funeral, Tom Uren, the former Whitlam Minister and Cairns’s good friend, was reported to have said: ‘He wasn’t honest about his relationship with her and those who had put him on a pedestal couldn’t understand the relationship. But to see this failing as fatal, was to fall for the game. Many of the politicians who condemned Cairns were themselves having affairs, as were a number of his media critics.’ Cairns v John Fairfax & Sons Ltd [1983] 2 NSWLR 708 at 720. See also Beran v John Fairfax Publications Pty Ltd [2004] NSWCA 107 at [110]; Broome v Agar (1928) 138 LT 698; Lockhart v Harrison (1928) 139 LT 521 at 523. [2001] NSWCA 467. Pavy v John Fairfax Publications Pty Ltd [2002] NSWCA 46; Charlwood Industries Pty Ltd v Brent [2002] NSWCA 201. Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 164.

[page 345]

CHAPTER 18 THE DEFENCES COMMON LAW DEFENCES STATUTORY MODIFICATION OF DEFENCES CONSENT ILLEGALITY RELEASE TIME LIMITATION

18.1 18.2 18.3 18.4 18.5 18.6

COMMON LAW DEFENCES 18.1 The common law has developed over time a number of limitations or exceptions to provide defences to the causes of action for libel and slander. If the defamatory matter was true, there was a complete defence. If the circumstances or occasion of the publication of the defamatory matter provided ‘justification’, in the sense of just cause or excuse, there was a defence of privilege, either absolute privilege or qualified privilege.1 Under the common law pleading rules, the common law defences were pleaded by way of confession and avoidance, amounting to an admission of the publication of the defamatory matter, but introducing facts to justify or excuse the publication and make out one of the available defences.2 This framework has caused difficulties with the development of defences which deny the meaning pleaded by the plaintiff and then plead that an alternative defamatory meaning was conveyed which can be justified or excused.3 Another difficulty is caused to some extent by modern pleading rules which allow a defendant to plead alternative and inconsistent grounds of defence.4 Alternative

[page 346] defences are only liable to be struck out if the alternatives are an abuse of process or cause embarrassment or inconvenience; for example, if one of them must be false to the knowledge of the pleader.5 This method of pleading allows a defendant to deny that the publication conveys the defamatory meaning pleaded by the plaintiff and to plead in the alternative that, if such meaning was conveyed, the meaning was an expression of the defendant’s opinion and intended to be conveyed.6 However, defendants who did not admit that the plaintiff’s meaning was conveyed had difficulty with the alternative position of proving that they intended to convey that meaning, under the previous defence of statutory fair comment.7

STATUTORY MODIFICATION OF DEFENCES 18.2 A statutory defence under the Defamation Act 2005 Div 2 is additional to any other defence or exclusion of liability available apart from the Act (including at common law or equity) and does not of itself vitiate, limit or abrogate any other defence or exclusion of liability: s 24(1). This means that the statutory defences co-exist with the common law defences. Section 24(1) therefore makes it clear that the purpose of the Act is to retain many of the defences and protections that exist at common law. It is a similar provision to the previous s 11 of the Defamation Act 1974 (NSW): In this sense, the present Act is confined to the regulation of essential, or ‘core’ matters upon which parliament made its will unmistakable. Beyond such matters, the common law ha[s] been left to apply and develop … [T]he language of the defences suggests that, in particular cases, two or more defences may apply concurrently … Just as plaintiffs are entitled to (and commonly do) express their claims in terms of alternative causes of action arising at common law or under statute, so defendants are ordinarily entitled to invoke each and every applicable defence provided by law (whether by statute or the common law).8

Several statutory defences supplement common law defences that remain available by virtue of s 24(1) — the defences may overlap one another. A publisher is entitled to rely upon so many of the defences as are applicable and this conforms to ordinary pleading practice.9

The ‘additional’ statutory defences to the publication of defamatory matter provided specifically under the Act are: (a) justification: s 25; (b) contextual truth: s 26; [page 347] (c) absolute privilege: s 27; (d) publication of public documents: s 28; (e) fair report of proceedings of public concern: s 29; (f) qualified privilege for production of certain information: s 30; (g) honest opinion: s 31; (h) innocent dissemination: s 32; (i) triviality: s 33. Where a defence under the Act may be defeated by proof that the publication was actuated by malice, the general law applies to determine whether the publication of the defamatory matter was actuated by malice: s 24(2). At general law, a publication of matter is actuated by malice if it is published for a purpose or with a motive that is foreign to the occasion that gives rise to the defence.10 In general, the defences under the Act exclude liability for ‘the publication of defamatory matter’; for example, because of the occasion (absolute privilege) or because of the circumstances (triviality) of publication. However, the defences of justification and contextual truth require proof that the defamatory or contextual imputations carried by the matter are true. Section 8 of the Act provides that a person has a single cause of action for defamation in respect of the publication of defamatory matter about the person even if more than one defamatory imputation about the person is conveyed by the matter. Accordingly, the defence of justification may fail to defeat the cause of action completely if the truth of any one of the defamatory imputations cannot be proved, notwithstanding that the remainder are shown to be true. The defence of contextual truth may likewise fail if the contextual imputations do not override all of the plaintiff’s defamatory imputations.

The following defences in 18.3–18.6 are relatively minor defences available at common law or under the Act.

CONSENT 18.3 The defence of consent is based upon the plaintiff’s consent to being defamed.11 The evidence of consent or acquiescence must be clear and must show an authorisation or acceptance by the plaintiff of the defendant’s publication.12 The defence was raised in Ettingshausen v Australian Consolidated Press Ltd13 where the plaintiff had been photographed naked in the shower with other members of the Australian Rugby League team and the photograph published in a magazine. The court held that the basis of [page 348] this defence must be that the plaintiff has consented to the act being done towards him of which he now complains. In an action for defamation, the consent must be to the publication of the defamatory meaning conveyed. In this case, the imputation of which the plaintiff complained was that he had allowed a photograph of himself showing his sexual organs to be published in a widely circulated magazine. There was no evidence of consent to this publication and therefore the defence was not available. A challenge to repeat the defamatory matter may not be consent but an implied threat to sue if repeated.14 A self-publication by the plaintiff may not be consent, but made under legal or moral obligation.15

ILLEGALITY 18.4 The defence of illegality may be raised in respect of an action where the claim for damage to reputation concerns the carrying on of an illegal trade, business or calling.16 In one case, the defendant asserted that the plaintiff had practised medicine while not registered and had held himself out as a qualified

doctor. If the libel ‘touches and concerns’ the plaintiff in relation to a reputation illegally attained (such as a burglar), the plaintiff can have no redress, not because the defendant has a justification, but because the law does not regard such a reputation as proper to be protected (ex turpi causa non oritur actio), however it may be impinged upon by, and whatever the precise terms of, the libel.17

RELEASE 18.5 There is a defence of accord and satisfaction where a cause of action for publication of defamatory matter has been released. The release must have been given in consideration of payment or under seal. The agreement of the plaintiff to release the defendant constitutes the ‘accord’ and the consideration provided by the defendant constitutes the ‘satisfaction’. A defendant, in order to satisfy potential liability for republication, may seek a release for the defamatory publication and for publications to the same effect. The common law rule that release of one defendant released all other joint publishers has been impliedly abrogated in Australia by statute.18 A defendant, in order to satisfy the potential liability of other joint publishers, may seek a release for and on behalf of its servants or agents (and all concurrent tortfeasors if appropriate). [page 349]

TIME LIMITATION 18.6 Prior to the Defamation Act 2005, there was a statutory defence of limitation of actions in most jurisdictions of up to six years, within which proceedings were required to be commenced.19 Consequent upon the Defamation Act 2005, the limitation periods were reduced uniformly to one year from the date of publication, by amendment of the relevant statutes in each state and territory.20

The action is not maintainable if brought after the end of a limitation period of one year running from the date of the publication of the defamatory matter. An application may be made to the court for an extension of the limitation period. In general, the legislation provides that a court must extend the limitation period up to three years running from the date of the publication, ‘if satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced the action within one year from the date of the publication’. The court must be ‘satisfied’ on the evidence and does not have a discretion to extend the time on grounds of fairness or where it may be just and reasonable to do so.21 The words ‘not reasonable in the circumstances’ place a high onus on the plaintiff to show that a reasonable person in the plaintiff’s position would not have commenced an action within the time period. The onus will be difficult to meet where the plaintiff knows of the publication and chooses not to sue or does not sue. Some authorities suggest that it is relevant as to what the plaintiff did and why the plaintiff did not commence proceedings within the limitation period.22 Other authorities suggest that the plaintiff’s excuse for failing to commence the proceeding within time is not relevant, nor the merits of the defamation claim, nor any prejudice to the defendant by granting the extension. The test is one of reasonableness and if it was not reasonable to expect the plaintiff to have commenced proceedings, an [page 350] extension of up to three years must be given. If the plaintiff proves that fact, the court is obliged to extend time. The test is not whether it was reasonable for the plaintiff not to have commenced within time but whether it would not have been reasonable for the plaintiff to have commenced in the time specified.23 ‘The circumstances’ refer to the objective circumstances as they appear to the court and not the circumstances the plaintiff believed, however unreasonably, to exist. The plaintiff’s ignorance of the limitation period is not a reasonable basis for not commencing proceedings.24

The relevant statutes of limitation lay down a strict time limit for the commencement of proceedings for damages for defamation. Only in relatively unusual circumstances will a court be satisfied that it was not reasonable to seek to vindicate the plaintiff’s rights in accordance with the law within the time period stipulated.25 The circumstances must be so compelling as to make it positively unreasonable for a person defamed not to exercise his or her legal rights to sue within the statutorily designated period.26 It has been held that the test is not satisfied where a plaintiff fails to take legal advice within the limitation period to be advised of the time limit or pursues a grievance procedure instead of commencing proceedings within time.27 Even where the parties participate in the offer of amends procedure, set out under the Defamation Act 2005, or in settlement negotiations, the test may not be satisfied unless there is evidence to show that the defendant encouraged the plaintiff to delay the commencement of proceedings until after the expiry of the limitation period.28 Unexpected, distracting or distressing events may not satisfy the objective test in the circumstances. Negligence of the plaintiff’s lawyers will not be sufficient to satisfy the test.29 It has been satisfied where the plaintiff’s mental state was such that it made it not reasonable to commence proceedings within time.30 It has also been satisfied [page 351] where the certificate of reasonable prospects of success required to be made before filing proceedings could not be given.31 It would not be reasonable for a plaintiff to commence proceedings within the limitation period if the plaintiff is unable to prove one or more of the elements of the cause of action for defamation within the limitation period. The three elements of the cause of action are the publication of matter, identification of the plaintiff and the defamatory meaning conveyed by the matter. If the plaintiff does not know of the existence of the publication32 or cannot prove the publication until after the limitation period has expired, it would not be reasonable in the circumstances to commence the proceedings and the period should be extended. If the plaintiff does know of the publication, but does not know who published it, it may not be reasonable in the circumstances to

commence the proceedings provided the plaintiff brings an application to the court to discover the identity of the prospective defendant within the limitation period.33 A plaintiff could nevertheless commence proceedings against an unidentified defendant to preserve the time position pending discovery of that identity. Alternatively, the promptness of the plaintiff to take steps to determine the identity of the publisher prior to making the application for an extension of time may be a relevant consideration to the objective test.34 Where the person cannot be identified because they have used a pseudonym or false or fictitious name, it may be possible to rely upon the provisions of the Limitation Act which postpone the statutory bar for ‘deliberate concealment’. For example, s 33 of the Limitation Act 1985 (ACT) enables the limitation period to be postponed if ‘a fact relevant to a cause of action or the identity of a person against whom a cause of action lies is deliberately concealed’.35 The amount of time for which the extension is granted is a matter for the court’s discretion. It should only be extended up to the time within which it was thought unreasonable to have sued.36 The court will apply a stringent test for the period of the extension and should have regard to the delay and explanations for it after the 12-month period. In circumstances where the plaintiff sought an extension of approximately eight months, the court [page 352] considered it was not reasonable for him to institute the proceedings on the evidence before the court for only four months of that period.37 The limitation period may not need to be extended where there is a fresh publication or a continuing publication as on the internet. Each separate publication creates a new cause of action. In Duke of Brunswick v Harmer38 the sale of a newspaper 14 years after the initial publication was held to be a separate publication and created a new cause of action which was not barred by the limitation period. ____________________

1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11.

12. 13. 14. 15. 16. 17. 18. 19.

20.

21. 22.

23.

See 2.17. See 2.17. Polly Peck (Holdings) plc v Trelford [1986] QB 1000; Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; (1998) 193 CLR 519 at 527–8; David Syme & Co Ltd v Hore-Lacy [2000] VSCA 24. Re Morgan (1887) 35 ChD 492; Re Smith (1884) 9 PD 68; Coote v Ford (1899) 2 Ch 93 at 106; Moloney v Moloney (1903) 20 WN (NSW) 267. Delfino v Trevics (No 1) [1963] NSWR 191 at 196; Issitch v Worrell (2000) 172 ALR 586 at [32]. Casey v Australian Broadcasting Commission [1981] 1 NSWLR 305 at 309. Lloyd v David Syme & Co Ltd (1985) 3 NSWLR 728 at 736. Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5 at [178]–[181] (Kirby J). Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5 at [181] (Kirby J). Roberts v Bass (2002) 212 CLR 1 at 30–3. Frew v John Fairfax Publications Pty Ltd [2004] VSC 311 in which it was suggested that the term ‘voluntary assumption of risk’ should be confined to non-intentional torts such as negligence: see Monson v Tussauds Ltd [1894] 1 QB 671 at 691, 697; Chapman v Lord Ellesmere [1932] 2 KB 431 at 463. Jones v Amalgamated Television Services Pty Ltd (1991) 23 NSWLR 364 at 369. (1995) 38 NSWLR 404. Orr v Isles [1965] NSWR 677 at 694. Jones v Amalgamated Television Services Pty Ltd (1991) 23 NSWLR 364 at 369. Smith’s Newspapers Ltd v Becker (1932) 47 CLR 279 at 296–7, 311. Wilkinson v Sporting Life Publications Ltd (1933) 49 CLR 365 at 379–80. See also Kings Cross Whisper Pty Ltd v Ray (1970) 72 SR (NSW) 339 at 344. Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574. Limitation Act 1969 (NSW) s 14B (one year); Limitation of Actions Act 1958 (Vic) s 5 (six years); Limitation of Actions Act 1936 (SA) s 35 (six years); Limitation Act 1935 (WA) s 38(1)(c)(vi) (six years); Limitation of Actions Act 1974 (Qld) s 10 (six years); Limitation Act 1974 (Tas) s 4 (six years); in the Northern Territory the limitation period was reduced to three years: Limitation Act 1981 (NT) s 12, subject to the court’s discretion to extend the time: s 44; in South Australia and Western Australia, the limitation period for actions for slander was reduced to two years: Limitation of Actions Act 1936 (SA) s 37, subject to the court’s discretion to extend the time: s 48; Limitation Act 1935 (WA) s 38(1)(a) (ii); the period for proceedings against newspapers in Western Australia was reduced to 12 months: Newspaper Libel and Registration Act 1884 Amendment Act 1888 (WA) s 5; Limitation Act 1985 (ACT) s 21B (one year from first publication with possible extension to two years). Limitation Act 1969 (NSW) ss 14B and 56A (see also ss 56C and 56D); Limitation of Actions Act 1958 (Vic) s 5 (1AAA) and s 23B; Limitation of Actions Act 1936 (SA) s 37; Limitation of Actions Act 1974 (Qld) ss 10AA and 32A; Defamation Act 2005 (Tas) s 20A; Limitation Act 2005 (WA) ss 15 and 40; Limitation Act 1985 (ACT) s 21B; Limitation Act 1981 (NT) ss 12(1A) and 44A. Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676 at [27]; Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 at [87]. Carey v Australian Broadcasting Corporation [2010] NSWSC 709 at [48]; Carey v Australian Broadcasting Corporation [2012] NSWCA 176 at [56]–[57]; Ritson v Gay & Lesbian Community Publishing Ltd [2012] NSWSC 483 at [15], [56]. Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676 at [39]; Lakaev v Denny [2010] NSWSC 1480 at [15].

24. Noonan v MacLennan [2010] QCA 50 at [19]; Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 at [87]; Casley v Australian Broadcasting Corporation [2013] VSC 251; York v Morgan [2015] NSWDC 109 at [9]. 25. Noonan v MacLennan [2010] QCA 50 at [15]; Rayney v Western Australia (No 3) [2010] WASC 83 at [41]. 26. Noonan v MacLennan [2010] QCA 50 at [51]; Barrett v TCN Channel Nine Pty Ltd [2016] NSWSC 1663 at [42]. 27. Noonan v MacLennan [2010] QCA 50 at [60]; Carey v Australian Broadcasting Corporation [2010] NSWSC 709 at [57]. 28. Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 at [42]. 29. Garderen v Channel Seven Melbourne Pty Ltd [2016] VCC 953; Barrett v TCN Channel Nine Pty Ltd [2016] NSWSC 1663 at [60]. 30. Jamieson v Chiropractic Board of Australia [2011] QCA 56 at [42]. 31. Houda v State of New South Wales [2012] NSWSC 1036 at [31]; McMahon v Watkinson [2014] VSC 123 at [55]; Barrett v TCN Channel Nine Pty Ltd [2016] NSWSC 1663 at [52]. 32. Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676 at [52]; Rayney v State of Western Australia [2010] WASC 83 at [41]; Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 at [56]; Han v Australian Kung Fu (Wu Shu) Federation Inc [2011] VSC 498; Jamieson v Chiropractic Board of Australia [2011] QCA 56 at [21]; Ritson v Gay & Lesbian Community Publishing Ltd [2012] NSWSC 483; Findley v Morand [2014] QSC 297 at [19]. 33. Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676 at [52]; Lakaev v Denny [2010] NSWSC 1480 at [55]; McMahon v Watkinson [2014] VSC 123 at [60]. 34. McMahon v Watkinson [2014] VSC 123 at [64]; Clark v Ibrahim [2014] VSC 30 at [61]. 35. Piscioneri v Reardon [2015] ACTSC 61 at [30]. 36. Noonan v MacLennan [2010] QCA 50 at [66]; Casley v Australian Broadcasting Corporation [2013] VSCA 182 at [73] (compare Riske v Oxley Insurance Brokers Pty Ltd [2014] NSWSC 1611 at [38]); Barrett v TCN Channel Nine Pty Ltd [2016] NSWSC 1663 at [36]. 37. Barrett v TCN Channel Nine Pty Ltd [2016] NSWSC 1663 at [62]. 38. (1849) 14 QB 185; 117 ER 75.

[page 353]

CHAPTER 19 TRUTH COMMON LAW DEFENCE OF TRUTH STATUTORY DEFENCE OF JUSTIFICATION PRESUMED FALSITY OF DEFAMATORY IMPUTATION MULTIPLICITY OF IMPUTATIONS TRUTH OF DEFENDANT’S IMPUTATIONS TRUTH OF THE COMMON STING DIFFERENT IN KIND OR DIFFERENT IN SUBSTANCE UNIFORMITY AND REFORM PUBLIC INTEREST

19.1 19.2 19.3 19.4 19.5 19.6 19.7 19.8 19.9

COMMON LAW DEFENCE OF TRUTH 19.1 At common law it is a defence that the imputations complained of are true in substance and in fact. It has long been held that there is no wrong done by publishing the truth about the plaintiff. The presumption is that, by telling the truth about the plaintiff, his or her reputation is not lowered beyond its proper level, but is merely brought down to it.1 A truthful statement defines a person’s reputation rather than damages it. The defendant must not only prove the truth of the words complained of in their literal meaning, but also the truth of the defamatory sting. Every material part of the defamatory imputation must be true, otherwise the defence of justification fails.2 However, slight inaccuracies of detail which do not affect the substance of the defamatory accusation will not prevent the defence being established.3 For example, if the publication stated that the plaintiff had been convicted of riding in a train

[page 354] without a valid ticket and fined 100 dollars or three weeks’ imprisonment in default, it would be sufficient to prove the truth by showing that the plaintiff had been fined 100 dollars but only sentenced to two weeks’ imprisonment in default.4 The objective truth of the facts must be capable of establishing the sting of the defamation on the balance of probabilities.5 Where the defamatory imputation suggests the commission of a crime, or having regard to the gravity of the matter alleged,6 the standard of proof must satisfy the Briginshaw test.7 While that standard of proof is on the balance of probabilities, it should be understood in the sense of clear or cogent or strict proof where so serious a matter as criminal conduct is alleged.8 The intention of the defendant is irrelevant to whether the defamatory imputation is true.9 It is not sufficient for a defendant to believe the defamatory matter is true. If the defendant repeats the statement of another person, the repetition does not entitle the defendant to rely merely upon his or her belief as to what someone else said. The defendant must prove the truth of the defamatory imputation conveyed. For example, if the defendant stated that ‘I have been told that the plaintiff is a thief’, the imputation is that the plaintiff is a thief, not merely that the defendant has been told that fact and the defendant must prove the truth of the statement that the plaintiff is a thief to establish the defence.10 Similarly, the truth of an imputation of guilt is not established by the fact that the person was convicted. At common law, the publisher must prove the guilt of the person concerned11 (but see s 42 of the Defamation Act 2005 which modifies the rule).12 Under s 8 of the Defamation Act 2005, only one cause of action arises from the publication of defamatory matter regardless of the number of defamatory meanings pleaded. The defence fails if the truth of any one of the defamatory meanings conveyed [page 355]

cannot be proved, notwithstanding that the remainder are shown to be true. The issue of multiple meanings or imputations remains the source of much complexity and confusion in defamation law.13 If the plaintiff complains of an imputation in general terms (or in terms wider than that contained in the matter itself), the defendant may plead truth and justify by reference to acts on the part of the plaintiff other than those contained in the matter.14 For example, where an imputation is pleaded that the plaintiff was dishonest, the defendant may justify by proof of facts far removed from what was published.

STATUTORY DEFENCE OF JUSTIFICATION 19.2 Under s 25 of the Defamation Act 2005, there is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true. The imputations of which the plaintiff complains therefore remain relevant to the action and critical to this defence.15 Under s 8 of the Defamation Act 2005, the cause of action is constituted by the publication of defamatory matter even if more than one defamatory imputation is carried by the matter. The defence of justification under s 25 requires the defendant to prove that the defamatory imputations carried by the defamatory matter of which the plaintiff complains are substantially true. The term ‘substantially true’ is defined in s 4 to mean ‘true in substance or not materially different from the truth’. In all other respects, the common law principles apply.

PRESUMED FALSITY OF DEFAMATORY IMPUTATION 19.3 At common law, in the absence of the pleading of a defence of truth or justification, the defendant cannot lead evidence of the truth of the publication

in mitigation of damages.16 In Roberts v Camden17 the court held that, if the defendant did not prove the truth of the libel, the law assumed it to be false. Accordingly, at common law in the absence of a plea of justification, the plaintiff does not have to lead evidence on the issue of falsity and may go to the jury on the issue of damages with the uncontradicted presumption that the published matter is false.18 [page 356] However, this presumption has been criticised19 on the basis that the failure to justify cannot logically amount to a failure to deny the truth of the defamatory matter if falsity is not an element in determining whether the matter is defamatory. A plea of justification in a defamation action is not a traverse but a plea of confession and avoidance. Falsity is not an element which the plaintiff has to prove on liability. At one time the plaintiff pleaded that the words were published ‘falsely and maliciously’, but it was accepted that the plaintiff did not have to prove or allege that the words were false and malicious.20 Therefore, an allegation in a common law pleading that the words were published ‘falsely and maliciously’ was regarded as surplusage.21 Moreover, the defendant was not entitled to deny the allegation and any plea attempting to do so was struck out as embarrassing.22 This was because of the common law rule that the onus was on the defendant to prove justification. Falsity is relevant, however, on the issue of damages because the falsity or truth of the defamation might increase or decrease the hurt to the plaintiff. In New South Wales from 1847 until 2005, truth alone had not been a defence to a defamation action so the failure to plead justification as a defence did not lead to any inference that the defamatory imputation was untrue.23 The defamatory matter could be true, but the defendant might have been prevented from pleading justification because he or she could not also prove that the matter was published either under qualified privilege or related to a matter of public interest as required under s 15 of the Defamation Act 1974. Accordingly, in New South Wales no presumption of falsity arose from the failure to plead justification.24

The same reasoning probably also applied to the law in Queensland, Tasmania and the Australian Capital Territory at that time where the additional element of public benefit was required to be proved in order to prove a defence of truth. Under the Defamation Act 2005, the position reverts to the common law and, in the absence of a pleaded defence of justification, the defendant cannot lead evidence of the truth of the publication in mitigation of damages.

MULTIPLICITY OF IMPUTATIONS 19.4 At common law, where a publication contains two separate and distinct imputations, the plaintiff can complain of one and the defendant cannot defend that imputation by proving the truth of the other.25 [page 357] Hans Speidel was a Nazi General during the Second World War. He later became the first German NATO Commander during the Cold War. At that time, Plato Films distributed an East German film Operation Teutonic Sword in the United Kingdom in which Speidel was portrayed as being involved in the murder of King Alexander of Yugoslavia in 1934 and betraying Field Marshall Rommel to the Gestapo after the attempt to assassinate Hitler in 1944. Speidel sued the distributors of the film for these imputations but did not sue for imputations which were also conveyed in the film that he was guilty of war crimes and atrocities. These included that he shot civilians, deported Jews to concentration camps and committed war crimes during the retreat of the German armies from Russia during the Second World War. Plato Films sought to rely upon the imputations of war crimes and atrocities in mitigation of damage saying ‘even if we did falsely accuse the plaintiff of being a murderer, can his reputation be worth much if he is prepared to sit down under a charge of being a war criminal and make no complaint about it?’ The House of Lords struck out the defendant’s plea in mitigation on the basis that the defence of truth had to be directed to the imputation complained of.26

Where the publication charges several defamatory imputations, for example, the commission of several crimes or the commission of a crime in a particular manner, the defence must justify each imputation; that is, the charge as to the number of crimes or the manner of committing the crime.27 If, however, all the defamatory allegations of fact are proved to be true, and all that remains are general rhetorical expressions of disapproval or denunciation which do not in themselves contain any additional allegations of fact, then the defence of truth will be established. If the imputation is substantially distinct in its nature or character from that which forms the main charge or gist of the defamation, the defendant must justify all such distinct imputations.28 If, on the other hand, the plaintiff restricts the complaint to one imputation, and other imputations which are distinct are nonetheless conveyed, at common law the defendant is liable unless all imputations can be justified.29 Where one imputation can be justified and is more serious than the other which cannot, a statutory defence of contextual truth is available under s 26 of the Defamation Act 2005.30 Whether an imputation is distinct from other imputations is a difficult question; it depends on whether the allegation is severable, which is a question of substance not of form. The test is whether it is a substantially separate and self-contained allegation or whether it is merely one ingredient of a connected whole which, when taken as a whole, conveys a damaging imputation that is not contained in parts taken [page 358] separately.31 If a plaintiff had been convicted twice of dishonesty, but the defendant had said he had been convicted six times of dishonesty, the defendant is entitled to justify in part.32 While that does not provide a complete defence, it does have the effect of reducing damages to the plaintiff for a reputation which he or she does not possess or deserve.33

TRUTH OF DEFENDANT’S IMPUTATIONS

19.5 Normally a party is bound by the particulars which he or she gives of the cause of action and can only depart from them if the case is conducted on a different basis or an amendment is permitted.34 In a defamation case at common law the plaintiff is bound by the meanings he or she pleads or particularises, or meanings which do not differ in substance from them. If during the course of the proceedings or the trial the plaintiff wishes to depart from those meanings, he or she may apply to amend or vary the particulars and the court may consider questions of prejudice to the opposing party and whether that prejudice can be cured by costs or some other order.35 At common law the view was taken that, although the plaintiff was bound by the meanings he or she pleaded, those pleadings were treated at the trial as the most injurious meaning which the words were capable of bearing and this did not prevent the plaintiff from contending that the words bore a meaning less injurious to the plaintiff’s reputation but still defamatory of him or her; nor did it relieve the tribunal of fact from determining what was the natural and ordinary meaning of the words.36 Accordingly, the principle developed in common law jurisdictions that the meaning of the words is ultimately a question for the tribunal of fact which must be left at large in finding the true meaning amongst such possible meanings as are capable of [page 359] being conveyed.37 The meanings found to be conveyed must not be inconsistent or contradictory.38 In common law jurisdictions it is the settled practice for a plaintiff, where the meaning of the words complained of is not clear and explicit, to plead (or at least particularise) the meanings which he or she says the words bear. However, the court, or jury as the case may be, must decide what meanings the words in fact bear and they are not restricted to the meanings which the plaintiff seeks to place upon the words, nor, for that matter, is the plaintiff bound by the meanings which he or she pleads.39 The plaintiff may be permitted to depart from the meaning pleaded where the alternative meaning is a shade or nuance of the meaning already pleaded

and so in substance is close to or the same as the meaning already pleaded. Otherwise, the plaintiff will not be entitled to seek a verdict on a different meaning and is restricted to the meaning pleaded or the shade or nuance of that meaning, and subject to the proviso that the defendant suffers no prejudice, embarrassment or unfair disadvantage as a result. This flexibility towards interpretation saw the development in the United Kingdom of the principle that a defendant may assert a meaning to the matter complained of different from the meaning pleaded by the plaintiff and then seek to defend that different meaning. As the court or the jury is not limited to the plaintiff’s meanings, the defendant would be entitled to establish defences based upon meanings different from that pleaded by the plaintiff (the ‘Polly Peck defence’).40 However, the defendant must plead the defence of justification so as to inform the plaintiff and the court precisely what meaning the defendant will seek to justify if that differs from the meaning pleaded by the plaintiff.41 In doing so, a defendant is not obliged to say that that is the meaning which the matter complained of actually bears. The defendant is saying that, if the matter complained of bears that meaning, he or she will justify it. Adoption of this practice does not alter the position at law that the judge must decide what meanings are fairly open from the matter complained of and leave to the jury (if applicable) all such meanings and only such meanings of the words as are fairly open. Neither the judge nor the jury is thereby confined to the meanings asserted by the parties. Yet it will be [page 360] unlikely that the judge would feel any necessity to put to the jury any meaning not covered by the pleadings.42 When a defendant pleads justification he or she pleads that the defamatory words are true in substance and in fact in any meaning found by the jury.43 Nonetheless, where the defendant specifies the meaning which he or she intends to justify, the defendant may argue that a lesser meaning was conveyed than the more serious meaning pleaded by the plaintiff and that that lesser meaning was true. The criticism has been made that, as a result, the defendant is

able to lead evidence in support of the defence of truth which establishes in effect that the defendant ‘almost got it right’. Such evidence would be likely to influence the jury and be taken into account in reducing the amount of damages awarded.44 In Chakravarti v Advertiser Newspapers Ltd45 Brennan CJ and McHugh J considered that the plaintiff was bound by the meanings pleaded and could not seek a verdict on a different meaning which altered the substance of the meaning pleaded. Justices Gaudron and Gummow appeared to follow the settled practice at common law where they said: As a general rule, there will be no disadvantage in allowing a plaintiff to rely on meanings which are comprehended in, or are less injurious than the meaning pleaded in his or her statement of claim. There will generally be no disadvantage in permitting reliance on what is simply a variant of the meaning pleaded. However, there may be disadvantage if a plaintiff is allowed to rely on a substantially different meaning or, even, a meaning which focuses on some different factual basis.46

Justice Kirby accepted the settled practice of pleading and said that there needed to be a measure of discretion and flexibility when the essence of the sting of the defamation complained of at the end of the trial did not exactly or entirely coincide with the imputations which were pleaded.47 The practice was criticised by Brennan CJ and McHugh J48 where they said that a defendant’s plea of a new defamatory meaning different from the plaintiff’s pleaded meaning was liable to be struck out as embarrassing unless it was a traverse making explicit the ground for denying the plaintiff’s pleaded meaning. However, a plea of justification or other defence in respect of a meaning not pleaded by the plaintiff was not pleading a good defence. In their view the practice known as the ‘Polly Peck defence’ contravened fundamental principles of common law pleadings and in general raised a false issue which could only embarrass the fair trial of the action. [page 361] The Polly Peck defence has been reformulated in Australia, subject to certain conditions taking into account this criticism.49 In David Syme & Co Ltd v HoreLacy50 the Victorian Court of Appeal held that neither the plaintiff nor the defendant is permitted to raise (nor is the defendant permitted to justify) a

meaning substantially different from, or more injurious than, the meanings alleged by the plaintiff (the ‘Hore-Lacy defence’). Ormiston JA said: I do not feel that this court is free to overrule the rule which enables a plaintiff in a defamation action to take advantage of any meaning of a publication which is fairly open to the jury or judge, within the meaning of the authorities, even if we were inclined to disagree with it. Perhaps that rule still has its virtues in as much as the English language has never been precise in that there are so many synonyms and variants for every word and phrase, and a looseness of expression, to the extent of permissiveness, has been recently encouraged by both educators and lexicographers. Not that the law of defamation ever assumed that people always said what they meant or meant what they said. In recognition of these difficulties it has always made allowances for human weakness by permitting the pleading of and reliance on imputations. In further concession to this weakness, the rules of practice may be seen to have been modified so as to prevent unmeritorious reliance on the specific words chosen by the plaintiff’s pleader as that might unfairly prevent the court from resolving the merits of the plaintiff’s claim. I must for the present purpose assume that the existing rule of trial practice is an appropriate concession to these vagaries of language. The pleading rule which Charles JA and I would adopt from the authorities ought to reduce the present confusion so as to reduce the potential injustices to a minimum by providing both parties with an efficient but not excessive degree of flexibility. The plaintiff ought to be kept within the broad confines of his present complaint, although allowing the jury to work out the precise imputations for themselves, while the defendants will be able to say that the articles have a not more serious and not substantially different meaning which they are able to justify on the facts, if they wish to do so.51

In a Polly Peck defence case, it is open to the tribunal of fact to conclude that the publication is defamatory of and concerning the plaintiff in the meanings put forward by the defendant or by the plaintiff or a combination of both. Unless the tribunal of fact finds the imputations as pleaded by the defendant were conveyed, then the defence is not available. The defence fails unless the tribunal of fact finds that each defamatory imputation relied upon by the defendant is true in substance and in fact.52 If a plaintiff carefully pleads the defamatory imputations conveyed by the publication, a Polly Peck defence would be a rare animal and not available. It is a defence which is available provided certain conditions are satisfied. If not, there is a real risk that it will raise a false issue which will embarrass and complicate the [page 362] fair trial of an action. If it is a plea of a separate and distinct defamatory

imputation not relied upon by the plaintiff or is an attempt at partial justification, it is not a permissible Polly Peck defence.53 If, however, a plaintiff’s pleading of the defamatory imputations from a publication is too narrow or for some other reason inadequate or in some way does not properly or fully convey the true defamatory meaning of the words complained of, common sense and justice demand that the defendant be permitted to plead the true imputation conveyed by the words complained of and in that meaning prove that they are true and correct. Fairness and justice also require that the defendant apprise the plaintiff of the defamatory imputations sought to be justified pursuant to the Polly Peck defence of justification. Hence, the plaintiff pleads the imputations and it is necessary to do justice that the defendant plead the imputations, if they are different (but less serious), which he or she intends to justify. The imputations must be confined to the words actually complained of by the plaintiff, subject to context.54 It is not open to the defendant to plead an imputation which is separate and distinct from the imputation pleaded by the plaintiff and, for whatever reason, has been ignored by the plaintiff.55 The practice of permitting a defendant to assert different meanings to those pleaded by the plaintiff and then to attempt to justify those meanings, provided that they are not more serious and not substantially different from the meanings pleaded by the plaintiff, has been accepted in Victoria,56 South Australia,57 Western Australia,58 the Australian Capital Territory59 and the Northern Territory.60 The position in Australia at common law has been summarised as follows: (a) a defendant seeking to justify defamatory matter has to prove all stings of the defamatory matter relied upon by the plaintiff are substantially true; (b) a defendant seeking to justify defamatory matter cannot do so by seeking to plead and justify an imputation with a substantially different sting from that or those pleaded by the plaintiff (a defendant can only plead ‘nuance’ imputations); and [page 363]

(c)

if a defendant can only establish that one of two or more stings relied on by the plaintiff is substantially true, the defence of justification fails, but the evidence led to establish that defence can be relied upon in mitigation of damages.61 Prior to the Defamation Act 2005, the Polly Peck defence was not available in New South Wales because the defence of truth was exclusively governed by s 15 of the Defamation Act 1974 (NSW) and was pleaded to the plaintiff’s imputations. The New South Wales Court of Appeal also considered the Polly Peck defence was not recognised by the common law of Australia and struck out the (interstate) defence based on an imputation not separate and distinct from the plaintiff’s imputation.62 The Polly Peck defence was not available in Queensland prior to the Defamation Act 2005.63 Queensland practice was based on the notion that the plaintiff set up and defined his or her case: unless the plaintiff established the case so defined, judgment went to the defence. There was no scope for a defendant to advance an alternative meaning to that asserted by the plaintiff because the success of the plaintiff’s case depended upon the actionable wrong upon which the plaintiff had chosen to sue. In Robinson v Laws,64 the Queensland Court of Appeal noted that the basic rules of common law pleadings required defences to be pleaded either by way of denial or confession and avoidance. A defence which alleged a meaning different from that of the plaintiff was in the old pleading terminology ‘an argumentative plea of not guilty’ and not allowed. Under the principles of pleading at common law, it could tender no issue and would be struck out as embarrassing.65 Since the Defamation Act 2005, a defendant seeking to justify the defamatory matter may: (a) prove that all of the defamatory imputations carried by the defamatory matter of which the plaintiff complains are substantially true (s 25); (b) prove that rather than the defamatory imputations pleaded by the plaintiff, the defamatory matter carried ‘nuance’ imputations which are substantially true (the Hore-Lacy defence); (c) to the extent that the defendant fails to establish all the defamatory imputations carried by the defamatory matter of which the plaintiff complains are substantially true, having pleaded the defence of

justification, rely on those proved to be true in mitigation of the plaintiff’s damages (partial justification); and (d) to the extent that the defendant cannot prove that the defamatory imputations carried by the defamatory matter of which the plaintiff complains are substantially true, prove that it carries contextual imputations that are [page 364] substantially true, by reason of which the defamatory imputations which have been carried do not further harm the reputation of the plaintiff (s 26).66

TRUTH OF THE COMMON STING 19.6 Where a publication contains two or more separate and distinct defamatory statements, at common law the plaintiff is entitled to select one for complaint and the defendant is not entitled to assert the truth of the others by way of justification. Whether a defamatory statement is separate and distinct from other defamatory statements contained in the publication is a question of fact and degree in each case.67 However, where there are several defamatory allegations which in their context may have a common sting, it has been held that they should not be regarded as separate and distinct allegations and the defendant should be entitled to justify the common sting based on what fortuitously is similar fact evidence contained in the same publication.68 As the tribunal of fact decides what the natural and ordinary meaning of the words complained of is, and the plaintiff selects words from a publication to which, when the defendant considers the words, there is a different meaning from that alleged by the plaintiff, the defendant should be entitled to plead that meaning and plead that it is true provided the defendant gives particulars of the facts and matters upon which that defence is asserted.69

In Khashoggi v IPC Magazines70 the plaintiff complained about a passage in a magazine article which suggested that she had had an affair with a friend of her husband. She did not complain about other allegations in the rest of the article which suggested that she was promiscuous and had had many extramarital affairs. The defendant pleaded the common sting in the article of which conduct the plaintiff did not complain and said they would prove the truth of those allegations. This was held to be a legitimate defence. Whether or not the words complained of, when considered in context, contain a defamatory common sting is a question of fact and degree and will depend upon the circumstances of the particular publication. However, the right of the defendant to plead a common sting must not be used to negate a wellestablished principle that, where the words complained of contain a separate and distinct defamatory imputation which is not pleaded by the plaintiff, the defendant is not entitled to plead that imputation and seek to justify it.71 [page 365] The Polly Peck defence is appropriate where, first, the plaintiff does not plead the proper imputations arising from the words complained of and forming the basis of the plaintiff’s case and, second, where there is a common sting which is not separate and distinct from the way the plaintiff has pleaded his or her case. But the defence is not available at common law as a partial justification, and is not available where there is a separate and distinct defamatory imputation not relied upon by the plaintiff, which is not inextricably bound up with the way the plaintiff has pleaded the imputations. The court must be vigilant to ensure that what is pleaded as a Polly Peck defence is a proper and permissible one.72 This defence may become rarer as a result of the contextual truth defence provided under s 26 of the Defamation Act 2005.

DIFFERENT IN KIND OR DIFFERENT IN SUBSTANCE

19.7 At common law the publication of defamatory matter constitutes the cause of action. The plaintiff may succeed in establishing liability (entitling the plaintiff to damages and costs) for a defamatory meaning of which he or she complains when there are other separate and distinct defamatory meanings conveyed which could be justified or defended, but of which no complaint is made. In common law jurisdictions, the principle has developed which entitles the defendant to justify a meaning less serious than and not substantially different from that complained of by the plaintiff, or possibly a meaning which conveys a common sting to that complained of by the plaintiff.73 In New South Wales and Queensland, prior to the Defamation Act 2005, a plaintiff was required to plead precise imputations which differed in substance. The defence of truth could be pleaded to justify those imputations only (although New South Wales also had a contextual truth defence).74 Meanings can be expressed in pleadings by further refinement or further generalisation.75 The separation of meanings or imputations raises the issue as to whether the distinction between them is a matter of refinement or generalisation (that is, the degree of seriousness of the act in question) or whether it is made in respect of the vice (that is, the quality or character of the act in question). For example, allegations that a person was drunk and that the person is an alcoholic are different degrees of seriousness of the same act or condition, while allegations of murder, theft and failure to attend church are acts of different quality from one another.76 [page 366] It is accepted that if a plaintiff pleads an imputation of a specific nature and the matter complained of is capable of conveying an imputation of a general nature, the imputations differ in substance.77 A plaintiff who pleads an imputation of general dishonesty, at common law, not restricted to the conduct set out in the matter complained of, is at risk of a defence of truth not restricted to the specific conduct. However, in New South Wales this was not possible under the Defamation Act 1974 (NSW) because the defence of truth was pleaded to the imputation complained of by the plaintiff. Where the publication

conveyed two or more imputations of different degrees of seriousness, it was possible for a defendant to plead a contextual truth defence (see 20.6), but it would not be able to plead imputations of the specific when the plaintiff had pleaded the general imputation. The imputations were required to differ in their character or quality, not merely being a different way of formulating the same imputation at a higher level of generality.78 The precision which was required for specifying the meaning in New South Wales, and less so in common law jurisdictions, was desirable for the purposes of defining the issues between the parties and providing a means by which the issues might be determined at trial without confusion. However, the central problem is that pleadings (and particulars) are an artificial device used for the purpose of efficiency and limiting the cost of the trial, whereas the ordinary person interprets publications in a broad way, and the defendant publisher does not prepare the words for publication through the formulation of imputations or meanings which reflect the construction of the words into pleadings for the purposes of proceedings. There is a concern that the process may become abstract and disconnected from reality.79 The more imputations that can be devised from the same publication for pleading purposes, the more risk there is that a defendant will not be able to defend each separate and distinct imputation. The ‘splicing’ of imputations merely by further refinement or further generalisation is a pleading technique. The separation of imputations as to quality or character comes more closely to the impression gained by the ordinary reader in reality. Such a consideration is one for the application of practical justice, which determines whether an imputation is distinct or differs in substance, and should prevail over the practice of linguistics which is reflected in pleading techniques.80

UNIFORMITY AND REFORM 19.8 Serious cracks have emerged in the uniformity of defamation law and practice in Australia in relation to the pleading of the defence of justification. [page 367]

The difference of approach between the states of New South Wales and Victoria, at the least, has been highlighted by two Court of Appeal judgments, the Victorian Court of Appeal in Setka v Abbott (Setka),81 and the New South Wales Court of Appeal in Fairfax Media Publications Pty Ltd v Bateman (Bateman).82 The central argument in both appeals concerned the pleading of the HoreLacy defence in each jurisdiction.

Hore-Lacy defence As described in 19.5 above, the common law defence of truth in the United Kingdom was established in Polly Peck (Holdings) Plc v Trelford83 and extended in Lucas-Box v News Group Newspapers Ltd.84 Under the Polly Peck defence, the defendant may seek to justify the matter complained of, even if the imputations which it pleads are different to those pleaded by the plaintiff, provided they are ‘not separate and distinct’ from the plaintiff’s pleaded imputations. At common law in Australia, a defendant may not seek to justify imputations which are not pleaded by the plaintiff, except under a Hore-Lacy defence, which is similar to the Polly Peck defence. The Hore-Lacy defence was established by the Victorian Court of Appeal in David Syme & Co Ltd v Hore-Lacy.85 A defendant may seek to justify the matter complained of, even if the imputations which it pleads are not the same as those pleaded by the plaintiff, provided they do ‘not differ in substance from and are not more injurious’ than the plaintiff’s pleaded imputations. The Hore-Lacy decision preceded the introduction of the Uniform Defamation Acts across the country, generally as and from 1 January 2006. While the Hore-Lacy defence was recognised as part of the common law of Victoria, and a number of other states, it had never been recognised in New South Wales under the previous Defamation Act 1974 (NSW) for reasons peculiar to that legislation. It is an express object of the Uniform Defamation Acts ‘to promote uniform laws of defamation in Australia’ (s 3(a)). In Bateman86 at first instance, the specialist Defamation List Judge in New South Wales, McCallum J, determined that the Hore-Lacy defence could not be pleaded in New South Wales, because the New South Wales Uniform Court Procedure Rules 2005 (‘the NSW Court Rules’)87 provide that a plaintiff can

only plead imputations that differ in substance. As a result, each imputation pleaded by a plaintiff is deemed to embrace all imputations that do ‘not differ in substance’ from those pleaded by [page 368] the plaintiff. A Hore-Lacy defence therefore has no work to do in New South Wales under the NSW Court Rules with respect to pleading and the defendant cannot seek to justify imputations not differing in substance from those pleaded by the plaintiff.88 The Victorian Court of Appeal disagreed with her Honour’s judgment, and decided that in Victoria the Hore-Lacy defence may still be pleaded to the plaintiff’s imputations even if they do not differ in substance. Despite the inconsistency, it is possible to accept that both judgments are correct and simply explicable by the mere difference in procedural rules in each state. That was the majority view taken by the New South Wales Court of Appeal89 in its decision in Bateman from her Honour’s judgment. The Court held that the Hore-Lacy defence was a method of pleading not permitted by the NSW Court Rules and not a substantive defence in itself.90 An application for special leave to appeal to the High Court from the Victorian Court of Appeal in Setka was refused.91 No application for special leave to appeal was made to the High Court from the New South Wales Court of Appeal in Bateman.

Uniformity Where proceedings are brought for interstate publications in one or other Australian jurisdiction, the substantive law and procedural rules of the chosen jurisdiction apply.92 The consequence is that a different defence of truth may be pleaded in New South Wales and Victoria respectively to the same matter published in each state, contrary to the express object of the Uniform Defamation Acts to promote uniformity. This unsatisfactory state of affairs will continue unless either the High Court determines that Hore-Lacy can be pleaded in New South Wales (noting the dissenting judgment of McColl J in Bateman),93 or the NSW Court Rules are

revised by the Court’s Rules Committee, or there is a change negotiated to the practice of pleading the cause of action between the states and territories, to achieve uniformity across the country. The NSW Court Rules applicable to defamation proceedings were introduced in 2005 specifically for the purpose of the New South Wales Defamation Act 2005. While the provisions of the Uniform Defamation Acts had been agreed between the states and territories to promote uniformity, the procedural court rules of the various jurisdictions apparently were not. No challenge was made to the validity of the NSW Court Rules in Bateman. Whether the substantive common law principles in defamation can be restricted by rules of [page 369] procedure was left open.94 The NSW Court Rules appear to be inconsistent not only with the object of the Act that seeks to promote uniformity across the country (s 3(a)) but also the objects of not placing unreasonable limits on freedom of expression for defendants (s 3(b)), and providing effective and fair remedies for plaintiffs (s 3(c) of the Defamation Act 2005). The exceptional position in which the NSW Court Rules place parties to proceedings in New South Wales tends to defeat these objects. They prevent a defendant from pleading a variation on the defence of truth under the HoreLacy defence available in other jurisdictions and thereby place an unreasonable limit on freedom of expression for defendants. They also inhibit the remedies for plaintiffs by increasing cost and complexity of proceedings. A proposal to change pleading practice to promote uniformity could enable a fundamental review of procedural differences between Australian jurisdictions.95 In the context of such a review, the first step would be to recognise that the cause of action for defamation, clearly set out in s 8 of the Uniform Defamation Acts, is the ‘publication of defamatory matter’ (regardless of the number of imputations published within it or the number of imputations pleaded with respect to it).

Proposals for reform In the pursuit of the objectives of uniformity and access to justice, three proposals may be considered as they apply to New South Wales in particular. Proposal 1: The meaning of the matter complained of should be determined in the proceedings as soon as possible, desirably after the close of pleadings, to ensure that the trial itself is conducted on a fair basis to the parties, having regard to the objects of the Uniform Defamation Acts. This proposal would provide a cost effective and convenient method of determining usually the most contentious issue in defamation proceedings at an early stage. The early binding determination of the natural and ordinary meaning (not merely capacity) of the matter complained of would be likely to promote settlement of claims once the boundaries of the claim are known. The uncertainty surrounding the meaning often propels parties towards a trial, whereas the action might be resolved if the meaning is determined much earlier for them by the court at a preliminary hearing. This practice has developed in the United Kingdom under the Defamation Act 2013 (UK) and is seen as a major beneficial step forward in terms of practice and procedure in that jurisdiction.96 In Lachaux v Independent Print Ltd,97 a preliminary hearing was held to determine issues of meaning both so far as relevant to the plaintiff’s pleaded case and in relation [page 370] to the ‘Lucas-Box’ meanings raised by the defendant in support of the defences of truth. The judge noted: … The early determination of meaning is increasingly commending itself to the court as a matter of case management. It will often enable issues to be narrowed for trial, promote the saving of costs and encourage earlier settlement.98

By comparison, in Hockey v Fairfax Media Publications Pty Ltd,99 if the meaning had been determined after the close of pleadings, court resources and substantial costs of the parties could have been saved by avoiding a full scale trial, where the trial judge ultimately determined that the numerous articles published and their equivalent online publications did not convey any

defamatory imputations of the then Treasurer. The trial could have been confined to the defence of only the matters complained of from which the trial judge found defamatory imputations were conveyed, being the Sydney Morning Herald promotional poster with the words ‘Treasurer For Sale’ and The Age tweets comprising the words ‘Treasurer For Sale’ or ‘Treasurer Hockey For Sale’. The trial judge only awarded Mr Hockey 15 per cent of his costs against the defendants as a result of the ambit of the case at trial.100 However, the immediate difficulty in New South Wales with this proposal is that the determination of meaning is, at the election of the parties, a function of the jury, not the trial judge.101 New South Wales has already experimented with the early determination by juries of the meaning of the matter complained of under the repealed s 7A of the Defamation Act 1974 (NSW). In those days, that was the only role the jury had in defamation proceedings, namely to determine whether the matter complained of conveyed the imputations and if so, whether the imputations were defamatory of the plaintiff. All other issues were determined by the trial judge. The procedure was problematic in those cases where the publication was oral or the meaning involved extrinsic facts. A preliminary determination of this kind by a jury was usually inappropriate or impractical due to the need to call evidence. In the normal case, the members of the jury were provided with the matter complained of to seek their impression and give their verdict without that impression being clouded by hearing other evidence. This would more likely reflect the reality of the ordinary reasonable person in forming a view as to the meaning of the matter complained of when published based on their first impression. While this procedure had much to commend it, it became relatively commonplace for there to be appeals from s 7A jury verdicts, possibly because in a number of cases the jury did not form a good impression of the plaintiff rather than focussing on the task at hand, the impression as to the meaning conveyed. Such appeals were dependent upon a finding that the jury had reached a verdict that no reasonable jury could have [page 371]

reached. The High Court decision in John Fairfax Publications Pty Ltd v Rivkin102 is a case in point where a jury determined that none of the imputations pleaded by the plaintiff were conveyed, a verdict which the High Court considered unreasonable to the requisite degree and in one judge’s view, ‘astonishing’. Proposal 2: In New South Wales (and elsewhere where applicable in Australia), juries should not be used in defamation proceedings except with the leave of the court and should only be ordered in exceptional cases. This again is the practice in the United Kingdom as a result of s 11 of the Defamation Act 2013 and allows a judge to determine the meaning of the matter complained of at an early hearing and provide the parties with certainty of outcome on that issue.103 At present, the parties have a right to elect to use a jury in defamation trials in New South Wales. In contrast, the use of juries for most other civil trials has been abolished in this state. The court has a discretion to dispense with a jury under s 21(1) of the Defamation Act 2005 to be exercised in the interests of justice. However, it has been held that the increased time of trial, together with the increase in costs, the unpredictability of jury trials and the lack of reasons for the jury verdict are not relevant to the exercise of the court’s discretion.104 This practice appears to be inconsistent with the objects of the Act and the case management provisions of the Civil Procedure Act 2005 (NSW). However, the practice of a judge sitting alone will not by itself resolve uniformity and access to justice issues. Hockey’s case was heard in the Federal Court by a trial judge without a jury. This is the normal mode of trial in that court, as is the case in South Australia, the Northern Territory and the Australian Capital Territory.105 A judge sitting alone as the norm across jurisdictions may bring uniformity, but this proposal needs to work with the first proposal of an early determination of meaning in order to produce effective change to defamation proceedings.106 Proposal 3: The practice of pleading the natural and ordinary meaning of the defamatory matter at common law should be thoroughly examined and resolved to comply with the objects of the Uniform Defamation Acts. The traditional practice of the plaintiff pleading the imputations has been

justified on the basis of procedural fairness and efficient case management, enabling the defendant to know the case it has to meet at trial and avoiding the old days of trial by ambush. Clarity is particularly needed in a jury trial if there is ambiguity in the pleaded imputation.107 The practice of pleading imputations in the statement of claim arising from the natural and ordinary meaning of the matter complained of owes its genesis over [page 372] 50 years ago to the House of Lords decision in Lewis v Daily Telegraph Ltd (Lewis).108 Given its importance to the current practice, the decision requires detailed analysis.

Lewis The issue which the House of Lords was addressing was the then practice of pleading the ‘true’ innuendo (an imputation based on extrinsic facts) as a separate cause of action from the pleading of the matter complained of in its natural and ordinary meaning. In the plainest of cases, the natural and ordinary meaning of the words was clear and there was no need for the pleader to specify the imputations inferred from those words. From 1852 until 1949, under the Common Law Procedure Act 1852 (UK), the true innuendo was treated as a separate cause of action from that which arose from the words in their natural and ordinary meaning but it was common form to plead an innuendo by reason of facts intrinsic to the actual words. The practice developed for the pleader to plead meanings inferred from the words complained of as innuendoes even though those meanings did not depend upon the existence of any extrinsic facts. In 1949, the Rules of the Supreme Court in the United Kingdom were changed to require the plaintiff to give particulars of the extrinsic facts in relation to the cause of action based on a true innuendo so that the defendant would know what case it had to meet. As a result, one could not plead an innuendo without providing those particulars.

In Loughans v Odhams Press Ltd,109 the English Court of Appeal decided that it was permissible to have separate paragraphs in the statement of claim setting out as an innuendo the natural and ordinary meaning of words in an extended sense and that it was not necessary to provide the particulars required under the court rules of extrinsic facts supporting that kind of innuendo. As a result, the Court of Appeal came to distinguish between the ‘false’ innuendo and the ‘true’ innuendo. If the meanings alleged in the pleaded innuendo were no more than the meanings expressed or conveyed by, or to be implied from, the words themselves, then there was no need to plead (false) innuendoes. No more was being alleged than the defamatory sense in its natural and ordinary meaning.110 In Lewis, the defendant newspapers, the Daily Telegraph and the Daily Mail, had published front page stories reporting that the police were inquiring into the affairs of the plaintiff company, Rubber Improvement Pty Ltd, of which the plaintiff, John Lewis, was chairman. The headlines were ‘Inquiry on Firm by City Police’ (Daily Telegraph) and ‘Fraud Squad Probe Firm’ (Daily Mail). In the statement of claim, Lewis pleaded two false innuendoes, that the words in their natural and ordinary meaning imputed that Lewis had been guilty of, or was suspected by the police of being guilty of, fraud or dishonesty. The proprietor of the Daily Telegraph pleaded in its defence that the words in their natural and ordinary meaning were true in that the police were inquiring into the [page 373] affairs of the company of which Lewis was chairman. It denied that the words meant that Lewis was guilty of or suspected of fraud as pleaded by him. At the first trial,111 Salmon J rejected the defendant’s submission that the false innuendo imputations should be withdrawn from the jury since they were unsupported by any extrinsic facts as required by the court rules and that only the literal meaning which the defendant sought to justify should be put to the jury. The jury found for the plaintiffs, awarding Lewis £25,000 and the company £75,000 in the first trial, and £17,000 and £100,000 respectively in the second

trial. In awarding these verdicts, it was not clear which meaning the jury accepted was conveyed because with the consent of both sides, the jury was only asked ‘whether they found for the plaintiffs or the defendant(s) and if for the plaintiffs, how much?’ The House of Lords found (Lord Morris dissenting) that the ordinary reasonable person, without special knowledge of extrinsic facts, would not have inferred from the words ‘in their natural and ordinary meaning’ that the plaintiff chairman was guilty of fraud, being one of the two false innuendoes pleaded by the plaintiffs. The trial judge should have ruled whether the words were capable of conveying each of the defamatory meanings pleaded by the plaintiffs as well as the one put forward by the defendant, and should have withdrawn the imputation of guilt from the jury as being incapable of being conveyed. Lord Reid (with whom Lord Jenkins concurred) said that there had been much argument in the appeal about innuendoes, true and false, and about proper methods of pleading. He did not deal with those matters, but made the observation that what the ordinary reasonable person would infer without special knowledge of extrinsic facts had generally been called the natural and ordinary meaning of the words. He considered that that expression was rather misleading in that it concealed the fact that there are two elements in it. There is the literal meaning of the words themselves, but more often the sting is not so much in the words themselves as in what the ordinary reasonable person would infer from them and that is also regarded as part of their natural and ordinary meaning.112 He said: Ordinary men and women have different temperaments and outlook. Some are unusually suspicious and some are unusually naïve. One must try to envisage people between these two extremes and see what is the most damaging meaning they would put on the words in question.113

What the ordinary reasonable person not avid for scandal would read into the words complained of must be a matter of impression.114 Lord Morris said that where no innuendo is pleaded, it is not ‘essential’ for the plaintiff to record and define what he says are the ordinary or direct or natural or [page 374]

implied meanings of the words.115 In this case, it was not clear what the jury had decided the words meant because with the consent of both sides, only the one question was left to the jury. It was common ground amongst their Lordships that the words were capable of bearing the meaning that the police suspected that Lewis had conducted the affairs of the company fraudulently or dishonestly. However, Lord Morris differed from the other Lords in considering that the words were also capable of bearing the meaning that Lewis was guilty of conducting the affairs of the company fraudulently or dishonestly and that meaning was correctly in his view left by the trial judge to the jury. It was the jury’s role to determine what they considered was the meaning that the words would convey to ordinary men and women while their Lordships only had to decide as to the limits of the range of meanings of which the words were capable. Lord Hodson said it was ‘desirable’ that the pleader should allege in his statement of claim what the words in their natural and ordinary meaning convey, provided the pleader makes it clear that he is not relying upon a true innuendo which would give rise to a separate cause of action and therefore require a separate verdict from the jury.116 Lord Devlin expressed the view that there should be three paragraphs in a statement of claim, the first setting out the defamatory words which may speak for themselves, the second (it being ‘highly desirable’ if the words do not speak for themselves) setting out those innuendoes and indirect meanings going beyond their literal meaning which the pleader claims to be inherent in them, and the third, if there is the necessary material, a paragraph pleading a true innuendo supported by the extrinsic facts (in accordance with the court rules).117 The judgments of Lord Hodson and Lord Devlin made clear that it was desirable for the imputations, alleged by the plaintiff to arise from the natural and ordinary meaning of the words (in both their literal and extended meaning), to be pleaded in the statement of claim. The House of Lords, however, did not rule that it was necessary.118

The Slim dilemma Within a few years, the House of Lords decision in Lewis was applied by the English Court of Appeal in Slim v Daily Telegraph Ltd (Slim).119 This judgment

signified a split in the rationale for pleading imputations at common law, which has ultimately spawned the Polly Peck defence (known in the United Kingdom as the Lucas-Box defence) and Hore-Lacy defence. Lord Denning expressed the view that when a plaintiff complains of words in their natural and ordinary meaning, he must accept that meaning as it is with all the derogatory imputations that it conveys and he cannot select some of the imputations [page 375] and reject others as he pleases.120 Likewise, when the defendant comes to plead the defence, he cannot select some of the imputations and reject others. The plaintiff and the defendant must accept the words as conveying all such imputations as the jury think they bear and make the claim or defence accordingly (‘the Denning principle’).121 By comparison, Salmon LJ expressed the view (without committing himself to a ‘concluded view’) that where a plaintiff alleges an imputation from the natural and ordinary meaning of words, he is bound by the terms of his pleading and cannot rely upon a different imputation at the trial.122 He said that the plaintiff would not by this be strictly confined to the very shade or nuance of meaning pleaded, but must come broadly within the meaning pleaded, and not any ‘entirely different meaning, even if it were less injurious to the plaintiff than the meaning pleaded’ (‘the Salmon principle’).123 With the tension evident between these judgments, the third judge, Diplock LJ, noted that the plaintiff in Slim had pleaded with great precision in the statement of claim the defamatory meanings the plaintiff alleged the words conveyed in their natural and ordinary meaning from the matter complained of. The defendants conceded that they could not justify those defamatory meanings, but sought to justify the actual words complained of in what they contended was the natural and ordinary meaning of those words. Lord Justice Diplock observed that the trial judge (sitting without a jury) had attempted to consider a paraphrase of the plaintiff’s pleaded imputations in less precise terms than those used in the pleading. In doing so, he opened up, in error, a new area of dispute namely the meaning of the pleaded imputations in

the statement of claim rather than the meaning of the matter complained of, which the defendant had sought to defend.124 His Lordship said that in the usual case of a trial judge sitting with a jury, the judge’s function was to determine whether the words were capable of bearing defamatory meanings, acknowledging that different persons would not be unreasonable in ascribing different meanings to the same words. The jury on the other hand, had the duty of deciding on one of those meanings as being the only ‘natural and ordinary meaning’ of the words and, as such, they must all agree upon a single meaning as being the ‘right’ meaning. In this case he said that where the plaintiff had set out in the statement of claim the particular defamatory meanings which were contended to be the natural and ordinary meaning of the words, the pleaded meanings were to be treated at the trial as the most injurious meaning which the words were capable of bearing (‘the Diplock principle’). The plaintiff would in effect be estopped from contending that the words bear a more injurious meaning and claiming damages on that basis. However, he said that the [page 376] pleading did not of itself prevent the plaintiff from contending at the trial that even if the words did not convey the defamatory meaning alleged in the statement of claim to be the natural and ordinary meaning of the words, they nevertheless conveyed some other meaning less injurious to the plaintiff’s reputation.125 The benefit of the Salmon principle was that from the point of view of case management the claim could be confined to what the plaintiff alleged was imputed in the statement of claim, and the defences thereby confined by way of justification and fair comment, and confined by the need for damages to be assessed against the harm done by the publication with respect to those imputations, and not others.126 On the other hand, the Denning principle recognised that it was the court’s function (either the jury or a judge sitting without a jury) at the trial to determine the defamatory imputations which were conveyed from the words in their natural and ordinary meaning. Neither the plaintiff nor the defendant

could restrict that meaning. The Diplock principle provided a compromise between the Salmon and Denning principles and recognised that the plaintiff would be prevented from relying upon any more injurious meaning than that of which complaint was made in the pleading, but that he or she would be entitled to rely upon a less injurious meaning should it have been conveyed. The Salmon principle promoted the plaintiff’s pleaded imputations to confine the cause of action for all parties while the Denning principle promoted the matter complained of as the source of the imputations, and not the parties’ pleadings. The Diplock principle was consistent with the Denning principle, with one exception — that the plaintiff’s pleaded imputations were to be taken as the most injurious meanings conveyed. In the United Kingdom, the apparent unfairness to a defendant, being confined or ‘strapped up’ by the plaintiff’s pleading under the Salmon principle, led to the English Court of Appeal almost 20 years later, accepting the Denning principle in part and permitting some flexibility for the defendant to plead an imputation not relied upon by the plaintiff in order to seek to justify it, at least if it was ‘not separate and distinct’ from the plaintiff’s imputations or if it could be said that both plaintiff’s and defendant’s imputations had a ‘common sting’ under the Polly Peck defence.127 As part of that development, the Court of Appeal imposed a change in practice, requiring the defendant to state in its defence what it alleged the natural and ordinary meaning of the words complained of imputed which it would seek to justify under Lucas-Box meanings. Accordingly, where differences of meaning were asserted by the plaintiff and the defendant, the issue as to the possible meanings of the matter complained of would be confined to those pleaded by the parties, to this extent differing from the Denning principle.128 [page 377] The common law practice of pleading the Polly Peck defence of truth as developed in the United Kingdom was considered by the High Court of Australia in Chakravarti v Advertiser Newspapers Ltd.129 Chief Justice Brennan and McHugh J were firmly of the view (consistent with the Salmon principle)

that the plaintiff’s pleaded imputations framed the plaintiff’s cause of action and the plaintiff was not entitled to depart from those imputations at the trial without leave. The defendant was required to plead the defences, by general denial of those imputations, or by confession and avoidance to justify or otherwise excuse those pleaded imputations. As a result, an attempt to defend imputations not pleaded by the plaintiff was a bad plea at law and liable to be struck out. In general, it raised a false issue which could only embarrass the fair trial of the action. In their view, the Polly Peck defence contravened the fundamental principles of common law pleadings.130 Their Honours considered the Salmon principle as too rigorous, however, and subject to considerations of fairness to the defendant, would permit the plaintiff (consistent with the Diplock principle) to rely upon a different nuance or less injurious meaning than that pleaded. A contrasting view (consistent with the Denning principle) was expressed by Gaudron and Gummow JJ (and supported by Kirby J) that the common law was more flexible than this. It was a matter for the tribunal of fact, determining the meaning of the matter complained of, to determine what imputations were conveyed, and therefore the plaintiff was not strictly bound to the imputations which he or she may have pleaded and the defendant was also not strictly bound to the plaintiff’s pleaded imputations: If a defendant seeks to justify a meaning which is different from that asserted by the plaintiff, it should plead that alternative meaning …131

Their Honours observed that there was no requirement, but it was common practice, for a plaintiff to specify in the statement of claim the imputations which, as a matter of ordinary language, were said to be conveyed by the matter complained of. They did not approve of the Salmon principle but suggested the approach to the plaintiff’s pleading should be considered in the context of fair and efficient practice and not that the parties should ‘always be held’ to the imputations they have pleaded.132 Words do not mean what the parties choose them to mean and, at least ordinarily, the defamatory material will, itself, sufficiently identify and, thus, confine the meanings on which they may rely.133

Their Honours considered that as a general rule there would be no disadvantage in allowing a plaintiff to rely on meanings which are

comprehended in, or are less injurious than the meaning pleaded in the statement of claim, or permitting a plaintiff [page 378] to rely on a meaning which is simply a variant of the meaning pleaded, but not substantially different to that meaning or focused on some different factual basis. The question whether disadvantage would or may result is one to be answered having regard to all the circumstances of the case, not simply by reference to the pleadings.134 The High Court has since refused to revisit its decision in Chakravarti, most recently refusing special leave to appeal in Setka,135 on the basis that the issue in Setka was merely an interlocutory debate about pleadings.

Imputations as the cause of action While the practice of pleading imputations at common law in the United Kingdom and in Australia proceeded to develop following the 1964 decision in Lewis and the 1968 decision in Slim, the New South Wales Law Reform Commission struck its own path in 1971 and recommended the novel position, later formulated in the Defamation Act 1974 (NSW), that the publication of each imputation should be a separate cause of action for defamation. In doing so, the plaintiff’s selection and formulation of the imputations from the matter complained of in the pleading was expressly endorsed by new Court Rules. The cause of action was refined to each distinct defamatory imputation and a plaintiff was required to plead under the NSW Court Rules separate imputations which ‘differed in substance’. Many considered the imputation cause of action an efficient legal mechanism. It provided linguistic, if not mathematical, precision to the meaning of the matter complained of for the purposes of defamation law. The plaintiff’s cause of action failed if the pleaded imputations were found not to be conveyed. This was the embodiment of the Salmon principle. On the other hand, many criticised the imputation cause of action as an unjust legal construct of the words the defendant had published. It interfered with the parties’ rights, caused unnecessary complexity, increased costs with the resulting number of

interlocutory applications to determine the form and capacity of imputations, and through cost and delay inhibited the parties’ access to justice. By 1990, the Chief Justice of New South Wales, Gleeson CJ, observed that imputations are capable of greater degrees of generality or specificity and that justice should not turn on philology.136 Plaintiffs were particularly disadvantaged in these imputation skirmishes, facing the substantial resources of media defendants. Justice Kirby in the High Court observed that courts should keep in mind the practical burdens and consequences that flow from excessive refinement in pleading the imputations. He said that the practice overwhelmingly favours defendants, exhausts the means of plaintiffs, delays the trial and undermines the utility of the tort of defamation as a practical means for defending respect in our society for the reputation of others. He said that if the remedy [page 379] of defamation is to be fair to both sides, courts must do something to discourage, or minimise, such impediments.137 The Uniform Defamation Acts were specifically intended to remove the problem perceived with imputations as the cause of action by providing for a single cause of action arising from the publication of defamatory matter.138 In New South Wales, the 2005 Act applies the general law in relation to the tort of defamation as if the 1974 Act, and its predecessor the 1958 Act, had never been enacted.139 Yet the current NSW Court Rules dictate a different result to the common law position in each other Australian jurisdiction, in preventing a defendant pleading a Hore-Lacy defence. In Setka, the Victorian Court of Appeal commented that while ‘the form of action by which each imputation constituted a separate cause of action has been buried, it still rules us from the grave’.140

The true and only meaning The Hore-Lacy defence is permitted in every Australian jurisdiction not bound by the NSW Court Rules, or similar court rules. The Setka141 formulation of permitting a defendant to plead an imputation, not differing in substance from

and not more injurious than the imputations pleaded by the plaintiff, is set to be the proper formulation outside New South Wales of pleading the defence of truth at common law or under the Uniform Defamation Acts. This view has been accepted in Queensland.142 However, even the pleading practice outside New South Wales is unsatisfactory if one takes the view that the natural and ordinary meaning of the words is and should be discernible from the matter complained of. Under s 8 of the Uniform Defamation Acts, the cause of action is the publication of the matter complained of, regardless of the number of imputations published within it or the number of imputations pleaded with respect to it. Under the Denning principle, the parties should be free to contest whatever imputations were conveyed in the natural and ordinary meaning of the matter complained of and should not be limited by the imputations as pleaded by the parties. The matter complained of in any case may have many possible meanings. In reality, there is the meaning the defendant intended, the meaning the plaintiff understood from it, the meaning that different sections of the community may have understood and there is the meaning that the ordinary reasonable person understands it to have. The law only permits the meaning conveyed to the ordinary reasonable person as being the ‘right’ or ‘true and only’ meaning for the purposes of the cause of action for defamation (the single meaning rule).143 [page 380] Similarly, in cases involving the interpretation of words in commercial documents such as insurance policies, mortgages, leases and partnership agreements, the law permits a contract to have only one meaning. There is no practice in those cases by which the plaintiff particularises possible meanings he or she asserts the words convey or by which the defendant asserts different possible meanings. Provided the relevant words of the commercial documents themselves are pleaded, it is unnecessary and embarrassing to plead or particularise a reconstruction of the words used in their natural and ordinary meaning. The defamation action should be no exception to this practice. It would be more efficient and cost effective for a plaintiff to proceed with the action

without being so strictly bound by the pleaded imputations, which are only a lawyer’s construct of what is capable of being the impression gained by the ordinary reasonable person. The defendant should be given flexibility to decide how the defamation action is to be defended based on its asserted construction of the matter complained of, being the matter it has published. Even though it is the defendant who has used the words published, the present practice produces the artificial result that unless the plaintiff can plead what the defendant has published in a clear and capable formulation, the defendant cannot know what it is required to prove at trial. Whatever formulation of the meanings the plaintiff places on the words used by the defendant, the court (a judge sitting without a jury as proposed) should reserve to itself the power to determine the right or true and only meaning of those words as understood by the ordinary reasonable person from the actual words used by the defendant. There are two options proposed therefore to attempt to resolve the debate in current pleading practice between the Denning principle, the Diplock principle and the Salmon principle.

(i)

Each party asserts the meaning

Subject to the implementation of reform proposals 1 and 2 above, the plaintiff and the defendant may each assert the imputations which they claim were conveyed in the natural and ordinary meaning of the words of the matter complained of for the purpose of the early determination. This approach has been adopted in a number of cases in England. In Cooke v MGN Ltd,144 the plaintiff pleaded the imputations complained of and at an early determination of whether they were in fact conveyed, before the defence was filed, the defendant had the opportunity to put forward any other imputations it asserted were conveyed in the natural and ordinary meaning of the words from the matter complained of. The question put at the early hearing before a judge alone was to this effect: ‘Whether the words pleaded in paragraph 8 of the particulars of claim (in the context of the entire article) bear the meanings pleaded in paragraph 9 or any other meaning that is defamatory to the claimant and, if so, what defamatory meaning the words bear in relation to the claimant’.

[page 381] A determination of the true and only meaning of the matter complained of before the filing of the defence would significantly assist the defendant in knowing the case it must meet in its defence, and support the case management provisions of the Civil Procedure Act 2005 (NSW) and principles of proportionality in accordance with the requirements of justice.145 The determination of the meaning could be made by way of separate trial.146

(ii)

The defendant asserts the meaning

Consistent with the Salmon principle, the current pleading practice under the NSW Court Rules or at common law requires the plaintiff to plead the imputations he or she asserts in the statement of claim. The Denning principle would question why that practice should continue and would support option (i) above. However, there is another option, based on the Diplock principle, that the plaintiff brings the cause of action based on the publication of the matter complained of, and is assumed to rely for the cause of action upon the worst imputations conveyed in the natural and ordinary meaning of the matter complained of. The imputations at their worst, as a matter of causation, damage the plaintiff’s reputation the most, for which the plaintiff is entitled to compensation. Any lesser imputation would not theoretically compensate the plaintiff fully for the defamation published. Subject to the implementation of reform proposals 1 and 2 above, the plaintiff would in pleading the matter complained of only be required to particularise the actual words or passages from the ‘matter’, of which complaint is made, in its natural and ordinary meaning. The plaintiff would not be required to further particularise the cause of action by formulating the defamatory imputations that he or she asserts were understood by the ordinary reasonable person from those words or passages, in their natural and ordinary meaning. It would be accepted that the words speak for themselves in their natural and ordinary meaning without any need for the legal formulation of an ‘imputation’

and that the words used by the defendant convey either the literal meanings of the words themselves or the inferred meanings, as understood by the ordinary reasonable person.147 Defamation proceedings could therefore be managed in the same manner as the courts manage proceedings relating to commercial documents, involving the use of the English language as understood literally or by inference by the ordinary reasonable person. The matter complained of is simply to be given its natural and ordinary meaning understood in its context. The principles applicable in defamation actions to the interpretation by the ordinary reasonable person of published matter [page 382] are well established in Australia in Favell v Queensland Newspapers Pty Ltd148 and in the United Kingdom in Jeynes v News Magazine Ltd.149 This option would require the natural and ordinary meaning to be determined at a preliminary stage by a judge alone. It would remove the present significant barrier to a plaintiff in spending time and money on formulating and reformulating the words used by the defendant as published in the matter complained of into imputations, capable of challenge as to form and capacity. In the face of the plaintiff’s pleading of only the matter complained of, the defendant would be required to file its defence. In so doing, the defendant would need to decide whether the matter complained of conveys no defamatory imputations from the words or passages identified by the plaintiff, in which case it would deny there were any defamatory meanings conveyed and defend on that basis. Alternatively, it would plead by way of confession and avoidance, confessing that the matter complained of (in respect of those parts identified by the plaintiff) did convey defamatory imputations, which the defendant particularises, and plead any affirmative defences, asserting that those imputations are true or privileged or otherwise defensible. In fairness, at this preliminary stage, the defendant should not be required to further particularise the affirmative defences as to the facts and matters relied upon in support of those defences, on which it bears the onus of proof, pending the early determination of meaning for the proceedings.

If the plaintiff objects to the imputations particularised and proposed to be defended by the defendant, the plaintiff would be entitled to file a ‘reply’ by pleading the imputations which he or she asserts were conveyed to the ordinary reasonable person for the purposes of the early determination. In doing so, the parties would join issue on the defendant’s asserted imputations. If the defendant, however, elected merely to defend the matter as conveying no defamatory imputations, the judge would proceed to determine the issue at the preliminary hearing. This option would result in a similar hearing to the first option, where both parties have the opportunity to assert the imputations conveyed in the natural and ordinary meaning for early determination. However, given that it was the defendant which published the matter complained of, and it would have more familiarity with the words used, it would have first opportunity to formulate the imputations for the benefit of its affirmative defences and prevent them from being shut out or confined by the plaintiff’s pleaded imputations. This avoids the criticism of a bad plea at law and a defence liable to be struck out.150 The defence is pleaded to the publication of the matter complained of, being the cause of action expressly recognised by the Uniform Defamation Acts. The early determination of the true and only meaning would depend on the interpretation of the matter complained of itself rather than the current practice of depending on the plaintiff’s pleading of the imputations he or she chooses. [page 383]

Separate and distinct/Different in substance The current pleading practice raises the issue of whether imputations are ‘separate and distinct’ or ‘different in substance’. This is generally a question of fact and degree and involves an evaluative judgement to be made with respect to the meaning of the matter complained of. Whether the two meanings are separate and distinct, or differ in substance, will depend on whether the same evidence could be used to justify both meanings.151 The distinction may concern the ‘quality’ of the imputation, for example, the difference in quality between murder and theft. It may concern the ‘degree’ of the imputation between the accusation of guilt, reasonable suspicion, and grounds for investigation. It may

concern the generality of the imputation and whether it imputes specific or general conduct. If it is assumed that the plaintiff has asserted that the matter complained of in the words or passages identified conveyed the worst defamatory imputations in their natural and ordinary sense, the defendant’s particularisation of the imputations by some separate and distinct quality, degree or specificity than that conveyed in its true and only meaning as determined would ordinarily lead to the failure of such a defence following the preliminary determination. Such a defence would be liable to be struck out in respect of those imputations.

Truth/Contextual truth The Uniform Defamation Acts would not require substantial amendment for either of these options to be adopted. All defences under the Act are defences ‘to the publication of defamatory matter’, being defences to the cause of action pursuant to s 8. Section 25 provides a defence of truth where the imputations ‘carried by the matter of which the plaintiff complains’ are substantially true. The emphasis should be placed on the word ‘matter’, from which the imputations are carried. The cause of action and the defence relate to the publication of the matter ‘of which the plaintiff complains’, not the imputations. Contrary to this view, in Bateman152 McCallum J considered that the plaintiff’s ‘complaint’ in the wording of s 25 refers to the ‘imputations’ and not the ‘matter’ complained of. Section 26 is peculiar as the defence of contextual truth depends for its existence on the plaintiff’s pleading of the imputations, and the defendant’s pleading of contextual imputations arising from the matter complained of, ‘in addition’ to the plaintiff’s pleaded imputations. Under the first option, the parties would assert their respective imputations conveyed by the matter complained of. The defendant would be required in this process to assert any imputations relevant to the defences it might plead, including the Hore-Lacy defence, and the contextual truth defence under s 26. Under the second option, the contextual truth defence as presently framed in s 26 would tend to diminish in usage. The plaintiff’s complaint of the words or passages

[page 384] in the matter complained of would be taken as notice of the matter from which the ‘true and only’ imputations to be determined at the worst level arise in the natural and ordinary meaning. On that basis, no contextual imputations would arise from those passages other than the ‘true and only’ imputations as found by the court at the preliminary hearing. The contextual truth defence would have no work to do after the preliminary determination as the plaintiff’s cause of action would then incorporate all of the ‘true and only’ imputations held to be conveyed from those words or passages. There would be no ‘additional’ imputations from those words or passages to plead the defence. However, the defence might then be reframed to enable the relative harm to be measured between the true and untrue imputations, as a proper defence to the action, and not only in mitigation of damages: Chapter 20. If the plaintiff chose not to particularise certain words or passages from the matter complained of, which the defendant asserted conveyed contextual imputations in addition to the imputations conveyed by the words or passages of which the plaintiff complained, the statutory defence would still have work to do as presently framed. The Hore-Lacy defence would also diminish in significance because the early determination would decide at what level the actual imputations were conveyed and by way of defence be justified at that level, not a less injurious level.

Conclusion It was Diplock LJ in Slim153 who sought to provide common sense to the defamation trial and the divergent views of Lord Denning and Salmon LJ. Lord Justice Diplock said: In the spring of 1964 two short letters appeared in the correspondence columns of the ‘Daily Telegraph’ … Neither letter can have taken a literate reader of that newspaper more than 60 seconds to read before passing on to some other, and perhaps more interesting, item … Yet in this court three Lord Justices and four Counsel have spent the best part of three days applying minute linguistic analysis of every phrase used in each of the letters. If this protracted exercise in logical positivism has resulted in our reaching a conclusion as to the meaning of either letter different from the first impression which we formed on reading it, the conclusion reached is unlikely to reflect the impression of the plaintiff’s character or conduct which was actually formed by those who read the letters in their morning newspaper in 1964.154

He concluded his judgment by saying: In the result, in the present case I think we can decide this case in accordance with common sense and first impression by allowing the appeal. I venture to recommend once more the law of defamation as a fit topic for the attention of the Law Commission. It has passed beyond redemption by the courts.155

The disproportionate nature of the process to the outcome over 50 years later compels the need for a change to the process and in particular the practice of pleading [page 385] the natural and ordinary meaning of the matter complained of. The substantial cost to the parties involved in interlocutory applications about form and capacity of imputations is out of proportion to the limited and capped amount of damages and assessable costs that might be recovered by a plaintiff on a successful outcome, or the assessable costs recovered by a defendant on a successful outcome, particularly where the plaintiff has limited means. The lack of uniformity now existent between New South Wales and Victoria is sufficient reason to address the procedural issues confronting defamation law and practice in Australia. Reform proposal 1 above would require a change in practice to enable early determination of the meaning. Proposal 2 would require amendment of ss 21 and 22 of the Defamation Acts in NSW, Victoria, Queensland, Western Australia and Tasmania to provide the use of juries only with leave. Proposal 3 would require withdrawal of the NSW Court Rules applicable to pleading in defamation cases, and a uniform change in the practice of pleading throughout Australia, whether option (i) or option (ii) was chosen. Option (ii) may be seen as heresy given the customary practice of the plaintiff pleading the imputations but the Denning principle articulates why it is not the plaintiff’s right to confine the natural and ordinary meaning of the English language in this way and the Diplock principle provides sufficient flexibility for the plaintiff’s complaint. Nevertheless, both principles are served by option (i) which has already been adopted in practice in the United Kingdom and could easily be adopted in Australia.

PUBLIC INTEREST 19.9 At common law and under s 25 of the Defamation Act 2005, the truth of the defamatory imputations alone is a defence. However, in New South Wales, from 1847, truth alone had not been a defence unless publication of the defamatory imputation was for the ‘public benefit’, or from 1974, related to a matter of ‘public interest’. In the Code states of Queensland and Tasmania, and in the Australian Capital Territory, the statutory defence of justification required that the published matter be true and be published for the public benefit.156 Under the repealed Defamation Act 1974 (NSW), the common law defence of truth was not available in New South Wales and was replaced by a statutory defence in s 15 of the Act. [page 386] Section 15 provided that there was a statutory defence to any imputation complained of that: (a) the imputation was a matter of substantial truth;157 and (b) the imputation either related to a matter of public interest or was published under qualified privilege.158 To succeed, the defendant was required to establish the truth of the imputation pleaded by the plaintiff, or an imputation not differing in substance.159 If that was not possible, a defendant might still have succeeded under s 16 if he or she could establish that the truth of contextual imputations arising from the matter complained of was so damaging to the plaintiff’s reputation that the publication of the pleaded imputation did not further injure the plaintiff’s reputation.160 In addition, the defendant was required, in order to succeed on either defence, truth or contextual truth, to establish that the pleaded or contextual imputations, as the case may be, related to a matter of public interest161 or were published under qualified privilege.162 The New South Wales Act altered the concept to ‘public interest’ in order to

align this defence with the concept required in the statutory defence of comment under that Act.163 In practice there was little difference between the test of public benefit and public interest. It was suggested that there could have been exceptional cases where one criterion would be satisfied but not the other, such as publications prejudicing national security or constituting contempts of court.164 However, it was not apparent why such publications would be a matter of public interest in the relevant sense while not for the public benefit. The concept of public benefit focuses on the apparent effect of the publication rather than the nature of the subject matter165 or the actual intention of the publisher.166 The addition of the requirement of public benefit to the defence of truth in 1847 was related to the reputation of emancipated convicts, and concerns about the standard of some newspapers which were considered not to have published material for the public benefit.167 [page 387] The law was altered because 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’.168 It was well established that the private conduct of public figures would only be a matter of public interest if either they made their private activity a matter of public interest themselves or that private activity had some bearing upon their capacity to perform their public activities.169 The question of what is public interest is still relevant to the defences of qualified privilege and honest opinion under the Defamation Act 2005 and the concept will continue to evolve and change with the times. It should not be construed narrowly. The test for public interest is in essence whether the publication relates to a number of people (legitimately interested in or concerned about the subject matter), of such a group of people, to an area of such an extent, and to matters of

such importance, as to render the subject matter one of public interest that the conduct referred to should be criticised.170 In one case, three stars of a London West End play resigned, together with a supporting actor, placing the play in peril. The court held that this was a matter of public interest upon which everyone was entitled to make fair comment.171 In another case, the departure of the editor of a newspaper was not considered to be a matter of public interest as it was the quality of the product not the personal competence of the editor which was the matter of public interest.172 A subject of public interest at common law is understood to refer to the conduct of a person engaged in activities that either inherently, expressly or inferentially invite public criticism or discussion.173 The discussion of the conduct of any person holding public office, participating in the administration of justice or public affairs, offering goods or services to the public or otherwise engaging in public conduct that invites public criticism or discussion, may be a subject of public interest.174 [page 388] The subject of public interest ‘means that there must be some act or omission by some person or institution concerning a matter that “invites public attention”’. The particulars of the subjects of public interest should not be abstractions which do not purport to identify the conduct of any person or institution as having invited public criticism or discussion. For example, a subject of public interest described as ‘the world wide conflict between communism and non-communism’ or ‘organised crime and corruption in Queensland’ are not proper particulars or subjects of public interest for the purposes of the defence.175 Justice Brennan dissented in Bellino v Australian Broadcasting Corporation,176 expressing the view that the concept of ‘subject of public interest’ should not be limited in the way the majority found. Instead, in his view, the subjects of public interest are as broad as the subjects themselves and should not be narrowly construed or limited to the conduct of any person. He preferred the approach of establishing whether the publication dealt with the subject of public interest first

and then identifying the involvement or relationship of the plaintiff’s conduct or affairs to that subject. It is not necessary that there should be an existing discussion of the subject before it may be considered a subject of public interest. The defamatory publication may itself initiate a discussion of the subject of public interest. A person does not have to wait until the public discussion of a subject of public interest commences before he or she can make a lawful comment on the conduct of a person or institution whose activities are the subject of public interest.177 Under the Commonwealth proposal for a national code (July 2004), ‘defamatory matter, imputation or opinion’ about a person would have been taken to relate to a subject of public interest unless: (a) the matter, imputation or opinion relates to the person’s health, private behaviour, financial affairs, home life, personal relationships or family relationships; and (b) the matter, imputation or opinion does not relate: (i) to the person’s public, commercial or professional activities; (ii) to the person’s suitability or candidature for a public, commercial or professional office or position; (iii) to a decision taken, or likely to be taken, by the person in a public, commercial or professional capacity; (iv) to property or services offered to the public; (v) to public administration; (vi) to the administration of justice; [page 389] (vii) to the preservation of the safety or property of any person, for which purpose it is reasonable to publish the matter; (viii) to a response to something introduced into public debate by the person himself or herself, otherwise than by way of response to something introduced into public debate by someone else.178 The national proposal would therefore have deemed that defamatory matter

related to a subject of public interest unless the plaintiff could show it related to specific private matters and did not otherwise relate to the specified public matters. ____________________ 1. 2.

3. 4.

5. 6. 7. 8.

9. 10. 11. 12.

13. 14. 15. 16. 17. 18. 19. 20.

Rofe v Smith’s Newspapers Ltd (1924) 25 SR (NSW) 4 at 21. Howden v Truth and Sportsman Ltd (1937) 58 CLR 416 at 420; Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1 at [274], [306]; Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335 at [138]; Fairfax Media Publications Pty Ltd v Kermode [2011] NSWCA 174 at [59]. Sutherland v Stopes [1925] AC 47 at 79; Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335 at [138]. Alexander v North-Eastern Railway Company (1865) 6 B&S 340; 122 ER 1221; Sutherland v Stopes [1925] AC 47 at 79; Potts v Moran (1976) 16 SASR 284; Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1 at [306]; Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335 at [138]. Compare Weaver v Lloyd (1824) 2 B&C 678; 107 ER 535; Lord Churchill v Hunt (1819) 2 B & ALD 685; 106 ER 515. Evidence Act 1995 (NSW) s 140(1). Evidence Act 1995 (NSW) s 140(2)(c). Briginshaw v Briginshaw (1938) 60 CLR 336 at 361–2; Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335 at [5]. Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1993) 67 ALJR 17 at 170–1; Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419; Cotter v John Fairfax Publications Pty Ltd [2003] NSWSC 503 at [35]. E Hulton & Co v Jones [1910] AC 20 at 23–4. Thompson v Australian Consolidated Press Ltd [1968] 3 NSWR 642 at 643; Stern v Piper [1997] QB 123 at 128–38 (‘the repetition rule’). Hollington v F Hewthorn & Co Ltd [1943] KB 587; Lang v Australian Consolidated Press Ltd [1970] 2 NSWR 408 at 415; Goody v Odhams Press Pty Ltd [1967] 1 QB 333 at 399. See also Evidence Act 1958 (Vic) s 91; Evidence Act 1977 (Qld) ss 79, 80; Evidence Act 1971 (ACT) s 78; Evidence Act 1929 (SA) s 34A; Evidence Act 1939 (NT) s 26A; Defamation Act 1974 (NSW) s 55(2). See 19.4–19.8. Maisel v Financial Times Ltd (1915) 112 LT 953. See 19.4–19.8, but see Chapter 20. Underwood v Parks (1743) 2 Stra 1200; 93 ER 1127. See also Burstein v Times Newspapers Ltd [2001] 1 WLR 579. (1807) 9 East 93 at 95; 103 ER 508 at 509. Singleton v Ffrench (1986) 5 NSWLR 425; Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1 at [274]. G Spencer Bower, The Law of Actionable Defamation, 2nd ed, Legal Books, Redfern, NSW, 1990, p 236 (originally published by Butterworths, London, 1923). Anon (1652) Sty 392; 82 ER 804; Rowe v Roach (1813) 1 M&S 304; 105 ER 114; R v Munslow [1895] 1 QB 758.

21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33.

34. 35. 36.

37.

38. 39.

40. 41.

42. 43.

Motel Holdings Ltd v Bulletin Newspaper Company Pty Ltd (1963) SR (NSW) 208 at 212. Belt v Lawes (1882) 51 LJQB 359. Singleton v Ffrench (1986) 5 NSWLR 425. Australian Consolidated Press Ltd v Uren (1966) 117 CLR 185 at 205; Singleton v Ffrench (1986) 5 NSWLR 425. See also s 47. Fairfax Media Publications Pty Ltd v Kermode [2011] NSWCA 174 at [59]. Plato Films Ltd v Speidel [1961] AC 1090 at 1098; see also Dering v Uris [1964] 2 QB 669. Helsham v Blackwood (1851) 11 CB 111 at 129; 138 ER 412 at 419; Potts v Moran (1976) 16 SASR 284. Morrison v Harmer (1837) 3 Bing NC 759 at 766; 132 ER 603 at 606. Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1 at [279]; Fairfax Media Publications Pty Ltd v Kermode [2011] NSWCA 174 at [59]. See Chapter 20. Howden v Truth and Sportsman Ltd (No 2) (1938) SR (NSW) 287; Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 771. Plato Films Ltd v Speidel [1961] AC 1090 at 1141–2; Whelan v John Fairfax Publications Pty Ltd (2002) 56 NSWLR 89 at 108. Sutherland v Stopes [1925] AC 47 at 78; Clarke v Taylor (1836) 2 Bing NC 654 at 664; 132 ER 252 at 256; Plato Films Ltd v Speidel [1961] AC 1090 at 1141; Wilson v Mutual Store [1899] 25 VLR 262 at 268; Biddulph v Chamberlayne [1851] 17 QB 351; 117 ER 1314; Davis v Billing (1891) 8 TLR 48; Whelan v John Fairfax Publications Pty Ltd (2002) 56 NSWLR 89; Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1 at [279], [306]. Mummery v Irvings Pty Ltd (1956) 96 CLR 99 at 111; Dare v Pulham (1982) 148 CLR 658; The Water Board v Moustakas (1988) 180 CLR 491. Slim v Daily Telegraph Ltd [1968] 2 QB 157 at 185; Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1 at [308]. Slim v Daily Telegraph Ltd [1968] 2 QB 157 at 175 (Diplock LJ); but see Sungravure Pty Ltd v Middle East Airlines Airliban SA (1975) 134 CLR 1 at 14 (Stephen J); Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; (1998) 193 CLR 519 at 532 (Brennan CJ and McHugh J). National Mutual Life Association of Australasia Ltd v General Television Corporation Pty Ltd [1989] VR 747 at 768; Gumina v Williams (No 2) [1990] 3 WAR 351 at 355, 364. Compare Prichard v Krantz (1984) 37 SASR 379 at 386; Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1 at [308]–[309]. Slim v Daily Telegraph Ltd [1968] 2 QB 157 at 171–2; Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 506. Lucas-Box v News Group Newspapers Ltd [1986] 1 WLR 147 at 152; Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; (1998) 193 CLR 519 at 534, 546; Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1 at [284]; Fairfax Media Publications Pty Ltd v Kermode [2011] NSWCA 174 at [45]. Polly Peck (Holdings) plc v Trelford [1986] QB 1000 at 1032; Lucas-Box v News Group Newspapers Ltd [1986] 1 WLR 147 at 152. Polly Peck (Holdings) plc v Trelford [1986] QB 1000 at 1032–3; Control Risks Ltd v New English Library Ltd [1990] 1 WLR 183 at 189; Prager v Times Newspapers Ltd [1988] 1 WLR 77 at 91. Compare Viscount de L’Isle v Times Newspapers Ltd [1987] 3 All ER 499 at 507. National Mutual Life Association of Australasia Ltd v General Television Corporation Pty Ltd [1989] VR 747 at 768. Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1 at [313].

44. 45. 46. 47. 48. 49. 50. 51.

52. 53. 54. 55. 56. 57. 58. 59.

60. 61. 62. 63. 64. 65. 66. 67. 68. 69. 70. 71. 72. 73. 74.

See NRMA Insurance Ltd v Amalgamated Television Services Pty Ltd [1989] A Def R 50-055. [1998] HCA 37; (1998) 193 CLR 519. Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; (1998) 193 CLR 519 at 546. Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; (1998) 193 CLR 519 at 579–80. Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; (1998) 193 CLR 519 at 527–8. Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1 at [329]; Fairfax Media Publications Pty Ltd v Kermode [2011] NSWCA 174 at [59]. (2000) 1 VR 667 at 676, 689. David Syme & Co Ltd v Hore-Lacy (2000) 1 VR 667 at [23]–[24] (Ormiston JA) [emphasis added]. See also Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1 at [20]; Whelan v John Fairfax Publications Pty Ltd (2002) 56 NSWLR 89. Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1 at [287]. Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1 at [287]; Fairfax Media Publications Pty Ltd v Kermode [2011] NSWCA 174 at [59]. Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1 at [303]. Cruise v Express Newspapers plc [1999] QB 931; Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1 at [305]; Advertiser-News Weekend Publishing Co Ltd v Manock [2005] SASC 82. David Syme & Co Ltd v Hore-Lacy (2000) 1 VR 667; Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1; Soultanov v The Age Co Ltd [2009] VSC 145 at [25]; Newnham v Davis [2010] VSC 94 at [18]. Manock v Advertiser-News Weekend Publishing Co Ltd (2004) 88 SASR 495 at [54]; Advertiser-News Weekend Publishing Co Ltd v Manock [2005] SASC 82. Nationwide News Pty Ltd v Moodie (2003) 28 WAR 314; West Australian Newspapers v Elliott [2008] WASCA 172 at [74]; Buckeridge v Walter [2010] WASCA 134 at [33]. Moore v TWT Ltd (1991) 105 FLR 350; Woodger v Federal Capital Press of Australia Pty Ltd (1992) 107 ACTR 1; John Holland Group Pty Ltd v John Fairfax Publications Pty Ltd [2006] ACTSC 108 at [9], [16]. Hart v Wrenn (1995) 5 NTLR 17. Fairfax Media Publications Pty Ltd v Kermode [2011] NSWCA 174 at [59]. John Fairfax Publications Pty Ltd v Zunter [2006] NSWCA 227 at [42]. Robinson v Laws [2003] 1 Qd R 81 at [57], [126]. [2003] 1 Qd R 81. Bremridge v Latimer (1864) 12 WR 878 at 879–80; Watkin v Hall (1868) LR 3 QB 396 at 402. Fairfax Media Publications Pty Ltd v Kermode [2011] NSWCA 174 at [86]; see 20.2. Polly Peck (Holdings) plc v Trelford [1986] QB 1000 at 1032. Polly Peck (Holdings) plc v Trelford [1986] QB 1000 at 1032. See also Whelan v John Fairfax Publications Pty Ltd (2002) 56 NSWLR 89 at [82]–[84]. Polly Peck (Holdings) plc v Trelford [1986] QB 1000 at 1032. [1986] 1 WLR 1412. Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1 at [323]. Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1 at [324]. See 19.5 and 19.6. See 20.8.

75. Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137–8 (Gleeson CJ). 76. Plato Films Ltd v Speidel [1961] AC 1090 at 1142. See also Jones v John Fairfax Publications Pty Ltd [2005] NSWSC 1133 at [52]; Woodham v John Fairfax Publications Pty Ltd [2005] NSWSC 1204. 77. Maisel v Financial Times Ltd (1915) 112 LT 953; John Fairfax Publications Pty Ltd v Jones [2004] NSWCA 205 at [9] (Spigelman CJ). 78. John Fairfax Publications Pty Ltd v Jones [2004] NSWCA 205 at [20] (Spigelman CJ); Advertiser-News Weekend Publishing Co Ltd v Manock [2005] SASC 82 at [81]. 79. Barclay v Cox [1968] VR 664 at 666. 80. Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137–8 (Gleeson CJ); Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; (1998) 193 CLR 519 at 545–6 (Gaudron, Gummow JJ). 81. [2014] VSCA 287. 82. [2015] NSWCA 154. 83. [1986] QB 1000. 84. [1986] 1 WLR 147. 85. [2000] VSCA 24. 86. Bateman v Fairfax Media Publications Pty Ltd (No 2) [2014] NSWSC 1380. 87. See Appendix III. 88. Bateman v Fairfax Media Publications Pty Ltd (No 2) [2014] NSWSC 1380 at [50]. 89. Fairfax Media Publications Pty Ltd v Bateman [2015] NSWCA 154. 90. Fairfax Media Publications Pty Ltd v Bateman [2015] NSWCA 154 at [222]. 91. [2015] HCA Trans 151. 92. Defamation Act 2005 s 11(2); Fairfax Media Publications Pty Ltd v Bateman [2015] NSWCA 154 at [131], [222]. 93. Fairfax Media Publications Pty Ltd v Bateman [2015] NSWCA 154. 94. Fairfax Media Publications Pty Ltd v Bateman [2015] NSWCA 154 at [128]–[131]. 95. Fairfax Media Publications Pty Ltd v Bateman [2015] NSWCA 154 at [117]. 96. Cooke v MGN Ltd [2014] EWHC 2831; Ames v The Spamhaus Project Ltd [2015] EWHC 127; Simpson v MGN Ltd [2015] EWHC 77; Barron v Collins [2015] EWHC 1125; Lachaux v Independent Print Ltd [2015] EWHC 620. 97. [2015] EWHC 620. 98. Lachaux v Independent Print Ltd [2015] EWHC 620 at [2]. 99. (No 1) [2015] FCA 652; (No 2) [2015] FCA 750. 100. Hockey v Fairfax Media Publications Pty Ltd (No 2) [2015] FCA 750 at [103]–[107]. 101. Defamation Act 2005 s 21. 102. [2003] HCA 50. 103. Cooke v MGN Ltd [2014] EWHC 2831; Lachaux v Independent Print Ltd [2015] EWHC 2242 at [7]. 104. Ange v Fairfax Media Publications Pty Ltd [2010] NSWSC 1383 at [36]. 105. Roozendaal v Fairfax Digital Australia and New Zealand Pty Ltd [2015] FCA 764. 106. Lachaux v Independent Print Ltd [2015] EWHC 2242 at [7]. 107. Singleton v Ffrench (1986) 5 NSWLR 425.

108. 109. 110. 111. 112. 113. 114. 115. 116. 117. 118. 119. 120. 121. 122. 123. 124. 125. 126. 127. 128. 129. 130. 131. 132. 133. 134. 135. 136. 137. 138. 139. 140. 141. 142. 143. 144.

[1964] AC 234. [1963] 1 QB 299; see also Grubb v Bristol United Press Ltd [1963] 1 QB 309. Lewis v Daily Telegraph Ltd [1964] AC 234 at 265 (Lord Morris). There were separate trials against each newspaper defendant, conducted before Salmon J successively. Lewis v Daily Telegraph Ltd [1964] AC 234 at 258. Lewis v Daily Telegraph Ltd [1964] AC 234 at 260 (Lord Reid). Lewis v Daily Telegraph Ltd [1964] AC 234 at 260. Lewis v Daily Telegraph Ltd [1964] AC 234 at 265. Lewis v Daily Telegraph Ltd [1964] AC 234 at 273. Lewis v Daily Telegraph Ltd [1964] AC 234 at 280–1. Lewis v Daily Telegraph Ltd [1964] AC 234 at 282 (Lord Devlin). [1968] 2 QB 157. Slim v Daily Telegraph Ltd [1968] 2 QB 157 at 168. Slim v Daily Telegraph Ltd [1968] 2 QB 157 at 169. Slim v Daily Telegraph Ltd [1968] 2 QB 157 at 185. Slim v Daily Telegraph Ltd [1968] 2 QB 157 at 185. Slim v Daily Telegraph Ltd [1968] 2 QB 157 at 177. Slim v Daily Telegraph Ltd [1968] 2 QB 157 at 175. Fairfax Media Publications Pty Ltd v Bateman [2015] NSWCA 154 at [177]. Polly Peck (Holdings) Plc v Trelford [1986] QB 1000 at 1032. Polly Peck (Holdings) Plc v Trelford [1986] QB 1000 at 1032–3; Lucas-Box v News Group Newspapers Ltd [1986] 1 WLR 147. [1998] HCA 37; (1998) 193 CLR 519. Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37 at [8]; (1998) 193 CLR 519. Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37 at [56]; (1998) 193 CLR 519; see Fairfax Media Publications Pty Ltd v Bateman [2015] NSWCA 154. Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37 at [56]; (1998) 193 CLR 519. Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37 at [58]; (1998) 193 CLR 519. Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37 at [60]; (1998) 193 CLR 519. Setka v Abbott [2014] VSCA 287. Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137–8. Favell v Queensland Newspapers Pty Ltd [2005] HCA 52 at [21]–[22]. Second Reading Speech, Defamation Bill, 13 September 2005, Attorney-General B Debus; Fairfax Media Publications Pty Ltd v Bateman [2015] NSWCA 154 at [102]. Defamation Act 2005 s 6(3). Setka v Abbott [2014] VSCA 287 at [138]. Setka v Abbott [2014] VSCA 287. Baboolal v Fairfax Digital Australia and New Zealand Pty Ltd [2016] QSC 175 at [28]–[30]. Slim v Daily Telegraph Ltd [1968] 2 QB 157 at 171–2 (Diplock LJ); Charleston v News Group Newspapers Ltd [1995] 2 AC 65 at [71]–[72]. [2014] EWHC 2831.

145. Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; Nationwide News Pty Ltd v Hibbert [2015] NSWCA 13 at [24]–[25]; Ryan v Random House Australia Pty Ltd [2015] NSWDC 31. 146. Uniform Civil Procedure Rules 2005 (NSW) Pt 28 r 28.2. 147. True innuendoes, however, which depend on extrinsic facts, and amount to a separate cause of action to that arising from the natural and ordinary meaning, would still need to be particularised by the plaintiff based on pleaded extrinsic facts. 148. [2005] HCA 52 at [10]. 149. [2008] EWCA Civ 130 at [14]. 150. Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37 at [8]; (1998) 193 CLR 519 (Brennan CJ and McHugh J). 151. Lewis v Daily Telegraph Ltd [1964] AC 234 at 282; Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37 at [52]; (1998) 193 CLR 519. 152. (No 2) [2014] NSWSC 1380 at [13]; see also [2015] NSWCA 154 at [163]. 153. Slim v Daily Telegraph Ltd [1968] 2 QB 157. 154. Slim v Daily Telegraph Ltd [1968] 2 QB 157 at 171. 155. Slim v Daily Telegraph Ltd [1968] 2 QB 157 at 171. 156. Defamation Act 1889 (Qld) s 15; Defamation Act 1957 (Tas) s 15; Civil Law (Wrongs) Act 2002 (ACT) s 59. 157. Defined in s 7(2) as in substance true or not materially different from the truth. 158. At common law or under Div 4 of the Act. 159. Fairfax Media Publications Pty Ltd v Kermode [2011] NSWCA 174 at [62]–[64]. 160. NRMA Insurance Ltd v Amalgamated Television Services Pty Ltd [1989] A Def R 50-055. 161. See Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153 at 170. 162. Defamation Act 1974 (NSW) s 15(2)(b). 163. See Defamation Act 1974 (NSW) s 31. 164. Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 229; Allworth v John Fairfax Group Pty Ltd (1993) 113 FLR 254 at 263; Orr v Isles [1965] NSWR 677 at 690. 165. Allworth v John Fairfax Group Pty Ltd (1993) 113 FLR 254 at 263. 166. Crowley v Glissan (No 2) (1905) 2 CLR 744 at 763–4. 167. See 3.5. 168. Rofe v Smith’s Newspapers Ltd (1924) 25 SR (NSW) 4 at 21–2. See also Howden v Truth and Sportsman Ltd (1937) 58 CLR 416 at 427; Mutch v Sleeman (1928) 29 SR (NSW) 125 at 137; Cohen v Mirror Newspapers Ltd [1971] 1 NSWLR 623 at 628; and see Melvin v Reid (1931) 112 Cal App 285. 169. Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153 at 165, 167; Mutch v Sleeman (1928) 29 SR (NSW) 125 at 137. 170. London Artists Ltd v Littler [1969] 2 QB 375 at 391; South Hetton Coal Company Ltd v North Eastern News Association Ltd [1894] 1 QB 133. See also 27.8. 171. London Artists Ltd v Littler [1969] 2 QB 375 at 391. 172. Allsopp v Incorporated Newsagencies Company Pty Ltd (1975) 26 FLR 238 at 244–5. See also South Hetton Coal Company Ltd v North Eastern News Association Ltd [1894] 1 QB 133. 173. Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 215, 220; Green v Schneller [2000] NSWSC 548 at [24]; Hitchcock v John Fairfax Publications Pty Ltd [2007] NSWSC 7 at [13].

174. 175. 176. 177. 178.

Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 221. Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 214–15. (1996) 185 CLR 183 at 193–7 (with whom Gaudron J agreed at 240–1). Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 224. Draft Defamation Bill 2004 (Cth) cl 4.

[page 391]

CHAPTER 20 CONTEXTUAL TRUTH TRUTH OF DEFAMATORY MATTER PARTIAL TRUTH STATUTORY CONTEXTUAL TRUTH DEFENCE CAPACITY OF CONTEXTUAL IMPUTATIONS ‘IN ADDITION’ GENERALITY ADOPTION OF THE CONTEXTUAL IMPUTATIONS HISTORICAL FOUNDATION FURTHER HARM SPLIT RESULT

20.1 20.2 20.3 20.4 20.5 20.6 20.7 20.8 20.9 20.10

TRUTH OF DEFAMATORY MATTER 20.1 Under the Defamation Act 2005, only one cause of action arises from the publication of defamatory matter, regardless of the number of defamatory meanings or imputations conveyed.1 If the matter conveys a number of defamatory imputations, the defendant must have a defence to all such imputations.2 If the defendant seeks to defend the truth of the defamatory matter he or she may: (a) prove that all of the defamatory imputations of which the plaintiff complains are substantially true under the defence of justification (s 25);3 (b) to the extent that the defendant cannot prove that all of the defamatory imputations of which the plaintiff complains are substantially true:

(i)

prove that the matter conveyed defamatory imputations which are not the same as those of which the plaintiff complains but do not differ in substance [page 392]

from, and are not more injurious than the plaintiff’s imputations, and that those not more injurious imputations are substantially true under the Hore-Lacy defence (except in New South Wales, where by reason of the Uniform Court Procedure Rules 2005 (NSW), that defence cannot apply);4 (ii) having pleaded the defence of justification (pursuant to (a) above), rely on those imputations proved to be true in mitigation of damages based on partial justification;5 (iii) prove that ‘in addition’ the matter complained of carries contextual imputations that are substantially true, by reason of which the defamatory imputations of which the plaintiff complains do not further harm the reputation of the plaintiff under the defence of contextual truth (s 26).6 The disparity between the plaintiff’s selection of imputations of which complaint is made and the imputations which the defendant asserts were also conveyed by the same matter has been contentious since at least the House of Lords’ decision in Plato Films Ltd v Speidel.7 In that case the plaintiff brought proceedings against the distributor of a film complaining that it imputed he was involved in the murder of the King of Yugoslavia and the betrayal of Field Marshall Rommel. The defendant did not defend those imputations but claimed that the film also imputed that he was guilty of war crimes and atrocities and that that was true. The defendant was prevented from relying upon a defence of truth in respect of the imputation it asserted, as the plaintiff had chosen not to complain about it and it therefore did not form part of his cause of action. At common law, a defence to an imputation not complained of is irrelevant and not a defence to the cause of action. However, it is fundamental to the cause of action that the publication of

defamatory matter causes (or is presumed to cause) damage to the plaintiff’s reputation. The plaintiff’s harm increases by the number, and the degree of seriousness, of the defamatory imputations conveyed. In reality, the harm is not limited to those imputations of which the plaintiff chooses to complain. It may be reasonable therefore to expect that the harm suffered by a plaintiff, caused by the publication of defamatory matter, should be considered in respect of all defamatory imputations conveyed by the matter complained of. That is the true extent of harm suffered or caused to a person’s reputation. This is not the law, however, due to the idiosyncratic pleading practice adopted in defamation proceedings which enables the plaintiff to choose those imputations of which complaint is to be made in order to frame the cause of action, and not choose others, even though the matter complained of has conveyed all defamatory imputations at the same time to the recipients. [page 393] The defendant then can be disadvantaged by this pleading practice, if the defamatory imputations of which complaint is not made are true (or otherwise defensible), and cannot plead such defences to the imputations of which complaint is made. In Plato Films Ltd v Spiedel,8 Lord Denning considered the problem at common law by supposing that a newspaper said of a man: ‘He has murdered his father, stolen from his mother and does not go to church on Sundays’. If the plaintiff complained only of the imputation that he does not go to church, and the defendant cannot justify the major charges of murder and theft because the plaintiff has not complained of them, Lord Denning said that the defendant would be entitled to require all the words published be admitted into evidence, where they (as in his example) ‘cohered together’, in order that the tribunal of fact be given a correct appreciation of the impact of the words and thereby reduce damages. The law has since sought to develop a just result between the parties by enabling a defendant to defend the matter by pleading imputations not complained of by the plaintiff, which the defendant puts forward under the Hore-Lacy defence or by the statutory contextual truth defence. Nevertheless,

the defences must meet all of the imputations chosen by the plaintiff and found to be conveyed, in order to be successful in defence of the matter complained of, otherwise the defences fall short.

PARTIAL TRUTH 20.2 At common law, justification of part of the plaintiff’s claim is not a defence to the whole claim. The plaintiff is still entitled to damages for that part which has no defence of truth or no other defence to it. This means that even if some but not all of the plaintiff’s imputations conveyed by the matter complained of are true, there is no defence of justification. However, the pleading of the defence of truth to that part of the plaintiff’s claim which can be justified may reduce the amount of damages to which the plaintiff is entitled by way of mitigation.9 In Dank v Nationwide News Pty Ltd,10 the trial judge held that the mitigating impact of the imputations found to be true reduced the damages that should be awarded to the plaintiff in respect of those imputations for which there was no defence to such an extent that there was no award of damages. The plaintiff was also ordered to pay the defendant’s costs. [page 394]

STATUTORY CONTEXTUAL TRUTH DEFENCE 20.3 Under s 26 of the Defamation Act 2005, it is a defence to the publication of defamatory matter that: (a) the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations (‘contextual imputations’) that are substantially true; and (b) the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations. The purpose of s 26 is to operate in circumstances where a publication

conveys a number of imputations, which are substantially different from one another, but in respect of which the plaintiff elects to sue on one or some only. It entitles the defendant to properly defend the action by pleading the other imputations not sued upon, and justifying them, to bring about a just result so that an undeserving plaintiff, by reason of what was in fact published about that plaintiff, should not succeed.11 The defence must defend the whole of the defamatory matter of which the plaintiff complains; that is, all of the plaintiff’s imputations which were conveyed.12

CAPACITY OF CONTEXTUAL IMPUTATIONS 20.4 Whether the matter complained of is capable of conveying contextual imputations is a question of law for the court to decide. It will be appropriate to strike out such imputations on capacity in advance of the trial.13 The court’s strike out jurisdiction should not be exercised unless the contextual imputations are ‘obviously untenable’ or ‘unarguably bad’.14 The form of contextual imputations is subject to the same precision required of the plaintiff’s imputations,15 and the same considerations of fairness and/or practical justice.16 [page 395] The contextual imputations must arise from the matter complained of and not a prior publication; that is, injury to reputation must be causally related to the publication complained of.17 An application to strike out the contextual imputations on the basis that taken at their highest they would not be capable of causing further harm (‘swamping’) than the plaintiff’s imputations (or the sting of the less serious of the plaintiff’s imputations) is traditionally difficult to sustain prior to the trial. It has been held that the capacity for swamping should be measured against the evidence adduced in support of the truth of the contextual imputations rather than the form of the contextual imputations themselves.18 It is difficult to predict at the

interlocutory stage the outcome at the trial with respect to that evidence and such an issue is more appropriate to be left to the trial.19

‘IN ADDITION’ 20.5 The contextual imputations must not be the same as the imputations of which the plaintiff complains. The defendant must plead ‘other imputations’, ‘in addition to’ and separate and distinct from the plaintiff’s pleaded imputations, and must not ‘plead back’ any of the plaintiff’s imputations in support of this defence.20 The defence must plead contextual imputations ‘in addition to’ those ‘of which the plaintiff complains’ and their truth must preclude further harm being caused by the defamatory imputations of which the plaintiff complains.21 There is a call to reform the wording of the section to enable a defendant to take advantage of any imputations pleaded by the plaintiff of which the defendant is able to prove the truth, and balance them, in terms of impact on the plaintiff’s reputation, against any imputation of which the defendant does not seek or is unable to prove the truth.22 In a careful analysis of s 26 and the cause of action under the Defamation Act 2005, the New South Wales Court of Appeal has demonstrated that the practice of pleading back will not assist in the defence of the cause of action. The contextual truth defence must defeat the whole of the defamatory matter of which the plaintiff complains, not merely some of the plaintiff’s imputations.23 [page 396] The defendant’s ‘other imputations’ must be separate and distinct or differ in substance from the imputations of which the plaintiff complains.24 The scope of an imputation pleaded by the plaintiff must be taken to include all imputations which do not differ in substance, or are less injurious, or which are but shades, nuances, and gradations of meaning of imputations.25 However, the contextual imputations need not differ in kind.26 In Crosby v Kelly27 Crosby complained of imputations to the effect that he and the other claimant had introduced the practice of push polling into Australia.

Kelly pleaded a contextual imputation that they were hypocrites, by reason that their public conduct, in taking pretended or feigned moral stances but acting inconsistently with such stances, was disreputable. The court held that the contextual imputation concerned a substantively different subject from that in the claimants’ imputations, although they may have had areas of overlap, and was therefore an ‘other’ imputation in addition to the claimants’ imputations.28

GENERALITY 20.6 A plaintiff should not be able to avoid serious imputations by selective pleading.29 Where a plaintiff avoids pleading an imputation which is conveyed by the matter published, the defendant is entitled to plead a general imputation providing the greatest scope to justify and do so by proving facts far removed from the matter published.30 In that event, the question is whether the contextual imputation was in fact conveyed by the matter complained of. A general contextual imputation can be pleaded in defence to a specific imputation pleaded by the plaintiff even though they relate ‘to the same subject matter’ as long as they differ in substance.31 In most cases a general imputation will differ in substance from the particular.32 For example, an imputation of general financial default is capable of being substantially different from specific instances of financial default. This can be tested by what the party pleading contextual truth would need to prove [page 397] in order to justify the imputation. That test can be satisfied even if the same evidence proves the truth of each imputation.33 Notably, if the defendant seeks to justify an imputation of the commission of a criminal offence for misconduct arising from, or contained in, the matter complained of, such a defence must be pleaded and proved with all the particularity and strictness of proof of an indictment.34

It had been held that the contextual imputation should not be merely a different way of formulating the same imputation as the plaintiff’s imputations at a higher level of generality.35 For example, if a plaintiff pleads an imputation that the plaintiff had acted dishonestly in the particular manner described in the matter published, a defendant cannot plead a contextual imputation that the plaintiff is dishonest (in a general sense), because it does not differ in substance from the plaintiff’s imputation and relates to the same class of misconduct framed in general terms.36 However, in some cases a single alleged instance of misconduct will be so serious that the matter complained of may, at the same time, convey a general imputation against the plaintiff.37 The kind of conduct attributed to a plaintiff in a single act may be such that it would inherently give him or her the general label. The attribution of a single act of paedophilia would at the same time convey the general imputation that the person was a paedophile.38 Whether a particular imputation of wrongdoing carries a general imputation ‘may depend on the context in which the words are used’ and the ‘gravity of the misconduct imputed in the particular charge’.39 In New South Wales v Deren40 the plaintiff pleaded imputations which accused him of particular sexual assaults on particular young children at a particular location during a particular time. The defendant pleaded a general contextual imputation that he was a child molester. The court held that the two imputations differed in substance even if the contextual imputation could be derived from the plaintiff’s specific imputation.41 A specific imputation and a general imputation might also be conveyed at the same time where a series of specific instances of misconduct are attributed to the [page 398] plaintiff which thereby gives rise to the broader, general imputation.42 For example, the plaintiff may be attributed with a series of individual acts of dishonesty such that it gives rise at the same time to the general imputation that the plaintiff is dishonest.

ADOPTION OF THE CONTEXTUAL IMPUTATIONS 20.7 The court has a discretion to allow a plaintiff to amend the statement of claim so as to adopt a contextual imputation pleaded by the defendant.43 There is ‘no property in an imputation’ and if it is conveyed by the publication, either the plaintiff or the defendant can choose to plead it. If the amendment to the statement of claim is allowed, however, the contextual imputation will no longer be ‘in addition’ to the plaintiff’s pleaded imputations and the contextual truth defence must therefore be struck out. In Chel v Fairfax Media Publications Pty Ltd,44 the court decided that the dictates of justice were such that leave to amend should be refused. The plaintiff’s delay of 17 months after the defence was filed before bringing the application for leave to adopt the defendant’s contextual imputations was unacceptable. The plaintiff should not, however, be held to a counsel of perfection in choosing the imputations of which to complain and being disqualified from being able to adopt a contextual imputation by way of amendment.45

HISTORICAL FOUNDATION 20.8 The conceptual foundation for the statutory contextual truth defence comes from s 16 of the Defamation Act 1974 (NSW). The interpretation of s 16 is not decisive as to the defence’s operation under the different wording of s 26 of the Defamation Act 2005.46 The wording of s 26 reflects the changed focus of the 2005 Act under which the cause of action for defamation arises in relation to the publication of the defamatory matter, not each imputation conveyed.47 [page 399] Nevertheless, the following principles developed under s 16 may still be relevant to the current law under s 26. It was held that the contextual imputation (or combined effect of those imputations where more than one):48

must differ in substance from the imputations complained of by the plaintiff, but need not so differ one contextual imputation to another, at least where it is the combined effect relied upon; (b) must be capable of being conveyed by the matter complained of at the same time as and in addition to the imputations complained of by the plaintiff — the court must establish just what is the precise act or condition which is asserted or attributed to the plaintiff by the imputations pleaded by the plaintiff and the defendant; (c) must be such in nature that its substantial truth is capable of being rationally considered as so affecting the plaintiff’s reputation that the imputation of which the plaintiff complains did not further injure that reputation — the court must then weigh or measure the relative worth or value of the several imputations pleaded by both the plaintiff and the defendant (subject to prejudice, this question should be decided at trial); (d) must be supported by evidence upon which the court could find that the contextual imputation is substantially true; (e) must relate to a matter of public interest or qualified privilege (this requirement is not included in s 26 of the Defamation Act 2005). In Tasmania, previously s 18 of the repealed Defamation Act 1957 (Tas) provided a similar defence of ‘justification’. Even if the truth of every defamatory statement was not proved, the defence was available where some of the defamatory statements were true and the remainder, not proved to be true, did not materially injure the plaintiff’s reputation.49 (a)

FURTHER HARM 20.9 The further harm contemplated by s 26(b) of the Defamation Act 2005 requires a conclusion that because of the substantial truth of the contextual imputations, the defamatory imputations of which the plaintiff complains do not further harm the plaintiff’s reputation. The focus is on comparing the contextual imputations with

[page 400] the plaintiff’s imputations which constitute the plaintiff’s cause of action.50 It does not involve weighing imputation against imputation but permits the defendant to put the plaintiff’s imputations in their factual context according to the context of the whole of the matter complained of.51 The comparison required is between the facts as found, based on the evidence at the trial (to justify the contextual imputations), and the imputations relied on by the plaintiff.52 At a simple level, the plaintiff’s reputation is harmed to some degree by each and every defamatory imputation conveyed. If the plaintiff chooses not to plead some imputations but they would if pleaded be more damaging, and would ‘further harm’ the plaintiff’s reputation, than those pleaded by the plaintiff, and the contextual imputations are true, the contextual truth defence may be available. The contextual truth imputations must have the requisite degree of ‘further’ harm in respect of all of the plaintiff’s imputations not just some.53 The defence operates in the following way. In Zunter v John Fairfax Publications Pty Ltd,54 the following defamatory imputations were found to be conveyed by an article in the Sydney Morning Herald that concerned serious bushfires then burning in the Shoalhaven area of New South Wales: (a) the plaintiff lost control of his own backburn; (b) the plaintiff wrecked the main strategy of the Shoalhaven Fire Control Officer. The newspaper relied on a defence of contextual truth under s 16 of the Defamation Act 1974 (NSW) and pleaded the following contextual imputations: (1) the plaintiff carried out an illegal backburn; (2) the plaintiff carried out an illegal backburn in circumstances of extreme fire danger. The trial judge held that the contextual imputations were conveyed and were matters of substantial truth. However, the essential question was whether, by reason of the substantial truth of the contextual imputations, or either of them, the imputations pleaded by the plaintiff did not further injure his reputation. The trial judge held that the seriousness of each imputation pleaded by the

plaintiff was to be balanced against the seriousness of the facts, matters and circumstances that established the truth of the contextual imputations. Where the contextual imputations proven to be true were of a gravity equal to, or greater than, any imputations pleaded by the plaintiff, one result may have been that the imputations pleaded by the plaintiff would not further damage his reputation. Where the contextual imputations were to do with subject matter wholly unrelated to those pleaded by the plaintiff, relative [page 401] gravity assumes a lesser role, and the diverse impact of the imputation is of greater significance.55 In the trial judge’s view, the two contextual imputations, although they were of very serious misconduct by the plaintiff, were not more serious than and were not of equal gravity to either of the imputations pleaded by the plaintiff, and the defence failed. In O’Brien v Australian Broadcasting Corporation,56 the trial judge assessed whether the plaintiff’s reputation was not further harmed by an imputation of trickery as a journalist in publishing an article about children being exposed to toxic metals (which was false) because of the substantial truth of the contextual imputations to the effect that the journalist had published an alarmist article which contained false statements. The trial judge held that the imputation of trickery whilst serious did not further harm the plaintiff’s reputation because of the greater seriousness of the contextual imputations.

SPLIT RESULT 20.10 To the extent that the defendant cannot prove that all of the defamatory imputations of which the plaintiff complains are true, but some of them are proved to be true, a plaintiff will argue that he or she is entitled to damages for the harm caused by the untrue imputations, and that any true imputation could only mitigate those damages but cannot be relied upon as the basis for a defence of contextual truth under s 26. Conversely, a defendant would wish to argue that any true imputation of

which the plaintiff had complained could be relied upon by the defendant as a contextual imputation to sustain a defence of contextual truth under s 26 (potentially affording or supporting a complete defence to the plaintiff’s claim, resulting in a verdict for the defendant).57 The practical implication of this split result for the trial, particularly where the trial is by jury, is that any true imputation relied upon as a contextual imputation would, in the assessment of the harm to reputation caused by the untrue imputations, be a matter for the jury in respect of determining the defence; whereas the mitigating impact of any true imputation would be a matter only going to damages which would be determined by the trial judge, given the separate roles of trial judge and jury under s 22 of the Defamation Act 2005 (in NSW). The position has been argued that at the trial, distinct from the pleadings stage, a true imputation should be made available for a defendant to rely upon in respect of a contextual truth defence where there is this split result. In considering the substantial truth of the contextual imputations and whether there was any further harm done to the plaintiff’s reputation in publishing the defamation [page 402] imputations of which the plaintiff complained, it has been held that it is necessary to consider all of the imputations complained of by the plaintiff regardless of whether or not they have been found to be true.58 Alternatively, it has been held that those imputations of which the plaintiff complains and are found to be true should be disregarded in respect of the determination of a defence of contextual truth.59 It has been argued further and in the alternative that it should be possible for a defendant to adopt an imputation complained of by the plaintiff which is found at the trial to be true and make it available under a defence of contextual truth if the defendant has placed the plaintiff on notice so that the plaintiff in fairness was informed in advance of the trial of such a course.60 In Kazal v Fairfax Media Publications Pty Ltd61 (Kazal), the defendants

pleaded a defence of contextual truth describing it as a ‘Balzola’ plea. The defence was pleaded to the effect that so many of the imputations pleaded by the plaintiff which were found to be conveyed and defamatory but not substantially true, did not further harm the reputation of the plaintiff because of the substantial truth of so many of the plaintiff’s imputations which were found to be substantially true. The basic problem which the Balzola plea confronted was the wording of s 26(a) which provides that the contextual imputations must be ‘in addition to the defamatory imputations of which the plaintiff complains’. They would not be ‘in addition’ if, or so long as, the plaintiff complains about them. The defendants sought to distinguish the decision in BesserFairfax Media Publications Pty Ltd v Kermode62 (Kermode) on the basis that the defence as formulated did not ‘plead back’ the plaintiff’s imputations as contextual imputations but merely gave notice as a matter of fairness that the defendants intended, depending on the tribunal of fact’s findings at trial, contingently to rely upon such of the plaintiff’s imputations as were found to be substantially true. The submission implicitly acknowledged that a plea of contextual truth was not presently available but was advanced only as a notice of a future, contingent issue in the proceedings. Justice McCallum rejected that submission and struck out the contextual truth defence.63 Her Honour held that a pleading in that form sought impermissibly to circumvent the authority of Kermode. The inescapable conclusion she said was that the [page 403] contextual truth defence ‘pleads back’ the defamatory imputations of which the plaintiff complains, contrary to the authority of Kermode. Her Honour proceeded to consider commentary in two New South Wales Court of Appeal decisions which sought to distinguish the principle in Kermode. In Born Brands Pty Ltd v Nine Network Australia Pty Ltd64 (Born Brands) Baston JA commented that on one view Kermode was confined to a pleading point and

that the reasoning in Kermode (and the Queensland Court of Appeal in Mizikovsky v Queensland Television Ltd),65 appeared to assume that the defences in ss 25 and 26 were to be applied ‘sequentially’ and in the order in which they appear in the Act. However, he suggested that there was an alternative reading of the legislation — that the tribunal of fact should consider ‘holistically’ the effect of the defamatory matter on the reputation of the plaintiff, deciding at the end of the day whether, by reference to the imputations pleaded by both plaintiff and defendant, any imputations which have not been shown to be substantially true cause any further harm to the reputation of the plaintiff, once the effect of the substantially true imputations have been assessed.66 In Federal Press of Australia Pty Ltd v Balzola67 (Balzola), Emmett JA and Sackville AJA observed that it was arguable that even if a defendant could not plead any of the plaintiff’s imputations as a contextual imputation, the defendant may still be able to rely on the truth of those imputations as ‘overwhelming’ any imputations not proved to be true at the trial. In Kazal, McCallum J responded to these observations from the Court of Appeal judges in Born Brands and Balzola by expressing the view that the principle in Kermode was not confined to a pleading point and that although an imputation relied upon by the plaintiff which was true, could be relied upon in mitigation, it did not become a contextual imputation for the purposes of s 26. It had to be disregarded in the assessment of that defence.68 Her Honour said that she had come to this view on the basis that the defendant’s argument overlooked the significance of the statutory division of roles between the judge and the jury. The complexities of permitting a defendant to conduct a defence that is only contingently viable would raise difficult questions as to how the case should be opened to the jury and would complicate the formulation and presentation of the questions for the jury. She said that in particular it would require the judge to put questions to the jury in two stages. While a two-stage process was sometimes adopted in order to simplify the jury’s task, she observed that it was unlikely that parliament intended to mandate a two-stage process. The better view, in her opinion, [page 404]

was that the decision in Kermode is not confined to a pleading point but governs the course of the trial.69 In Chel v Fairfax Media Publications Pty Ltd70 (Chel), Beech-Jones J distinguished the Kermode principle by leaving aside the pleading point considered in Kermode, Born Brands and Bazola and held that at the trial stage, the proper construction of s 26(a) was such that once an imputation had been found to be substantially true, it could no longer be an imputation ‘of which the plaintiff complains’. Therefore, after a finding of truth at the trial, the imputation becomes ‘contextual’ and ‘in addition’ to the defamatory imputations ‘of which the plaintiff complains’ because at that moment the plaintiff can no longer complain about it. In previous decisions, McCallum J had held that any imputation complained of by the plaintiff and found to be substantially true should be disregarded in applying s 26. Justice Beech-Jones disagreed saying that the text of s 26 did not contemplate the existence of a defamatory imputation found to be substantially true, that was neither a ‘defamatory imputation of which the plaintiff complains’ nor ‘another imputation … that [is] substantially true’. A defamatory imputation found to be substantially true must be one or the other. His Honour considered that while the word ‘complains’ is not defined in the section, nothing in the text of s 26 suggests that the imputations of which a plaintiff complains are fixed from the moment they are pleaded. Thus, the question of construction contended for by the defendants enabled the jury to consider whether the truth of the facts, matters and circumstances affecting a plaintiff’s reputation were such that no further harm was done to his or her reputation by the publication of defamatory imputations not shown to be true. Accordingly, his Honour held that he could not conceive of any rational reason for allowing a plaintiff to rely on a set of damning imputations he or she pleaded that were also found to be true to defeat a defence of contextual truth.71 The Chel decision may be a limited exception to the Kermode principle because the parties in that case had agreed that the jury would be asked questions in two phases. In the first phase the jury was required to answer questions as to whether the plaintiff’s imputations were conveyed, were defamatory and were substantially true. It was also agreed that in the first phase the jury would be required to answer questions as to whether the contextual

imputations pleaded by the defendant were conveyed and were substantially true, but the jury would not be asked whether the defamatory imputations did not further harm the plaintiff’s reputation because of the substantial truth of the contextual imputations. Instead, it was agreed that if it was necessary, that question would be asked in a second phase of the jury’s deliberation. The two-phase trial, which McCallum J had suggested in Kazal was seriously problematic for jury trials and probably not intended by parliament, was actually [page 405] implemented at the trial in Chel through the agreement of the parties. This enabled Beech-Jones J to distinguish Kermode through what one may call an exercise of ‘practical justice’. In the final result, it did not matter because when the jury was asked whether the following defamatory imputations did not further harm the reputation of the plaintiff: (a) the plaintiff engages in disgraceful conduct by allowing onstage sex at her nightclub; (b) the plaintiff was a menace to patrons of her nightclub because she did not prevent drink spiking on the premises; because of the substantial truth of the following contextual imputations: (i) the plaintiff conducted a nightclub which was targeted by police as part of a crackdown on bikie gangs; (ii) the plaintiff breached her liquor licence because she hosted a party at her nightclub that involved strippers, dildos, whips and onstage sex; (iii) the plaintiff breached the council’s development consent because she hosted a party at her nightclub that involved strippers, dildos, whips and onstage sex, the jury answered no and the defence of contextual truth failed. ____________________

1. 2. 3. 4. 5. 6. 7. 8. 9.

10. 11. 12.

13. 14.

15. 16. 17.

18. 19. 20. 21. 22. 23. 24. 25.

26. 27.

Defamation Act 2005 s 8. Fairfax Media Publications Pty Ltd v Kermode [2011] NSWCA 174 at [86]; Crosby v Kelly [2013] FCA 1343 at [21]. See 19.2. See 19.8. See 20.2. See 20.3. [1961] AC 1090. [1961] AC 1090 at 1142–3. Howden v Truth and Sportsman Ltd (No 2) (1938) SR (NSW) 287; Woodger v Federal Capital Press of Australia Pty Ltd (1992) 107 ACTR 1 at 23–4; Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1 at [324]; Whelan v John Fairfax Publications Pty Ltd (2002) 56 NSWLR 89 at [80]; Fairfax Media Publications Pty Ltd v Kermode [2011] NSWCA 174 at [59]; Crosby v Kelly [2013] FCA 1343 at [17]– [18]. [2016] NSWSC 156 at [77]. Blake v John Fairfax Publications Pty Ltd [2001] NSWSC 885 at [12]; Fairfax Media Publications Pty Ltd v Kermode [2011] NSWCA 174 at [85]. Fairfax Media Publications Pty Ltd v Kermode [2011] NSWCA 174 at [78]; Mizikovsky v Queensland Television Ltd [2013] QCA 68 at [14]; Abou-Lokmeh v Harbour Radio Pty Ltd [2016] NSWCA 228 at [29]. Fairfax Media Publications Pty Ltd v Zeccola [2015] NSWCA 329 at [89]. General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; Younan v Nationwide News Pty Ltd [2013] NSWCA 335; Cornwell v Channel Seven Sydney Pty Ltd [2016] NSWCA 255 at [40]–[41]. Australian Broadcasting Corporation v Hodgkinson [2005] NSWCA 190 at [32]–[34], [42]–[43]. Australian Broadcasting Corporation v Hodgkinson [2005] NSWCA 190 at [31]; Fairfax Media Publications Pty Ltd v King [2015] NSWCA 172 at [42]. Chappell v Mirror Newspaper Ltd (1984) Aust Torts Reports 80-691 at 68,950; John Fairfax Publications Pty Ltd v Blake (2001) 53 NSWLR 541 at 543; Australian Broadcasting Corporation v Hodgkinson [2005] NSWCA 190. John Fairfax Publications Pty Ltd v Blake (2001) 53 NSWLR 521 at [4]–[6]. Sharp v Harbour Radio Pty Ltd [2016] NSWSC 223 at [24]–[27]. Fairfax Media Publications Pty Ltd v Kermode [2011] NSWCA 174 at [82]; Kazal v Fairfax Media Publications Pty Ltd [2017] NSWSC 44 at [10]. Fairfax Media Publications Pty Ltd v Kermode [2011] NSWCA 174 at [78]. Kermode v Fairfax Media Publications Pty Ltd [2010] NSWSC 852 at [23], [56]. Fairfax Media Publications Pty Ltd v Kermode [2011] NSWCA 174 at [78]. Fairfax Media Publications Pty Ltd v Zeccola [2015] NSWCA 329 at [42]–[46], [48], [114]. Ange v Fairfax Media Publications Pty Ltd [2011] NSWSC 204 at [28]; Fairfax Media Publications Pty Ltd v Zeccola [2015] NSWCA 329 at [46]; Abou-Lokmeh v Harbour Radio Pty Ltd [2016] NSWCA 228 at [30]. Fairfax Media Publications Pty Ltd v Zeccola [2015] NSWCA 329 at [70]–[72]. [2013] FCA 1343.

28. Crosby v Kelly [2013] FCA 1343 at [28]. 29. Fairfax Media Publications Pty Ltd v Kermode [2011] NSWCA 174 at [85]; Fairfax Media Publications Pty Ltd v Zeccola [2015] NSWCA 329 at [70]. 30. Ange v Fairfax Media Publications Pty Ltd [2010] NSWSC 645 at [69]. 31. John Fairfax Publications Pty Ltd v Jones [2004] NSWCA 205 at [49]; Fairfax Media Publications Pty Ltd v Zeccola [2015] NSWCA 329 at [71]. 32. Abou-Lokmeh v Harbour Radio Pty Ltd [2016] NSWCA 228 at [44]. 33. Fairfax Media Publications Pty Ltd v Zeccola [2015] NSWCA 329 at [83]. 34. Willmett v Harmer [1839] 173 ER 678 at 679; Crosby v Kelly [2013] FCA 1343 at [35]–[36]; Adeang v Australian Broadcasting Corporation [2016] FCA 1200 at [15]. 35. John Fairfax Publications Pty Ltd v Jones [2004] NSWCA 205 at [20]. 36. Ange v Fairfax Media Publications Pty Ltd [2010] NSWSC 645 at [61]. 37. Cornwell v Channel Seven Sydney Pty Ltd [2016] NSWCA 255 at [60]. 38. Cornwell v Channel Seven Sydney Pty Ltd [2015] NSWSC 1673 at [11]. 39. Abou-Lokmeh v Harbour Radio Pty Ltd [2016] NSWCA 228 at [39]. 40. [1999] NSWCA 22. 41. New South Wales v Deren [1999] NSWCA 22 at [91]; see also Nationwide News Pty Ltd v Warton [2002] NSWCA 377 at [61]. 42. Cornwell v Channel Seven Sydney Pty Ltd [2015] NSWSC 1673 at [12]. 43. Fairfax Media Publications Pty Ltd v Kermode [2011] NSWCA 174 at [88]–[89]; Holt v TCN Channel Nine Pty Ltd [2014] NSWCA 90 at [23]; Chel v Fairfax Media Publications Pty Ltd [2015] NSWSC 171 at [5]. 44. [2015] NSWSC 171. 45. Mallegowda v Sood (No 3) [2015] NSWDC 14 at [21]. 46. Fairfax Media Publications Pty Ltd v Kermode [2011] NSWCA 174 at [76]; Fairfax Media Publications Pty Ltd v Zeccola [2015] NSWCA 329 at [39]. 47. Fairfax Media Publications Pty Ltd v Zeccola [2015] NSWCA 329 at [23]. 48. See Jackson v John Fairfax & Sons Ltd [1981] 1 NSWLR 36 at 40; Hepburn v TCN Channel Nine Pty Ltd [1984] 1 NSWLR 386 at 400; Waterhouse v Hickie (1995) Aust Torts Reports 81-347 at 62,493–4; Dennison v Refshauge [2003] NSWSC 78; Jones v John Fairfax Publications Pty Ltd [2005] NSWSC 1133; Woodham v John Fairfax Publications Pty Ltd [2005] NSWSC 1204; John Fairfax Publications Pty Ltd v Hitchcock [2007] NSWCA 364 at [212]; Crosby v Kelly [2013] FCA 1343 at [21]. As to the distinction between the imputation conveyed by a statement of fact in the matter complained of and the inference which is established in evidence from proof of the same facts, see Lang v Australian Consolidated Press Ltd [1970] 2 NSWR 408 at 415; Dawson Bloodstock Agency Pty Ltd v Mirror Newspapers Ltd [1979] 2 NSWLR 733 at 738. 49. BesserFairfax Media Publications Pty Ltd v Kermode [2011] NSWCA 174 at [60]–[61]. 50. Fairfax Media Publications Pty Ltd v Kermode [2011] NSWCA 174 at [79]; Abou-Lokmeh v Harbour Radio Pty Ltd [2016] NSWCA 228 at [29]. 51. McMahon v John Fairfax Publications Pty Ltd (No 3) [2012] NSWSC 196 at [18]; Abou-Lokmeh v Harbour Radio Pty Ltd [2016] NSWCA 228 at [29]. 52. Born Brands Pty Ltd v Nine Network Australia Pty Ltd [2014] NSWCA 369 at [74]. 53. Mizikovsky v Queensland Television Ltd (No 3) [2013] QCA 68 at [17]–[19].

54. [2005] NSWSC 759. 55. Zunter v John Fairfax Publications Pty Ltd [2005] NSWSC 759 at [52]; John Fairfax Publications Pty Ltd v Zunter [2006] NSWCA 227 at [38]. 56. [2016] NSWSC 1289 at [164]. 57. Cheikho v Nationwide News Pty Ltd (No 4) [2016] NSWSC 29 at [31]–[32]. 58. Mizikovsky v Queensland Television Ltd (No 3) [2013] QCA 68 at [17]–[19]; Cheikho v Nationwide News Pty Ltd (No 4) [2016] NSWSC 29 at [38]–[41]. 59. Dank v Nationwide News Pty Ltd [2016] NSWSC 156. 60. Rose v Allen & Unwin Pty Ltd [2015] NSWSC 991; Cheikho v Nationwide News Pty Ltd (No 4) [2016] NSWSC 29 at [48]–[49]; compare Kazal v Fairfax Media Publications Pty Ltd [2017] NSWSC 44 at [16]–[17]. 61. [2017] NSWSC 44. 62. [2011] NSWCA 174. 63. [2011] NSWSC 44. 64. [2014] NSWCA 369. 65. [2013] QCA 68. 66. Born Brands Pty Ltd v Nine Network Australia Pty Ltd [2014] NSWCA 369 at [86]; see also Nationwide News Pty Ltd v Weatherup [2017] QCA 70 at [49]. 67. [2015] NSWCA 285. 68. See also Dank v Nationwide News Pty Ltd [2016] NSWSC 156. 69. [2017] NSWSC 44 at [33]–[35]. 70. [2017] NSWSC 230. 71. [2017] NSWSC 230 at [43].

[page 407]

CHAPTER 21 ABSOLUTE PRIVILEGE COMMON LAW DEFENCE OF ABSOLUTE PRIVILEGE STATUTORY DEFENCE OF ABSOLUTE PRIVILEGE OTHER STATUTORY DEFENCES OF ABSOLUTE PRIVILEGE

21.1 21.2 21.3

COMMON LAW DEFENCE OF ABSOLUTE PRIVILEGE 21.1 At common law it is well settled that communications made on certain occasions should be privileged absolutely and without qualification. For example, it has been said that absolute privilege applies to parliamentary proceedings from ‘inherent necessity’.1 Statements made by a member of parliament in the course of parliamentary proceedings are subject to a defence of absolute privilege.2 The common law also provided a defence of absolute privilege for a petition made to parliament.3 The publication in the course of proceedings in a court is subject to absolute privilege at common law.4 Absolute privilege attaches to all statements made in the course of judicial proceedings, whether made by parties,5 witnesses,6 legal representatives,7 [page 408] members of the jury8 or by the judge.9 Absolute privilege extends to oral statements and to statements in originating process,10 in pleadings,11 or in other documents produced in evidence or filed in the proceedings.12 It extends to any

document published on an occasion properly incidental to judicial proceedings and necessary for them.13 The general rule is that the extension of absolute privilege is ‘viewed with the most jealous suspicion, and resisted, unless its necessity is demonstrated’.14 In Gibbons v Duffell15 it was said that absolute privilege attached to judicial proceedings because it was indispensable to the effective performance of official functions. It is necessary that the persons involved in judicial proceedings, whether the judge, jury, parties, witnesses or legal representatives, be able to discharge their duties freely and without fear of civil action for anything said by them in the course of the proceedings.16 Otherwise the potential for civil liability ‘would impede inquiry as to the truth and justice of the matter and jeopardise the “safe administration of justice” ’.17 Absolute privilege also attaches to statements made in the course of quasijudicial proceedings — which are proceedings of tribunals recognised by law and which act ‘in a manner similar to that in which a court of justice acts’.18 Whether proceedings are quasi-judicial depends on whether there will emerge from the proceedings a determination, the truth and justice of which is a matter of public concern.19 The privilege extends to members of tribunals20 and to ‘advocates, litigants and witnesses’.21 Absolute privilege should not be extended to statements which are said to be analogous to statements in judicial proceedings unless there is demonstrated some necessity of the kind that dictates that judicial proceedings are absolutely privileged.22 [page 409] In Mann v O’Neill23 Mann had been unsuccessful in two actions in the Small Claims Court of the Australian Capital Territory. He wrote a letter to the Commonwealth Attorney-General questioning the mental capacity of O’Neill, the special magistrate who heard the actions, and suggested he should be suspended from office pending an examination of his fitness to sit. The High Court held that absolute privilege did not attach to the letter to the AttorneyGeneral because it was not analogous to statements in judicial proceedings:

Many professions now have complaint procedures to ensure observance of professional standards, with complaints leading to or, at least, having the potential to lead to disciplinary proceedings. Often, the procedures provide for the complaint to be referred for investigation and allow the person or body charged with investigation to determine whether or not disciplinary proceedings will result.24

If such proceedings are quasi-judicial, absolute privilege will apply to a communication which is a complaint for the purpose of those proceedings. If as a result of the complaint, disciplinary proceedings will not automatically follow, but the complaint is part of an established procedure which must be set in motion to result in disciplinary proceedings, absolute privilege will apply. The complaint would therefore be properly regarded as a step in those proceedings even if disciplinary proceedings would not necessarily eventuate, because it would be regarded as incidental to the proceedings and necessary for them.25 In that case there was no procedure established by the relevant ordinance for the removal from office of a special magistrate. There was no provision for proceedings for dealing with complaints of the kind made by Mann. The position of the Attorney-General was equated with that of a prosecuting authority charged with investigating and taking action as it considered appropriate. Complaints to prosecuting authorities — statements in aid of justice — enjoy only qualified privilege.26 It is not necessary that statements to prosecuting authorities be absolutely privileged. The function of an authority charged with investigation and prosecution, whether in the courts or elsewhere, is not to ascertain the truth and justice of the matter in a final or binding way, but to decide whether the circumstances warrant the institution of proceedings to ascertain the truth of the matter. Absolute privilege is not required for the effective discharge of that function, nor is it required for complaints inviting investigation of a special magistrate’s ability to discharge his or her duties of office.27 Absolute privilege also applies to communications between officers of state in the course of their official duties. This privilege is founded on public policy and convenience considerations.28 [page 410]

STATUTORY DEFENCE OF ABSOLUTE PRIVILEGE 21.2 Section 27 of the Defamation Act 2005 provides a defence to the publication of defamatory matter if the defendant proves that the publication was made on an occasion of absolute privilege: s 27(1). In order to remove any doubt about the existence of the defence on certain occasions, the following publications are expressly subject to absolute privilege (s 27(2)): (a) the matter is published in the course of the proceedings of a parliamentary body, including (but not limited to): (i) the publication of a document by order, or under the authority, of the parliamentary body; (ii) the publication of the debates and proceedings of the parliamentary body by or under the authority of the parliamentary body or any law; (iii) the publication of matter while giving evidence before the parliamentary body; and (iv) the publication of matter while presenting or submitting a document to the parliamentary body; (b) the matter is published in the course of the proceedings of an Australian court or Australian tribunal, including (but not limited to): (i) the publication of matter in any document filed or lodged with, or otherwise submitted to, the court or tribunal (including any originating process); (ii) the publication of matter while giving evidence before the court or tribunal; (iii) the publication of matter in any judgment, order or other determination of the court or tribunal; (c) the matter is published on an occasion that, if published in another Australian jurisdiction, would be an occasion of absolute privilege in that jurisdiction under a provision of a law of the jurisdiction corresponding to this section; or (d) the matter is published by a person or body in any circumstances specified in Schedule 1.

For these purposes the proceedings of a body referred to above includes any words spoken and acts done in the course of, or for the purposes of, those proceedings. ‘Australian court’ is defined in s 4 to mean a court established under a law of an Australian jurisdiction, and includes a court conducting committal proceedings for an indictable offence. An ‘Australian tribunal’ is defined to mean any tribunal (other than a court) established by or under a law of an Australian jurisdiction that has the power to take evidence from witnesses before it on oath or affirmation, and includes a Royal Commission or other special commission of inquiry. Similar legislation had existed in New South Wales under the Defamation Act 1974 (NSW) providing a defence of absolute privilege for the publication of a document by order or under the authority of either House of Parliament under s 17(1).29 [page 411] The defence extended to protect a person who published a copy of such a document under authority of a House of Parliament.30 There was also a statutory defence for the publication by the government printer of the debates and proceedings of either House of Parliament under s 17(2), and the defence extended to the publication of debates and proceedings or a copy of those debates or proceedings under s 17(3)(b). Within Div 3 of the Defamation Act 1974 (NSW), there were numerous sections that extended absolute privilege to the publication of proceedings before a very wide range of specified bodies, extending far beyond the traditional categories of absolute privilege at common law.31 The phrase ‘for the purpose of’ was common to a number of the specific defences of absolute privilege in Div 3 of the New South Wales Act when first enacted. In general, the phrase was replaced by the phrase ‘to or by’ used in most sections. In these instances, parliament had affixed privilege to an objectively discoverable fact rather than to a potentially argumentative purpose. The majority of the provisions in s 17 attracted absolute privilege by proof in

objective terms. It was enough in these cases that the matter complained of was published by a certain document or to a designated person. Another common phrase was ‘in the course of’ which again should have been capable of proof in objective terms. In provisions which required a purpose to be determined, a characterisation of the ‘purpose’ was necessary by the court; if there was an arguable case as to the purpose of the communication, there was an issue of fact to be tried and the statement of claim could not be struck out,32 as it normally would be where absolute privilege arose from the occasion, such as judicial proceedings.33 The distinction drawn between purposes and motives was not useful.34 Where a body is empowered under statute to supervise some activity (for example, horse racing) and has the power to hear applications which are to be heard by a procedure akin to a court of law but the status of the body has not been specifically defined by statute, questions will arise as to whether absolute privilege applies to those persons conducting or participating in the inquiry. The ‘overriding consideration is “whether there will emerge from the proceedings a determination that the truth and justice of which is a matter of public concern” ’.35 In Pollack v Waterhouse36 the legislation did not make specific provision as to the conduct of the tribunal in its inquiry and, while it had adopted some of the attributes of a court of justice, it was not obliged to do so and could change those attributes at its [page 412] whim. Any such change would offend the rules of natural justice, but the application of those rules does not equate with the application of the protection of absolute privilege.37 The court held that, having regard to the inquiry conducted and the procedure adopted, the consequence of which would be legal in its nature affecting a person’s rights under the legislation itself, the interests of justice and the conduct of the inquiry by the tribunal into so weighty a matter, commanded that people participating even by invitation should be free to do so without the threat of oppressive litigation and therefore at common law the defence of absolute privilege applied.38 The court also held the publications were

made in the course of an inquiry under an authority of an Act as provided under s 18 of the Defamation Act 1974 (NSW). A number of matters published were expressly identified as privileged under the New South Wales Act and included publications contained in certain documents or publications to or by a number of public bodies relating to the following legislation (as provided specifically in ss 17A–17U, 18 and 19 of the Defamation Act 1974 (NSW)). These are now set out in Sch 1 to the Defamation Act 2005, without limiting s 27(2)(a)–(c) of the Act: Anti-Discrimination Act 1977: cl 9; Casino Control Act 1992: cl 22; Civil and Administration Tribunal Act 2013: cl 33; Coal Mines Regulation Act 1982: cl 16; Crime Commission Act 2012: cl 20; Crimes (Administration of Sentences) Act 1999: cl 7; Custodial Services (Inspector General) Act: cl 8; Government Information (Information Commission) Act 2009: cl 2A; Greyhound Racing Act 2009: cl 12; Harness Racing Act 2009: cl 12; Health Care Complaints Act 1993: cl 27; Health Practitioners Regulation National Law: cl 15; Health Services Act 1997: cl 6; Independent Commission against Corruption Act 1988: cl 19; Independent Pricing and Regulatory Tribunal Act 1992: cl 21; Law Reform Commission Act 1967: cl 3; Legal Aid Commission Act 1979: cl 14; Legal Profession Uniform Law (NSW) or Legal Profession Uniform Law Application Act 2014: cl 18; Motor Accidents Act 1981/ Motor Accidents Compensation Act 1999: cl 5; New South Wales Crime Commission Act 1985: cl 20; New South Wales Trustee and Guardian Act 2009: cl 24; Ombudsman Act 1974: cl 1;

Police Act 1990: cl 1; Police Integrity Commission Act 1996: cl 28; [page 413] Privacy and Personal Information Protection Act 1998: cl 2; Public Finance and Audit Act 1983: cl 25; Public Interest Disclosures Act 1994: cl 26; Racing Appeals Tribunal Act 1983: cl 10 and cl 12; Surveying and Spatial Information Act 2002: cl 32; Thoroughbred Racing Act 1996: cl 11; Work Health and Safety (Mines and Petroleum Sites) Act 2013: cl 16; Workers Compensation Act 1987/Workplace Injury Management and Workers Compensation Act 1998: cl 4.

OTHER STATUTORY DEFENCES OF ABSOLUTE PRIVILEGE 21.3 A statutory defence of absolute privilege is provided in circumstances where it is considered the common law is unclear or does not apply and it is necessary to provide protection by statute.

Parliament Under s 27(2)(a) of the Defamation Act 2005, matter published in the course of proceedings of a parliamentary body is deemed to be published on an occasion of absolute privilege. There is also a Commonwealth statutory defence of absolute privilege for the publication of Commonwealth parliamentary papers39 (under the authority of parliament) which includes the debates and proceedings of Commonwealth Parliament.40 Similarly, broadcasts of proceedings of Commonwealth Parliament are protected by absolute privilege,41 and fair and accurate reports of

proceedings of Commonwealth Parliament are also subject to absolute privilege.42 In each state and territory there were similar provisions prior to the Defamation Act 2005 for publication of their local parliamentary proceedings or parliamentary papers.43

Judicial proceedings Under s 27(2)(b) of the Defamation Act 2005, matter published in the course of proceedings of an Australian court or Australian tribunal is deemed to be published on an occasion of absolute privilege. [page 414] There was previously a statutory defence of absolute privilege in some states and territories for fair and accurate reports of judicial proceedings.44 In Queensland and Tasmania, the Codes provided a statutory defence of absolute privilege for publications made in the course of proceedings of a court of justice.45 The expression ‘court of justice’ as used in the Code was limited to traditional courts and did not extend to tribunals.46

Royal Commissions and inquiries Under s 27(2)(b) of the Defamation Act 2005, matter published in the course of proceedings of an Australian tribunal, defined by s 4 to mean a tribunal established by or under a law of an Australian jurisdiction that has the power to take evidence from witnesses before it on oath or affirmation (including a Royal Commission or other special commission of inquiry), is deemed to be published on an occasion of absolute privilege. There was previously a statutory defence of absolute privilege for a publication made in the course of the proceedings of Royal Commissions47 or made in the course of certain inquiries.48

Public meetings Western Australia previously provided a defence of absolute privilege for fair and accurate reports of public meetings.49

Publications of inquiry proceedings There was previously a statutory defence of absolute privilege under s 18 of the Defamation Act 1974 (NSW) for a publication in the course of an inquiry established under the authority of New South Wales legislation, or New South Wales executive or parliamentary authority. The privilege did not extend to an inquiry under a foreign statute or foreign executive or parliamentary authority because the section was only concerned with publications in New South Wales. Nor was provision made for an inquiry under a Commonwealth Act or under Commonwealth executive or parliamentary authority which rests with Commonwealth laws. [page 415] The Code states had similar provisions.50 It has been held that such an inquiry must be of a quasi-judicial nature and not of a merely private or administrative nature.51 No such limitation was expressed in the wording of s 18. Whether the publication was made under the authority of an Act depended upon the extent of authority or powers provided by the Act, and not merely incidental to it.52 Absolute privilege also applied to the official report of the result of the inquiry.53 The position under the Defamation Act 2005 is referred to above in ‘Royal Commissions and inquiries’.

Official report of inquiry Under s 27(2)(b)(iii) of the Defamation Act 2005, the publication of matter in any judgment, order or other determination of an Australian tribunal (as defined in s 4) is deemed to be matter published on an occasion of absolute privilege. There was previously a statutory defence of absolute privilege under s 19 of the Defamation Act 1974 (NSW) for the official report of the result of inquiries by a person appointed under the authority of New South Wales legislation, or the authority of the executive or parliament. As these proceedings were in the nature of an inquiry rather than judicial, absolute privilege at common law was

not available for the conduct or report of such proceedings. The Code states had similar provisions.54 ____________________ 1. 2. 3. 4. 5. 6.

7. 8. 9.

10. 11. 12. 13. 14. 15. 16. 17. 18.

19. 20. 21. 22. 23. 24.

Gipps v McElhone (1881) 2 LR (NSW) 18 at 21–2, 25–6; Chenard & Co v Joachim Arissol [1949] AC 127 at 133–4; Australian Broadcasting Corporation v Chatterton (1986) 46 SASR 1 at 18. Gipps v McElhone (1881) 2 LR (NSW) 18. Lake v King (1680) 1 WMS Saund 131; 85 ER 137. R v Skinner (1772) Loft 55; 98 ER 529; Jamieson v R (1993) 177 CLR 574 at 582, 594. Cabassi v Villa (1940) 64 CLR 130 at 140; Dawkins v Lord Rokeby (1873) LR 8 QB 255 at 263–4; Royal Aquarium & Summer & Winter Garden Society Ltd v Parkinson [1892] 1 QB 431 at 446, 451. Revis v Smith (1856) 18 CB 126 at 140–4; 139 ER 1314 at 1319–21; Dawkins v Lord Rokeby (1873) LR 8 QB 255 at 263–4; Seaman v Netherclift (1876) 2 CPD 53 at 56–7, 61; Watson v M’Ewan [1905] AC 480 at 486; Hargreaves v Bretherton [1959] 1 QB 45 at 51–4; Marrinan v Vibart [1963] 1 QB 528 at 534–6; Cabassi v Villa (1940) 64 CLR 130 at 140. Munster v Lamb (1883) 11 QBD 588 at 599, 603–4; Cabassi v Villa (1940) 64 CLR 130 at 140; Clyne v NSW Bar Association (1960) 104 CLR 186 at 200–1. Bushell’s Case (1670) 1 Freeman 1; 89 ER 2; Cabassi v Villa (1940) 64 CLR 130 at 140; Royal Aquarium & Summer & Winter Garden Society Ltd v Parkinson [1892] 1 QB 431 at 451. Cabassi v Villa (1940) 64 CLR 130 at 140; Dawkins v Lord Rokeby (1873) LR 8 QB 255 at 263–4; Royal Aquarium & Summer & Winter Garden Society Ltd v Parkinson [1892] 1 QB 431 at 446, 451; More v Weaver [1928] 2 KB 520 at 522. Lilley v Roney (1892) 61 LJ (QB) 727 at 727–8; Bottomley v Broughan [1908] 1 KB 584 at 588; Lincoln v Daniels [1962] 1 QB 237 at 257. Lord Beauchamps v Sir Richard Croft (1569) 3 Dyer 285a; Lincoln v Daniels [1962] 1 QB 237 at 257. Royal Aquarium & Summer & Winter Garden Society Ltd v Parkinson [1892] 1 QB 431 at 451. Attwood v Chapman [1914] 3 KB 275 at 287; Mann v O’Neill (1996) 191 CLR 204 at 212. Gibbons v Duffell (1932) 47 CLR 520 at 534. (1932) 47 CLR 520 at 528. See, for example, Jamieson v R (1993) 177 CLR 574 at 590–1, 594–6. Mann v O’Neill (1996) 191 CLR 204 at 213; Cabassi v Villa (1940) 64 CLR 130 at 139; Jamieson v R (1993) 177 CLR 574 at 589–90, 595. Co-Partnership Farms v Harvey-Smith [1918] 2 KB 405 at 408; Royal Aquarium & Summer & Winter Garden Society Ltd v Parkinson [1892] 1 QB 431 at 442; O’Connor v Waldron [1935] AC 76 at 81; Trapp v Mackie [1979] 1 All ER 489 at 491, 497. Lincoln v Daniels [1962] 1 QB 237 at 255–6. Co-Partnership Farms v Harvey-Smith [1918] 2 KB 405 at 408. Co-Partnership Farms v Harvey-Smith [1918] 2 KB 405 at 408. Mann v O’Neill (1996) 191 CLR 204 at 213–14. (1996) 191 CLR 204. Mann v O’Neill (1996) 191 CLR 204 at 215.

25. Mann v O’Neill (1996) 191 CLR 204 at 215; Hercules v Phease [1994] 2 VR 411. 26. Mann v O’Neill (1996) 191 CLR 204 at 216; Szalatnay-Stacho v Fink [1947] KB 1; Padmore v Laurence (1840) 11 Ad & E 380; 113 ER 460; Finn v Hunter (1886) 12 VLR 656; Bowles v Armstrong (1912) 32 NZLR 409. 27. Mann v O’Neill (1996) 191 CLR 204 at 216. 28. Dawkins v Lord Paulet (1869) LR 5 QB 94 at 114–17; Chatterton v Secretary of State for India in Council [1895] 2 QB 189 at 191, 195; M Isaacs & Sons Ltd v Cook [1925] 2 KB 391 at 397–8. 29. Compare Stockdale v Hansard (1840) 11 AD&E 297; 113 ER 428. 30. Defamation Act 1974 (NSW) s 17(3)(a). 31. Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5 at [160] (Kirby J). 32. Rajski v Carson (1988) 15 NSWLR 84 at 95. 33. Rajski v Carson (1986) 4 NSWLR 735 at 743–4. 34. Rajski v Carson (1986) 4 NSWLR 735 at 742. Compare Crofter Handwoven Harris Tweed Company Ltd v Veitch [1942] AC 435 at 445, 452, 469. 35. Mann v O’Neill (1996) 191 CLR 204 at 211–14 (authorities omitted). 36. [1999] NSWSC 1053. 37. Mann v O’Neill (1996) 191 CLR 204 at 227. 38. Pollack v Waterhouse [1999] NSWSC 1053 at [57]–[58]. 39. Parliamentary Papers Act 1908 (Cth) s 4. 40. Section 3(1) and (4). 41. Parliamentary Proceedings Broadcasting Act 1946 (Cth) s 15. 42. Parliamentary Privileges Act 1987 (Cth) s 16. 43. Defamation Act 1974 (NSW) s 17; Constitution Act 1975 (Vic) ss 72–74; Civil Liability Act 1936 (SA) s 12; Defamation Act 1889 (Qld) s 10 (see also Parliamentary Papers Act 1992 (Qld) s 10(1)); Defamation Act 1957 (Tas) s 10; Criminal Code Act 1913 (WA) s 351 (but see Parliamentary Papers Act 1891 ss 1 and 2); Legislative Assembly (Powers & Privileges) Act 1992 (NT) s 11; Australian Capital Territory (Self-Government) Act 1988 (Cth) s 24(3). 44. Civil Liability Act 1936 (SA) s 6; Criminal Code Act 1913 (WA) s 351; Newspaper Libel and Registration Act 1884 Amendment Act 1888 (WA) s 6; Defamation Act 1989 (NT) s 5. The defence remains available in Victoria under the Wrongs Act 1958 (Vic) s 4. 45. Defamation Act 1889 (Qld) s 11; Defamation Act 1957 (Tas) s 11. 46. Jackson-Knaggs v Queensland Building Services Authority [2004] QSC 289 at [29]. 47. Royal Commissions Act 1902 (Cth) s 17; Royal Commissions Act 1923 (NSW) ss 6 and 7; Evidence Act 1958 (Vic) s 21A; Royal Commissions Act 1917 (SA) s 16; Evidence Act 1910 (Tas) s 18; Royal Commissions Act 1968 (WA) ss 20 and 31; Commissions of Inquiries Act 1950 (Qld) s 14(3). 48. Defamation Act 1974 (NSW) ss 18 and 19; Evidence Act 1958 (Vic) s 21A; Defamation Act 1889 (Qld) ss 11 and 12; Defamation Act 1957 (Tas) s 11; Criminal Code Act 1913 (WA) s 352. Queensland also has Commissions of Inquiries Act 1950 (Qld) s 14(3) and reports of such inquiries, s 12. 49. Newspaper Libel and Registration Act 1884 Amendment Act 1888 (WA) s 6. 50. Defamation Act 1889 (Qld) s 11; Defamation Act 1957 (Tas) s 11; Criminal Code Act 1913 (WA) s 352. 51. Wishart v Doyle [1926] St R Qld 269 at 289. 52. Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 336; Australian National University v Lewins (1996) 138 ALR 1; Tang v Griffith University [2003] QCA 571. See also Griffith University v

Tang [2005] HCA 7. 53. See Defamation Act 1974 (NSW) s 19. 54. Defamation Act 1889 (Qld) s 12; Defamation Act 1957 (Tas) s 12; Criminal Code Act 1913 (WA) s 353.

[page 417]

CHAPTER 22 THE PRIVILEGED OCCASION INTRODUCTION COMMON LAW DEFENCE OF QUALIFIED PRIVILEGE RELATIONSHIP OF PUBLISHER AND RECIPIENT CONNECTION TO THE OCCASION OF PRIVILEGE STATEMENTS IN ANSWER TO ATTACKS OR REQUESTS FOR INFORMATION VOLUNTEERING INFORMATION PUBLICATION BY THE MEDIA PROTECTED REPORT

22.1 22.2 22.3 22.4 22.5 22.6 22.7 22.8

INTRODUCTION 22.1 The defence of qualified privilege at common law is directed to the occasion or circumstances of the publication. The defendant must generally establish a legitimate duty and interest to publish the matter. Under s 30 of the Defamation Act 2005, there is an additional statutory defence of qualified privilege for the provision of certain information. The defendant must establish that the matter was published to a recipient with an interest (or an interest reasonably apparent to the defendant) in having information on some subject, that the matter was published in the course of giving the recipient information on that subject and ‘the conduct of the defendant in publishing that matter is reasonable in the circumstances’: s 30(1).

COMMON LAW DEFENCE OF QUALIFIED PRIVILEGE

22.2 In general, there is a defence of qualified privilege at common law on an occasion where the publication is: (a) made in pursuance of a legal, social or moral duty to a person who has a corresponding duty or interest to receive it; [page 418] (b) made for the protection or furtherance of an interest to a person who has a common or corresponding duty or interest to receive it; or (c) made to a person sharing a common interest. The principles to be applied in determining whether the occasion of the publication of the matter complained of was an occasion of qualified privilege are well known and well settled.1 The principal authority is Toogood v Spyring: In general, an action lies for the malicious publication of statements which are false in fact, and injurious to the character of another (within the well known limits as to verbal slander), and the law considers such publication as malicious, unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. In such cases, the occasion prevents the inference of malice, which the law draws from unauthorised communications, and affords a qualified defence depending upon the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits.2

This classic statement of the law of qualified privilege has been refined over the years.3 In Megna v Marshall,4 Simpson J summarised what she called ‘the proper process for determining a defence of qualified privilege’ as follows: I have come to the conclusion that the determination of a defence of qualified privilege at common law involves three strands of inquiry: identification of an occasion of qualified privilege by reference to all of the circumstances in which the communication is published, including, particularly, the subject matter of the communication: this involves the identification of a duty or interest in the publisher to communicate with respect to that subject matter, and the identification of a reciprocal interest in the recipient in receiving a communication with respect to that subject matter; determination whether the content of the communication was relevant, germane, or sufficiently connected to that occasion or subject matter; (only if both occasion and relevance are established), determination whether, notwithstanding

that there is an occasion of qualified privilege, and that the communication is sufficiently relevant or germane to that occasion, the occasion was misused, or used for an ulterior or extraneous purpose, such as to give rise to a finding that the publisher was actuated by express malice …5

[page 419] Notwithstanding some inconsistencies in the cases, in my opinion the preponderance of authority is that the proper process for determining a defence of qualified privilege is to ask a series of questions, in sequence, as follows: (i) were the circumstances in which the communication was published (including, importantly, the subject matter of the communication and the identity of the publisher and the recipients) such as to give rise to the requisite duty or interest in the publisher, and the reciprocal interest in the recipient in receiving the publication, thus creating an occasion of qualified privilege? (ii) if the answer to the first question is in the affirmative, was the particular statement of which complaint is made sufficiently relevant, germane or did it have sufficient connection to that occasion? (iii) If the answer to either of the preceding questions is in the negative, then there is no call to proceed further. There is no defence of qualified privilege. If the answer to both preceding questions is in the affirmative, was the publisher actuated by express malice?6

RELATIONSHIP OF PUBLISHER AND RECIPIENT 22.3 Where the occasion of qualified privilege depends upon the publisher’s duty and the recipient’s interest, ‘reciprocity’ of duty or interest is essential.7 The defence of qualified privilege arising out of a reciprocal duty or interest has been expressed by the High Court in the following terms: The common law protects a defamatory statement made on an occasion where one person has a duty or interest to make the statement and the recipient of the statement has a corresponding duty or interest to receive it. Communications made on such occasions are privileged because their making promotes the welfare of society. But the privilege is qualified — hence the name qualified privilege — by the condition that the occasion must not be used for some purpose or motive foreign to the duty or interest that protects the making of the statement.8

The circumstances in which the law recognises such occasions of qualified privilege are difficult to identify as they cannot be ‘catalogued or rendered exact’.9 The categories established by precedent are not exhaustive, but apply the underlying principle of public policy.10

[page 420] The essence of this defence lies in the law’s recognition of the need, in the public interest, for a particular recipient to receive ‘frank and uninhibited communication’ of particular information from a particular source11 or the protection of freedom of communication.12 In order to apply the principles, a court must ‘make a close scrutiny of the circumstances of the case, of the situation of the parties, of the relations of all concerned and of the events leading up to and surrounding the publication’.13 The court examines all the circumstances of the case which include the nature of the defamatory communication, the status or position of the publisher, the number of recipients and the nature of any interest they had in receiving it, and the time, place and manner of, and reason for, the publication.14 After considering these matters, the court makes a judgement as to whether the publisher had a duty or interest that justified making the publication and whether the recipients, or some of them, had a duty to receive or interest in receiving it. Evaluating these questions of duty and interest usually involves questions of public policy or the ‘welfare of society’.15 This may be determined by reference to the type of statement made rather than the particular statement itself as to whether this advanced the welfare of society and the public interest:16 … [R]eferences to concepts such as ‘the common convenience and welfare of society’ … are not the determinants of whether the occasion is privileged … the reference to the welfare of society did not mean that the person who made the communication was under an obligation to publish and was justified in publishing it to the public at large. Rather … the phrase means that the interests of society in general require that a communication made under the particular circumstances to the particular person should be protected … It is only when this reciprocity of duty and interest is present that the common law regards publication of the communication as being for the common convenience and welfare of society.17

[page 421] In Baird v Wallace-James18 the approach was put in these terms: In considering the question whether the occasion was an occasion of privilege, the Court will regard the alleged libel and will examine by whom it was published, to whom it was published, when, why, and in what circumstances it was published, and will see whether these things

establish a relation between the parties which gives rise to a social or moral right or duty and the consideration of these things may involve the consideration of questions of public policy.19

In general, it has been observed that there are few matters of any kind, in ordinary affairs divorced from business or official functions, where one person is under a legal duty to communicate to another. Most of the cases of qualified privilege are ones in which the publisher of the statements seeks to rely upon the existence of a moral or social duty, because a legal duty does not exist.20 The privilege must exist at the time of publication. The publisher’s belief that the occasion is privileged is irrelevant.21 In Guise v Kouvelis22 a club committee man was watching a game of cards when he informed about 50 or 60 members and non-members in the room that one of the players had cheated by claiming that there had been a misdeal. A majority of the High Court held that the occasion was not privileged, rejecting the committee man’s claim that he had a moral or social duty to say what he did or that he was protecting his own interests or the common interests of himself and other members of the club. It could ‘hardly be contended that the defendant was under a duty to shout out to the room that the plaintiff was a crook even if he believed that he was’.23 The English Court of Appeal has found that it may be more helpful to distinguish between cases where the publisher and recipient are in an existing and established relationship (irrespective of whether within that relationship the communications between them relate to reciprocal interests or reciprocal duties or a mixture of both) and cases where no such relationship has been established and the communication is between strangers (or is volunteered otherwise than by reference to their relationship). The law attaches privilege more readily to communications within an existing relationship than those between strangers.24 An established relationship by its very [page 422] nature involves reciprocal interests and/or duties. Therefore, where the communication is made within an established relationship and is relevant to it, the necessary conditions are satisfied by which the protection of the defence can be obtained.25

In Kearns v General Council of the Bar26 the head of the English Bar Council’s Professional Standards and Legal Services Department sent a circular letter to all heads of chambers, senior clerks and practice managers raising concerns about the way certain barristers were being instructed by a particular company which was seeking to instruct barristers to appear in court on behalf of solicitors. The letter stated that Kearns & Co were not solicitors and it would be improper for barristers to accept work from them. However, the information was incorrect. The company was a firm of solicitors who were entitled to instruct counsel. The Bar Council issued an apology and the claimants issued proceedings for defamation. The Bar Council relied upon the defence of qualified privilege and, in the absence of a plea of malice, the Bar Council applied to strike out the claim. The judge at first instance struck out the claim on the basis that it was a classic case of qualified privilege. The claimants appealed, arguing that the question whether qualified privilege attached to any particular occasion depended upon the facts and in this case depended on whether the Bar Council had attempted to verify the information prior to publication. The English Court of Appeal held that, in the context of communications between those in an established relationship, the question of whether a defamatory publication had been adequately investigated or verified went to the issue of malice, not to the issue of whether the occasion of the communication had been privileged.27 The publication to more than 10,000 members of the Bar was still one made in an existing relationship and was to be considered differently from the cases involving media publications or publications to the world at large. The court did not find helpful the categorisation of duties and interests, but said what mattered was that the relationship between the Bar Council and the Bar was an established one which plainly required the flow of free and frank communications in both directions on all questions relevant to the discharge of the Bar Council’s functions. The appeal was dismissed. In Bashford v Information Australia (Newsletters) Pty Ltd28 the defendant published to fee-paying subscribers a bulletin on issues of health and safety in the workplace. There was an error in the publication. The article referred to ‘Mr R A Bashford’ personally rather than to the consulting company that bore his name, ‘R A Bashford Consulting Pty Ltd’. The company, not the individual, had been held liable for damages in the Federal Court.

The material concerned how to keep people safe from workplace injury. A majority of the High Court considered that the dissemination of information about that subject to those responsible for it advanced the ‘common convenience and welfare of [page 423] society’.29 The fact that the publisher voluntarily embarked on its publishing venture and charged subscribers for its bulletin did not change the position. The subject matter and its readership had a narrow focus. Because its subscribers were only those responsible for occupational health and safety matters and because it dealt only with those matters, the majority held that there was that reciprocity of duty or interest between maker and recipient which attracted qualified privilege.30 In Gummow J’s view, the duty to publish was based upon the general interest of the community reflected in the consistent legislative recognition of the importance of furthering occupational health and safety in Australia. The recipients of the defamatory imputation contained in the article possessed a corresponding interest in the subject matter to which the imputation related. The word ‘interest’ is used in the broadest popular sense, not in any technical sense. Interest may be taken as ‘interested’ in knowing a fact, as a matter of substance apart from its mere quality as news, but not in the sense as a matter of gossip or curiosity.31 Justice Gummow held that the article clearly dealt with a matter to which the interest of the subscribers related and that issue encompassed the matter by which the defamatory imputation was made. It followed that the defamatory imputation was made upon an occasion of qualified privilege.32 His Honour also observed that, even with settled legal principles, the application of the principles to particular facts will lead different minds to different outcomes in particular cases. Moreover, the outcome in a particular case cannot be guided by apprehension of what could conceivably be the outcome of other litigation where other considerations and evidence might be put forward in respect of other claims of occasions protected by qualified privilege.33

Justice Kirby commented that the defence of qualified privilege must adapt to the large expansion and variety of publications in Australian society, including on specialised subject matters of importance and benefit to society, and must adapt to the technologies that make them possible, so that some of the old cases must be read with critical scrutiny. However, the position of such publications is separate and different from the case of the general or mass media.34 Justice Callinan restated the principle that a defence of qualified privilege operates to excuse the publication of inaccurate or untrue and defamatory matter. But he said the protection which the law affords has always depended upon a number of matters: that [page 424] the statement has been made in the discharge of some public or private duty, whether legal or moral, or in the conduct of the maker’s own affairs in which he or she has a real interest. The issue of the ‘common convenience and welfare of society’ involves the making of value judgements. The defence focuses upon the subject matter of the communication rather than upon the actual communication itself, the inaccuracy of which is the reason why there must be some other basis for its justification (or excuse) if its maker is to be protected against action. It is therefore important to identify, and to do so with some degree of precision, the relevant subject matter.35 Justice McHugh wrote a forceful dissenting opinion based on settled principle, but coming to a different view to the majority as to the application of the test of ‘common convenience and welfare of society’: … concepts such as the ‘common convenience and welfare of society’ … are not the determinants of whether the occasion is privileged … [but] record a result and explain why the communication and the relevant duty or interest gave rise to an occasion of qualified privilege … A plea that defamatory matter was published on an occasion of qualified privilege is a plea of confession and avoidance. It accepts that the communication is defamatory, that the defamatory matter may be false and that its publication had caused or may cause harm to the plaintiff. It confesses the publication of defamatory matter, but contends that the publication is immune from liability because the public interest requires that the duty and interest of the publisher and recipient should be preferred to the protection of the plaintiff’s reputation. The court cannot determine these issues of duty and interest without characterising the subject matter of the defamation. It cannot judge whether the particular duty and interest are so necessary for the

proper functioning of society that the occasion should be privileged — despite the harm that the communication may cause — unless it knows what is the nature of the defamatory communication that allegedly gives rise to the duty and interest … the practical working of the doctrine of qualified privilege requires that the occasion be defined concretely and precisely. That ordinarily requires the interest of the recipient to be defined first, and to be defined concretely and precisely, although sometimes it is necessary first to define the duty in that way. Unless the interest is so defined, the issues of duty, occasion, relevance and malice cannot be determined — at all events correctly.36

In McHugh J’s view it was erroneous to regard the interest of the bulletin’s recipients as simply an interest in receiving information concerning occupational health and safety matters. If the interest of each recipient had been defined more ‘concretely and precisely’, each recipient had no interest that created a reciprocal duty in the publisher to publish the defamatory matter concerning Mr Bashford. The correct approach in his view was that the court must consider all the circumstances and ask whether this publisher had a duty to publish or an interest in publishing this defamatory [page 425] communication to this recipient. The court does not ask whether the communication is for the ‘common convenience and welfare of society’.37 His Honour also observed that the fact that the publication was made to paid subscribers neither advanced nor impaired the claim of qualified privilege. The publisher had no legal duty to publish the article — it was a matter for its discretion whether it did so. It had no contractual obligation to publish this communication and the recipients of the bulletin had no direct interest in being informed about Mr Bashford. There was no evidence that there would be any imminent or potential dealings with Mr Bashford by the recipients. Accordingly, his Honour held that the publisher had no legal, moral or social duty to publish this communication containing defamatory material to these recipients.38 The majority of the High Court emphasised, however, that this decision did not represent a significant expansion of the scope of the defence of common law qualified privilege. In their view, what set the bulletin apart from some other paid publications was the narrow focus of both its subject matter and its readership.

Accordingly, in Gutnick v Dow Jones & Company Inc (No 4),39 the court struck out a defence of common law qualified privilege where Dow Jones pleaded in its defence that the internet and print copies of its publications Barron’s Online and Barron’s were only available to subscribers and that the information provided was specialist news and information services. Justice Bongiorno distinguished the High Court judgment in Bashford on the basis that the bulletin concerned a narrow subject matter and a limited audience compared with the Dow Jones publication where the nature of the information conveyed and the potential classes of recipients with a legitimate interest in receiving the information was too broad. The High Court has also considered under the defence of qualified privilege a bank’s communication to payees advising that cheques were not met, when the bank had made an honest mistake that the drawer did not have funds in its account to pay for the cheques.40 By a majority of 3:2, the High Court held that as a matter of public policy, in the general interests of the whole community, qualified privilege did not attach to ‘the occasion’ of this communication. There was an absence of any reciprocity of interest between bank and payee. While the bank had an interest in communicating because it refused to pay, the High Court held that the payee had no interest in receiving a communication of refusal to pay a cheque which was regular on its face in a case where the drawer of the cheque had funds sufficient to meet its payment.41 [page 426] The minority focused upon the fact that the bank had made an honest mistake and considered that the payees had an interest in knowing that they would not receive the funds from their cheques so that they could make alternative arrangements for payment. Justice Heydon observed that the law contemplates that non-malicious defamatory statements will on occasion be made, and that it can be for the common convenience and welfare of society that this be so.42 The majority, however, considered that it would not be conducive to accuracy on the part of banks faced with the decision to pay or dishonour a cheque, as

soon as reasonably practicable, if giving notice of dishonour of a cheque was an occasion of qualified privilege. In other words, to hold banks responsible to their customers for damage to reputation was conducive to maintaining a high degree of accuracy in the decisions that banks must make about paying cheques.43 The conduct of an accurate and efficient banking system was a matter of what the majority called ‘the common convenience and welfare of society’, and there was no advantage to society in providing freedom of communication between bank and payee on an occasion for communication that a cheque was to be dishonoured which outweighed the need for accuracy when by doing so it conveyed a defamatory imputation about the drawer of the cheque.44

CONNECTION TO THE OCCASION OF PRIVILEGE 22.4 The matter which defames the plaintiff must be sufficiently connected or relevant to the privileged occasion to attract the defence.45 As a result, if a defamatory statement is made that is not relevant to the occasion, the occasion may be privileged but the specific communication is not. In Bashford v Information Australia (Newsletters) Pty Ltd46 it was necessary to determine whether the matter which defamed the plaintiff was sufficiently connected to the privileged occasion to attract the defence. The majority of the High Court held that the subject was evidently connected to occupational health and safety and the particular parts of the matter published which defamed the plaintiff related to that subject.47 [page 427] Justice Kirby observed that the publication of matter defamatory of an individual within a context of discussion of a subject of public interest, on which there is the requisite reciprocity of interest and duty giving rise to an occasion of qualified privilege, does not guarantee the imputation of protection. If the imputation is extraneous to or has a tenuous, remote or contrived connection to the publication, the imputation will not be protected.48 The defamatory imputation must be ‘relevant’ to the privileged occasion.49 Another test is

whether the imputations were ‘unconnected with and irrelevant to the main statement’.50 Chief Justice Brennan had previously expressed the view that it was necessary in order to attract the protection that the publication of the defamatory matter ‘make a contribution’ to the discussion of the subject of public interest.51 The publisher was required to demonstrate that the defamatory imputations were relevant to the privileged occasion. It would be left to the common sense of judges (and where they still decide such matter, juries) to evaluate in the particular case whether the defamatory imputation was relevant or germane to the occasion or not.52 Justice Kirby (together with Callinan J)53 considered the Brennan test too literal or too rigid. In Kirby J’s view, the subject of the defamatory imputation in Bashford’s case was not irrelevant to the occasion of the publication, was not gratuitous or lacking in relevant connection with the subject matter, arising as it did out of the same litigation in the Federal Court, and it was historically and legally connected.54 Justice Callinan, in the minority in Bashford’s case, stated it was important to make sure that the defamatory imputation is not extraneous to that subject matter and is sufficiently connected and germane and reasonably appropriate to it. A slight, or general, ill-defined connection will not suffice.55 In this case, he considered that the information about the publication and use of safety data sheets were matters truly of occupational health and safety and were of interest to the readers in knowing, and the publisher had a moral duty to communicate them. However, in his Honour’s view, the other issue in the proceedings in the Federal Court was of only most peripheral relevance to the safety data sheets, and the finding of liability, and its attribution to Mr Bashford, was ‘not germane or sufficiently related’.56 He agreed with McHugh J in the minority that this was not an occasion of qualified privilege. [page 428] Some have questioned whether connection or relevance are factors to determine if the communication is published on a privileged occasion, suggesting that this is an issue of malice or an abuse of the occasion of privilege,57 but a distinction should be drawn between the boundaries of the

privilege, by which its connection or relevance is determined, and evidence of malice.58 An issue has also been raised as a result of views expressed by Gummow J in Bashford’s case59 whether the connection should be to the matter published or the defamatory imputation. His Honour appeared to suggest that it would be necessary to determine whether each imputation was relevant to the occasion of qualified privilege and if not, it would not be covered by the defence. Where the defence was raised as relevant to the occasion of publishing images for the purpose of identification so as to assist a police investigation, it was held that the distribution did not matter on the facts as, either way, whether the imputation or the matter complained of, the defamation went well beyond any occasion of privilege and trespassed into the territory of condemnation and denunciation.60 In another case where the police sought the assistance of the public to obtain information relating to a murder investigation by issuing a media release and holding a press conference, the police stepped outside the occasion of qualified privilege by gratuitously informing the public that they had reasonable grounds to suspect the plaintiff and that he had conducted himself so as to warrant that suspicion.61

STATEMENTS IN ANSWER TO ATTACKS OR REQUESTS FOR INFORMATION 22.5 Where the defamatory communication responds to an attack on its publisher or some person connected with the publisher, the common law has adopted a liberal approach to the question of duty or interest and has usually held that the publisher had a duty to respond or an interest in responding, and has taken a liberal approach of what constitutes an interest in those who receive the response.62 [page 429]

Where the attack is published in a newspaper the person attacked has both a right and an interest in refuting the attack and may appeal to the public who has a corresponding interest in the reply. Occasions of this kind are privileged and communications made in pursuance of a right or duty incident to them are privileged by the occasion.63 The media enjoy a derivative privilege, otherwise the privilege to reply through the media to a public attack would be thwarted.64 It does not matter whether the media instigated the attack in the first instance or published it at the same time as the reply. The media’s manipulation of the circumstances, for example to select who will be and who will not be the target, concerns issues of malice not whether the privilege exists.65 The defamatory material must be relevant to the occasion of qualified privilege.66 Considerable latitude is to be allowed to a person defending himself or herself against attacks and accusations made against him or her.67 Where the defendant responds to the plaintiff’s attack in relation to the defendant’s interests, the occasion is privileged, but the occasion does not extend to attacking the plaintiff because of what that person has said about an unrelated third party; for example, where the plaintiff’s attack is upon an institution such as the press, the theatre or the Bar or a section of the community. The plaintiff’s attack does not create a privileged occasion in each person belonging to or concerned in the institution or the section of the community, so that the person is enabled in the exercise of qualified privilege attaching to him or her personally to publish defamatory matter by way of defence or counter-attack.68 A riposte to a defamatory response, itself made as a result of a defamatory attack, is not generally protected by qualified privilege.69 The common law has also taken a liberal view in respect of the existence of a duty to answer requests for information about the plaintiff and it is sufficient that the duty is social or moral if not legal:70 A common case of a moral or social duty in this context is the duty to answer a request by a potential employer for information concerning the character, capacity or honesty of an employee. When such a request is made, the common law recognises a duty in

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the recipient of the request to answer the inquiry and to state fully and honestly all that he or she believes that he or she knows about the employee that is relevant to the inquiry. The answer cannot be used as a licence to defame the employee. It must be fairly and reasonably relevant to the inquiry. If the employer is asked whether the employee is fit to be employed as a gardener, it is unlikely that the occasion of privilege would extend to details about the employee’s convictions for negligent driving.71

Similarly, a moral or social duty arises in relation to the duty to answer a request for information about the plaintiff from a person who intends to conduct business with the plaintiff. If the request is made to someone who has information about the business dealings of the plaintiff as a business person, the common law recognises the duty to give a full, honest and relevant answer concerning that person.72 The occasion will not be privileged unless the person making the inquiry has a legitimate interest in obtaining the information.73 Interest means more than an interest in the information ‘as a matter of gossip or curiosity’.74 The interest must be a social, moral or an economic interest that is sufficiently tangible for the public interest to require its protection.75 The interest of the recipient must be a real and direct personal, trade, business or social concern.76 The occasion will not be privileged simply because the defendant believes that the recipient had a relevant interest in receiving or duty to receive the communication.77 The categories of duty to give information are not limited to answers to inquiries about former employees or business persons, which represent the most typical instances of the common law recognising a duty to give information. The law will recognise a duty whenever ‘the great mass of right-minded men in the position of the defendant would have considered it their duty, under the circumstances, [to make the communications]’.78 The common law recognises a duty in a person who suspects someone of committing a crime, being dishonest or engaging in misconduct, to give information concerning what he or she knows about the matter to a person who has requested the information and has a legitimate interest in acquiring it.79 [page 431] The Civil Law (Wrongs) Act 2002 (ACT) previously provided a statutory defence if the defendant established that the publication was made reasonably

under a contract.80 A publication was reasonable if the following matters were proved: (a) the publication was in answer to an inquiry made under the contract; (b) the published material was relevant to the subject of the inquiry; (c) the manner and extent of the publication were reasonable; (d) the defendant was not motivated by ill will to the plaintiff, or by any other improper motive; and (e) the defendant had, at the time of publication, reasonable grounds to believe the published matter to be true.

VOLUNTEERING INFORMATION 22.6 In the High Court, McHugh J had put forward in a dissenting judgment that where a person volunteers a statement, not in response to an inquiry, the occasion of privilege is limited: Ordinarily the occasion for making a volunteered statement will be privileged only where there is a pressing need to protect the interests of the defendant or a third party or where the defendant has a duty to make the statement to the recipient. The common law has generally perceived no advantage to society in giving qualified privilege to volunteered statements in the absence of a pre-existing reciprocity of interest between the defendant and recipient.81

The New South Wales Court of Appeal initially appeared to accept this principle, that ordinarily a volunteered statement is privileged only where there is a ‘pressing need’ to protect the interests of the defendant or a third party or where a defendant has a duty to make the statement.82 However, whether the mere fact of volunteering a statement precluded the protection of qualified privilege was later questioned and it was suggested that this may only be so where there was also an absence of a pre-existing reciprocity of interest between the defendant and the recipient.83 After an extensive review of the authorities,84 the New South Wales Court of Appeal unanimously agreed that the views expressed by McHugh J concerning the [page 432]

decisiveness of voluntariness and ‘pressing need’ are not supported by the authorities and do not represent the law of Australia. Rather, the court held the issue of qualified privilege turns on a close examination of all the circumstances of the publication.85 Where a confidential relationship exists between the defendant and a third party to whom the matter is published, and if the defendant has a duty to protect the interests of that person, the defendant is entitled to publish defamatory information to that third party on the basis that this is recognised as an occasion of qualified privilege.86 Where the publication is made for profit, that fact may be relevant in determining whether the occasion was actuated by a social or moral duty, and at common law was once likely to be decisive in determining whether the occasion was privileged. However, it is probably better in most cases to regard the issue of profit motive as neither advancing nor impairing a claim for qualified privilege.87 Howe & McColough v Lees88 was an example of a case involving qualified privilege which attached to answers to a request for information concerning the credit or character of another when the request was made by those who were likely to deal with that person, who had failed to pay for stock. In that case, the requests were made by, and the answers given to, more than one person, but they were made between members of an Association of Stock Salesmen, and as there was a real possibility that any of the recipients might have had dealings with the defaulter, each of them had a direct interest in knowing of the credit standing of the defaulter.89

PUBLICATION BY THE MEDIA 22.7 It is a long-established rule that where the subject matter of the publication is not itself a matter of public interest or published in answer to a public attack on a person, a general newspaper cannot create an occasion of qualified privilege by publishing matter to inform or protect the newspaper or some other person.90 The common law has recognised only in exceptional cases a duty to publish, or interest in publishing, defamatory matter to the general public.91 One such exception

[page 433] is a fair and accurate report of court proceedings.92 Another is the derivative privilege to publish a response to an attack.93 The common law is still being developed to extend the duty and interest to the general public in appropriate cases.94 The difficulty is that the wider the publication, the less likely there will exist the requisite reciprocity of interest in all the recipients.95 In Cheikho v Nationwide News Pty Ltd,96 the Daily Telegraph newspaper contended that it published the matter complained of pursuant to encouragement from New South Wales police that it would be beneficial to their investigation of an assembly of people which led to violent clashes with police, if photographs of persons associated with the assembly could be published and the public were asked for help to identify them. The court held that there was not sufficient reciprocity of duty and interest on the evidence. The Commissioner of Police gave evidence that he considered it would be ‘useful’ to have photographs of the participants in the protest published in the newspaper, but that was not enough to establish the existence of a special and reciprocal duty or interest in the newspaper and its readers of such a kind as it was desirable as a matter of public policy that information about those participating in the protest should be published with impunity by the newspaper notwithstanding that it was defamatory.97 The court also took into account the fact that the Daily Telegraph is published for profit and was not a special interest subscription newsletter. As a daily newspaper of popular and populist appeal, the nature of the publication and the breadth of its readership militate against the existence of privilege to publish defamatory matter.98 Further, the court held that the nature of the information conveyed in the matter complained of and the manner of its collection showed that there was no evidence of any likely connection between any individual photograph included in the matter complained of and any particular conduct during the protest or any particular aspect of the police investigation. The court also considered that the requirement of reciprocity of duty and interest must have some regard to the proportionality of the content of the duty to the size of the audience or extended publication. The fact that the Daily Telegraph is a mass media publication

militates against a finding of reciprocal duty and interest so as to give rise to a privileged occasion for the publication of defamatory matter.99 [page 434]

PROTECTED REPORT 22.8 The defence of protected report derived from the defence of qualified privilege at common law, but they are separate defences: The defences of qualified privilege and fair and accurate report have developed separately and differently … Each form of defence assumes the making of a defamatory statement. The focus of the defence of fair and accurate report, however, is necessarily directed to the quality of a report of what has taken place elsewhere. By contrast, because qualified privilege extends to all manner of communications between persons, its focus is upon what duty or interest joined the parties, and how the defamatory material related to the privileged occasion. Because the two defences are so different, and are directed to radically different problems, one is not to be understood as superior to the other.100

The requirement that a report of court proceedings be accurate is one that applies to one particular category of qualified privilege, namely that applicable to reports of court proceedings made to the public in general. It is not an additional requirement imposed over and above the other requirements for the reciprocal duty and interest category of qualified privilege.101 The substantial accuracy of a report of judicial proceedings is deemed necessary in order to efficiently place the general public in the same position as those in attendance at the relevant proceedings.102 The inaccuracy of an imputation is no bar to the availability of qualified privilege arising out of a reciprocal duty or interest. Statements to the contrary in Thom v Associated Newspapers Ltd103 can be distinguished on the basis that there was no evidence before the court to support a defence of qualified privilege and that it related to defences under the 1958 New South Wales Act. By comparison, the 1974 New South Wales Act revived the common law and expressly provided that the provision of a statutory defence did not of itself vitiate the availability of the equivalent defence at common law.104 The same may be said under the Defamation Act 2005: s 24(1).

____________________ 1. 2. 3.

4. 5. 6. 7. 8.

9.

10. 11. 12. 13.

14.

15. 16. 17.

18. 19.

20. 21.

Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5 at [9]; Aktas v Westpac Banking Corporation Ltd [2010] HCA 25 at [15]; Holmes à Court v Papaconstuntinos [2011] NSWCA 59 at [76]. (1834) 1 Cr M&R 181 at 193; 149 ER 1044 at 1049–50 (Parke B). See Coxhead v Richards (1846) 2 CB 569 at 595–6; 135 ER 1069 at 1080; Whiteley v Adams (1863) 15 CB (NS) 392 at 414; 143 ER 838 at 846–7; Stuart v Bell [1891] 2 QB 341 at 350; Adam v Ward [1917] AC 309 at 334; Watt v Longsdon [1930] 1 KB 130 at 147–8; Horrocks v Lowe [1975] AC 135 at 149. [2010] NSWSC 686. Megna v Marshall [2010] NSWSC 686 at [50]. Megna v Marshall [2010] NSWSC 686 at [175]; see also Aktas v Westpac Banking Corporation Ltd [2010] HCA 25 at [55]; Cush v Dillon [2011] HCA 30; Marshall v Megna [2013] NSWCA 30 at [94]. Adam v Ward [1917] AC 309 at 334. Roberts v Bass [2002] HCA 57 at [62]; Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5 at [9], [53], [136], [187] and [231]; Cush v Dillon [2011] HCA 30 at [11]; Papaconstuntinos v Holmes à Court [2012] HCA 53 at [8]. London Association for Protection of Trade v Greenlands Ltd [1916] 2 AC 15 at 22; Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5 at [10]; Holmes à Court v Papaconstuntinos [2011] NSWCA 59 at [76]. Reynolds v Times Newspapers Ltd [2001] 2 AC 127 at 194, 224; Aktas v Westpac Banking Corporation Ltd [2010] HCA 25 at [22]. Reynolds v Times Newspapers Ltd [2001] 2 AC 127 at 195; Lindholdt v Hyer [2008] NSWCA 264 at [72]. Marshall v Megna [2013] NSWCA 30 at [4]. Guise v Kouvelis (1947) 74 CLR 102 at 116; Reynolds v Times Newspapers Ltd [2001] 2 AC 127 at 194; Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5 at [10]; Aktas v Westpac Banking Corporation Ltd [2010] HCA 25 at [22]; Holmes à Court v Papaconstuntinos [2011] NSWCA 59 at [81]; Marshall v Megna [2013] NSWCA 30 at [5]. Baird v Wallace-James (1916) 85 LJPC 193 at 198; Mowlds v Fergusson (1940) 64 CLR 206; Guise v Kouvelis (1947) 74 CLR 102 at 116; Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5 at [10], [54], [140]; Moit v Bristow [2005] NSWCA 322 at [78]; Bennette v Cohen [2009] NSWCA 60 at [6]. Bennette v Cohen [2009] NSWCA 60 at [13]. Bennette v Cohen [2009] NSWCA 60 at [207]. Howe & McColough v Lees (1910) 11 CLR 361 at 368–9; Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5 at [54] (McHugh J); Aktas v Westpac Banking Corporation Ltd [2010] HCA 25 at [22]. (1916) 85 LJPC 193 at 198. See also Telegraph Newspaper Co Ltd v Bedford (1934) 50 CLR 632 at 646; Mowlds v Fergusson (1940) 64 CLR 206 at 213; Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5 at [64] (McHugh J). Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5 at [232] (Callinan J); Watt v Longsdon [1930] 1 KB 130 at 147–8; Holmes à Court v Papaconstuntinos [2011] NSWCA 59 at [87]. Adam v Ward [1917] AC 309 at 334; Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1 at [68]; Moit v Bristow [2005] NSWCA 322 at [75]; Lindholdt v Hyer [2008] NSWCA 264 at [81]; Holmes à Court v Papaconstuntinos [2011] NSWCA 59 at [89].

22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45.

46. 47. 48. 49. 50. 51. 52. 53.

(1947) 74 CLR 102. Guise v Kouvelis (1947) 74 CLR 102 at 111 (Latham CJ). Kearns v General Council of the Bar [2003] 2 All ER 534 at 547. Kearns v General Council of the Bar [2003] 2 All ER 534 at 548; Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5 at [138] (Gummow J). [2003] 2 All ER 534. [2003] 2 All ER 534 at 550–1. [2004] HCA 5. Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5 at [24] (Gleeson CJ, Hayne and Heydon JJ). Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5 at [26] (Gleeson CJ, Hayne and Heydon JJ); see also at [142]–[145] (Gummow J). Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5 at [148] (Gummow J); Howe & McColough v Lees (1910) 11 CLR 361 at 398. Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5 at [149] (Gummow J). Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5 at [141] (Gummow J); see also at [202] (Kirby J). Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5 at [200] (Kirby J). Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5 at [231] (Callinan J). Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5 at [55]–[60] (McHugh J). Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5 at [63] (McHugh J). Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5 at [91] (McHugh J). (2004) 9 VR 369. Aktas v Westpac Banking Corporation Ltd [2010] HCA 25. Aktas v Westpac Banking Corporation Ltd [2010] HCA 25 at [41] (French CJ, Gummow and Hayne JJ). Aktas v Westpac Banking Corporation Ltd [2010] HCA 25 at [74]. Aktas v Westpac Banking Corporation Ltd [2010] HCA 25 at [42]. [2010] HCA 25 at [34]–[35]. Adam v Ward [1917] AC 309 at 318, 320–1; Mowlds v Fergusson (1939) 40 SR (NSW) 311 at 318; Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 204, 228; Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5 at [27]; Lindholdt v Hyer [2008] NSWCA 264 at [125]; Bennette v Cohen [2009] NSWCA 60 at [25]; Aktas v Westpac Banking Corporation Ltd [2010] HCA 25 at [55]; Cush v Dillon [2011] HCA 30 at [18]–[25]. Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5. Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5 at [29] (Gleeson CJ, Hayne and Heydon JJ); see also at [149] (Gummow J). Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5 at [192] (Kirby J). Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 228. Adam v Ward [1917] AC 309 at 327. Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 204. Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5 at [196] (Kirby J). Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5 at [231], [237].

54. Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5 at [198]. 55. Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5 at [235] (Callinan J); Australian Consolidated Press Ltd v Uren (1966) 117 CLR 185 at 209; Truth (NZ) Ltd v Holloway [1960] NZLR 69 at 83. 56. Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5 at [240] (Callinan J). 57. Guise v Kouvelis (1947) 74 CLR 102 at 116, 117; Horrocks v Lowe [1975] AC 135 at 151; Skalkos v Assaf [2002] NSWCA 14 at [28]–[29]; Lindholdt v Hyer [2008] NSWCA 264 at [134]–[135]; Megna v Marshall [2010] NSWSC 686 at [82]–[86]. 58. Cush v Dillon [2011] HCA 30 at [25]. 59. Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5 at [135]. 60. Cheikho v Nationwide News Pty Ltd [2016] NSWSC 29 at [86]. 61. Sands v State of South Australia [2015] SASCFC 346 at [437]. 62. Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5 at [65] (McHugh J); Laughton v The Bishop of Sodor and Man (1872) LR 4 PC 495; Adam v Ward [1917] AC 309; Norton v Hoare (No 1) (1913) 17 CLR 310; Loveday v Sun Newspapers Ltd (1938) 59 CLR 503; Mowlds v Fergusson (1940) 64 CLR 206 at 214–15; Penton v Calwell (1945) 70 CLR 219. 63. Loveday v Sun Newspapers Ltd (1938) 59 CLR 503 at 515 (Starke J), 519 (Dixon J); Bass v TCN Channel Nine Pty Ltd (2003) 60 NSWLR 251 at [58]–[60]; Echo Publications Pty Ltd v Tucker [2007] NSWCA 73 at [76]. 64. Loveday v Sun Newspapers Ltd (1938) 59 CLR 503 at 519; Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448 at 459–61. 65. Loveday v Sun Newspapers Ltd (1938) 59 CLR 503 at 523–5; Bass v TCN Channel Nine Pty Ltd (2003) 60 NSWLR 251 at [71]–[73]. 66. Adam v Ward [1917] AC 309; Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; Harbour Radio Pty Ltd v Trad [2012] HCA 44. 67. Penton v Calwell (1945) 70 CLR 219 at 233–4; Echo Publications Pty Ltd v Tucker [2007] NSWCA 73 at [77]. 68. Penton v Calwell (1945) 70 CLR 219 at 231–2, 245–6, 248, 251 and 255. 69. Kennett v Farmer [1988] VR 991 at 1003–4; Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [1223]–[1224]; Echo Publications Pty Ltd v Tucker [2007] NSWCA 73 at [79]. 70. Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5 at [68] (McHugh J); Watt v Longsdon [1930] 1 KB 130 at 147–8 at 152; Stuart v Bell [1891] 2 QB 341 at 350. 71. Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5 at [69] (McHugh J) (authorities omitted). 72. Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5 at [70] (McHugh J); Bromage v Prosser (1825) 4 B&C 247; 107 ER 1051; Storey v Challands (1837) 8 C&P 234; 173 ER 475; Robshaw v Smith (1878) 38 LT 423; Waller v Loch (1881) 7 QBD 619 at 621; London Association for Protection of Trade v Greenlands Ltd [1916] 2 AC 15 at 42. 73. Greenlands Ltd v Wilmshurst and the London Association for Protection of Trade [1913] 3 KB 507 at 541. 74. Howe & McColough v Lees (1910) 11 CLR 361 at 398. 75. Howe & McColough v Lees (1910) 11 CLR 361 at 377. 76. Telegraph Newspaper Co Ltd v Bedford (1934) 50 CLR 632 at 662. 77. Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5 at [71] (McHugh J); Hebditch v MacIllwaine [1894] 2 QB 54 at 59.

78. Stuart v Bell [1891] 2 QB 341 at 350; cited in Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5 at [71] (McHugh J). 79. Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5 at [72] (McHugh J); Cockayne v Hodgkisson (1833) 5 C&P 543; 172 ER 1091; Kine v Sewell (1838) 3 M&W 297; 150 ER 1157; Beatson v Skene (1860) 5 H&N 838; 157 ER 1415. 80. Civil Law (Wrongs) Act 2002 (ACT) s 62. 81. Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5 at [73] (McHugh J). 82. Bennette v Cohen [2009] NSWCA 60 at [25]. 83. Megna v Marshall [2010] NSWSC 686 at [157]. 84. Holmes à Court v Papaconstuntinos [2011] NSWCA 59 at [107]–[140]; see Wyatt v Gore (1816) Holt 299; 171 ER 250; Brooks v Blanshard (1833) 1 C&M 779; 149 ER 613; Wenman v Ash (1853) 13 CB 836; 138 ER 1432; Dickeson v Hilliard (1874) LR 9 Exch 79; Thomas v Moore [1918] 1 KB 555; Guise v Kouvelis (1947) 74 CLR 102 at 116; Andreyevich v Kosovich (1947) 47 SR (NSW) 357; see also Coxhead v Richards (1846) 2 CB 569 at 596; 135 ER 1069 at 1080; Davies v Snead (1870) LR 5 QB 608 at 611; Stuart v Bell [1891] 2 QB 341. 85. Holmes à Court v Papaconstuntinos [2011] NSWCA 59 at [140]. 86. Wright v Woodgate (1835) 2 Cr M&R 573; 150 ER 244; Todd v Hawkins (1837) 8 C&P 88; 173 ER 411; Wilson v Robinson (1845) 7 QB 68; 115 ER 413; Scarll v Dixon (1864) 4 F&F 250; 176 ER 552; Stace v Griffith (1869) LR 2 PC 420; Henwood v Harrison (1872) LR 7 CP 606; Adams v Coleridge (1884) 1 TLR 84; Baker v Carrick [1894] 1 QB 838 at 841. 87. Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5 at [81] (McHugh J). 88. (1910) 11 CLR 361. 89. Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5 at [83] (McHugh J). 90. Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 775; Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211 at 261; John Fairfax & Sons Ltd v Vilo [2001] NSWCA 290; Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5 at [98] (McHugh J). 91. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 570; Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211 at 261; Reynolds v Times Newspapers Ltd [2001] 2 AC 127 at 225; John Fairfax & Sons Ltd v Vilo [2001] NSWCA 290; Kearns v General Council of the Bar [2003] 2 All ER 534 at 551; Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5 at [26]; Aktas v Westpac Banking Corporation Ltd [2010] HCA 25 at [14]; Cheikho v Nationwide News Pty Ltd [2016] NSWSC 29 at [61]. 92. Wason v Walter (1868) LR 4 QB 73. 93. Loveday v Sun Newspapers Ltd (1938) 59 CLR 503 at 519. 94. See Chapter 24. 95. Megna v Marshall [2010] NSWSC 686 at [148]. 96. [2016] NSWSC 29. 97. Cheikho v Nationwide News Pty Ltd [2016] NSWSC 29 at [73]. 98. Cheikho v Nationwide News Pty Ltd [2016] NSWSC 29 at [76]. 99. Cheikho v Nationwide News Pty Ltd [2016] NSWSC 29 at [78]. 100. Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5 at [32] (Gleeson CJ, Hayne and Hayden JJ). 101. Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5 at [122] (Gummow J), [199] (Kirby J).

102. Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5 at [126] (Gummow J); Macdougall v Knight (1889) 14 App Cas 194 at 200; Ex parte Terrill; Re Consolidated Press Ltd (1937) 37 SR (NSW) 255 at 257–8; Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; (1998) 193 CLR 519 at [2], [42] and [153]. 103. (1964) 64 SR (NSW) 376 at 384, 386. 104. Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5 at [128] (Gummow J).

[page 435]

CHAPTER 23 MALICE INTRODUCTION FOREIGN MOTIVE POLITICAL MOTIVE PROFIT MOTIVE MOTIVE OF OTHERS

23.1 23.2 23.3 23.4 23.5

INTRODUCTION 23.1 The defence of common law qualified privilege, if established, may be defeated by evidence of malice, that is, if the plaintiff shows that the circumstances of the publication were such that the defendant has used the occasion to publish the matter for a purpose other than that for which the privilege is given (which is usually described as an indirect or an improper or a foreign motive). Substantial evidence of the defendant’s state of mind is required. The plaintiff generally sets out to establish in relation to purpose that the defendant had a desire or intention to injure the plaintiff. This desire or intention must be the dominant motive for the defamatory publication.1 The High Court has clearly stated the position: Improper motive in making the defamatory publication must not be confused with the defendant’s ill will, knowledge of falsity, recklessness, lack of belief in the defamatory statement, bias, prejudice or any other motive than duty or interest for making the publication. If one of these matters is proved, it usually provides a premise for inferring that the defendant was actuated by an improper motive in making the publication. Indeed, proof that the defendant knew that a defamatory statement made on an occasion of qualified privilege was untrue is ordinarily conclusive evidence that the publication was actuated by an improper motive.2

The statutory defence under Div 2 of the Defamation Act 2005 may be defeated by proof that the publication was actuated by malice. The general law

applies in defamation proceedings in which the statutory defence is raised to determine whether a particular publication of matter was actuated by malice: s 24(2). This includes the statutory [page 436] defence for provision of certain information under s 30 of the Defamation Act 2005, which is defeated if the plaintiff proves that the publication of the defamatory matter was actuated by malice (s 30(4)), although not merely because the defamatory matter was published for reward: s 30(5).

FOREIGN MOTIVE 23.2 An occasion of qualified privilege must not be used for a purpose or motive foreign to the duty or interest that protects the making of the statement. A purpose or motive that is foreign to the occasion and actuates the making of the statement is called ‘express malice’. The term ‘express malice’ is used in contrast to ‘presumed’ or ‘implied’ malice that at common law arises on proof of a false and defamatory statement.3 Proof of express malice destroys qualified privilege.4 Malice is not easily proved, however: … [I]ndifference to the truth of what he publishes is not to be equated with carelessness, impulsiveness or irrationality in arriving at a positive belief that it is true. The freedom of speech protected by the law of qualified privilege may be availed of by all sorts and conditions of men. In affording to them immunity from suit if they have acted in good faith in compliance with a legal or moral duty or in protection of a legitimate interest the law must take them as it finds them. In ordinary life it is rare indeed for people to form their beliefs by a process of logical deduction from facts ascertained by a rigorous search for all available evidence and a judicious assessment of its probative value. In greater or in less degree according to their temperaments, their training, their intelligence, they are swayed by prejudice, rely on intuition instead of reasoning, leap to conclusions on inadequate evidence and fail to recognise the cogency of material which might cast doubt on the validity of the conclusions they reach. But despite the imperfection of the mental process by which the belief is arrived at, it may still be ‘honest’, ie a positive belief that the conclusions they have reached are true. The law demands no more.5

Therefore, mere proof of the defendant’s ill will, prejudice, bias, recklessness, lack of belief in truth or improper motive is not sufficient to establish malice.

The evidence must also show some ground for concluding that these factors existed on the privileged occasion and actuated the publication.6 If the defendant knew the statement was untrue when he or she made it, it is almost invariably conclusive evidence of malice. That is because the defendant who knowingly publishes false and defamatory material almost certainly has some improper motive for doing so, despite the inability of the plaintiff to identify the motive.7 Knowledge of [page 437] falsity or lack of honest belief should not be treated as a separate head of, or equivalent to, malice:8 The defence of qualified privilege would be dramatically curtailed if defendants had to intend and believe in the truth of every meaning that a judge or jury later gave to the publication. The privilege is not curtailed if lack of belief in a particular meaning is merely some evidence from which it may be inferred in some circumstances that the defendant was actuated by an improper motive.9

Knowledge of falsity is ‘almost conclusive evidence’ of improper motive, except where the defendant is under a legal duty to publish the defamation.10 If the defendant was under a legal duty to make the communication, knowledge or belief that the defamatory statement is false will not destroy the privilege. In such cases, the truth of the defamation is not a matter that concerns the defendant and provides no ground for inferring that the publication was actuated by an improper motive; for example, a police officer bound to report statements concerning other officers to a superior will not lose the protection of the privilege even though he or she knows or believes that the statement is false and defamatory, unless the officer falsified the information.11 In some cases, even if the defendant believes that the defamatory statement is true, malice will be established by proof that the publication was actuated by a motive foreign to the privileged occasion.12 The recklessness of the defendant in making the defamatory statement does not justify a finding of malice unless it is an exceptional case. If the recklessness constitutes wilful blindness, which the law treats as equivalent to knowledge, such as when persons deliberately refrain from making inquiries because they

prefer not to have the result, when they wilfully shut their eyes for fear that they may learn the truth, the persons may be treated as having knowledge which they deliberately abstained from acquiring.13 Mere recklessness or indifference to truth or falsity is not sufficient to constitute malice. Recklessness is to be distinguished from mere carelessness, impulsiveness or irrationality in arriving at a positive belief that the defamatory matter is true.14 However, recklessness when present with other factors may be cogent evidence that the defendant used the occasion for some improper motive.15 [page 438] In that event, the recklessness is evidence that the publication was actuated by the accompanying state of mind, be it anger, hatred, bias or unreasoning prejudice.16 Mere lack of belief in the truth of the communication is not to be treated as if it were equivalent to knowledge of the falsity of the communication.17 Where the defamatory imputation is a true innuendo, an innocent statement is transformed into a defamatory statement by reason of external circumstances known to a recipient of the innocent statement but (usually) unknown to the publisher. Mere lack of belief should not defeat the privilege where the defendant honestly believed in the truth of the innocent statement. Similarly, malice is not proved merely because a person does not intend and therefore does not believe in a defamatory meaning found by the judge or jury.18 Persons may have an honest belief in what they publish although they have no belief in the truth of a defamatory imputation that they have published:19 … [T]he ultimate issue is always whether the publication was made for a purpose foreign to the duty or interest that protects the occasion of the publication, not whether the defendant believed the matter to be true.20

In determining the defence, honesty of purpose is presumed in favour of defendants. It is for the plaintiff to prove that defendants did not use the occasion honestly, or more accurately, for a proper purpose. In many cases, defendants who have a belief in the truth of what they publish will not know or believe that the publication is untrue. If the court rejects the defendants’ evidence that they positively believed in the truth of what they published, it does

not logically follow that the plaintiff has proven that the defendants did not believe in the truth of the publication or had an improper motive. Mere rejection of the defendants’ evidence does not logically and automatically lead to any conclusion as to what their state of mind was. When the plaintiff proves that the defendant knew the defamatory matter was false or was reckless to the point of wilful blindness, it will constitute almost conclusive proof that the publication was actuated by malice.21 A deliberate defamatory falsehood could not be for a purpose warranted by any privilege.22 It is clear that a distinction needs to be drawn between the test for malice on the one hand and the test for meaning on the other.23 The existence of malice involves a subjective test entirely dependent upon the defendant’s state of mind and intention. In order to constitute malice, the defendant’s intention must be such that it could be said that he had an improper motive in publishing the defamatory statement, being a motive or purpose that is foreign to the occasion of qualified privilege. Although knowledge that a defamatory statement is untrue is almost invariably conclusive evidence of malice, it is still necessary for the [page 439] plaintiff to establish that the defendant had an improper motive for publishing the false and defamatory material. The test for determining whether the matter complained of conveys a defamatory imputation is objective and is entirely independent of the defendant’s state of mind or intention. As such, the words used may have meaning A, but the defendant may have subjectively intended meaning B which is not defamatory. Accordingly, for malice to be established, the plaintiff must first persuade the tribunal of fact that the defendant intended the matter complained of to convey the defamatory imputations pleaded. In some cases, those imputations will be conveyed directly from the matter complained of, but in other cases they will not. There is no presumption that the defendant intended to convey the imputations pleaded. This proposition may possibly be subject to the plaintiff establishing that notwithstanding that the defendant did

not intend to convey the defamatory imputations pleaded, nevertheless, the defendant was actuated by an improper purpose.24 Where it is accepted that the defendant did not intend the matter complained of to convey the defamatory imputations pleaded, then the fact that the defendant accepts that that imputation is false, does not lead to the conclusion that he had some improper motive which was foreign to the occasion of qualified privilege when he published the matter complained of. This is because the plaintiff must also, but cannot in these circumstances, establish that the defendant’s knowledge of falsity actuated the publication.25 In Roberts v Bass26 persons handing out ‘how to vote’ cards in an election may have honestly believed that they were informing the electorate of their candidate’s views and may not themselves have thought about whether much or any of the content of the ‘how to vote’ card was true. Such persons did not lose the protection of the occasion because they had not formed a positive belief in the truth of any defamatory matter in the ‘how to vote’ cards.27 If lack of belief or lack of honest belief in defamatory electoral material destroyed a defence of qualified privilege, given the way the Australian electoral process works, it would impose a burden that is incompatible with the constitutional freedom of communication, and would have to be developed to accord with the Constitution’s requirements. Carelessness of expression or carelessness in making a defamatory statement never provides a ground for inferring malice: The law of qualified privilege requires the defendant to use the occasion honestly in the sense of using it for a proper purpose; but it imposes no requirement that the defendant use the occasion carefully. Even irrationality, stupidity or refusal to face facts concerning the plaintiff is not conclusive proof of malice although in ‘an extreme case’ it may be evidence of it. And mere failure to make inquiries or apologise or correct the untruth when discovered is not evidence of malice.28

[page 440] It is necessary that the plaintiff not only prove that an improper motive existed in order to prove malice, but must prove that it was the dominant reason for the publication.29 Cases where recklessness will defeat an occasion of qualified privilege are likely to be rare. Usually they will be cases where the

defendant had or was given information which gave a reason for supposing that what the defendant intended to publish was false, but the defendant nevertheless published the matter without further inquiry or investigation. Failure to inquire is not evidence of recklessness unless the defendant had some indication that what he or she was about to publish might not be true.30 However, it has been said that the more serious the allegation made, the more readily will a court consider that a failure to carry out any check before publication is indicative of indifference to the truth, rather than mere carelessness.31 The form of a publication, where the language is excessive, venomous or vituperative may amount to an abuse of the privileged occasion and may evidence spite and ill will sufficient to amount to malice. This is not relevant as a factor to determine whether the communication was published on an occasion of qualified privilege or was relevant to a privileged occasion.32 The courts should be cautious before finding malice based on extravagant language alone.33

POLITICAL MOTIVE 23.3 The privilege will not be lost because the publisher intends to cause political damage to the opposing candidate for election to parliament or to the opposing political party. Nor will the privilege be lost merely because of the vigour of an attack on a candidate for election that is contained in a defamatory statement concerning the record and policies of the candidate. Without more, the vigour of the attack is not evidence of improper motives.34 Publishing material with the intention of injuring a candidate’s political reputation and causing him or her to lose office is central to the electoral and democratic process. There is nothing improper about publishing relevant material with such a motive as long as the defendant is using the occasion to express his or her views about a candidate for election. That purpose is not foreign to the occasion that gives qualified privilege to such publications.35 [page 441]

PROFIT MOTIVE 23.4 It has been held by the Privy Council in Macintosh v Dun36 that a reference given by a trade protection society, or mercantile agency, to one of its subscribers about the commercial standing or responsibility of a trader, for the purpose of assisting the subscriber in determining the propriety of giving credit to the trader, was not made on an occasion of qualified privilege. It was held that, although it may be convenient for a subscriber to know this information, it was not for the good of society that disclosure of this information for profit be privileged. However, it has subsequently been stated that the fact that the mercantile agency was in the business of providing the information for profit was not by itself the determining factor. Rather, in that case the relevant factor was that the information disclosed would be confidential and was likely to be obtained by inappropriate if not unlawful means. These considerations were critical to the conclusion in that case that the occasion was not privileged.37 The payment of a fee for the information does not deprive an occasion of privilege otherwise attaching to a publication. If, however, the information provided in return for the payment of a fee is salacious or malicious, the connection to the privileged occasion will be lost.38 In Howe & McColough v Lees39 the members of an Association of Stock Salesmen had contracted with each other to supply information about the default of any purchaser of stock. Failure to fulfil that obligation to supply information rendered a member of the association liable to forfeit a sum of money. There was therefore at least that commercial motive to the performance of the obligation as well as the self-interest in avoiding future defaults. The High Court held that each member of the association had an interest in making and receiving communications of information about default, and that the publication occurred on a privileged occasion, there being the necessary reciprocity of duty and interest. The High Court distinguished the Privy Council’s decision in Macintosh v Dun.40 The distinction between the two cases was the nature of the information conveyed and the manner of its collection. In Macintosh v Dun, information which included private or confidential material gathered from and about third parties was being conveyed. In Howe & McColough v Lees, information about a

transaction to which the maker of the statement was a party was passed on. In Macintosh v Dun, the fear was that inappropriate methods would be used to assemble the information. [page 442] In Howe & McColough v Lees, the person who made the communication already possessed the relevant knowledge.41

MOTIVE OF OTHERS 23.5 Where there is a joint publication by a number of persons, the malice of one person does not infect the others. Each defendant is answerable severally for a joint publication and each is entitled to his or her own (several) defences. A defendant is only affected by express malice if he or she was actuated by it.42 Each person’s malice must be judged individually.43 A principal, however, may be liable for the malice of his or her agent.44 ____________________ 1.

Horrocks v Lowe [1975] AC 135 at 149–51; Spautz v Williams [1983] 2 NSWLR 506 at 520–1; Roberts v Bass (2002) 212 CLR 1 at [76]; Cush v Dillon [2011] HCA 30 at [27]. 2. Roberts v Bass (2002) 212 CLR 1 at [76] [emphasis added]; Mowlds v Fergusson (1939) 40 SR (NSW) 311 at 327; Horrocks v Lowe [1975] AC 135 at 149–50; Lindholdt v Hyer [2008] NSWCA 264 at [136]; Aktas v Westpac Banking Corporation Ltd [2010] HCA 25 at [17]. 3. Aktas v Westpac Banking Corporation Ltd [2010] HCA 25 at [16]–[18]. 4. Roberts v Bass (2002) 212 CLR 1 at [75]. 5. Horrocks v Lowe [1975] AC 135 at 150 (Diplock LJ). 6. Roberts v Bass (2002) 212 CLR 1 at [76]; Mowlds v Fergusson (1939) 40 SR (NSW) 311 at 327–9; Gross v Weston [2007] NSWCA 1 at [16]; Cush v Dillon [2011] HCA 30 at [27]–[30]. 7. Roberts v Bass (2002) 212 CLR 1 at [77]; Clark v Molyneux (1877) 3 QBD 237 at 247; Mowlds v Fergusson (1939) 40 SR (NSW) 311 at 329; Gross v Weston [2007] NSWCA 1 at [44]–[45]. 8. Roberts v Bass (2002) 212 CLR 1 at [77]–[78]. 9. Roberts v Bass (2002) 212 CLR 1 at [82]. See also Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354 at 362. 10. Roberts v Bass (2002) 212 CLR 1 at [83].

Mowlds v Fergusson (1939) 40 SR (NSW) 311 at 318, 335–6; Roberts v Bass (2002) 212 CLR 1 at [76]. See 11. also Clark v Molyneux (1877) 3 QBD 237 at 244; Stuart v Bell [1891] 2 QB 341 at 351; British Railway Traffic & Electric Company v CRC Company and the London County Council [1922] 2 KB 260 at 271; Oldfield v Keogh (1941) 41 SR (NSW) 206 at 213–14. 12. Watt v Longsdon [1930] 1 KB 130 at 154–5; Roberts v Bass (2002) 212 CLR 1 at [76]. 13. Roberts v Bass (2002) 212 CLR 1 at [84]; R v Crabbe (1985) 156 CLR 464 at 470. 14. Lindholdt v Hyer [2008] NSWCA 264 at [141]. 15. Royal Aquarium & Summer & Winter Garden Society Ltd v Parkinson [1892] 1 QB 431 at 444; Roberts v Bass (2002) 212 CLR 1 at [84]–[85]; Lindholdt v Hyer [2008] NSWCA 264 at [141]. 16. Mowlds v Fergusson (1939) 40 SR (NSW) 311 at 323; Roberts v Bass (2002) 212 CLR 1 at [87]. 17. Dillon v Cush [2010] NSWCA 165 at [73]. 18. Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354 at 362. 19. Roberts v Bass (2002) 212 CLR 1 at [89]. See also Clark v Molyneux (1877) 3 QBD 237 at 249–50. 20. Roberts v Bass (2002) 212 CLR 1 at [89]. 21. Roberts v Bass (2002) 212 CLR 1 at [97]–[98]. 22. Mowlds v Fergusson (1939) 40 SR (NSW) 311 at 329. 23. Enders v Erbas & Associates Pty Ltd [2014] NSWCA 70 at [70]. 24. Enders v Erbas & Associates Pty Ltd [2014] NSWCA 70 at [70]. 25. Enders v Erbas & Associates Pty Ltd [2014] NSWCA 70 at [70]. 26. (2002) 212 CLR 1. 27. Roberts v Bass (2002) 212 CLR 1 at [100]. 28. Roberts v Bass (2002) 212 CLR 1 at [103]; Clark v Molyneux (1877) 3 QBD 237 at 244; Moore v Canadian Pacific Steamship Company [1945] 1 All ER 128 at 133. 29. Godfrey v Henderson (1944) 44 SR (NSW) 447 at 454; Roberts v Bass (2002) 212 CLR 1 at [104]. 30. Roberts v Bass (2002) 212 CLR 1 at [109]; Lindholdt v Hyer [2008] NSWCA 264 at [142]. 31. Thornton v Telegraph Media Group Ltd [2011] EWHC 1884 at [70]; Roberts v Bass (2002) 212 CLR 1 at [39]. 32. Megna v Marshall [2010] NSWSC 686 at [129]. 33. Calwell v Ipec Australia Ltd [1975] 135 CLR 321 at 333; Adam v Ward [1917] AC 309 at 330; Lindholdt v Hyer [2008] NSWCA 264 at [144]. 34. Roberts v Bass (2002) 212 CLR 1 at [69]. 35. Roberts v Bass (2002) 212 CLR 1 at [107]. 36. (1908) 6 CLR 303. 37. Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5 at [15]–[16]. 38. Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5 at [190] (Kirby J), [232] (Callinan J). 39. (1910) 11 CLR 361. 40. (1908) 6 CLR 303. 41. Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5 at [18]–[20]. 42. Egger v Viscount Chelmsford [1965] 1 QB 248 at 265. 43. Roberts v Bass (2002) 212 CLR 1 at [182] (Kirby J); Thomas v Bradbury Agnew & Co Ltd [1906] 2 KB 627 at 638; Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211 at 253–5. See to the contrary

Webb v Bloch (1928) 41 CLR 331 at 359; Smith v Streatfield [1913] 3 KB 764; Roberts v Bass (2002) 212 CLR 1 at [306] (Callinan J). 44. Egger v Viscount Chelmsford [1965] 1 QB 248 at 266–7; Roberts v Bass (2002) 212 CLR 1 at [182].

[page 443]

CHAPTER 24 STATEMENTS TO THE WORLD AT LARGE PUBLIC INTEREST ELECTION STATEMENTS THE LANGE DEFENCE GOVERNMENT OR POLITICAL MATTERS REASONABLE CONDUCT ALL THE CIRCUMSTANCES PUBLICATION ON A MATTER OF PUBLIC INTEREST

24.1 24.2 24.3 24.4 24.5 24.6 24.7

PUBLIC INTEREST 24.1 At common law, a defamatory statement on a matter of public interest may be defended, if it is an expression of opinion on a matter of public interest, by the defence of fair comment. Alternatively, if it is a statement of fact on a matter of public interest it may be protected by a defence of truth. There are occasions when the ‘common convenience and welfare of society’ necessitate uninhibited and free expression of fact or comment and these occasions are protected by a defence of absolute privilege at common law. The status and activities of certain bodies are such that members of the public are entitled to know about proceedings relating to their affairs, and reports of the proceedings are protected by a defence of privilege or fair and accurate report of the proceedings. There are circumstances where the relationship of the persons publishing and receiving the statements necessitate that the statements be protected by the

defence of qualified privilege, subject to whether the occasion is used for some improper purpose to injure the plaintiff, in which case the privilege is lost. The media have generally not been successful in establishing a defence of qualified privilege for the publication of a defamatory statement to the world at large. The defence has usually been limited to publication to the audience which is legitimately entitled [page 444] to receive it.1 However, the media has an important role in society in the traditional activities of reporting the news and commenting, and also in investigative journalism. Accordingly, the common law defence has been extended in certain circumstances where the public interest necessitates the publication of defamatory matter to the world at large under qualified privilege.2 In England, prior to 2013, whether the public interest was sufficient to protect a publication to the world at large depended at common law upon an evaluation of the particular information in the circumstances of its publication. When determining whether the public at large had a right to know the particular information, the court had regard to ‘all the circumstances’. The court was concerned to assess whether the information was of sufficient value to the public that, in the public interest, it should be protected by privilege in the absence of malice.3 A statutory defence now provides protection to publication on a matter of public interest under s 4 of the Defamation Act 2013 (UK). In Australia, only in exceptional circumstances does the common law recognise an interest or duty to publish defamatory matter to the general public.4

ELECTION STATEMENTS 24.2 At common law, qualified privilege attaches to statements by electors, candidates and their helpers published to the electors of an electorate on matters relevant to the record and suitability of candidates for the election, during the election period.5

Statements contained in the election address of one candidate concerning the opposing candidate, provided they are relevant to the matters which the electors will have to consider in deciding which way they will cast their votes, are entitled to the protection of qualified privilege.6 [page 445] In Roberts v Bass7 the plaintiff accepted that a publication made on such an occasion was subject to common law qualified privilege. Members of the High Court questioned whether the plaintiff’s acceptance was correct in view of Lang v Willis8 where it was held that election speeches made to large audiences of unidentified persons would not amount to an occasion of qualified privilege, even if matters of general interest to electors were dealt with in the speeches, because the breadth of the audience to whom the speeches were made was seen as denying the existence of the reciprocity of duty and interest needed for qualified privilege.9 Indeed, it was on the basis of excessive publication that the High Court in Lange v Australian Broadcasting Corporation10 extended the common law defence of qualified privilege (given that each member of the Australian community had an interest in government and political matters that affect the people of Australia) by imposing an element of reasonableness of conduct.11 In Roberts v Bass,12 because the plaintiff chose not to challenge whether the recipients had the requisite interest, the High Court did not seek to rationalise the extended defence of qualified privilege in relation to government or political matters with respect to the common law defence in relation to election statements. Instead, the court considered whether the common law defence of qualified privilege was defeated by malice.13 It has been said that there should be no distinction, so far as the interest of electors in having information about their representatives is concerned, between statements made during the currency of an election campaign and statements made concerning the discharge of functions of elected representatives outside such a campaign.14

THE LANGE DEFENCE 24.3 The defence of qualified privilege at common law has been extended in Australia to statements made ‘in the course of discussion of government and political matters’. Statements made on such occasions attract the privilege, subject to malice and subject to the publisher acting reasonably: Information concerning the exercise of those functions and powers [vested in public representatives and officials by a vast legal and bureaucratic apparatus funded by public moneys] is of vital concern to the community. So is the performance of the public representatives and officials who are invested with them. It follows in my

[page 446] opinion that the general public has a legitimate interest in receiving information concerning matters relevant to the exercise of public functions and powers vested in public representatives and officials. Moreover, a narrow view should not be taken of the matters about which the general public has an interest in receiving information. With the increasing integration of the social, economic and political life of Australia, it is difficult to contend that the exercise or failure to exercise public functions or powers at any particular level of government or administration, or in any part of the country, is not of relevant interest to the public of Australia generally.15

In Lange v Australian Broadcasting Corporation16 (the facts are set out in 3.11), the High Court declared that each member of the Australian community has an interest in disseminating and receiving information, opinions and arguments concerning government and political matters that affect the people of Australia.17 The duty to disseminate such information is the correlative of the interest in receiving it. The ‘common convenience and welfare’ of Australian society are advanced by discussion — the giving and receiving of information — about government and political matters. The interest that each member of the Australian community has in such a discussion extends the categories of qualified privilege. Consequently those categories must be recognised as protecting a communication made to the public on a government or political matter.18 The High Court considered that the law of defamation, as it had traditionally been understood in New South Wales, imposed an undue burden on the required freedom of communication under the Constitution without the

statutory defence of qualified privilege under s 22 of the Defamation Act 1974 (NSW). If there was no statutory defence, the common law would impose an unreasonable restraint on freedom of communication, especially communication concerning government and political matters, which ‘the common convenience and welfare of society’ require, so that the common law rules of qualified privilege needed to be broadened.19 At common law, once an occasion of qualified privilege is found to exist, the privilege traditionally protects a communication made on that occasion unless the plaintiff is actuated by malice in making that communication.20 In Australia, apart from a few exceptional cases, the common law categories of qualified privilege have protected only occasions where defamatory matter is published to a limited number of recipients. If a publication is made to a large audience, a claim of qualified privilege at common law is rejected unless, exceptionally, the members of [page 447] the audience all have an interest in knowing the truth. Publication beyond what was reasonably sufficient for the occasion of qualified privilege is unprotected.21 Because the damage from the publication to tens of thousands is likely to be so much greater than publication to a limited number, the High Court held that a requirement of reasonableness which goes beyond mere honesty is properly to be seen as reasonably appropriate and adapted to the protection of reputation and therefore not inconsistent with the freedom of communication which the Constitution requires.22 The criterion of reasonableness of conduct is contained in s 30 of the Defamation Act 2005. It was also previously contained in s 22 of the Defamation Act 1974 (NSW) as well as the Defamation Codes of Queensland and Tasmania.23 The defendant must establish that its conduct in making the publication was reasonable in the circumstances of the case. In the context of the extended defence of qualified privilege at common law, ‘actuated by malice’ is to be understood as signifying a publication made not for the purpose of communicating government or political information, but for

some improper purpose. The existence of ill will or other improper motive will not itself defeat the privilege. The plaintiff must prove that the publication of the defamatory matter was ‘actuated’ by that ill will or other improper motive.24 Having regard to the subject matter of government and politics, the motive of causing political damage to the plaintiff or his or her party cannot be regarded as improper. Nor can the vigour of an attack or the pungency of a defamatory statement, without more, discharge the plaintiff’s onus of proof on this issue.25 The High Court stipulated that a defendant’s conduct in publishing material will not be reasonable unless the defendant had reasonable grounds for believing that the imputation was true, took proper steps, so far as they were reasonably open, to verify the accuracy of the material and did not believe the imputation to be untrue. The defendant’s conduct will not be reasonable unless the defendant has sought a response from the person defamed and published the response made (if any), except in cases where the seeking or publication of a response was not practicable or it was unnecessary to give the plaintiff an opportunity to respond.26 [page 448]

GOVERNMENT OR POLITICAL MATTERS 24.4 A communication made to the public on a government or political matter attracts the extended Lange defence. Such matter includes discussion of government or politics at a state or territory or local government level. The privilege is not confined to election periods and the basis upon which it exists is that there should be freedom of communication relating to those matters which enable the people to exercise a free and informed choice as electors. The subject matter of government or political discussion may extend beyond discussion concerning the choice of electors at federal elections. For example, the discussion of matters concerning New Zealand may by reason of matters of geography, history, and constitutional and trading arrangements often affect or throw light on government or political matters in Australia.27 What is covered by ‘political or government matters’ will depend on the

circumstances of each case. The Court of Appeal in Victoria has observed that the publication must answer the description of communicating to the recipients matters of a political or government nature. It is necessary to consider the publication, the subject matter of the publication, and the defamatory sting. Having done that, it is necessary to consider and determine whether the publication answers the question as to whether it is disseminating information on political or government matters.28 The following topics were identified by the High Court in Lange v Australian Broadcasting Corporation29 as the types of matters that could be considered political or governmental: a system of representative government involving members of the House of Representatives and Senate being chosen by the people;30 functioning of government;31 policies of political parties and candidates for election;32 voting in a referendum;33 conduct of the executive branch of government34 including ministers and public servants;35 conduct of statutory authorities and public utilities obliged to report to the legislature or to a minister;36 [page 449] discussion by electors of political matters;37 functions and powers vested in public representatives and officials by the legal and bureaucratic apparatus funded by public monies;38 performance of public representatives and officials invested with functions and powers of concern to the community;39 information concerning matters relating to the exercise of public functions and powers vested in public representatives and officials;40 and discussion of government or politics at state, territory and local government level.41 The High Court said that this list was not exhaustive and a narrow approach

should not be adopted to what is political or government matter.42 The meaning of the expression is imprecise.43 The extent of the scope of political and government matters has been identified by various members of the High Court in other judgments: (a)

… all aspects of the government of the Commonwealth, including the qualifications, conduct and performance of those entrusted (or who seek to be entrusted) with the exercise of any part of the legislative, executive or judicial powers of government which are ultimately derived from the people themselves;44 (b) … freedom to communicate in relation to public affairs and political matters generally;45 (c) ‘political discussion’ includes discussion of the conduct, policies or fitness for office of government, political parties, public bodies, public officers 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 … the concept is not exhausted by political publications and addresses which are calculated to influence choices. Barendt states that: ‘“political speech” refers to all speech relevant to the development of public opinion on the whole range of issues which an intelligent citizen should think about’;46

[page 450] (d) [extended to include] comments upon those responsible for the conduct of the press and other media outlets through which public discussion and criticism must, in our society, largely take place.47

It has been held that discussion concerning the ordinary working of the courts, including discussion critical of judicial decisions and judicial officers, does not constitute, ordinarily, discussion of government or political matters so as to give rise to an occasion of qualified privilege. There needs to be some nexus between the discussion and the concept of representative government as it operates in Australia for the extended privilege to be applicable.48 The conduct of courts is not of itself a manifestation of any of the provisions relating to representative government upon which the freedom of communication is based.49 The ordinary daily business of the courts does not fall within the protection of freedom of communication. It follows that communications concerning the results of cases or the reasoning or the conduct of judges who decide them are not ordinarily communications about government and political matters.50 There will, however, be exceptions whereby

the implied freedom does apply to the judiciary including discussion about the appointment or removal of judges and other matters concerning the acts or omissions of the legislative or executive government.51 The conduct of the judicial arm of government has been the centre of attention on this issue. The criticism of a magistrate in Herald & Weekly Times Ltd v Popovic52 was held by the Victorian Court of Appeal not to refer to a political or government matter. Chief Justice Winneke considered whether criticism of a magistrate’s performance in the conduct of isolated proceedings in court could be discussion of government or political matter of the type protected by the implied constitutional freedom. In his opinion, the limits of the freedom should be worked out on a case by case basis. However, the conduct of an individual judicial officer is carried out independently of the legislative and executive branches of government and the discharge by a judicial officer of his or her function in a particular case does not assume the status of political or government matter relevant to the system of representative and responsible government so as to attract the freedom which the Constitution protects. Comment and criticism of the [page 451] magistrate’s performance could have no impact or influence upon the choice of their representatives by the people of Australia.53 In the view of Warren J, on the basis of political theory and constitutional principle, the judiciary is separate from the legislature and the executive by reason of the separation of powers. The judiciary should be exempted from any consideration of political or government matter for the purposes of freedom of communication. This is because the separation of judicial power protects judicial independence and shields the courts from undue influence by the legislature and the executive. It also encourages public confidence in the judicial process.54 However, Gillard J dissented, holding that the article concerned a government matter in that it discussed the behaviour of the plaintiff while sitting as a magistrate in the court and contemplated or advocated her removal which could be done by the application of the Attorney-General. It was

sufficient that there was that connection between the magistrate’s office and the government leading to the conclusion that any discussion advocating the removal of a magistrate was a government or political matter. The scope and nature of government matter is broader in that the way magistrates behave in court, their fitness for office and their conduct as magistrates are all matters which every member of the community has a real and legitimate interest in knowing about. Therefore, a discussion of the conduct of a judicial officer and the way the officer behaves in court was in his view a government matter.55 An analogous privilege to the protection provided by the Lange defence was argued in John Fairfax Publications Pty Ltd v O’Shane.56 The newspaper submitted that the administration of justice was vital to the ordered protection of persons and property. It was of legitimate interest to the general public to receive information on the discharge of the judicial function and there was therefore a correlative duty to disseminate information and opinions on that subject. Accordingly, it argued that qualified privilege should be extended to discussion of the conduct of judicial officers ‘for the common convenience and welfare of society’. Such a defence would not be limited by reasonableness but by the law of contempt, so the submission went. The New South Wales Court of Appeal did not accept the argument. In its view, an extension of the defence of qualified privilege could not be based upon the freedom under the Constitution because judicial officers were not elected representatives and were not subject to the control of parliament or the executive in the exercise of their functions, short of removal from office by parliamentary Act in extreme circumstances; judicial officers were not accountable to the public as such as they decide cases according to law, uninfluenced by ephemeral public opinion and give decisions which may be unpopular, but which are necessary for the protection of legally recognised individual rights. The appellate system exists to ensure, within human frailty, that error is [page 452] corrected. The court said that, while interest in what judges do is commendable, it is not an accountability mechanism because what people think and say about

the conduct of judicial officers does not and should not mould judicial decisionmaking.57 ‘Licence for ill based publications detrimental to confidence in judicial institutions would be against the interests of the community.’58 The court noted that the media has defences of protected report and comment available. It has been held that the freedom of discussion of government or political matters does not extend to discussion of religious matters or religious organisations59 or to company directors of a collapsed company.60 In England, the House of Lords has observed that there are public figures other than politicians who exercise great practical power over the lives of people or great influence in the formation of public opinion or as role models. The rights of citizens in democracies are not restricted to the casting of votes, and matters other than government and politics may have a strong claim to be free of restraints on freedom of speech.61

REASONABLE CONDUCT 24.5 In circumstances where the media publishes to the general public, in order to establish the extended common law defence of qualified privilege the publisher has to prove: (a) that the communication to the members of the Australian community was in respect of information concerning government or political matters that affect the people of Australia; and (b) that the publication was reasonable in all the circumstances of the case.62 Because of the nature of qualified privilege and the requirement that the recipients have an interest in the publication, the audience of publications of government or political matters will not be too wide provided that the publisher establishes that the conduct in making the publication was reasonable in all the circumstances.63 The High Court declared that, as a general rule, a defendant’s conduct in publishing defamatory material will not be reasonable unless: (a) the defendant had reasonable grounds for believing the defamatory imputation was true;

the defendant took proper steps so far as they were reasonably open to (b) verify the accuracy of the material; [page 453] (c) the defendant did not believe the imputation to be untrue; and (d) the defendant sought a response from the person defamed and published the response made (if any) except in cases where the seeking or publication of a response was not practicable or it was unnecessary to give the plaintiff an opportunity to respond.64 The privilege will be defeated if the plaintiff proves that the publication was actuated by ill will or other improper motive. It has never been the duty of the media to publish for profit untrue facts about a person to the public:65 Although investigative reporting can be of public benefit, the commercial motivation of the press and other sections of the media can create a temptation, not always resisted, to exaggerate, distort or otherwise unfairly represent alleged facts in order to excite the interest of readers, viewers or listeners.66

The motive of increasing readership or audience cannot be a basis for the legitimate interest required under qualified privilege.67 Because the media publishes to so many persons, it is nearly impossible to conclude that every recipient, or the great majority of them, had an interest in receiving the particular information.68 The matters identified by the High Court in Lange’s case as to reasonableness are not principles of law; that is, they are not essential elements in the proof of the defence, but they are matters of substance and relevant to the determination of reasonableness. The failure by the publisher to prove any one of them would, in most cases, prove fatal to the defence.69 The court is bound to consider all relevant circumstances and those circumstances may include matters outside the matters identified by the High Court.70 In Rogers v Nationwide News Pty Ltd71 the newspaper sought to rely upon ‘the circumstances in which daily newspapers are published’ as a matter relevant to the reasonableness of its conduct in that case. The High Court considered that, if that was relevant, courts should be given more evidence as to those circumstances. While courts know that newspapers are published in a

competitive environment and know about competition between publishers, the courts should be provided with evidence (if it is relevant) about competition between journalists, within newspapers, for the space and prominence to be given to their articles. The High Court said that a court would be in a better position to judge the reasonableness of the publisher’s conduct if [page 454] it were told exactly what those circumstances were, why they prevailed and how they contributed to the error.72

ALL THE CIRCUMSTANCES 24.6 The House of Lords rejected a development of the common law in England to provide an extended defence of qualified privilege for publication of ‘political information’, whatever the circumstances.73 The House of Lords said that it would be unsound in principle to distinguish political discussion from discussion of other matters of serious public concern. Rather, a court may weigh up what is necessary in the circumstances of the case at the date of trial to the importance of freedom of expression by the media on all matters of public concern. This became known as the Reynolds defence. In making these findings the House of Lords (Lord Nicholls) set out the following list of matters to be taken into account as relevant circumstances, which are ‘illustrative only and not exhaustive’: (1) (2) (3) (4) (5) (6) (7)

The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true. The nature of the information, and the extent to which the subject matter is a matter of public concern. The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories. The steps taken to verify the information. The status of the information. The allegation may have already been the subject of an investigation which commands respect. The urgency of the matter. News is often a perishable commodity. Whether comment was sought from the plaintiff. He may have information others do not

possess or have not disclosed. An approach to the plaintiff will not always be necessary. (8) Whether the article contained the gist of the plaintiff’s side of the story. (9) The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of facts. (10) The circumstances of the publication, including the timing.74

In addition, Lord Nicholls observed that the press discharges vital functions ‘as a blood hound as well as a watch dog’. Therefore the court should be slow to conclude that a publication was not in the public interest and the public had no right to know, especially when the information is in the field of political discussion. Above all, the court should have particular regard to the importance of freedom of expression and any lingering doubts should be resolved in favour of publication.75 He also noted that [page 455] a newspaper’s unwillingness to disclose the identity of its sources should not weigh against it and it should be taken into account that journalists act without the benefit of the ‘clear light of hindsight. Matters which are obvious in retrospect may have been far from clear in the heat of the moment’.76 On the facts of the case (see 5.6), the House of Lords considered it was unreasonable for the journalists not to have published Mr Reynolds’ own explanation to the Dail. While a journalist is entitled and bound to reach his or her own conclusions and to express them honestly and fearlessly, and is entitled to disbelieve and refute explanations given, he or she cannot omit, from an article making serious allegations against a named individual, that person’s own explanation. It is elementary fairness that a serious charge should be accompanied by the gist of any explanation already given by that individual.77 Without that explanation, although the subject matter was undoubtedly of public concern, the serious allegations by the newspaper were not information the public had a right to know. One may question whether the circumstances described by the House of Lords are matters to be considered in relation to the legitimate interest of the public to know the information, as opposed to whether in the circumstances the

publisher abused the occasion of the privilege or had an improper purpose in publishing.78 The public interest that the law should provide an effective remedy for a person to vindicate his or her reputation against defamation has to be accommodated to the competing public interest in allowing people to communicate frankly and freely with one another about matters with respect to which the law recognises that they have a duty to perform or an interest to protect in doing so.79 The Reynolds defence is not accepted as part of the common law of Australia,80 but has relevance to the statutory defence under s 30 of the Defamation Act 2005. In the United Kingdom, the Reynolds defence has been replaced by a statutory defence, a defence of ‘publication on a matter of public interest’ under s 4 of the Defamation Act 2013 (UK). Prior to 2013, following a distinct lack of success by the media in establishing the Reynolds defence in its extended form of public necessity, the House of Lords reviewed the principles of the Reynolds defence in the case of Wall Street Journal Europe Sprl v Jameel.81 The case concerned an article published soon after 11 September 2001, in the Wall Street Journal Europe. It reported that the Saudi Arabian Monetary Authority, the Kingdom’s central bank, was, at the request of United States law enforcement agencies, monitoring bank accounts associated with some of the country’s most prominent [page 456] businessmen in a bid to prevent them from being used, wittingly or unwittingly, for the funnelling of funds to terrorist organisations. The information was sourced to ‘US officials and Saudis familiar with the issue’. A number of companies and individuals were named, including Mohammed Jameel, a prominent businessman, and his company based in Saudi Arabia. It was reported that he could not be reached for comment. Jameel and his company sued the newspaper for defamation and succeeded at the trial, being awarded £30,000 and £10,000 respectively.

The trial judge rejected the newspaper’s Reynolds defence. The Court of Appeal agreed with the trial judge that the newspaper had not given sufficient time to the plaintiffs to comment on the proposed publication. It was their view that the plaintiffs should have been afforded 24 hours to comment. The House of Lords was unanimous in allowing the newspaper’s appeal and upholding the Reynolds defence, emphasising that the standard of conduct required from a newspaper was ‘responsible journalism’ which is to be considered by the courts in a practical and flexible manner with weight given to the professional judgement of an editor or journalist. The relevant circumstances listed by Lord Nicholls in the Reynolds defence were to be taken into account in deciding whether the test of responsible journalism was satisfied, not being ‘pointers which might be more or less indicative, depending upon the circumstances of a particular case’ and not ‘a series of hurdles to be negotiated by a publisher’ in order to rely upon a defence of qualified privilege.82 Lord Hoffman observed that the defence was more appropriately called the ‘Reynolds public interest defence’ rather than privilege.83 In his view, it is the material that is privileged, not the occasion on which it is published. He considered there was no question of the privilege being defeated by proof of malice because the propriety of the conduct of the defendant was built into the conditions under which the material is privileged. He considered that if the publication concerned a matter of public interest, the inquiry shifted to whether the steps taken to gather and publish the information were responsible and fair. He observed that the standard of conduct required must be applied in a practical and flexible manner and it must have regard to practical realities. Lord Scott considered that the Court of Appeal had not applied the principles of the Reynolds defence in requiring the publication of the article to be postponed until Jameel could be contacted. He found that Jameel did not know that his groups’ accounts were being monitored and was not in a position to deny that they were being monitored. He could say no more than his subordinate had already told the journalist, namely that his companies had no connection of any sort with terrorism and there was no reason for their accounts to be monitored. He could have requested publication in the next edition of the newspaper of a response in those terms, but he never did so. Accordingly, the newspaper’s refusal to postpone the publication was not a circumstance of any

real weight in the scale for measuring the presence or absence of ‘responsible journalism’.84 [page 457] In Lord Scott’s view, the information contained in the article was of high importance and public interest not only in England but worldwide. The public had a right to the disclosure of the information and the newspaper had a professional duty to disclose it. The circumstances of writing the article and its publication satisfied the criterion of responsible journalism.85 Baroness Hale observed that the Reynolds defence protected publication in the public interest and there were two steps involved: (1)

(2)

There must be a real public interest in communicating and receiving the information (not merely information that interests the public such as the ‘vapid tittle-tattle about the activities of footballers’ wives and girlfriends’, or information that is newsworthy, being too subjective a test based on the target audience, inclinations and interests of the particular publication); and The publisher must have taken the care that a responsible publisher would take to verify the information published. The actual steps taken will vary with the nature and sources of the information. This normally requires that there be a source or sources which the publisher has good reason to think reliable, that the publisher believes the information to be true and that it has done what it can do to check it.86

The Baroness concluded that if the public interest defence did not succeed on the facts of Jameel’s case, it was hard to see it ever succeeding. Police corruption is self-evidently a matter of serious public interest. In Charman v Orion Group Publishing Group Ltd,87 the plaintiff was a former detective constable in the Metropolitan Police Service who sued the defendants over the publication of a book called ‘Bent Coppers’. At the trial, the judge held that the book did not mean to the ordinary reasonable reader that the plaintiff had been guilty of corruption nor that there were reasonable grounds to investigate whether he had abused his position as a police officer by receiving corrupt payments. He held that there were ‘cogent grounds’ to suspect, being a higher degree of suspicion than ‘reasonable grounds’. The trial judge held, having regard to the 10 matters of responsible journalism identified in the Reynolds defence, that the defendants had not acted responsibly in communicating the information contained in the book about the plaintiff to the

public. In the Court of Appeal, the judgment was overturned and the 10 matters considered in detail:88 (1) (2)

The allegations were very serious for senior serving officers of the police. The subject matter was clearly a matter of public interest as the police served to protect the public which demands and expects that they will carry out their duties without corruption and if there is corruption, it must be exposed and if there is a justified suspicion of corruption, it deserves to be discussed.

[page 458] (3)

Much of the story came from a small time criminal who had got to know ‘high calibre’ criminals. The author had, however, made ‘great efforts to tap his police sources’ for information. (4) While the author could not verify the truth of the main source’s allegations because it was one man’s word against another, the author did carry out further research with the investigating officers and made a judgment as to their credibility. (5) The status of the information available from the investigating officers and their opinions was certainly high enough to warrant writing a story which gave rise to an allegation that there were cogent grounds to suspect the plaintiff. (6) The author and publisher of the book were not under the same pressure of time as journalists of newspapers and magazines are before the presses begin to roll. Greater care is expected of them to ensure they act properly. The urgency of the matter did not arise in this case. (7) The author’s approaches to the plaintiff to obtain his side of the story were rejected and it was accepted that the author was entitled to assume that the plaintiff would have remained unco-operative if allegations to be published in the book had been put directly to him. (8) The book did contain the plaintiff’s side of the story. (9) The tone of the book was what one would expect of an objective investigative journalist, essentially factual in context and unsensational in tone. (10) There was nothing to add in relation to the circumstances of the publication, including its timing.

In the circumstances, the Court of Appeal held that this was responsible journalism, particularly having regard to the liberalising of the Reynolds defence expressed by the House of Lords in Jameel. By way of contrast, in Flood v Times Newspapers Ltd,89 the plaintiff was a detective sergeant with the Extradition Unit of the Metropolitan Police Service. The Times newspaper published an article in which it reported that the plaintiff had been accused of taking bribes from Russian exiles and that the police were investigating the alleged sale to a security company of intelligence on the

Kremlin’s attempts to extradite opponents of President Putin. The judge at first instance held that the newspaper article was protected by the Reynolds defence at the time it was published but that the continued publication of the article on the website, after an official report found that it had been unable to find any evidence to show that the plaintiff had divulged any confidential information for moneys or otherwise, was not so protected. In the Court of Appeal, the court overturned the finding that the article was protected by the Reynolds defence. In his judgment, the Master of the Rolls, Lord Neuberger, considered the 10 factors of the Reynolds defence as follows:90 (1)

The allegations were serious in that they accused a fairly senior police officer of an appalling breach of duty and betrayal of trust and a very serious criminal offence. By not only publishing the identity of the officer, the subject of the investigation, but

[page 459]

(2)

(3)

(4) (5)

(6) (7) (9)

also the allegations being made against him with the details given, the journalists must have realised it would be very likely to result in the article constituting a story with a far greater impact, and far greater impact on the plaintiff’s reputation. The nature of the information contained in the allegations was of considerable public concern involving police corruption, but the information contained allegations which, as the journalists knew, was largely unchecked and unsupported. The mere fact that an insider had made the allegations against a member of the police was plainly not enough to justify publication of the allegations. The ease with which accusations of impropriety can be made against members of the police is a factor to be borne in mind. The source was unknown. There was no evidence known to the journalists that the plaintiff had received payments from the informants and none that he had disclosed confidential information. The status of the information was sufficient to obtain a search warrant but was not a strong case based on what was known to the journalists. In relation to the steps taken to verify the information, the journalists did not seem to have done much to satisfy themselves that the allegations were true. When they were published in the article, the allegations were no more than unsubstantiated, unchecked accusations from an unknown source coupled with speculation. The only written evidence available to the journalists did not identify any police officer let alone the plaintiff, as the recipient of the money from the suspect, let alone for providing confidential information. As to urgency, there was no reason for the defendants to rush to publish. and (8) The plaintiff was given an opportunity to answer the allegations but he was hampered in what he could say in the light of the fact that he was being investigated. and (10) The tone and timing of the article did not take matters much further either way.

Accordingly, the Reynolds defence did not apply. The Supreme Court overturned the Court of Appeal decision and reinstated the judgment of the trial judge.91 The Supreme Court observed that the parties had by their pleadings effectively agreed that the meaning of the article lay on the spectrum that spans at one extreme that there were strong grounds for believing that the plaintiff had abused his position as a police officer by taking bribes and at the other extreme that there were grounds which objectively justified a police investigation into whether the plaintiff had acted in this way. The Court said that when deciding whether to publish and when attempting to verify the content of the publication, the responsible journalist should have regard to the full range of meanings that a reasonable reader might attribute to the publication.92 At first instance and in the Court of Appeal it was common ground that the subject matter of the article was of sufficient public interest to render publication of it justified [page 460] in the public interest provided that the test of responsible journalism was satisfied. The Supreme Court accepted this view but said that each case will turn on its own facts and the overriding test is that of responsible journalism. Subject to the issue of verification therefore the Court considered in this case it was in the public interest that both the accusation against the plaintiff and most of the facts that supported it should be published.93 This included, on the facts of this case, that it was impossible to publish the details of the article without disclosing to those close to the plaintiff that he was the officer to whom it related.94 The Court held that verification involves both a subjective and an objective element. The responsible journalist must satisfy himself that the allegation that he publishes is true and his belief in its truth must be the result of a reasonable investigation and must be a reasonable belief to hold.95 If this was a Chase Level 1 allegation,96 it would be necessary for the journalist to show that he reasonably believed in the plaintiff’s guilt. In the case of a Chase

Level 2 allegation, a defendant has to adduce evidence of primary facts that constitute reasonable grounds for the suspicion alleged. These will normally relate to the conduct of the plaintiff. Allegations made by others cannot be relied upon. The same may be true of a Chase Level 3 allegation. The Court found that the trial judge had analysed the evidence in great detail and concluded that the case against the plaintiff was not strong enough on the facts known to the journalists to believe in the plaintiff’s guilt. However, the journalists found it significant that the police appeared to have sufficient evidence to justify obtaining a search warrant in the other action that they took. Being mindful of the danger of using hindsight in a case such as this, the Court concluded that the journalists had been reasonably satisfied on the basis both of the supporting facts and of the action of the police that there was a serious possibility that the plaintiff had been guilty of corruption. Accordingly, the requirements of responsible journalism were satisfied.

PUBLICATION ON A MATTER OF PUBLIC INTEREST 24.7 The common law Reynolds defence is abolished by s 4(6) of the Defamation Act 2013 (UK). Section 4 provides a defence to an action for defamation where the defendant shows that: (a) the statement complained of was, or formed part of, a statement on a matter of public interest; and (b) the defendant reasonably believed that publishing the statement complained of was in the public interest. [page 461] In determining whether the defendant has shown the matters above, the court must have regard to all the circumstances of the case: s 4(2). If the statement complained of was, or formed part of, an accurate or impartial

account of a dispute to which the claimant was a party, the court must, in determining whether it was reasonable for the defendant to believe the publishing of the statement was in the public interest, disregard any omission of the defendant to take steps to verify the truth of the imputation conveyed by it: s 4(3). Also in determining whether it was reasonable for the defendant to believe that publishing the statement complained of was in the public interest, the court must make such allowance for editorial judgement as it considers appropriate: s 4(4). It does not matter, in order to rely upon the defence, whether the statement complained of is a statement of fact or a statement of opinion: s 4(5). The defence of publication on a matter of public interest was intended to be based on the Reynolds defence and reflect the principles established in that case and in subsequent case law. Noting the two elements of the defence which the defendant is required to prove, it will not be sufficient to show that the statement complained of was a publication ‘on a matter of public interest’ alone. It must also be shown that the defendant reasonably believed that publication of the particular statement was ‘in the public interest’. In doing so, the defendant must prove as a fact that he or she believed that publishing the statement was in the public interest and persuade the court that this was a reasonable belief. The belief must be held at the time of publication. The circumstances to be considered under s 4(2) are those that go to whether or not the belief was held and whether or not it was reasonable. The focus must therefore be on things the defendant said or knew or did or failed to do up to the time of publication. Events that happened later or which were unknown to the defendant at the time he or she played his or her role in the publication are unlikely to have any significant bearing on the key questions. The truth or falsity of the allegation complained of is not one of the relevant circumstances. It is not only those who edit media publications who are entitled to the benefit of the allowance for editorial judgement under s 4(4).97 The steps a person need take in order to gain protection under the statutory defence can depend on what meanings the publisher intended or believed his or her words would convey. Where the defamatory words are genuinely ambiguous in the sense that they may readily convey different meanings to different ‘ordinary reasonable readers’, then the court may take into account such other meaning or meanings when considering privilege. In determining

whether it was reasonable or responsible not to have made further prepublication checks, it may well be relevant to consider how the journalist understood the allegations he or she was making and if the journalist genuinely thought the words bore no defamatory imputation at all, he or she may not be criticised for not addressing such a meaning for the purposes of checks or giving an opportunity to comment upon it.98 [page 462] However, there are limits to the latitude to be allowed for ambiguity or unintended defamatory meanings. In the normal course, a responsible journalist can be expected to perceive the meaning an ordinary reasonable reader is likely to give the matter complained of. Even if the words are susceptible of another meaning, a responsible journalist will not disregard a defamatory meaning which is obviously one possible meaning of the matter in question.99 It has been held that for a belief to be reasonable for the purposes of s 4, it is to be arrived at after conducting such inquiries and checks as it is reasonable to expect of the particular defendant in all the circumstances of the case. Among the circumstances relevant to the question of what inquiries and checks were needed, the subject matter needs consideration, as do the particular words used, the range of meanings the defendant ought reasonably to have considered they might convey and the particular role of the defendant in question.100 The defence under s 4 was relied upon in Economou v De Freitas,101 a case described by the trial judge as ‘striking and tragic’. The defendant’s daughter had a relationship with the claimant. The relationship ended and shortly afterwards she accused the claimant of rape. He was arrested but not charged. He later started a private prosecution against her alleging that she had accused him falsely with intent to pervert the course of justice. The prosecution was taken over by the Crown Prosecution Service and the matter set for trial. Four days before the trial, however, the daughter killed herself. An inquest was established into her death and expanded to include an examination of the role of the Crown Prosecution Service. The Coroner initially ruled against this examination, but indicated he was prepared to hear argument on the matter. Mr De Freitas was advised to raise the issues publicly and as a result, he issued or

authorised press statements, gave radio and TV interviews and wrote an article himself. Mr Economou sued Mr De Freitas for defamation although he was not named in the publications. He complained that he was accused of falsely prosecuting the daughter for perverting the course of justice by accusing him of rape, when the truth was that he had raped her. Mr De Freitas relied upon a defence of publication on a matter of public interest under s 4 of the Defamation Act 2013 (UK). The trial judge considered all the circumstances of publication and concluded that Mr De Freitas could and did properly consider the publication to be in the public interest and the way that Mr De Freitas expressed his sincere views, fell within the generous bounds the law permitted for speech on important issues of public policy. Further, a judgment in favour of Mr Economou would represent an interference with Mr De Freitas’ free speech rights out of any reasonable proportion to the need to protect and vindicate Mr Economou’s reputation. Accordingly, Mr De Freitas’ belief was held to be a reasonable belief and the defence protected him.102 ____________________ 1.

2. 3. 4.

5. 6. 7. 8. 9.

Purcell v Sowler (1877) 2 CPD 215; Allbutt v General Council of Medical Education & Registration (1889) 23 QBD 400; Perera v Peiris [1949] AC 1; Webb v Times Publishing Company Ltd [1960] 2 QB 535; Blackshaw v Lord [1984] QB 1. Compare Braddock v Bevins [1948] 1 KB 580; Cox v Feeney (1863) 4 F&F 13 at 19; 176 ER 445 at 448. Reynolds v Times Newspapers Ltd [2001] 2 AC 127 at 195; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. Reynolds v Times Newspapers Ltd [2001] 2 AC 127 at 195; Loutchansky v Times Newspapers Ltd [2002] QB 321. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 570. See also Duncombe v Daniell (1837) 8 C&P 222; 173 ER 470; Adam v Ward [1917] AC 309; Chapman v Lord Ellesmere [1932] 2 KB 431; Telegraph Newspaper Co Ltd v Bedford (1934) 50 CLR 632; Lang v Willis (1934) 52 CLR 637; Blackshaw v Lord [1984] QB 1 at 42; Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448; Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211 at 261; Megna v Marshall [2010] NSWSC 686 at [147]–[151]; Aktas v Westpac Banking Corporation Ltd [2010] HCA 25 at [14]; Marshall v Megna [2013] NSWCA 30 at [82]; Cheikho v Nationwide News Pty Ltd [2016] NSWSC 29 at [61]. Roberts v Bass (2002) 212 CLR 1 at [73]. Braddock v Bevins [1948] 1 KB 580 at 590–1; Calwell v Ipec Australia Ltd (1975) 135 CLR 321 at 335–6; Roberts v Bass (2002) 212 CLR 1 at [72]. (2002) 212 CLR 1. (1934) 52 CLR 637. Roberts v Bass (2002) 212 CLR 1 at [216] (Hayne J). See also Loveday v Sun Newspapers Ltd (1938) 59

10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21.

22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41.

CLR 503 at 511, 515 and 523; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 570. (1997) 189 CLR 520: see 24.3. The Lange defence was defeated at trial in Roberts v Bass by the failure of the defendants to show that their conduct was reasonable. (2002) 212 CLR 1. Roberts v Bass (2002) 212 CLR 1. Megna v Marshall [2010] NSWSC 686 at [131]–[146]. Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211 at 264 (McHugh J). See also Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 570–1. (1997) 189 CLR 520. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 571. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 571. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 572. Mowlds v Fergusson (1939) 40 SR (NSW) 311 at 327–9; Horrocks v Lowe [1975] AC 135 at 149; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 572. Telegraph Newspaper Co Ltd v Bedford (1934) 50 CLR 632; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 572; but see Reynolds v Times Newspapers Ltd [2001] 2 AC 127 at 234–5 as to the narrowness of this approach. Compare s 20(3) of the Defamation Act 1974 (NSW) which was not considered by the High Court and which was intended to be declaratory of the common law. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 573. Defamation Act 1889 (Qld) s 16 and Defamation Act 1957 (Tas) s 16. Mowlds v Fergusson (1939) 40 SR (NSW) 311 at 327–9. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 574; Roberts v Bass (2002) 212 CLR 1. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 574; Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211 at 252–3. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 576. Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1 at [241]; Peek v Channel Seven Adelaide Pty Ltd [2006] SASC 63 at [14], [88]. (1997) 189 CLR 520. See also Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1 at [244]. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 559. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 560. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 560. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 561. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 561. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 561. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 561. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 568. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 570. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 570. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 570. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 571.

42. 43. 44. 45. 46. 47.

48. 49.

50. 51. 52. 53. 54. 55. 56. 57. 58. 59. 60. 61. 62. 63. 64. 65. 66. 67. 68.

69. 70. 71. 72.

Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 570. APLA Ltd v Legal Services Commissioner (NSW) [2005] HCA 44 at [27]. Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 74 (Deane and Toohey JJ). Cunliffe v The Commonwealth (1993–1994) 182 CLR 272 at 379 (Toohey J). Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 124 (Mason CJ, Toohey and Gaudron JJ). Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 186 (Deane J). In this context see also Smith v Harris [1996] 2 VR 335; Carleton v Australian Broadcasting Corporation (2002) 172 FLR 398; (2003) Aust Torts Reports 81-685; Williams v John Fairfax & Sons Ltd [1994] A Def R 52-010. Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1; John Fairfax Publications Pty Ltd v AttorneyGeneral (2000) 181 ALR 694. John Fairfax Publications Pty Ltd v Attorney-General (2000) 181 ALR 694 at [83]; APLA Ltd v Legal Services Commissioner (NSW) [2005] HCA 44 at [65]; Peek v Channel Seven Adelaide Pty Ltd [2006] SASC 63 at [7]. Peek v Channel Seven Adelaide Pty Ltd [2006] SASC 63 at [7]. APLA Ltd v Legal Services Commissioner (NSW) [2005] HCA 44 at [65]; Peek v Channel Seven Adelaide Pty Ltd [2006] SASC 63 at [8]. (2003) 9 VR 1. Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1 at [9]; Peek v Channel Seven Adelaide Pty Ltd [2006] SASC 63 at [10]. Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1 at [507]. Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1 at [251]. [2005] NSWCA 164. John Fairfax Publications Pty Ltd v O’Shane [2005] NSWCA 164 at [97]. John Fairfax Publications Pty Ltd v O’Shane [2005] NSWCA 164 at [99]. Harkianakis v Skalkos (1999) 47 NSWLR 302. John Fairfax & Sons Ltd v Vilo (2001) 52 NSWLR 373 at [113]. Reynolds v Times Newspapers Ltd [2001] 2 AC 127 at 220. Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1 at [83]. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 574. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 574. Smith’s Newspapers Ltd v Becker (1932) 47 CLR 279 at 291, 304. Reynolds v Times Newspapers Ltd [2001] 2 AC 127 at 219. Reynolds v Times Newspapers Ltd [2001] 2 AC 127 at 224. Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211 at 245–6; Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 790; Boston v W S Bagshaw & Sons [1966] 1 WLR 1126 at 1132; Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1. Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1 at [92]. Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1 at [95]; Rogers v Nationwide News Pty Ltd [2003] HCA 52 at [30]. [2003] HCA 52. Rogers v Nationwide News Pty Ltd [2003] HCA 52 at [31].

73. 74. 75. 76. 77. 78. 79. 80. 81. 82. 83. 84. 85. 86. 87. 88. 89. 90. 91. 92. 93. 94. 95. 96. 97. 98. 99. 100. 101. 102.

Reynolds v Times Newspapers Ltd [2001] 2 AC 127. See also Bonnick v Morris [2003] 1 AC 300. Reynolds v Times Newspapers Ltd [2001] 2 AC 127 at 205. Reynolds v Times Newspapers Ltd [2001] 2 AC 127 at 205. Reynolds v Times Newspapers Ltd [2001] 2 AC 127 at 205. Reynolds v Times Newspapers Ltd [2001] 2 AC 127 at 205–6. Reynolds v Times Newspapers Ltd [2001] 2 AC 127 at 237. Horrocks v Lowe [1975] AC 135 at 149 (Lord Diplock). Roberts v Bass (2002) 212 CLR 1 at [124]. [2006] UKHL 44. Wall Street Journal Europe Sprl v Jameel [2006] UKHL 44 at [33] (Lord Bingham). Wall Street Journal Europe Sprl v Jameel [2006] UKHL 44 at [46] (Lord Hoffman). Wall Street Journal Europe Sprl v Jameel [2006] UKHL 44 at [141] (Lord Scott). Wall Street Journal Europe Sprl v Jameel [2006] UKHL 44 at [143] (Lord Scott). Wall Street Journal Europe Sprl v Jameel [2006] UKHL 44 at [147]–[149] (Baroness Hale). [2007] EWCA Civ 972. Charman v Orion Group Publishing Group Ltd [2007] EWCA Civ 972 at [83]. [2010] EWCA Civ 804. Flood v Times Newspapers Ltd [2010] EWCA Civ 804 at [67]–[76]. Flood v Times Newspapers Ltd [2012] UKSC 11. Flood v Times Newspapers Ltd [2012] UKSC 11 at [51], [111]. Flood v Times Newspapers Ltd [2012] UKSC 11 at [68]. Flood v Times Newspapers Ltd [2012] UKSC 11 at [74]. Flood v Times Newspapers Ltd [2012] UKSC 11 at [79]. See 11.1. Economou v De Freitas [2016] EWHC 1853 at [139]. Jameel v Wall Street Journal Europe SPRL [2004] EWHC 37 at [70]; see also Bonnick v Morris [2002] UKPC 31; Barron v Vines [2015] EWHC 1161 at [63]. Bonnick v Morris [2002] UKPC 31; Economou v De Freitas [2016] EWHC 1853 at [159]. Economou v De Freitas [2016] EWHC 1853 at [241]. Economou v De Freitas [2016] EWHC 1853. Economou v De Freitas [2016] EWHC 1853 at [251]–[252].

[page 463]

CHAPTER 25 STATUTORY DEFENCE OF QUALIFIED PRIVILEGE DEFENCE FOR PROVISION OF CERTAIN INFORMATION INTEREST REASONABLENESS STRICT LIABILITY CIRCUMSTANCES OF PUBLICATION PRE-PUBLICATION CONDUCT NECESSITY PREVIOUS STATUTORY DEFENCES QUALIFIED PROTECTION NEGLIGENT PUBLICATION

25.1 25.2 25.3 25.4 25.5 25.6 25.7 25.8 25.9 25.10

DEFENCE FOR PROVISION OF CERTAIN INFORMATION 25.1 There is a statutory defence of qualified privilege under s 30 of the Defamation Act 2005 if: (a) the recipient had an interest, or apparent interest (where at the time of publication the publisher believes on reasonable grounds that that person has an apparent interest) in having information on some subject; (b) the matter is published to the recipient in the course of giving to him or her information on that subject; and (c) the conduct of the publisher in publishing that matter is reasonable in

the circumstances: s 30(1), whether the publication be for reward or not: s 30(5). A defence under s 30 is defeated if the plaintiff proves that the publication of the defamatory matter was actuated by malice: s 30(4) — see Chapter 23. The defence is based upon s 22 of the Defamation Act 1974 (NSW) which had been considered in a number of cases. Although the opportunity exists to explore [page 464] a different interpretation of s 30 of the Defamation Act 2005, it is likely that these previous decisions will influence its operation.

INTEREST 25.2 The relevant interest (or ‘apparent interest’) of the recipient in having information on some subject should not be defined in any narrow or technical sense. It is used in the broadest popular sense, but is more than simply a matter of gossip or curiosity.1 Section 30 substitutes reasonableness in the circumstances for the duty or interest which the common law principles of privilege require to be established.2 The interest may be direct or indirect, but it must be definite, not vague or insubstantial.3 The recipients must have an interest in the information as a matter of substance apart from its mere quality as news.4 It will be sufficient where the public has an interest in receiving information on the relevant subject, but the defendant must then satisfy the other elements of s 30.

REASONABLENESS 25.3 In order for defendants to establish that their conduct was ‘reasonable in the circumstances’, a number of matters under s 30(3) may be taken into account, in addition to such other circumstances as the court considers relevant:

(a) the extent to which the matter published is of public interest; (b) the extent to which the matter published relates to the performance of the public functions or activities of the person; (c) the seriousness of any defamatory imputation carried by the matter published; (d) the extent to which the matter published distinguishes between suspicions, allegations and proven facts; (e) whether it was in the public interest in the circumstances for the matter published to be published expeditiously; (f) the nature of the business environment in which the defendant operates; (g) the sources of the information in the matter published and the integrity of those sources; [page 465] (h) whether the matter published contained the substance of the person’s side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person; (i) any other steps taken to verify the information in the matter published; and (j) any other circumstances that the court considers relevant. The circumstances set out in s 30(3) are to a certain extent modelled on the Reynolds defence5 (now abolished by s 4 of the Defamation Act 2013 (UK) and replaced by a defence of publication on a matter of public interest). Section 30(3) (j) provides the court with a wide discretion and enables it to take into account ‘any other circumstances’ that the court considers relevant. It has been held that the question of reasonableness of the conduct of the defendant for the purposes of the defence is a matter for the trial judge (and not the jury).6 The statutory defence of qualified privilege under s 30 will develop on a caseby-case basis influenced by the previous Reynolds defence and the previous statutory defence under s 22 of the Defamation Act 1974 (NSW) on which it was based.

Under s 22 of the Defamation Act 1974 (NSW), defendants were required to show that their conduct in publishing the ‘matter’ was reasonable in the circumstances, and that included showing that the conduct was reasonable in publishing the defamatory imputation pleaded by the plaintiff (distinct from what the defendant intended to publish or convey). This may be peculiar to the then existing requirement in New South Wales that the publication of each imputation constituted a separate cause of action. The New South Wales Court of Appeal set out the following propositions (which were not exhaustive) in relation to whether the conduct of the defendant in publishing the matter was reasonable in the circumstances:7 (a) The conduct must have been reasonable in the circumstances to publish each imputation conveyed. The more serious the imputation conveyed, the greater the obligation upon the defendant to ensure that his or her conduct in relation to it was reasonable. If any other defence (such as truth or comment) had already been established in relation to any particular imputation, it was unnecessary to consider the reasonableness of the defendant’s conduct in relation to the publication of that particular imputation. (b) If the defendant intended to convey any imputation which was found by the court to have been conveyed, he or she must, subject to exceptional cases, have believed in the truth of that imputation. The exception related to those cases in which a belief in the truth of what was published was not required for the common law defence of qualified privilege, such as where a person might be under a duty to pass on, without endorsement, a defamatory [page 466]

(c)

report made by some other person,8 or a forum provided by the media, such as letters to the editor of a newspaper, for their participation in the free discussion of matters of public interest.9 If the defendant did not intend to convey any imputation which the court found was conveyed, he or she was required to establish that:

(i)

(subject to the same exceptions as in (b)), he or she believed in the truth of each imputation which he or she did intend to convey; and (ii) his or her conduct was reasonable in the circumstances in relation to each imputation which he or she did not intend to convey, but which was in fact conveyed. If it were reasonably foreseeable that the matter complained of might convey the imputation which the court found was in fact conveyed, it would be relevant as to whether the defendant gave any consideration to the possibility that the matter complained of would be understood as conveying such an imputation, as would be his or her belief in the truth of that particular imputation and what steps he or she took to prevent the matter complained of being so understood.10 (d) Before publishing the matter complained of, the defendant exercised reasonable care to ensure that: (i) he or she got his or her conclusions right (where appropriate) by making proper inquiries and checking on the accuracy of his or her sources. The extent to which the inquiries should have been made would depend upon the circumstances of the case, in particular the nature and the source of the information which the defendant had obtained, and whether the position, standing, character and opportunities of knowledge of the informant or source, as perceived by the defendant himself or herself, were such as to make his or her belief in the truth of that information a reasonable one; (ii) his or her conclusions (whether statements of fact or expressions of opinion) followed logically, fairly and reasonably from the information which he or she had obtained; (iii) the manner and extent of the publication did not exceed what was reasonably required in the circumstances; and [page 467]

(iv) each imputation intended to be conveyed was relevant to the subject about which he or she was giving information to the readers.11 It is apparent that, before the statutory defence under s 22 was considered by the court, there was required to be a determination of which imputations were in fact conveyed, what, if any, imputations the defendant intended to convey, and what steps the defendant took before publication. The underlying rationale was set out in the Privy Council judgment in Austin v Mirror Newspapers Ltd12 where it was acknowledged that there would be cases in which, despite all reasonable care, the journalist got the facts wrong: … [A] member of the public is at least entitled to expect that a journalist will take reasonable care to get his facts right before he launches an attack upon him in a daily newspaper. If on inquiry it is found that the facts are not true and that reasonable care has not been taken to establish them courts should be very slow to hold that the newspaper is protected by statutory qualified privilege. The public deserve to be protected against irresponsible journalism. The defence of comment provides such protection by insisting upon the newspaper establishing the substantial truth of the facts on which it comments. It cannot surely have been the intention of the legislature that this protection should be substantially stripped away by the introduction of the statutory defence of qualified privilege. But this will be the result if a newspaper is able to hide behind the actions of a careless or irresponsible journalist, and the court should not take too indulgent a view of the conduct of a journalist who fails to check his facts.13

In general, under s 22 defendants were required to establish that they believed in the truth of what they published and they were obliged to disclose both the nature and the source of the information which they possessed (to form that belief).14 In O’Hare v Sims,15 the defendant relied on s 30 of the Defamation Act 2005. He gave evidence that he intended to convey each of the imputations complained of. The plaintiff argued that the defendant had no factual basis for publishing the imputations. The defendant disclosed that by making the publication, he relied upon a newspaper article which had quoted the plaintiff and that he assumed it was accurate. The article was not accurate but the plaintiff took no steps to correct it. The court held that the defendant’s publication was reasonable in the circumstances under s 30(3). Where the matter has been published by a corporation, the person’s conduct relevant for these purposes is that of the servant or agent of the corporation who wrote the matter or, if written by someone other than its servant or agent, it is the conduct of the

[page 468] servant or agent of the corporation whose decision it was to publish which is required to be shown to have been reasonable.16 Where serious allegations of fact are published about a person without having checked with the person concerned, the publisher is taking the risk that they cannot be justified. In that event, if not otherwise reasonable to do so, it is the publisher who bears the risk, not the person defamed.17 In Flegg v Hallett,18 the trial judge held that the defendant failed to give the plaintiff advance knowledge of the allegations which he intended to make and the opportunity to the plaintiff to respond, and therefore the defendant’s conduct in making the publication was not reasonable under s 30(3) of the Defamation Act 2005.19 Section 30(3)(h) contemplates whether the publication contained the substance of the plaintiff’s side of the story and if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the plaintiff. In some circumstances an attempt to obtain the plaintiff’s response need not occur before publication of the defamatory matter, where, for example, the plaintiffs sued the police and the informant for defamatory statements made in the course of arrest, and they offered their side of the story to the police after publication.20 It has been observed that a publication that was actuated by malice would not be reasonable in the circumstances. This means a defendant would have to prove an absence of malice rather than the plaintiff prove its existence under s 22 of the Defamation Act 1974 (NSW). The plaintiff bears the onus of proof of its existence under s 30(4) of the Defamation Act 2005.21 It has been argued that for the purposes of s 30(3), the court should not take into account the subjective intention or state of mind of the publisher. Otherwise, s 30(4) requiring the plaintiff to prove that the publication was actuated by malice would be deprived of any operation. However, the defendant must prove the adequacy of the steps taken to verify the information in the matter published and that must depend on the knowledge by that defendant of the information contained in the matter published and the knowledge by the defendant of facts which verify or substantiate the information contained in the

matter published.22 Further, the wording of s 30(4), the requirement of reasonableness on the part of the publisher under the Lange [page 469] defence and the legislative history of s 30 of the Defamation Act, are consistent with a court considering factors relevant to the subjective intent or purpose of the publisher.23 The statutory defence has regard to the fact that words are often capable of more than one meaning. If the court finds that the matter conveys a defamatory meaning which the defendant did not intend to publish, it does not follow that the defendant did not believe in the truth of what he or she wrote and reasonably intended a different meaning to be given to his or her language.24 Where it was found that the defendant did not intend to convey the imputation in fact conveyed, it was relevant and necessary to ask whether the defendant gave consideration to the possibility that the article would be understood as conveying the imputations so found. The New South Wales Court of Appeal observed that, to be accurate and fair, a journalist must endeavour to ensure that his or her work does not convey a misleading impression, and a defendant’s conduct would not be reasonable in the circumstances if, through the journalist carelessly or irresponsibly failing to do so, the matter published conveyed an unintended defamatory imputation. The consideration of reasonableness was not confined to the journalist’s belief in the truth of what he or she published, which could reward carelessness or irresponsibility.25 The court said that there will be circumstances where the defendant reasonably does not foresee that the matter might convey the imputation which the court finds was in fact conveyed, but that will not be the case where no consideration was given to the question at all.26 If the defendant does not give evidence that he or she did not intend to convey certain imputations in the article, and the court finds that the ordinary reasonable reader understood the matter in that context, then the defendant would have interpreted it in the same way.27 Where it is reasonably obvious that a particular imputation could be conveyed by what was published, although the author did not intend that

imputation to be conveyed, he or she would not have acted reasonably unless he or she made certain — by some form of express disclaimer — that it was not intended to be understood in that sense.28 In Evatt v Nationwide News Pty Ltd29 the defendant journalist gave evidence that she did not intend to convey the imputation found to have been conveyed. However, her evidence showed that she gave no thought to the possibility of the imputation which was in fact conveyed and she did not say that she had considered whether it could be read in a more serious way than what she intended to convey and, if so, was satisfied that it could not. Instead, she said ‘I have no idea’, and under cross-examination [page 470] seemed to accept the availability of the alternative meaning while describing it as purely a personal interpretation. The New South Wales Court of Appeal held that some explanation of the conduct of the journalist or publisher was to be expected and here there was none. The court said that it should not take an indulgent view of the conduct of a journalist who fails to appreciate that his or her work conveys a defamatory imputation when it is a commonplace of life that words and phrases, and the sentences and paragraphs constructed from them, may have more than one meaning.30 This may be a question of degree, however. The more obvious the defamatory meaning found to have been conveyed, the less credible it is for a defendant to say that the meaning was not anticipated. Where there is a serious contest about the meaning conveyed, it may be more plausible or reasonable for the defendant not to have anticipated it. In Obeid v John Fairfax Publications Pty Ltd,31 the Sydney Morning Herald had published an article about the State Minister for Mineral Resources and Fisheries. A jury at a s 7A trial found that four imputations were conveyed, including that Obeid was a corrupt politician, that he had attempted to obtain a bribe, and that he had lied when he denied that he had sought a bribe in relation to the development of the Bulldogs Leagues Club.

The newspaper and its journalists sought to rely upon qualified privilege under Lange’s case and under s 22 of the Defamation Act 1974 (NSW). In their evidence, the journalists said that they did not intend to convey the imputations found by the jury. The court considered whether it was reasonably foreseeable that the article might convey the imputations which the jury found. The judge said that from the headline and the structure of the article: It was clearly foreseeable had anyone in the defendant’s organisation properly turned his or her mind to the question, that the imputations found by the jury could be conveyed by the article.

Further, where it was reasonably obvious that imputations adverse to the plaintiff could be conveyed by the article, the court held that it was not reasonable for the defendant to publish them unless the defendant made certain by some form of express disclaimer or otherwise that the article was not intended to be understood in that sense.32 (The defence would have failed in any event as the court also found that the material included in the article was inaccurate to the knowledge of the journalists.) Where the defendant republishes a rumour which he does not believe to be true, and lends his own endorsement to it, without any basis for doing so or without making any distinction between repeating scurrilous rumour and reporting well-founded [page 471] allegation, the defendant will not satisfy the requirement of reasonableness under s 30(1)(c) of the Defamation Act 2005.33 The finding of meaning drives the outcome in many cases in relation to this defence. If the published matter is not defamatory on its face, and the defendant did not anticipate that the material was defamatory, there may be an accidental defamation for which the defendant is still liable. The defendant’s intention or conduct is not relevant to the determination of meaning or liability. It has been held that whether the conduct of a publisher in publishing defamatory matter was responsible in the circumstances is a question of fact and not one involving a normative judgement of the kind more appropriately determined by the trial judge. In those jurisdictions that still permit trial by jury,

this question should be determined by the jury in accordance with s 22 of the Defamation Act 2005.34

STRICT LIABILITY 25.4 The principle of strict liability has been established since at least 1910 from the case of E Hulton & Co v Jones.35 A newspaper had published a fictional report of the Grand Prix in Dieppe, referring to the unsavoury behaviour of a Church warden from Peckham known as Artemus Jones. The plaintiff, Artemus Jones, was a barrister in London who claimed that readers had associated him with the fictional character and on that basis recovered damages. The House of Lords confirmed the liability of the newspaper. A similar case arose in Cassidy v Daily Mirror Newspapers Ltd.36 The newspaper published a photograph of a Mr Corrigan and a woman who he described to the photographer as his fiancée. The caption read ‘Mr Corrigan, the racehorse owner, and Miss X, whose engagement has been announced’. The reference to ‘Miss X’ was incorrect. Mr Corrigan, who also went by the name of Kettering Cassidy and was reported to be a General in the Mexican Army, was married to a Mrs Mildred Cassidy. She sued the newspaper, arguing that people would understand the caption to mean she was masquerading as Mr Cassidy’s wife while actually living in sin with him as his mistress. The Court of Appeal held the newspaper liable even though the words were not defamatory on their face. It has since been generally accepted as a matter of principle that liability is imposed strictly without fault, whether or not the words are defamatory on their face. It has been no defence at common law that the defendant did not intend to injure the plaintiff’s reputation and acted with reasonable care.37 [page 472] The establishment of strict liability for defamation, it has been suggested, resulted from the increased popularity of newspapers.38 Compulsory primary education was introduced by the Education Act 1870 (UK) and created a

generation of readers who were ‘taught to read but not to think’.39 Newspapers such as The Pall Mall Gazette concentrated on sensational events of the day while The Star promised readers ‘plenty of entirely unpolitical literature — sometimes humorous, sometimes pathetic, anecdotal, statistical, the craze of fashions and the art of housekeeping — now and then a short, dramatic and picturesque tale …’.40 The antipathy from the courts for such newspapers arose much earlier in New South Wales where their conduct was seen as the stimulus for the additional requirement of public benefit in the statutory defence of truth, under amendments made to the common law of defamation in 1847.41 One newspaper known as the Satirist and Sporting Chronicle lasted only three months in 1843 and was described as: … the lowest filth, scraped together by morally debased characters and amassed obviously by those whose depraved habits led them to the lowest haunts of vice and infamy.42

The defence of qualified privilege at common law or in its statutory form is an ill-fitting defence to cases of accidental defamation. Where there was no intention to attack the plaintiff or defame the plaintiff, there seems growing acceptance that a defendant who has acted with reasonable care in using the name or description of the plaintiff unwittingly should not be held liable for damages. It may be preferable for an expanded innocent dissemination defence or a defence of honest mistake to be provided to newspapers and the media where they have otherwise acted with reasonable care. One further consideration is that reasonableness is to be judged by reference to the legitimate interests which the law of defamation seeks to protect, and that includes the public interest in freedom of speech. The legitimate commercial interests of the newspaper are entitled to due consideration, but reasonableness is not determined solely or even mainly by reference to those commercial interests. If, as a result of an avoidable error, a person is defamed, reliance on s 30 of the Defamation Act 2005 will ordinarily involve explaining how the error came to be made, and why it could not reasonably have been avoided, bearing in mind the harm it was likely to cause.43 [page 473]

CIRCUMSTANCES OF PUBLICATION 25.5 Section 30(3) of the Defamation Act 2005 provides a statutory defence of qualified privilege broadly modelled on s 22(2A) of the Defamation Act 1974 (NSW) and the circumstances set out in Reynolds v Times Newspapers Ltd.44 It is considered that such provisions give guidance as to when the conduct of a publisher will be considered reasonable in the circumstances. It is also considered that they ensure the flow of ‘high quality’ information and do not automatically expose those in public life to false and defamatory statements of fact as a matter of course:45 It could be seen as rather ironic whereas almost all sectors of society, and all other occupations and professions have duties to take reasonable care, and are accountable in one form or another if they are careless, the news media whose power and capacity to cause harm and distress are considerable if that power is not responsibly used, are not liable in negligence, and what is more, can claim qualified privilege even if they are negligent. It may be asked whether the public interest in freedom of expression is so great that the accountability which society requires of others, should not also to this extent be required of the news media.46

The following table contains a comparison of the circumstances of publication that may give rise to a defence under s 30(3) of the Defamation Act 2005, Lange v Australian Broadcasting Corporation,47 Reynolds v Times Newspapers Ltd48 or s 4 of the Defamation Act 2013 (UK), which replaced the Reynolds defence in the United Kingdom. Table 25.1: Comparison of circumstances of publication potentially giving rise to certain defences Defamation Act Lange v Reynolds v Times Defamation Act 2005 s 30(3) Australian Newspapers Ltd 2013 (UK) s 4 Broadcasting Corporation (a) the extent to the nature of the statement which the information, and complained of matter the extent to was, or formed published is of which the subject part of, a public interest; matter is a matter statement on a of public concern matter of public interest (s 4(1)(a))

[page 474] Table 25.1: Comparison of circumstances of publication potentially giving rise to certain defences – Cont’d Defamation Act Lange v Reynolds v Times Defamation Act 2005 s 30(3) Australian Newspapers Ltd 2013 (UK) s 4 Broadcasting Corporation (b) the extent to the defendant which the reasonably matter believed that published publishing the relates to the statement performance of complained of the public was in the public functions or interest (s 4(1)(b)) activities of the person; (c) the seriousness the seriousness of of any the allegation defamatory imputation carried by the matter published; (d) the extent to the status of the which the information matter published distinguishes between suspicions, allegations and proven facts;

(e) whether it was in the public interest in the circumstances for the matter published to be published expeditiously; (f) the nature of the business environment in which the defendant operates;

(g) the sources of the information in the matter published and the integrity of those sources;

the urgency of the matter

the court must make such allowance for editorial judgement as it considers appropriate (s 4(4)) the defendant had the source of the reasonable information grounds for believing the defamatory imputation was true; the defendant did not believe the imputation to be untrue [page 475]

Table 25.1: Comparison of circumstances of publication potentially giving rise to certain defences – Cont’d Defamation Act Lange v Reynolds v Times Defamation Act 2005 s 30(3) Australian Newspapers Ltd 2013 (UK) s 4

Broadcasting Corporation (h) whether the the defendant matter sought a response published from the person contained the defamed and substance of the published the person’s side of response unless the story and, if impracticable or not, whether a unnecessary reasonable attempt was made by the defendant to obtain and publish a response from the person;

(i) any other steps taken to verify the information in the matter published; (j) any other circumstances that the court considers relevant.

whether comment was sought from the plaintiff and whether the article contained the gist of the plaintiff’s side of the story

the defendant the steps taken to took proper steps verify the to verify the information accuracy of the material the tone of the article, the circumstances of the publication, including the timing

the court must disregard any omission of the defendant to take steps to verify the truth of the imputation conveyed by the statement — where the statement complained of was, or formed part of, an accurate and impartial account of a dispute to which the claimant was a party (s 4(3))

the court must have regard to all the circumstances of the case (s 4(2))

PRE-PUBLICATION CONDUCT 25.6 Publication is the event on which a court will decide whether the plaintiff has a cause of action. The circumstances preceding and including publication are those on which the court will decide whether under the statutory defence of qualified privilege the defendant’s conduct in publishing the defamatory matter was reasonable — under the extended Lange defence of qualified privilege at common law or under s 30 of the Defamation Act 2005. The following is a practical guide to pre-publication conduct in the circumstances of a defamatory media publication. [page 476] The preparation of the content of the publication starts with the public interest in a particular subject matter or in a particular person. The next step may be researching the publisher’s archives to establish what has previously been written about the subject matter or the person, and then interviewing the person or those with knowledge of the subject matter or person. Notes of these interviews or contacts should be retained for the purpose of any subsequent proceedings, and should, if possible, be dated and kept in chronological order. In many situations, the journalist will have a particular source or contact who provides information about the subject matter or person. The journalist should consider not only the content of the information given by the source, but also the credibility of the source. If the source did not witness a particular act or condition to be attributed to a person, then the law expects the journalist to take steps to check the accuracy of the source’s information and obtain the best evidence possible to prove the truth of any defamatory assertion which is to be published. As well as keeping notes of the communications with the source, the journalist should keep notes of the steps taken to check the accuracy of the source’s information. The journalist should examine objectively and critically whether the source bears any malice towards the potential plaintiff through spite or ill will or whether there is some other improper purpose for the provision of the information.

If there is only one source, there may be difficulties of proof at a subsequent trial if the issue of truth depends upon the source’s word against the plaintiff’s word. There will be more substantial difficulties if the source wishes to remain confidential or anonymous and cannot be called to give evidence. In these situations, the journalist should take steps to confirm the information supplied from a confidential source by locating another source either to corroborate the confidential source’s information or have a back-up witness should the confidential source not be willing to give evidence. The journalist usually also collects documents which provide information about the subject matter or person the subject of the publication. In a similar way to sources, the more credible those documents, the better placed the journalist will be to assert that publication was reasonable. The date of receipt of the documents should be noted and, if possible, kept in chronological order to demonstrate the course of inquiry. In preparing the content for publication, the journalist needs to analyse the information which he or she possesses in respect of each statement to be published and each meaning imputed from that to be published. Having expressed the words in draft, a journalist needs to review the degree of credibility of the source of the information for publication, whether it is direct evidence in the sense of first-hand accounts of events, or whether it is based on indirect evidence or hearsay of what others have told the journalist of the events. In preparing the publication, the journalist should consider whether the conclusion follows logically, fairly and reasonably from the information which has been gathered. It is at this stage, if not before, that the journalist reaches a critical point and must ask the question whether there is any meaning in the proposed publication which he or she intends to convey about a person which is likely to be defamatory of that person. [page 477] If there is, the journalist must determine whether he or she believes in the truth of the defamatory allegation and must do so by attempting to apply an objective test as to whether the information in the journalist’s possession is sufficient to prove the truth of the allegation. If the journalist does not believe in

the truth of the defamatory allegation at this stage because there is insufficient evidence, then a decision must be made as to whether to excise the allegation from the proposed publication altogether, rephrase the words so they do not convey the particular allegation which cannot be proved and make a less serious allegation which can be proved, or proceed to make further inquiries to obtain the necessary evidence to prove the truth of the allegation. In determining whether there is sufficient evidence to prove the truth of the allegation, the journalist should consider the seriousness of the defamatory allegation to be published, bearing in mind that the more serious the allegation, the greater the obligation upon the journalist to ensure that the allegation is true. The journalist should also consider the extent to which the allegation is one of public concern or relates to the performance of the public functions or activities of the person likely to be defamed. The more public the nature of the allegation, the more likely it is reasonable to publish; for example, in relation to political or government matters. Proceeding to publish, without having answered the question of belief in the truth positively, runs a serious risk of losing any chance of relying upon a defence based on reasonableness. Answering the question negatively at least makes the journalist face up to the issue, at the best time for all concerned (the plaintiff, the publisher and the journalist) to avoid the consequences of publishing an untrue defamatory allegation without a defence. Of course, the media typically retains in-house counsel to provide advice pre-publication. The urgency with which information is published in a competitive environment with other media outlets will probably be no excuse. If the journalist considers that there is no possibility of a defamatory meaning being conveyed about a person (and the journalist has actually considered whether a possibility exists prior to publication), the journalist’s conduct will be considered objectively at the trial. Evatt’s case49 is a good example of a situation where a journalist did not consider that there was any possibility, and was dealt with harshly by the court. There will be situations where a journalist considers that a defamatory allegation might be conveyed and takes steps to prevent the proposed publication from being understood in that light but, nonetheless, the allegation is found to be conveyed when published. The court will consider the extent to which such steps of minimising the risk of defaming the person were reasonable.

Assuming that the journalist forms the view that there is a defamatory allegation about the plaintiff in the proposed publication and that it is true based on the information available to the journalist, then the law requires the journalist to take steps, if he or she has not already done so in the course of the earlier inquiries, to contact the potential plaintiff for the plaintiff’s perspective or response to the allegation. The target should be given a reasonable opportunity to respond prior to publication. This means that [page 478] they must be given a reasonable time and a clear explanation of the allegation and the information on which such allegation is based. The response when given should also be included in the publication and should be reported accurately. A denial or explanation should be published if made in response, or if otherwise available from the person. Alternatively, if there has been no response prior to the deadline for publication, the journalist must consider whether the person has been given sufficient time and notice to respond and, if necessary, delay publication. In practice, this is a difficult requirement because the nature of the response may confuse the information previously obtained by the journalist on which the allegation is based. The journalist should retain evidence of the steps taken to contact the potential plaintiff, including notes of conversations and correspondence and evidence of attempts to contact the person which were unsuccessful. Where the defendant does intend to convey the imputation which is later found by the court to have been conveyed, the defendant must have, subject to exceptional cases, believed in the truth of that imputation.50 (The exception relates to those cases in which a belief in the truth of what was published was not required for the common law defence of qualified privilege such as where a person is under a duty to pass on without endorsement a defamatory report made by some other person.) The defendant who admits that he or she intended to convey the imputations found by the court is in a very difficult position at trial. The defendant, by being required to provide the court with evidence of the steps taken before publication

and the information available prior to publication, in order to establish the reasonableness in publishing, will tend to reinforce the fact that the imputations are untrue and that the defendant published the defamatory material, which imputation the defendant intended to convey, without sufficient facts to prove the truth. Courts label this conduct irresponsible and the defence has poor prospects of success. It will be seen as the defendant having taken care to defame the plaintiff but not to establish the truth of the defamation.

NECESSITY 25.7 While the law provides a defence based on reasonableness in the circumstances to publish defamatory material, this has placed a substantial, almost impossible, burden upon the defendant to satisfy the test at trial. There are a number of reasons for this. The defence of qualified privilege is pleaded in the manner of confession and avoidance. This means that the defendant accepts that the publication is defamatory of the plaintiff and has caused or has the tendency to cause harm to the plaintiff’s reputation. The defendant then argues that the publication is excused from liability [page 479] because the publication was reasonable in the circumstances.51 The question of reasonableness therefore only arises where it has been established that the publication is defamatory of the plaintiff on the basis of the imputations pleaded by the plaintiff and found by the court. Consequently, the defence becomes focused upon the plaintiff’s imputations (or the defamatory meanings found by the court) and whether it was reasonable for the defendant to publish them in the circumstances.52 In essence, the court seeks an explanation from the defendant as to whether the defendant anticipated that the defamatory meaning (found by the court to be conveyed) was likely to be conveyed and, if so, how the defendant came to make the choice to publish the matter.

This would require the defendant to show that he or she realised that the material was likely to be defamatory of the plaintiff pre-publication and consciously chose to publish that material, notwithstanding that realisation. Indeed, the defendant who admits that he or she intended to convey the plaintiff’s imputations is in a very difficult position at trial. The defendant often admits that he or she cannot prove the truth of the plaintiff’s imputations, perhaps because there is insufficient evidence available, and, in providing the court with evidence of the steps taken and the information available prior to publication, will only reinforce the fact that the imputations were untrue and that the defendant published on the basis that it was ‘almost right’. The courts tend to label this conduct irresponsible and careless. As a result, it is more common for the defendant to say that he or she did not intend to defame the plaintiff by the imputations pleaded or found by the court, but that it was reasonable to publish the material, by the meaning which the defendant did intend to convey about the plaintiff on the basis of the information available. This raises the issue as to whether the defendant realised that the publication identified the plaintiff, but did not realise that it defamed the plaintiff through imputations that were not apparent to the defendant at the time of publication. The court will focus on whether it was reasonably foreseeable that the imputations found by the court to have been conveyed were, for a reasonable person in the defendant’s position, likely to be conveyed by the publication. Once again, the defendant is in a very difficult position where those imputations are reasonably conveyed and, as indicated, for example, in Evatt’s case,53 should have been known to the journalist prior to publication. In short, the test of reasonableness has generally in practice been unsuccessful for the media in Australia. The test requires a weighing of the risks by the defendant prior to publication. The defendant must reasonably weigh the risk of publishing to the world at large material which is defamatory of the plaintiff when the defendant knows or ought to have known that the material carried the risk of that defamation, against the risk of proving the truth of the defamation based on the information available. [page 480]

The test of reasonableness also includes matters of fairness and the defendant’s state of mind. These are matters ordinarily required to prove malice and for which the plaintiff bears the onus of proof at common law. In making the defence of reasonableness available in its current form, the reasoning appears to be that the defendant must prove lack of malice in addition to proving either that care was taken prior to publication not to defame the plaintiff or that care was taken prior to publication to defame the plaintiff by collecting sufficient information to support it, but failing at trial to defend that defamation. The defence also suffers from the fact that the issue is determined with the benefit of hindsight and without regard to the fact that the weighing of the risk occurs prior to publication when it is not known whether the imputation is objectively true or untrue to the standard of proof expected by a court. This defence was developed at common law to improve the balance between protecting reputation and protecting freedom of speech. It will not do so unless it can achieve that balance as a matter of practical justice and unless the ordinary journalist understands what the defence means. As with other defences to a defamation action, the defence is based on the notion of confession and avoidance. Historically, the excuse or privilege provided by the law to publish defamatory material is that it is necessary in the circumstances of the case. That necessity arises in other defences because, for example, the publication is made in parliament or in court, or is a report of proceedings in those places or is an expression of opinion based on the person’s conduct in public. The question therefore is when will the law provide a privilege or recognise the necessity for the media to publish defamatory material to the world at large? The House of Lords explained in Reynolds’ case that the rationale on which privilege in the law of defamation is founded is the underlying public interest and the law’s recognition of the need in the public interest for a particular recipient to receive frank and uninhibited communication of particular information from a particular source.54 Freedom to disseminate and receive information on political or government matters has been seen as necessary to the proper functioning of the system of parliamentary democracy in Australia.55 Statements of opinion on matters of public interest are seen as necessary and are defended as fair comment. The issue focuses on defamatory statements of

fact and in what circumstances the law will permit such statements to be published as necessary despite the harm to a person’s reputation. The circumstantial test (‘all the circumstances’) and the generic test (‘government or political matters’) have been identified by the courts, but may not in practice provide sufficient guidance of what the law requires to establish the defence. Defamation law protects reputation, but provides no protection when the defamation is true. If truth cannot be established, the law should protect publications where [page 481] the subject matter is of such public importance that it is necessary to publish the defamatory allegation about the plaintiff based on objectively credible information, namely, credible sources and documents. This means that the defendant is able to say in defence that he or she realised there was a defamatory allegation to be published about the plaintiff in the material, that having regard to the allegation (its degree of seriousness being relevant) and having regard to the public importance that the public be informed of the allegation about the plaintiff’s reputation, the publication was necessary at the time of publication — even though, subsequently, the allegation cannot be established as fact or truth in court. The emphasis is placed upon the credibility of the defendant’s information at the point of publication, and why it was necessary to publish the defamatory allegation contained in the information. For example, it will be difficult to establish the necessity for publishing to the world at large where the allegation about the plaintiff is that he or she has committed a crime, if one cannot prove that it is true. Generally, such an allegation should be published to the police or other appropriate authority for investigation. In certain circumstances, the police may release and publish information to the public as part of an appeal to the public for information.56 Where the media publishes a police appeal for information, care needs to be exercised by the media to restrict the publication to the contents of the appeal and not embark upon commentary or interpretation.

There may be circumstances, however, where publication to the police or other authority may not be appropriate and that fact in itself is a legitimate reason which provides the necessity for publication to the world at large. Taking a well-known example, ‘Deep Throat’ (a senior FBI officer, Mark Felt) provided information to journalists at the Wall Street Journal about Richard Nixon’s presidency instead of providing it to the relevant authorities. It is argued in some quarters that Deep Throat was a traitor for reporting it to the media rather than reporting it to his superiors in the FBI. Had he done so, however, it is likely that the information would have remained secret. Reporting of corruption to government authorities which owe their allegiance to the government of the day, not necessarily to society at large, is also likely to end the career of the informant. It should be observed at this point that the concept of necessity as a defence at common law is drawn from the defences to actions for trespass, or intentional torts. No such concept applied to the ‘action on the case’ because the negligent act was unintended and it would amount to a contradiction in terms to say that the negligent act was necessary. For this reason it would seem that the unintended defamatory statement is not appropriately defended by the defence of qualified privilege where the defence is based on public necessity. A further question arises as to whether the ‘need’ is to publish the matter in the public interest or whether the need is to publish the matter defamatory of the plaintiff within the subject of public interest. In other words, is the ‘information’ which is protected by the defence the general subject or the specific defamatory accusation [page 482] made against the plaintiff.57 It can be imagined that there will be situations where the general subject matter is of real public importance and a plaintiff is collaterally or accidentally damaged as a result. It could be argued that there is no public interest in the specific allegation made against the plaintiff and therefore the defence fails. In Jameel’s case, Lord Hoffman appeared to deal with the issue by observing that one should consider the publication as a whole and not isolate the

defamatory statement as a separate item of information within the publication. If the publication as a whole concerns a matter of public interest, his view was that the question of whether the defamatory statement should have been included is often a matter of how the story should have been presented and allowance must be made for editorial judgement. Opinions may reasonably differ over which details are needed to convey the general message and the fact that the judge, with the advantage of leisure and hindsight, might have made a different editorial decision should not destroy the defence.58 In his Lordship’s view, the inclusion of the names of large and respectable Saudi businesses was an important part of the story. It showed that their cooperation with the United States Treasury’s requests was not confined to a few companies on the fringe of Saudi society but extended to companies which were obviously within the heartland of the Saudi business world. Lord Hoffman considered that to convey this message, inclusion of the names in the article was necessary.59 This indicates, however, that the reference to the plaintiff was a conscious decision by the editor before publication. In those cases where the defendant anticipates and intends to publish the defamatory matter which it is in the public interest to be published, the law may require a shift in emphasis to provide a more practical and meaningful defence. The most vital aspect of the test of public importance which would make the publication entitled to protection is that it is necessary to publish the defamatory matter about the plaintiff because it is based on objectively credible information, namely credible sources and documents. If a newspaper is to publish a claim that a person funds terrorist activities, then the test is not only the public importance of the subject matter, which speaks for itself, but the credible information on which the claim is based. The more credible the information, the more reasonable or ‘necessary’ it is to proceed to publish. This means that the defendant is able to say in defence that he or she realised there was a defamatory allegation to be published about the plaintiff in the material, but that having regard to the credible basis for the allegation and having regard to the public importance that the public be informed of the allegation about the plaintiff’s reputation, the publication was necessary at the

time of publication even though subsequently the allegation cannot be established as fact or truth in court. [page 483] The emphasis is placed upon the credibility of the defendant’s information at the time of publication and the reason why it was necessary to publish the defamatory allegation contained in the information. The requirement of credible information as the basis for publication is seen as an acceptable test in comparable circumstances. For example, a legal practitioner in New South Wales must certify to the court that the claim or defence filed on behalf of a client has reasonable prospects of success. This requires the practitioner to form a reasonable belief, which has as its objective foundation material available to the practitioner at the relevant time, which material is not confined to admissible evidence as such and may extend to material that is credible but not strictly admissible. In this sense, the practitioner may form a view that, based on credible information, there is a reasonable prospect of it being true, even though it is later shown to be untrue.60 A shift of emphasis to ‘credible information on a matter of public interest’ under s 30(3) of the Act, the Lange defence or the like in s 4 of the Defamation Act 2013 (UK) may provide a simpler, more readily achievable standard. It may not be appropriate in all circumstances to maintain the requirement that comment or response be sought from the plaintiff before publication.61 While it may be fair to seek the plaintiff’s response before publication, matters of fairness, honesty of purpose and good faith should remain matters that defeat the defence and not be matters that a defendant need prove as part of the defence. The onus should remain on the plaintiff to show that the publication was actuated by malice towards the plaintiff rather than actuated by the need for the information to be published in the public interest.62 The fact that the defendant does not seek a comment or response from the plaintiff before publication may be indicative of malice but the plaintiff would need to show that the defendant was actuated by an improper purpose. This may not be the case if the plaintiff was not available or the plaintiff’s response

would not have changed the matter that was published. However, the defendant may have difficulty in establishing that the information was credible in cases where the plaintiff’s information would have contradicted the information published, other than where it is a simple denial, and it would be prudent for a comment or response to be obtained from the plaintiff to reduce that risk and the risk of a finding of malice. A circumstance that should not be relevant to this defence is that a defendant did not intend to defame the plaintiff. This is not so much a question of confession and avoidance but a consequence of the strict liability of the defamation laws. In this circumstance, a separate defence should be provided for ‘innocent’ publication or honest mistake, or at least a remedy appropriate to the fault of the defendant should be provided, such as a correction and compensation for actual loss plus costs incurred, rather than damages [page 484] at large. However, where the plaintiff’s reputation has been seriously damaged by the defendant’s neglect in publishing an unintended defamatory imputation, it is fair and appropriate that the plaintiff should be adequately compensated.

PREVIOUS STATUTORY DEFENCES 25.8 Under the Defamation Act 1974 (NSW), where there was a multiple publication,63 and the matter would, if published to one or more but not all, of the recipients, be published under qualified privilege (at common law or under the New South Wales Act) as regards that recipient or those recipients, there was an extended statutory defence of qualified privilege: (a) for the publication to that or those recipients, notwithstanding that the publication was not made under qualified privilege as regards any other recipient;64 or (b) for the publication to all of the recipients, if the extent of publication was reasonable having regard to the matter published and to the occasion of qualified privilege.65

The plaintiff had a separate cause of action for the publication of an imputation to each person to whom it was made. Even though a multiple publication was excessive in part, it followed that the defendant should be entitled to defend separately as to each person to whom the publication was made. Section 20(2) established a partial defence of qualified privilege which could have the effect of reducing the extent of liability and damages, dependent upon the number of recipients for whom the privilege did not apply. For example, if the publication was made in a national newspaper and was not published to all recipients under qualified privilege, the defence might apply to all recipients provided that the extent of publication was reasonable, having regard to the matter published and to the occasion of qualified privilege at the times and places concerned. The defence (at common law or under s 22) as a result was not precluded simply by the fact that the relevant duties and interests would be limited to a section of the recipients, not all recipients, which would usually prevent any privilege at common law. The decisions in Duncombe v Daniell66 and Chapman v Lord Ellesmere67 were intended to be limited to their facts by s 20(3).68 If the subject matter was of interest throughout the community, such as the sport of rugby league, publication [page 485] in a newspaper with mass circulation would be reasonable, even though all of the recipients of the information would not have the requisite interest at law, and s 20(3) made the defence of qualified privilege available to the newspaper.69 There was also an extended statutory defence of qualified privilege under s 21 of the Defamation Act 1974 (NSW) where: (a) the publication was made in the course of a communication by the publisher to any person; (b) the publication was made in circumstances in which there would be a defence of qualified privilege if that person bore some character; and (c) the publisher believed at the time of publication on reasonable grounds that that person bore that character. This defence was included on the basis that persons should be able to

determine whether they have a privilege to speak in circumstances as they reasonably appear to them. Defendants could not be held liable under s 21 if a reasonable person in their position would have considered it was their right or duty to communicate to the persons to whom the publication was made. If defendants believed on reasonable grounds that all of the recipients of the publication had a legitimate interest in the subject matter, the defence could be available. It was not decided whether there was a subject matter of such a nature that a defendant’s belief that all recipients of the multiple publication had a legitimate interest in the subject matter, was reasonable.70

QUALIFIED PROTECTION 25.9 The Code states71 listed the following publications for which qualified protection was provided if made in good faith and published: (a) in the course of a censure passed by a person on the conduct of another person over whom the person had lawful authority, being conduct in matters to which that lawful authority related;72 (b) for the purpose of seeking remedy or redress for a private or public wrong or grievance from a person who had, or was reasonably believed by the person [page 486] who made the publication to have, authority over the person defamed with respect to the subject matter of the wrong or grievance;73 (c) for the protection of the interests of the person who made the publication, or of some other person, or for the public good;74 (d) in answer to an inquiry made of the person who made the publication in relation to a subject as to which the person by whom or on whose behalf the inquiry was made had, or was reasonably believed by the person who made the publication to have, an interest in knowing the truth;75

for the purpose of giving information to the person to whom it was made with respect to a subject as to which that person had, or was reasonably believed by the person who made the publication to have, such an interest in knowing the truth as to make the publisher’s conduct reasonable in the circumstances;76 (f) on the invitation or challenge of the person defamed;77 (g) in order to answer or refute some other defamatory matter published by the person defamed concerning the person by whom the publication was made or some other person;78 (h) in the course of, or for the purposes of, the discussion of a subject of public interest, the public discussion of which was for the public benefit, and, so far as the defamatory matter consisted of comment, the comment was fair.79 For these purposes a publication was deemed to be made in good faith if: (a) the matter published was relevant to the matters for which the protection was provided; (b) the manner and extent of publication did not exceed what was reasonably sufficient for the occasion; and (c) the person who made the publication was not actuated by ill will to the person defamed or by any other improper motive and did not believe the defamatory matter to be untrue.80 The Code provided a wide defence for the discussion of subjects of public interest: see (h) above. The defence protected the publication of defamatory matter made in the course of, or for the purposes of, discussing the conduct of any person whose conduct inherently, expressly or inferentially invited public criticism or discussion.81 (e)

[page 487] Under this defence, the subject of public interest did not need to be concerned with the conduct of the plaintiff for the reason that the wording of the defence was that the matter must be published ‘in the course of or for the purposes of’ a discussion of the conduct of some person or institution that invited public

criticism or discussion. While the conduct of the plaintiff might and would often be the subject of that discussion, the conduct of some other person that was the subject of public interest could also found the defence.82 If therefore the defendant established that the defamatory imputation concerning the plaintiff was made in the course of or for the purpose of a discussion of conduct of that other person, the defence would be made out unless the public discussion was not for the public benefit or the plaintiff proved that the publication was not made in good faith. It was not necessary that there should be an existing discussion of the subject of public interest before a publication attracted the defence.83 In many cases, the defamatory publication might itself initiate the discussion for the purposes of the defence. It was not necessary to prove that the defamatory matter was a ‘contribution to a discussion’ or had relevance to the subject of public interest, as relevance of the defamatory matter to the discussion of the subject of public interest was presumed, and the onus was on the plaintiff to establish that the defamatory matter was not relevant to that discussion in attempting to establish that it was not made in good faith.84 Usually a temporal relationship between the publication of the defamatory matter and the discussion of the subject of public interest would establish that the matter was published in the course of the discussion of the subject of public interest.85 The tribunal of fact was required to determine whether the public would benefit from the subject being discussed publicly. In the majority of cases, the public discussion of a subject of public interest would be for the public benefit.86 There would be cases where this was not so. For example, discussions concerning the conduct of persons engaged in the administration of justice would not be for the public benefit if they were contempts of court, nor would discussions concerning the conduct of persons involved in national security matters where the public discussion of that conduct would jeopardise the nation’s interest. Likewise, the discussion of a subject contrary to the prevailing mores of Australian society might be such that the public discussion of the subject would not be for the public benefit. Given the importance, however, of freedom of discussion of subjects of public interest, the occasions on which that might be so would be very rare.87

[page 488] A plaintiff might have attempted to show that the manner and extent of publication was such that the identification of the plaintiff was unnecessary or the extent of publication to a national audience of such grave allegations against the plaintiff were such that the extent of publication exceeded what was reasonably sufficient for the occasion. This was a question of fact once the occasion or subject matter of public interest had been identified, and the tribunal of fact was required to determine whether the publication went beyond what was reasonably sufficient for the occasion.88 For the purposes of the Code defence, it was the discussion of the subject of public interest that was required to be for the public benefit, not the publication of the defamatory matter.89

NEGLIGENT PUBLICATION 25.10 In general, liability at common law ‘strictly’ attaches to the publication of defamatory matter. It is not relevant that the defendant did not intend to identify the plaintiff but did so accidentally.90 It is not relevant that the defendant did not intend to convey a defamatory meaning, either the natural and ordinary meaning or a true innuendo. The question must arise, however, whether the common law defence of qualified privilege (or innocent dissemination) will be developed to protect a defendant who acts with reasonable care, and whether the tort of defamation will be rationalised with the law of negligence, in order to mitigate the harshness of strict liability when the defendant has exercised reasonable care prior to publication.91 In the Australian Capital Territory there was a statutory defence of nonnegligent publication.92 The defendant was required to establish that he or she ‘took reasonable steps to ensure the accuracy’ of the publication and gave the plaintiff a reasonable opportunity to comment before publication. In that event, there would be a defence except where the publication imputed criminal behaviour by the plaintiff.

____________________ 1.

2. 3.

4. 5. 6. 7. 8.

9. 10.

11.

12. 13. 14.

15. 16. 17. 18. 19. 20. 21. 22. 23. 24.

Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 at 40; Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354 at 359; Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697 at 711. Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 797; Griffith v Australian Broadcasting Corporation [2010] NSWCA 257 at [104]. Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 at 40; Echo Publications Pty Ltd v Tucker (No 3) [2007] NSWCA 320 at [7]–[8]; Griffith v Australian Broadcasting Corporation [2010] NSWCA 257 at [103]. Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5 at [148]; Restifa v Pallotta [2009] NSWSC 958 at [46]. Reynolds v Times Newspapers Ltd [2001] 2 AC 127 at 205; see 24.6. Davis v Nationwide News Pty Ltd [2008] NSWSC 699. Morgan v John Fairfax & Sons Ltd (No 2) (1991) 23 NSWLR 374 at 387–8. Horrocks v Lowe [1975] AC 135 at 150; Clark v Molyneux (1877) 3 QBD 237 at 244; Oldfield v Keogh (1941) 41 SR (NSW) 206 at 212–14; Barbaro v Amalgamated Television Services Pty Ltd (1989) 20 NSWLR 493 at 499–501; Collins v Ryan (1991) 6 BR 229 at 233–5. Collins v Ryan (1991) 6 BR 229 at 233–5; Echo Publications Pty Ltd v Tucker (No 3) [2007] NSWCA 320 at [19]. Evatt v John Fairfax & Sons Ltd (SC (NSW), Hunt J, 20 June 1985, unreported) at 14; Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697 at 712; Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354 at 362. See Morgan v John Fairfax & Sons Ltd (No 2) (1991) 23 NSWLR 374 at 387–8 (Hunt AJA with whom Samuels AJA agreed); John Fairfax Publications Ltd v O’Shane [2005] NSWCA 164; Griffith v Australian Broadcasting Corporation [2010] NSWCA 257 at [105]. (1985) 3 NSWLR 354 at 364–5. Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354 at 364–5. Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697 at 705; Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 772–99; Morgan v John Fairfax & Sons Ltd (No 2) (1991) 23 NSWLR 374 at 382. [2009] QCA 186. Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354 at 363; Morgan v John Fairfax & Sons Ltd (No 2) (1991) 23 NSWLR 374 at 382; John Fairfax Publications Pty Ltd v Zunter [2006] NSWCA 227 at [12]. John Fairfax Publications Pty Ltd v Zunter [2006] NSWCA 227 at [30]; Restifa v Pallotta [2009] NSWSC 958 at [56]. [2015] QSC 167. Flegg v Hallett [2015] QSC 167 at [191]. LVMH Watch & Jewellery Australia Pty Ltd v Lassarch [2011] NSWCA 370 at [138]; Enders & Erbas & Associates Pty Ltd [2014] NSWCA 70 at [92]. Griffith v Australian Broadcasting Corporation [2010] NSWCA 257 at [110]. Lower Murray Urban & Rural Water Corporation v Di Masi [2014] VSCA 104 at [80]. Lower Murray Urban & Rural Water Corporation v Di Masi [2014] VSCA 104 at [87]. Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354 at 362; Morgan v John Fairfax & Sons Ltd (No 2)

25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58. 59. 60. 61.

(1991) 23 NSWLR 374 at 387. Evatt v Nationwide News Pty Ltd [1999] NSWCA 99 at [27]. Evatt v Nationwide News Pty Ltd [1999] NSWCA 99 at [31]. Evatt v John Fairfax & Sons Ltd (SC (NSW), Hunt J, 20 June 1985, unreported). Howard v Nationwide Publishing Services Pty Ltd (SC (NSW), Hunt J, 26 February 1987, unreported). [1999] NSWCA 99. Evatt v Nationwide News Pty Ltd [1999] NSWCA 99 at [43]. [2006] NSWSC 1059. Obeid v John Fairfax Publications Pty Ltd [2006] NSWSC 1059 at [75]. Restifa v Pallotta [2009] NSWSC 958 at [56]. Daniels v State of New South Wales [2015] NSWSC 1074 at [34]. [1910] AC 20. [1929] 2 KB 331. See also Lee v Wilson & MacKinnon (1934) 51 CLR 276; Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575 at [25]. P Mitchell, The Making of the Modern Law of Defamation, Hart Publishing, Oxford, 2005, pp 117–20. P Mitchell, The Making of the Modern Law of Defamation, Hart Publishing, Oxford, 2005, p 117. P Mitchell, The Making of the Modern Law of Defamation, Hart Publishing, Oxford, 2005, p 118. Windeyer’s Libel Act 1847 11 Victoria c 3. A C Castles, ‘The Transgressions of the Satirist and Uniform Defamation Law in Australia’ (1992) 66 Australian Law Journal 167–73. Rogers v Nationwide News Pty Ltd [2003] HCA 52 at [32]. [2001] 2 AC 127 at 205. Recommendation 16, Draft Defamation Bill 2004 (Cth). Lange v Atkinson [1998] 3 NZLR 424 at 477 (Tipping J). (1997) 189 CLR 520 at 574. [2001] 2 AC 127 at 205; the common law Reynolds defence is abolished by s 4(6) of the Defamation Act 2013 (UK) and replaced by a defence of publication on a matter of public interest. Evatt v Nationwide News Pty Ltd [1999] NSWCA 99: see 25.3. Morgan v John Fairfax & Sons Ltd (No 2) (1991) 23 NSWLR 374 at 387–8. Compare Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5 at [58] (McHugh J). Compare Bonnick v Morris [2003] 1 AC 300 at 309–10. Evatt v Nationwide News Pty Ltd [1999] NSWCA 99. Reynolds v Times Newspapers Ltd [2001] 2 AC 127 at 195. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. El Azzi v Nationwide News Pty Ltd [2005] NSWSC 247 at [44]. Compare Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5 at [135] (Gummow J). Wall Street Journal Europe Sprl v Jameel (2006) UKHL 44 at [48]–[52]. Wall Street Journal Europe Sprl v Jameel (2006) UKHL 44 at [52]. Degiorgio v Dunn (No 2) [2005] NSWSC 3 at [17]. See s 4(3) of the Defamation Act 2013 (UK) in relation to publications about disputes involving the

62. 63.

64. 65. 66. 67. 68. 69. 70. 71. 72. 73. 74. 75. 76. 77. 78. 79. 80. 81. 82. 83. 84. 85. 86. 87. 88. 89. 90. 91. 92.

claimant. Compare Griffith v Australian Broadcasting Corporation [2010] NSWCA 257 at [110]. Meaning publication of the same or like matter to two or more recipients either at the same time, or in the ordinary course of affairs of numerous copies of a newspaper, or otherwise in the course of one transaction: Defamation Act 1974 (NSW) s 20(1)(a). Defamation Act 1974 (NSW) s 20(2). Defamation Act 1974 (NSW) s 20(3). (1837) 8 C&P 222; 173 ER 470. [1932] 2 KB 431. NSW Law Reform 1971 Report LRC (11) Appendix D, [99]. Compare Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 572. Austin v Mirror Newspapers Ltd [1984] 2 NSWLR 383 at 390. Compare Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 572. Queensland and Tasmania. (The provisions in the Criminal Code Act 1913 (WA) only apply to criminal proceedings.) Defamation Act 1889 (Qld) s 16(1)(a); Defamation Act 1957 (Tas) s 16(1)(a). Defamation Act 1889 (Qld) s 16(1)(b); Defamation Act 1957 (Tas) s 16(1)(b). Defamation Act 1889 (Qld) s 16(1)(c); Defamation Act 1957 (Tas) s 16(1)(c). Defamation Act 1889 (Qld) s 16(1)(d); Defamation Act 1957 (Tas) s 16(1)(d). Defamation Act 1889 (Qld) s 16(1)(e); Defamation Act 1957 (Tas) s 16(1)(e). Defamation Act 1889 (Qld) s 16(1)(f); Defamation Act 1957 (Tas) s 16(1)(f). Defamation Act 1889 (Qld) s 16(1)(g); Defamation Act 1957 (Tas) s 16(1)(g). Defamation Act 1889 (Qld) s 16(1)(h); Defamation Act 1957 (Tas) s 16(1)(h). Defamation Act 1889 (Qld) s 16(2); Defamation Act 1957 (Tas) s 16(2). Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 221. Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 122. Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 223. Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 226. Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 227. Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 229. Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 229. Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 232–3. Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 233. E Hulton & Co v Jones [1910] AC 20; Lee v Wilson and Mackinnon (1934) 51 CLR 276 at 287–92; Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575 at [25]. See Burnie Port Authority v General Jones Pty Ltd (1992–1994) 179 CLR 520. Civil Law (Wrongs) Act 2002 (ACT) s 66.

[page 489]

CHAPTER 26 PROTECTED REPORTS COMMON LAW DEFENCE OF FAIR AND ACCURATE REPORT STATUTORY DEFENCE OF FAIR REPORT OF PROCEEDINGS OF PUBLIC CONCERN PREVIOUS STATUTORY DEFENCE OF PROTECTED REPORT PARLIAMENT COURTS AND INQUIRIES COUNCIL MEETINGS PUBLIC MEETINGS STATUTORY AUTHORITIES PROCEEDINGS OF PARTICULAR ASSOCIATIONS OR BODIES INTERNATIONAL BODIES STATUTORY DEFENCE OF PUBLIC DOCUMENTS PRESERVATION OF THE COMMON LAW LACK OF GOOD FAITH/MALICE FAIR AND ACCURATE REPORTS ON MATTERS OF PUBLIC INTEREST

26.1 26.2 26.3 26.4 26.5 26.6 26.7 26.8 26.9 26.10 26.11 26.12 26.13 26.14

COMMON LAW DEFENCE OF FAIR AND ACCURATE REPORT 26.1 There is a defence at common law for fair and accurate reports of certain proceedings. The defence is an extension of the defence of qualified privilege and relates to the occasion on which the publication takes place.1 As a report to the world at large, the underlying reason for the defence is that the public would be entitled to attend the proceedings and hear for themselves what

occurred. The public have a necessary interest in the proceedings themselves which creates the occasion of qualified privilege.2 [page 490] If the report contains defamatory matter of a statement made by a third party, the reporter of the statement is nevertheless a publisher of the defamatory matter.3 At common law, fair and accurate reports of proceedings in parliament4 and in courts5 are published on occasions of qualified privilege. In these cases, it is the public interest in the proceedings themselves, not in the subject matter discussed in those proceedings, which creates the occasion of qualified privilege.6 If the subject matter of the report has not been admitted into evidence in open court or in the course of the proceedings, such as may occur with pleadings or affidavits, a publication of that report may not attract the defence.7 Where the report is published to a limited number of persons, and those persons have a legitimate interest or right in attending the proceedings, a report of the proceedings would be subject to a defence of fair and accurate report at common law. Privilege may also attach to the publication of fair and accurate reports of defamatory statements made in the proceedings of public bodies other than parliament and the courts. The proceedings of bodies whose functions relate to the control of particular fields of public activity, such as sporting bodies, may be reported on occasions of qualified privilege if the subject matter relates to the performance of those functions and if it can be rightly said that the general public has a relevant interest.8 The report need not be verbatim, but to be privileged it must accurately express what took place. Errors may occur, but they must not substantially alter the impression that the reader would have received had he or she been present at the proceedings. It is well settled that, to be fair and accurate, a report need not be a complete report of the proceedings nor need it be accurate in every respect. It must, however, be substantially accurate.9 The question whether it is substantially accurate is a question of fact.10 The publication is ‘fair’ if the publication, with substantial accuracy, expresses

what took place in that part of the proceedings of which it purports to be a report.11 If the publication of which the plaintiff complains contains a substantial misrepresentation of a material fact, prejudicial to the plaintiff’s reputation and which conveys the [page 491] plaintiff’s imputations, the publication is not a fair report.12 It is irrelevant to the defence if the material facts reported in the publication are in fact false, provided that those material facts report what took place in the proceedings with substantial accuracy. Matter does not constitute a report of proceedings merely because it repeats information obtained from those proceedings. If a witness makes a statement in court proceedings the protection is attracted if it is fairly and accurately reported, and attributed to the witness who made it. It would not be attracted if, without attribution of the witness or proceedings, the substance of the statement was merely repeated.13 It must appear that the published matter bears the character of a report of the proceedings in question. It is not enough that the proceedings are a source of information or the subject of an expression of opinion.14 The defence of fair and accurate report is in substance a plea in confession and avoidance of the plaintiff’s claim. It is therefore no answer for a defendant to plead a defence of fair and accurate report in answer to a part of the report or a distinct defamatory imputation which the plaintiff does not sue upon.15 The fair and accurate report defence has a curious relationship with the defence of qualified privilege. From their respective origins at common law, the defences of qualified privilege and fair and accurate report grew out of different needs. They supplemented and did not contradict one another.16 Where the more particular defence applied, fair and accurate report or absolute privilege, it was commonly unnecessary to decide fine points arising from the possible application of a more general defence of qualified privilege. If the more specific defence was not available, the general common law defence of qualified privilege could still be available as a matter of legal principle.17 The social objects of each defence are different, but are equally important. The specific defence treats the public interest as conclusively established by proof that a

report of certain proceedings is fair (and accurate). The general defence upholds the public interest where one person has a duty or interest to make a statement and the recipient of the statement has a corresponding duty or interest to receive it. Each defence in its different way promotes the welfare of society. Legal history rejects any suggestion that a publisher must make an irrevocable election between such defences.18 [page 492]

STATUTORY DEFENCE OF FAIR REPORT OF PROCEEDINGS OF PUBLIC CONCERN 26.2 Under s 29(1) of the Defamation Act 2005, it is a defence to the publication of defamatory matter if the defendant proves that the matter was, or was contained in, a fair report of any proceedings of public concern. ‘Proceedings of public concern’ are defined in s 29(4) to include proceedings in public of a parliamentary body, proceedings in public of a court of any country or an arbitral tribunal, proceedings in public of an inquiry held under the law of any country or under the authority of the government of any country, proceedings in public of a local government body, a public meeting (with or without restriction on the people attending) held anywhere in Australia if the proceedings relate to a matter of public interest, and various other proceedings referred to in s 29(4) of and Sch 3 to the Act. There is also a defence under s 29(2) of the Defamation Act 2005 for a later publication of defamatory matter if the defendant proves that: (a) the matter was, or was contained in, an earlier published report of proceedings of public concern; and (b) the matter was, or was contained in, a copy of, a fair summary of, or a fair extract from, the earlier published report; and (c) the defendant had no knowledge that would reasonably make the defendant aware that the earlier published report was not fair. The defence of fair report is excluded if the plaintiff satisfies the court that

the matter concerned was not published honestly for the information of the public or the advancement of education: s 29(3). These provisions are substantially modelled upon s 24 of the Defamation Act 1974 (NSW).

PREVIOUS STATUTORY DEFENCE OF PROTECTED REPORT 26.3 Prior to the Defamation Act 2005, there was a statutory defence in New South Wales under s 24 of the Defamation Act 1974 (NSW) for the publication of a fair protected report of the proceedings which were specified in cl 2 of Sch 2 to the Act. These were proceedings of public concern. The Act expressly extended the privilege for reports of proceedings of these and other bodies which might not have attracted the defence at common law. The proceedings of public concern referred to in cl 2 of Sch 2 included proceedings of a parliamentary body,19 a court,20 an inquiry,21 an association as defined,22 a public [page 493] meeting open to the public relating to a matter of public interest,23 and various other proceedings. There was also a defence for a later publication by another person of the protected report, which was a copy, fair extract, abstract or summary of the protected report, if the person did not at the time of the later publication have knowledge which should have made him or her aware that the protected report was not fair.24 There was a separate defence for a later publication by another person of material purporting to be a protected report which was a copy, fair extract, abstract or summary of the material if the person did not at the time of the later publication have knowledge which should have made him or her aware that the material was not a protected report or was not fair.25

In general, if the proceedings were referred to in cl 2 of Sch 2 to the Act then it was assumed they were proceedings of public interest. The provisions of s 24 were based upon the view that protection of the reporting of legal and political matters should be given because of the importance of openness about the workings of society and the manner in which freedom of such reporting contributes to an open society, as well as the importance of a particular item of news which might influence future political or economic action. The proceedings identified by the Act were seen to be the source material for information and discussion on current affairs, whether matters of politics, law, finance or other public concerns.26 Section 24(2) required the publication to be ‘fair’. While the report had to be fair, there was no separate requirement that the report be accurate as at common law.27 However, to be a fair report it had to achieve a standard of accuracy. A ‘fair protected report’ was one that was a substantially accurate account of what took place in the relevant proceedings.28 It need not have been verbatim, but it had to accurately express what took place. Errors could occur but, if they were such as not substantially to alter the impression that the reader would have received had he or she been present at the proceedings, the protection was not lost. If, however, there was a substantial misrepresentation of a material fact prejudicial to the plaintiff’s reputation, the report would be regarded as unfair.29 An inaccurate report in respect of the identification of a party to a judgment of a court that had found a person in breach of the law could not be ‘fair’.30 In a case where the defendant also relied on qualified privilege, in circumstances where the recipients had a legitimate interest in receiving the report, the plaintiff submitted that highly defamatory and damaging statements should, if reported, only be protected so long as [page 494] they were accurate, and there should be no scope for qualified privilege to apply in the absence of a fair and accurate report.31 However, it was held that: The history, language and structure of the [Defamation Act 1974 (NSW)] tell against treating section 24 as an entire regulation of the law of defamation in respect of reports of the proceedings specified there … [T]he [NSW] Act is confined to the regulation of essential, or ‘core’ matters

upon which parliament made its will unmistakable. Beyond such matters, the common law had been left to apply and develop.32

Discussion of matters of public interest is often based upon newspaper and television reports which are protected reports or purport to be protected reports. The discussion may involve a repetition of the reported matter in whole or in part. For this reason s 24(3) gave a defence to a person who published matter in reliance on a protected report which he or she did not have grounds for knowing to be unfair, provided it was a protected report previously published by someone else.33 It did not matter if there was some hidden unfairness in the protected report published by someone else which the person repeating it did not have grounds to know to be unfair. Alternatively, s 24(4) provided a defence to a person who published matter in reliance on what purported to be a protected report but in fact was not. The delivery of reasons for judgment does not constitute a ‘report’ of court proceedings to which the judgment relates, but remains part of the proceedings of the court.34 A list of proceedings of public concern under specific New South Wales Acts was set out in cl 2 of Sch 2 to the Act. Reports of these proceedings were expressly covered by the Act.35 These are now set out in Sch 3 to the Defamation Act 2005, without limiting s 29(4)(a)–(p) (and reflect the proceedings for which absolute privilege is provided for those Acts set out in Sch 1): Civil and Administrative Tribunal — proceedings held in public of Civil and Administrative Tribunal: cl 18; Anti-Discrimination Act 1977 — reports of proceedings conducted by the Anti-Discrimination Board: cl 3; Commission for Children and Young People Act 1998 — reports of proceedings of the Committee on Children and Young People: cl 17(a); Health Care Complaints Act — reports of proceedings of Health Care Complaints Commission: cl 17(b); Health Practitioners Regulation National Law — reports of proceedings of the Medical Board of Australia, Medical Council of New South Wales, Professional Standards Committee, Medical Tribunal: cl 7; [page 495]

HomeFund Commissioner Act 1993 — reports of proceedings of Home Fund Commissioner: cl 13; Independent Commission Against Corruption — reports of proceedings: cl 17(c); Legal Profession Uniform Law — reports of proceedings of Bar Council, Law Society Council or Legal Services Commissioner: cl 8; Legislation Review Act 1987 — reports of proceedings of Legislation Review Committee: cl 17(d); New South Wales Crime Commission — reports of proceedings: cl 10; Ombudsman Act 1974 — reports of proceedings: cl 17(e); Privacy and Personal Information Protection Act 1998 — reports of proceedings of Privacy Commissioner: cl 2; Public Finance and Audit Act 1983 — reports of proceedings of the Public Accounts Committee: cl 17(f); Racing Appeals Tribunal Act 1983 — reports of proceedings on appeal to the Racing Appeals Tribunal: cl 6; Thoroughbred Racing Act 1996 — reports of proceedings on appeal or proceedings of inquiry by Racing New South Wales: cls 1 and 5; Valuation of Land Act 1916 — reports of proceedings of Committee of Office of Valuer-General: cl 17(g); Work Health & Safety (Mines and Petroleum Sites) Act 2013 — proceedings at an inquiry conducted by a Board of Inquiry: cl 11; Workers Compensation Act 1987/Workplace Injury Management and Workers Compensation Act 1998 — reports of proceedings of Commission: cl 9; and Abolished tribunals previously included in Schedule: cl 19. There were other specific statutory defences in New South Wales for reports of official and public documents (s 25), the publication of court notices and official notices (s 27) and the publication of official notices or reports: s 28. Legislation existed in each state and territory extending the defence of protected report by statute for reports of proceedings or reports of meetings of a number of bodies, or reports of documents or records or notices.36

PARLIAMENT 26.4 Section 29 of the Defamation Act 2005 provides a defence for a fair report of proceedings in public of a parliamentary body: s 29(4)(a). Reports of proceedings of Commonwealth Parliament or authorised documents of Commonwealth Parliament, such as the debates, were already protected by statute. There is a statutory defence of absolute privilege for a fair and accurate report of [page 496] proceedings of Commonwealth Parliament.37 There is a statutory defence of absolute privilege for publication of authorised documents or debates or proceedings of Commonwealth Parliament.38 There is also absolute privilege for the broadcasting of Commonwealth parliamentary proceedings.39 Each state and territory previously had a defence of absolute privilege under similar legislation for reports of their respective parliamentary proceedings.40 Each state and territory (except the Northern Territory) had provided statutory protection for fair and accurate reports of parliamentary papers and documents.41

COURTS AND INQUIRIES 26.5 Section 29 of the Defamation Act 2005 provides a defence for a fair report of proceedings in public of a court or an arbitral tribunal of any country (s 29(4)(e)), the International Court of Justice or any other judicial or arbitral tribunal for the decision of any matter in dispute between nations (s 29(4)(d)), and any proceedings in public of an inquiry held under the law of any country or under the authority of the government of any country: s 29(4)(f). Fair and accurate reports of proceedings in court were previously protected by statute42 and in some states were subject to absolute privilege.43 Court notices were protected in New South Wales44 and in the Australian

Capital Territory.45 Statutory defences extended to inquiries and in some instances provided absolute privilege.46 [page 497] There was a statutory defence in New South Wales for the publication of a notice in accordance with the direction of a court of any country.47 The defence was defeated if it was shown that the publication was not in good faith for the purpose of giving effect to the court’s direction.48 The defence was not confined to a direction of a court of New South Wales or any other Australian court. It extended to a court of any country in the world. However, the defence was qualified to provide a safeguard where a publication was made in accordance with the direction of a foreign court, but the publication was not in good faith for that purpose.

COUNCIL MEETINGS 26.6 Section 29 of the Defamation Act 2005 provides a defence for a fair report of proceedings in public of a local government body of any Australian jurisdiction: s 29(4)(g). Fair and accurate reports of council meetings had previously attracted the defence of fair report.49

PUBLIC MEETINGS 26.7 Section 29 of the Defamation Act 2005 provides a defence for a fair report of any proceedings of a public meeting (with or without restriction on the people attending) held anywhere in Australia if the proceedings relate to a matter of public interest (s 29(4)(l)), including the advocacy or candidature of a person for public office; any proceedings of a public meeting (with or without

restriction on the people attending) of shareholders of a public company under the Corporations Act 2001 (Cth) held anywhere in Australia: s 29(4)(k). Fair and accurate reports of proceedings of public meetings had previously attracted the defence.50 [page 498]

STATUTORY AUTHORITIES 26.8 Section 29 of the Defamation Act 2005 provides a defence for a fair report of proceedings of an Ombudsman of any country if the proceedings relate to a report of the Ombudsman: s 29(4)(m). ‘Ombudsman’ of a country is defined to mean a person (however described and whether or not permanent or fulltime) authorised by law to investigate complaints about the actions or other conduct of any public officials or public bodies of that country: s 29(5). The defence also applies to proceedings in public of a law reform body of any country: s 29(4)(n). ‘Law reform body’ of a country is defined to mean a body (however described and whether or not permanent or full-time) established by law to conduct inquiries into, and make recommendations on, reforming the laws of that country: s 29(5). The defence extends to any other proceedings conducted by a person, body or organisation of another Australian jurisdiction that are treated in that jurisdiction as proceedings of public concern under a law of that jurisdiction (s 29(4)(o)); and any proceedings of a kind specified in Sch 3 to the Act (that are local to the jurisdiction in which the law is passed which might not otherwise fall within the general terms of the section): s 29(4)(p). There was previously a statutory defence of fair and accurate report of proceedings involving statutory authorities in a number of states and territories.51

PROCEEDINGS OF PARTICULAR ASSOCIATIONS

OR BODIES 26.9 Section 29 of the Defamation Act 2005 provides a defence for a fair report of proceedings of certain bodies including: (a) a learned society (the objects of which include the advancement of any art, science or religion or the advancement of learning in any field): s 29(4)(h); (b) a sport or recreation association (the objects of which include the promotion of any game, sport or pastime to the playing of which or exercise of which the public is admitted as spectators or otherwise and the promotion or protection of the interests of people connected with the game, sport or pastime): s 29(4)(i); (c) a trade association (the objects of which include the promotion of any calling, that is, a trade, business, industry or profession and the promotion or protection of the interests of people engaged in any calling): s 29(4)(j); or of a committee or governing body of the society/association, under its objects referred to above, but only to the extent that the proceedings relate to a decision or adjudication made in Australia about: (i) a member or members of the society/association; or [page 499] (ii) a person subject by contract or otherwise by law to control by the society/association: s 29(4)(h), (i) and (j). The society/association wherever formed must be authorised by its constitution to exercise control over or adjudicate on matters connected with the objects referred to above and to make findings or decisions having effect by law or custom in any part of Australia: s 29(5) — see definitions of ‘learned society’, ‘sport or recreation association’ and ‘trade association’.

INTERNATIONAL BODIES 26.10 Section 29 of the Defamation Act 2005 provides a defence for a fair report of proceedings in public of certain international bodies including an international organisation of any countries or of governments of any countries (s 29(4)(b)), an international conference at which governments of any countries are represented (s 29(4)(c)) or proceedings in public of the International Court of Justice or any other judicial or arbitral tribunal for the decision of any matter in dispute between nations or any other international judicial or arbitral tribunal: s 29(4)(d).

STATUTORY DEFENCE OF PUBLIC DOCUMENTS 26.11 Section 28 of the Defamation Act 2005 provides a defence for publication of certain public documents. The defence applies to the publication of defamatory matter if the defendant proves that the matter was contained in: (a) a public document or a fair copy of a public document; or (b) a fair summary of, or a fair extract from, a public document: s 28(1). ‘Public document’ includes: a report or paper published by a parliamentary body; a record of votes, debates or other proceedings relating to a parliamentary body published by or under the authority of the body or any law (s 28(4)(a)); a judgment, order or other determination of a court or arbitral tribunal of any country in civil proceedings (s 28(4)(b)); a document issued by the government or a local government for the information of the public (s 28(4)(d)); and certain other documents and records of public importance: see, generally, s 28(4)). Schedule 2 to the Act sets out public documents issued within each jurisdiction not caught by the general terms of s 28 and subject to that defence. The defence applies to a public document despite the fact that the report or document does not comply with the provision of the law of a country about the formal requirements for the content or layout of the report or document, or the time within which the report or document is prepared or presented to or before a person or body: s 28(2). The defence for publication of public documents is defeated if the plaintiff

proves that the defamatory matter was not published honestly for the information of the public or the advancement of education: s 28(3). [page 500] A fair and accurate report defence was previously available in New South Wales and the Australian Capital Territory for reports of public documents and records.52 There was a statutory defence in New South Wales for the publication of official and public documents and records which were set out in cl 3 of Sch 2 to the New South Wales Act or a fair extract, abstract or summary of any such document or record.53 The official and public documents and records referred to included a report published under the authority of a parliamentary body of any country,54 the debates and proceedings of either House of Parliament published by the government printer,55 a judgment of a court in civil proceedings,56 and certain other documents and records of public importance. The defence included parliamentary papers of the states and of the Commonwealth and extended to any parliament or legislature in the world. This section overlapped with s 17(3) of the New South Wales Act in relation to reports of the Parliament of New South Wales which gave an absolute privilege for republication of official reports, while publications of copies of official reports under this section gave a qualified defence for such publication. The difference was that this section covered fair extracts, but s 17(3) did not. This section also dealt specifically with the official reports of debates and proceedings of the Parliament of New South Wales and made it unnecessary to show that these reports were published by order or under the authority of the Council or the House, as the case may be. Matters on the public record can be published with qualified privilege at common law. A list of official documents or records under specific New South Wales Acts were set out in cl 3 of Sch 2 to that Act. These are now set out in Sch 2 to the Defamation Act 2005, without limiting s 28(4)(a)–(f):

Civil and Administrative Tribunal — decision of the Civil and Administrative Tribunal: cl 9; Commission for Children and Young People Act 1998 — document produced to the Committee on Children and Young People: cl 8(a); Health Care Complaints Act 1993 — document produced to the Committee on Health Care Complaints Commission: cl 8(b); Health Practitioner Regulation National Law — report by Medical Board of Australia, Medical Council of New South Wales, Professional Standards Committee or Civil and Administrative Tribunal: cl 1; Independent Commission Against Corruption Act 1988 — document produced to the Committee on the Independent Commission Against Corruption: cl 8(c); [page 501] Legal Profession Uniform Law — report by Bar Council, Law Society Council, Legal Services Commissioner: cl 2; Legislation Review Act 1987 — document produced to the Legislation Review Committee: cl 8(d); Ombudsman Act 1974 — document produced to the Committee on the Office of the Ombudsman and the Police Integrity Commission: cl 8(e); Public Finance and Audit Act 1983 — document produced to the Public Accounts Committee: cl 8(f); Special Commissions of Inquiry Act 1983 — report to the Governor by a Commissioner: cl 7; Valuation of Land Act 1916 — document produced to the Committee on the Office of the Valuer-General: cl 8(g); Workers Compensation Act 1987/Work Place Injury Management and Workers Compensation Act 1998 — report of decision or conciliation certificate: cl 3; Abolished tribunals previously included in Schedule: cl 10. Official notices were also subject to a statutory protected report defence in

most jurisdictions.57 There is a common law defence of fair and accurate report of the contents of a register compiled under statutory authority and available for public inspection.58 There was a statutory defence in New South Wales for the publication of any notice or report in accordance with an official request.59 An official request was defined in s 28(6) as a request by: (a) an officer of the government of any state or territory or of the Commonwealth and included a member of a police force; or (b) a council, board or other authority or person constituted or appointed for public purposes under the legislation of any state, territory or the Commonwealth. The defence was defeated if it was shown that the publication was not in good faith for the purpose of giving effect to the official request.60 The defence did not affect the liability of the person making the official request.61 There was also a statutory defence for the publication of the notice or report in accordance with an official request where the request was that it be published to the public generally or to any section of the public, and the notice or report was or related to a matter of public interest. The defence extended to any fair extract, abstract, [page 502] report or summary of the notice or report.62 This defence was defeated if it was shown that the publication was not in good faith for the information of the public.

PRESERVATION OF THE COMMON LAW 26.12 The defences under the Defamation Act 2005 are additional to any defence available at common law (s 24(1)) including the common law defence of fair and accurate report.

Prior to the Defamation Act 2005, the common law had been expressly preserved to apply in a number of states or territories so that, in addition to the statutory defences, the common law defence of fair and accurate report would apply.63 By contrast, the Codes in Queensland and Tasmania had replaced the common law.64

LACK OF GOOD FAITH/MALICE 26.13 The Defamation Act 2005 provides that the defences of the publication of public documents (s 28) and fair report of proceedings of public concern (s 29) are defeated if the plaintiff proves that the defamatory matter was not published honestly for the information of the public or the advancement of education: ss 28(3) and 29(3). This is a similar exclusion as previously applied in New South Wales, referred to below. The previous statutory defences could be defeated by proof of a lack of good faith or malice depending upon the jurisdiction.65 These reports, even if fair and accurate, were subject to defeat if the publication was not in good faith (Queensland, Tasmania, Western Australia and the Australian Capital Territory),66 was malicious (Victoria, South Australia and the Northern Territory)67 or was not in good faith for public information or the advancement of education (New South Wales).68 The defence available to newspapers or the media could be defeated if the defendant failed to provide the plaintiff with an opportunity to contradict or explain. [page 503] By reason of the nature of certain publications, such as reports of court proceedings or publications of court notices, official notices, etc, the publications were completely defensible subject only to evidence that the publication ‘was not in good faith’ for the purposes for which the defences were provided.69 The use of the word ‘for’ in ss 28(3) and 29(3) of the Defamation Act 2005 raises the question of motive or purpose. At common law qualified privilege is lost if the defendant has any appreciable improper motive or purpose in making

the publication — for example, if an article was written to inform the public, but also the writer carried ill will towards a person referred to in the article, the defence would be lost. Motive or purpose at common law looks to the effect which the defendant intended the matter to have on the minds of its recipients — it does not look to other things which the defendant might hope to achieve by the publication, for example, earning a living or increasing the circulation of a newspaper, nor does it matter whether the motives or purposes were dominant. Motive or purpose under these sections does not look solely to the effect that the defendant intended the matter to have on the minds of the recipients, but looks to purposes, such as public information or the advancement of education.70 The sections provide that the defence is defeated if the defamatory matter was not published honestly for the information of the public or the advancement of education. There is a question as to how the court is to determine whether the defendant published the matter honestly for these purposes. The New South Wales Act had provided that the defence was defeated if it was shown that the publication was not in good faith for public information or the advancement of education: s 26. In determining whether a publication ‘was not in good faith’, the relevant purpose was the effect which the defendant intended his or her publication to have upon the minds of the recipients and not the result which the defendant sought to achieve by the publication.71 A proprietor of a newspaper might publish a report of court proceedings in order to inform the public of what happened in those proceedings, but if he or she did so motivated by ill will towards the plaintiff and intended to injure the plaintiff by that publication, the publication would not be in good faith notwithstanding that its purpose was to inform the public.72 It was not relevant to the absence of good faith that the defendant knew that the pleaded imputation or the matter complained of was false. The evidence of the defendant’s state of mind, to show that the defendant’s purpose in publishing the report ‘was not in good faith’, could be by direct evidence (written or oral) or by inference from the defendant’s conduct and was required to show that the defendant was actuated by malice or by an ‘appreciable’ purpose other than that

[page 504] provided in the New South Wales Act, for public information or the advancement of education.73 It would seem that the same reasoning would apply to ss 28(3) and 29(3) of the Defamation Act 2005 in relation to the word ‘honestly’. In other words, if it can be shown that the publication was not honestly made for these purposes, the defence would be defeated.

FAIR AND ACCURATE REPORTS ON MATTERS OF PUBLIC INTEREST 26.14 As the common law defence developed, a view was put forward that there should be a defence for the fair and accurate report of information on a subject of public interest.74 The view was considered by the English Court of Appeal in Blackshaw v Lord75 and firmly rejected, as it was under the common law defence of qualified privilege. Cases where the defence of protected report has been established are usually based upon proceedings in recognised categories such as court proceedings. There is no defence for a report of fair information on a matter of public interest.76 ____________________ 1. 2.

3. 4. 5. 6.

Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 772, 778 and 780–1. Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211 at 247–8; Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; (1998) 193 CLR 519; Rogers v Nationwide News Pty Ltd [2003] HCA 52 at [15]–[17]. Wake v John Fairfax & Sons Ltd [1973] 1 NSWLR 43 at 50. R v Wright (1799) 8 TR 293; 101 ER 1396; Wason v Walter (1868) LR 4 QB 73; Cook v Alexander [1974] 1 QB 279. Kimber v Press Association Ltd [1893] 1 QB 65 at 68; Leslie v Mirror Newspapers Ltd (1971) 125 CLR 332. Allbutt v General Council of Medical Education & Registration (1889) 23 QBD 400 at 410; Wason v Walter (1868) LR 4 QB 73; Davison v Duncan (1857) 26 LJ QB 104; 119 ER 1233; Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211 at 247–8; Rogers v Nationwide News Pty Ltd [2003]

7. 8. 9.

10. 11. 12.

13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31.

32. 33. 34. 35. 36. 37. 38.

HCA 52. Smith v Harris [1996] 2 VR 335; Gobbart v West Australian Newspapers [1968] WAR 113. Wake v John Fairfax & Sons Ltd [1973] 1 NSWLR 43 at 47; Perera v Peiris [1949] AC 1 at 21. Thom v Associated Newspapers Ltd (1964) 64 SR (NSW) 376 at 380; Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; (1998) 193 CLR 519 at 540; Macquarie Radio Network Pty Ltd v Dent [2007] NSWCA 261 at [19]. Leslie v Mirror Newspapers Ltd (1971) 125 CLR 332. Thom v Associated Newspapers Ltd (1964) 64 SR (NSW) 376 at 380, 383; Anderson v Nationwide News Pty Ltd [1970] 1 NSWR 317 at 320. Thom v Associated Newspapers Ltd (1964) 64 SR (NSW) 376 at 380, 387 and 393; Anderson v Nationwide News Pty Ltd [1970] 1 NSWR 317 at 318; Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 63; Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; (1998) 193 CLR 519 at 526. Rogers v Nationwide News Pty Ltd [2003] HCA 52 at [18] (Gleeson CJ, Gummow J). Rogers v Nationwide News Pty Ltd [2003] HCA 52 at [18] (Gleeson CJ, Gummow J). Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; (1998) 193 CLR 519. Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5 at [183] (Kirby J). Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5 at [183] (Kirby J). Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5 at [184] (Kirby J). Defamation Act 1974 (NSW) Sch 2 cl 2(4). Defamation Act 1974 (NSW) Sch 2 cl 2(5). Defamation Act 1974 (NSW) Sch 2 cl 2(6). Defamation Act 1974 (NSW) Sch 2 cl 2(7). Defamation Act 1974 (NSW) Sch 2 cl 2(9). Defamation Act 1974 (NSW) s 24(3). Defamation Act 1974 (NSW) s 24(4). See NSW Law Reform 1971 Report LRC (11) Appendix D, [121]. See Wason v Walter (1868) LR 4 QB 73. Macquarie Radio Network Pty Ltd v Dent [2007] NSWCA 261 at [19]. Thom v Associated Newspapers Ltd (1964) 64 SR (NSW) 376 at 380. Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5 at [164] (Kirby J). Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5 at [177] (Kirby J). Compare Burnie Port Authority v General Jones Pty Ltd (1992–1994) 179 CLR 520 at 534; Brodie v Singleton Shire Council (2001) 206 CLR 512 at [129], [226]–[234]. Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5 at [178] (Kirby J). Rogers v Nationwide News Pty Ltd [2003] HCA 52 at [21]; Macquarie Radio Network Pty Ltd v Dent [2007] NSWCA 261 at [30]. Rogers v Nationwide News Pty Ltd [2003] HCA 52 at [21] (Gleeson CJ, Gummow J); Leslie v Mirror Newspapers Ltd (1971) 125 CLR 332 at 341. As were the proceedings themselves under absolute privilege: see 21.2. See Appendix II. Parliamentary Privileges Act 1987 (Cth) s 10. Parliamentary Papers Act 1908 (Cth).

39. Parliamentary Proceedings Broadcasting Act 1946 (Cth). 40. Defamation Act 1974 (NSW) s 24 Sch 2 cl 2; Wrongs Act 1958 (Vic) s 3A(1); Civil Liability Act 1936 (SA) s 7(1)(ab); Defamation Act 1889 (Qld) s 13(1)(a); Defamation Act 1957 (Tas) s 13(1)(a); Criminal Code Act 1913 (WA) s 354(1); Civil Law (Wrongs) Act 2002 (ACT) s 60(4)(a); Defamation Act 1989 (NT) s 6(1)(ba). 41. Defamation Act 1974 (NSW) s 25; Wrongs Act 1958 (Vic) s 6; Defamation Act 1889 (Qld) s 13(1)(b); Defamation Act 1957 (Tas) s 13(1)(b); Criminal Code Act 1913 (WA) s 354(2); Civil Liability Act 1936 (SA) s 12; Civil Law (Wrongs) Act 2002 (ACT) s 61(4). 42. Defamation Act 1974 (NSW) s 24 Sch 2 cl 2(6); Wrongs Act 1958 (Vic) s 3A(2); Civil Liability Act 1936 (SA) s 7(1)(c) (limited to Royal Commissions); Defamation Act 1889 (Qld) s 13(1)(c); Defamation Act 1957 (Tas) s 13(1)(c); Criminal Code Act 1913 (WA) s 354(4); Civil Law (Wrongs) Act 2002 (ACT) s 60(4)(e). 43. Wrongs Act 1958 (Vic) s 3A(2); Civil Liability Act 1936 (SA) s 6. The defence remains available in Victoria under the Wrongs Act 1958 (Vic) s 4. 44. Defamation Act 1974 (NSW) s 27. 45. Civil Law (Wrongs) Act 2002 (ACT) s 61(4). 46. Defamation Act 1889 (Qld) s 13(1)(d); Defamation Act 1957 (Tas) s 13(1)(d); Criminal Code Act 1913 (WA) s 354(3); Civil Law (Wrongs) Act 2002 (ACT) s 60(4)(f). 47. Defamation Act 1974 (NSW) s 27(1). 48. Defamation Act 1974 (NSW) s 27(2). 49. Defamation Act 1974 (NSW) s 24 Sch 2 cl 2(9). See Cassell v Gold Coast Publications Pty Ltd [1984] 1 NSWLR 11; Wrongs Act 1958 (Vic) s 5(1) (Newspaper Reports); Civil Liability Act 1936 (SA) s 7(1) (b); Defamation Act 1889 (Qld) s 13(1)(f); Defamation Act 1957 (Tas) s 13(1)(g); Criminal Code Act 1913 (WA) s 354(6); Defamation Act 1989 (NT) s 6(1)(b). 50. Defamation Act 1974 (NSW) s 24 Sch 2 cl 2(9); Civil Liability Act 1936 (SA) s 7(1)(a); Defamation Act 1889 (Qld) s 13(1)(g); Defamation Act 1957 (Tas) s 13(1)(h); Criminal Code Act 1913 (WA) s 354(7); Civil Law (Wrongs) Act 2002 (ACT) s 60(4)(j); Defamation Act 1989 (NT) s 6(1)(a). (Note definition of public meeting in Queensland and Tasmania contained in their respective codes, s 13(3), and the provision of a defence for newspapers in Western Australia under the Newspaper Libel and Registration Act 1884.) 51. Defamation Act 1974 (NSW) s 24, Sch 2, cl 2(1); Civil Liability Act 1936 (SA) s 7(1)(b); Defamation Act 1889 (Qld) s 13(1)(f); Defamation Act 1957 (Tas) s 13(1)(c); Defamation Act 1989 (NT) s 6(1)(b). 52. Defamation Act 1974 (NSW) s 25 and Civil Law (Wrongs) Act 2002 (ACT) s 61(1) and (4). 53. Defamation Act 1974 (NSW) s 25. 54. Clause 3(1). See also Civil Liability Act 1936 (SA) s 12(3); Civil Law (Wrongs) Act 2002 (ACT) s 61. 55. Defamation Act 1974 (NSW) Sch 2 cl 3(2). 56. Defamation Act 1974 (NSW) Sch 2 cl 3(3). 57. Defamation Act 1974 (NSW) s 28; Wrongs Act 1958 (Vic) s 5A; Civil Liability Act 1936 (SA) s 7(1); Defamation Act 1889 (Qld) s 13(1)(e); Defamation Act 1957 (Tas) s 13(1)(f); Criminal Code Act 1913 (WA) s 354(5); note also Civil Liability Act 1936 (SA) s 7(1)(d) (Shareholders Meetings); Defamation Act 1989 (NT) s 6(1)(d) (Shareholders/Company Meetings). 58. Searles v Scarlett [1892] 2 QB 56. 59. Defamation Act 1974 (NSW) s 28(1). 60. Defamation Act 1974 (NSW) s 28(2).

61. Defamation Act 1974 (NSW) s 28(5). 62. Defamation Act 1974 (NSW) s 28(3). 63. Wrongs Act 1958 (Vic) ss 3A(3), 5(4); Civil Liability Act 1936 (SA) s 7(1); Criminal Code Act 1913 (WA) s 5; Defamation Act 1989 (NT) s 6. 64. Defamation Act 1889 (Qld) s 6; Defamation Act 1957 (Tas) s 8. 65. Defamation Act 1974 (NSW) s 26; Wrongs Act 1958 (Vic) ss 3A, 5; Civil Liability Act 1936 (SA) s 7(1); Criminal Code Act 1913 (WA) s 354; Defamation Act 1889 (Qld) s 13(2) and (4); Defamation Act 1957 (Tas) s 13(2)(a) and (b); Civil Law (Wrongs) Act 2002 (ACT) ss 60(3), 61(3). 66. Defamation Act 1889 (Qld) s 13(2); Defamation Act 1957 (Tas) s 13(2)(a); Criminal Code Act 1913 (WA) s 358; Civil Law (Wrongs) Act 2002 (ACT) s 60(3). 67. Wrongs Act 1958 (Vic) ss 3A, 5; Civil Liability Act 1936 (SA) s 7; Defamation Act 1989 (NT) s 6. 68. Defamation Act 1974 (NSW) s 26. 69. Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 62–5. 70. NSW Law Reform 1971 Report LRC (11) Appendix D, [139]–[148]. 71. Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 63; Crawford v Amalgamated Television Services Pty Ltd [1989] A Def R 50-040. 72. Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 64. 73. See Crawford v Amalgamated Television Services Pty Ltd [1989] A Def R 50-040. 74. Cox v Feeney (1863) 4 F&F 13 at 15; 176 ER 445 at 446; Webb v Times Publishing Company Ltd [1960] 2 QB 535. 75. [1984] QB 1. 76. Wake v John Fairfax & Sons Ltd [1973] 1 NSWLR 43 at 48; Allen v John Fairfax & Sons Ltd [1971] 1 NSWLR 773 at 778.

[page 505]

CHAPTER 27 FAIR COMMENT COMMON LAW DEFENCE OF FAIR COMMENT COMMENT CONTEXT STATEMENT OF FACT NOT COMMENT MATERIAL FOR COMMENT FACTUAL MATERIAL PRIVILEGED MATERIAL PUBLIC INTEREST FAIRNESS MALICE

27.1 27.2 27.3 27.4 27.5 27.6 27.7 27.8 27.9 27.10

COMMON LAW DEFENCE OF FAIR COMMENT 27.1 The common law provides a defence of fair comment on a matter of public interest which protects freedom of expression, long regarded as a basic right. ‘It is the right of all the Queen’s subjects to discuss public matters …’.1 The elements of the common law defence of fair comment are as follows: (a) the comment must be recognisable as an expression of comment and not a statement of fact; (b) the comment must be based on fact, truly stated or referred to in the matter complained of, or based on other proper material in the matter complained of; (c) the comment must relate to a matter of public interest; [page 506]

(d) the comment must satisfy the following objective test — could any fair-minded person honestly express that opinion on the proved facts? 2 The defendant must prove that the comment is objectively fair — whether an honest person could express the opinion, even if it is exaggerated, prejudiced or obstinate.3 The common law defence may be defeated by proof of malice. It has been suggested the defence should be renamed the defence of ‘honest comment’.4

COMMENT 27.2 A comment is generally a statement of opinion based on facts or other ‘proper material’. The opinion must be indicated with reasonable clearness by the words of the publication, the manner of speaking, the context, the tone of voice, the relationship between the material relied upon and the comment and the circumstances in which the words are published.5 The opinion may be wrong, grossly exaggerated, prejudiced or biased. The freedom to comment which the law allows involves the person to whom the comment is made being given a choice to accept or reject the opinion expressed by the comment. The test of whether the defamatory matter is comment is whether the ordinary reasonable person would understand the statement as an expression of opinion.6 The actual language used and the context in which it is used must be taken into account.7 This test is consistent with the test of whether the publication conveys a defamatory meaning which is determined by reference to the understanding of the ordinary reasonable person, be they reader, viewer or listener of the publication. The ordinary reasonable person engages in a degree of loose thinking and is capable of reading between the lines.8 In the light of the person’s general knowledge and experience of worldly affairs, sometimes the natural and ordinary meaning of the [page 507] words is conveyed by the words themselves but often the meaning is an

implication or inference drawn by that ordinary reasonable person from them. Distinctions need to be drawn between such meanings derived from the ordinary reasonable person’s general knowledge and from extrinsic facts not generally known, and between someone who is not avid for scandal, unusually suspicious or unusually naïve and one who derives such meanings from his or her own beliefs, suspicions and prejudices. It is clear then that the law allows the ordinary reasonable reader to use a certain amount of implication, inference or deduction to derive the natural and ordinary meaning of the publication. The common law defence of comment requires the ordinary reasonable person to understand that the publication conveys an opinion, deduction or conclusion by the defendant.9 The mode of communication may limit the ordinary reasonable person’s ability to identify or accept that the publication conveys such an opinion. For example, a television viewer receives a succession of spoken words and visual images which the person is unable to have repeated for the purpose of reflection or clarification, whereas a reader of printed material normally has it before him or her with the ability to re-read the material. Television will make it difficult for the viewer who sees and hears the material simultaneously and only once to identify the statement as one of opinion, or the factual basis for it.10

CONTEXT 27.3 The plaintiff is required to plead the defamatory meaning he or she asserts was conveyed by the publication complained of as part of the process towards trial to ensure fairness to the defendant in pleading the defences to the action. At the trial, the plaintiff is entitled to rely on an imputation which is not substantially different from the pleaded imputation (or in jurisdictions other than New South Wales, which is no more injurious or serious than the pleaded imputation). Likewise the defendant cannot raise a false issue by pleading the defence and seeking to justify imputations which are substantially different to those pleaded by the plaintiff.11 In jurisdictions other than New South Wales, a defendant is entitled to plead a defence of fair comment (or justification) relying upon an imputation which amounts to a variant or nuance of the imputations pleaded by the plaintiff, and

which is no more injurious than the plaintiff’s imputations.12 In this context, there is no difference between the ‘raw material of the actual words employed’ and their meaning as pleaded by the plaintiff. The defendant is required to assert that the meaning of which [page 508] the plaintiff complains was conveyed as ‘comment’ and in this way, the defendant is substantially obliged to respond to the plaintiff’s pleading.13 If a plaintiff chooses to plead imputations in terms and at a level of abstraction significantly higher than any statement actually made in the publication, it is only fair that the defendant can submit that such imputations amount to a deduction or inference which amount to comment conveyed by the publication.14 It would not be responsive to a plaintiff’s imputation, that he had acted in a criminal manner, to assert the comment was that there was a serious question for investigation whether he had acted in such a way.15 However, it has been held that where the plaintiff complains that the publication conveys an imputation of which there is a ‘necessary and close’ connection between the subject matter of that imputation and the subject matter of an alternative imputation formulated by the defendant, the two imputations may not be ‘substantially different’ when considered in the context of the article from which they are derived and a defendant would be entitled to plead the alternative imputation in the defence of honest opinion to that imputation.16 The form of the imputation may not be determinative of whether the statement is comment or fact as it may not accurately reflect the language of the defamatory publication.17 The task is informed by both the meaning found and the context in which that meaning is conveyed. It should be recognised that an opinion and its factual premise can logically be combined within the one statement. An imputation specified in a pleading will often combine a defamatory attribution and a factual assertion on which it is based. A defence of comment would not necessarily fail by reason of the inclusion of a factual component in the imputation. The critical question is whether the defamatory

sense of the matter complained of was conveyed as an expression of opinion rather than an assertion of fact.18 In O’Brien v Australian Broadcasting Corporation,19 the trial judge found that the following imputations were conveyed by the ABC program Media Watch, in which the presenter criticised an article published by the plaintiff journalist in the Sun Herald newspaper: (a) as a journalist, the plaintiff engaged in trickery by representing the tests for toxic substances had been conducted in a children’s playground whereas she knew that they had been conducted in an area nearby; [page 509] (b) that the plaintiff created unnecessary concern in the community by irresponsibly failing to consult experts as part of her preparation of an article about toxic substances. The trial judge observed that the structure of the program was to present factually something that was reported in the media, to present factually what was said to be wrong with it, and to pass comment on the appropriateness of the relevant conduct by reference to a normative standard for the media. The tone of the program is the tone of critique, the manner of presentation is opinionated. Therefore, the ordinary reasonable viewer would have understood the statements in their defamatory meaning as the presenter’s comment or opinion and not fact.20 The trial judge found that the sting of imputation (a) lay in the allegation of ‘trickery’ deriving from the words used in the program stating the journalist had used ‘sleight of hand’ and held that the ordinary reasonable viewer would have understood the attribution of trickery to be conveyed as comment or opinion and not a statement of fact.21 The imputation as conveyed combined the defamatory attribution and the factual assertions on which it was based, namely the representations by and the knowledge of the plaintiff. The trial judge found that the sting of imputation (b) was the attribution of creating unnecessary concern by an irresponsible failure to take a particular step,

namely consult experts when writing in a complex field. The trial judge held that the ordinary reasonable viewer would have understood that attribution to be conveyed as the comment or opinion of the presenter rather than a statement of fact.22 The ABC succeeded with its defence of fair comment.

STATEMENT OF FACT NOT COMMENT 27.4 A statement of fact is generally not comment23 and cannot be protected by the defence of fair comment.24 However, a statement of inference, deduction, conclusion, criticism, judgement or observation is capable of being comment25 and an allegation of fact in the context of the publication may also be capable of being comment.26 There can be no clear line between comment and a statement of fact. The characterisation must be made for the purposes of the defence, and the context and circumstances of the use [page 510] of the words will be important.27 A comment can be made by stating a value judgement and can also be made by stating a fact if it is a deduction from other facts.28 This emphasises the importance of the ordinary reasonable person’s understanding of a publication as an expression of opinion for the defence to succeed. If the person cannot distinguish between statements of fact and a comment or is confused by the intermingling of facts and comment, the defence will fail.29 The use of words ‘in my opinion’, ‘in other words’, ‘I would say’ and ‘I think’ tend to indicate that the statement is likely to be comment and not a statement of fact;30 a statement as to the likely occurrence of future events would normally be comment;31 the use of figures of speech such as similes tend to indicate a statement of comment;32 a cartoon which is bound by its nature to traffic in exaggeration, caricature, allegory and fiction is capable of being comment.33

The Australian newspaper published a review of a theatrical performance of Othello. The play was directed by Mr O’Shaughnessy who also played the part of Othello. The review in the Australian was under the headline, ‘What a Tragedy’. The article said: Stupidity and lack of talent are forgivable; brave failures are deserving of praise — these are everyday human failings. But the waste and dishonesty of this production, or rather recitation, make me very angry indeed.34

O’Shaughnessy sued the newspaper, which relied upon a defence of fair comment. The trial judge ruled as a matter of law that the whole of the article amounted to comment upon the production of the play by the plaintiff. On appeal, the High Court considered that, while it was correct for the trial judge to regard the criticism as doing no more than expressing the critic’s own evaluation of the production, he was in error in deciding that the jury could not have found that the material was a statement of fact as opposed to merely an expression of opinion. The passage above could have been regarded by the jury as going beyond criticism of the production and attributing a dishonourable motive to the plaintiff as a statement of fact. It was not that the writer merely failed to preface what she had said about the production with some formula such as ‘it seemed to me’, but rather that the jury could have found that an imputation of dishonesty was levelled against the plaintiff as the writer’s explanation of what she asserted to be a waste of talent. The court noted that an imputation of dishonesty [page 511] would not always be an assertion of fact, as facts truly stated could be used as the basis for an imputation of dishonesty in a particular case.35 The publisher’s intention that the statement be understood as an opinion is not relevant but rather whether the ordinary reasonable person would understand the published matter was the expression of the publisher’s opinion.36

MATERIAL FOR COMMENT 27.5

‘Proper material’ for comment is the factual material or other material

upon which the comment is based. The common law rule is that, where the comment is based on facts, the facts must be truly stated.37 Unless the facts are true, it is said that the comment cannot be ‘fair’.38 Those facts must be stated or sufficiently indicated in the matter complained of.39 This allows the recipient to distinguish more readily between fact and opinion. It also allows the recipient to judge the validity of the opinion.40 The onus is on the defendant to establish any statements of fact upon which the comment is based and to establish that those statements of fact are substantially true. The defence of fair comment does not apply to the material itself upon which the comment is based. This means that a statement of fact which conveys a defamatory meaning may have to be defended under other defences such as truth or protected report, but not the defence of fair comment. The defence does not extend to cover misstatements of fact, however bona fide, and it is necessary for the publisher to prove that each (published) fact was true. If the publisher fails to justify one, even comparatively unimportant (published) fact, the defendant fails in the defence.41 The same applies where some but not all of the facts are set out in the article.42 Another class of ‘proper material’ is the publication of a protected report of parliamentary or judicial proceedings. Publication of comment based on such a [page 512] protected report may be defensible.43 Similarly, defamatory statements published on a privileged occasion may provide ‘proper material’ on which the comment may be based, provided the defence of privilege protects those statements.44

FACTUAL MATERIAL 27.6 Comment may be based on defamatory facts or non-defamatory facts which are published with the comment. At common law the general rule is that the defendant must prove the truth of every fact which is the basis of the comment.45

In many cases the facts alleged to justify the comment are not defamatory. For example, the defamatory comment may consist of a comment impugning the skill, reliability or competence of the plaintiff and will be based on public statements, policies or actions for which the plaintiff is responsible. A critical review of a book or play will be based on a description of the contents of or extracts from the work which the critics set out in the review.46 Defamatory comments concerning politicians and public figures are also frequently based on their own statements or on non-defamatory actions or policies for which they are responsible.47 In the conventional case of fair comment, the basis of the comment appears in the publication and the reader is able to judge whether the facts set out in the publication justify the comment.48 Once the defendant proves the facts which are the basis of the comment, that person is entitled to the benefit of the defence unless the opinion expressed by the defendant was not honestly held.49 The extent to which the factual material on which the comment is based is set out in the publication complained of has been a matter of controversy. In general, the material must be stated expressly or impliedly in the publication complained of or must constitute a matter of contemporary history or general notoriety and thus in one way or another must be made known to the persons to whom the publication was made.50 A statement could not reasonably be understood as comment if the statement could not possibly be an opinion based on the indicated material. [page 513] It is necessary for the publisher to identify the facts upon which the comment is made; that is, that the reader should be in a position to judge for himself or herself how far the comment or criticism about the plaintiff was well founded by those facts (not to judge whether the opinion itself is well founded).51 The matter cannot be fair comment unless ‘the facts on which it is based are stated or indicated with sufficient clarity to make it clear that it is comment on those facts’.52 This means that the facts must be stated in the publication containing the comment, or be referred to in it, or be notorious.53 A sufficient linkage between the comments alleged and the factual material

relied on can appear in three ways: the factual material can be expressly stated in the same publication as that in which the comment appears (that is, by ‘setting it out’); the factual material commented on, while not set out in the material, can be referred to (that is, by being identified ‘by a clear reference’); or factual material can be ‘notorious’.54 It has been argued that to require a defendant to show that there was sufficient factual material to enable the ordinary reasonable person to assess whether the opinion was right or wrong would be unduly damaging to ‘the right of free expression’. Rather, it was submitted that the subject matter or factual substratum of the comment would be sufficient if it were notorious or sufficiently indicated in the publication.55 A statement is more likely to be recognisable as a statement of opinion if the facts on which it is based are identified or identifiable.56 The rule that facts must be stated, referred to or notorious in the publication to provide proper material for comment may require an exception in relation to plays or sporting spectacles or other similar events. Where conduct of this nature is ‘submitted to public criticism’ then opinions expressed about that conduct need not be based on more factual material than that reference to enable the ordinary reasonable person to form an opinion.57 The special rules that might apply in these circumstances may depend upon the extent to which the conduct is carried out in public.58 The rules governing factual material as the basis for the defence of fair comment were considered by the High Court in Channel Seven Adelaide Pty Ltd v Manock.59 [page 514] Dr Manock was a forensic pathologist who had carried out an examination of a woman found dead in her bath. Her fiancé, Henry Keogh, was convicted of her murder. Dr Manock gave evidence for the prosecution as an expert witness. Some years after the conviction, Channel Seven ran the following promotion on television of a future edition of its current affairs program Today Tonight: The new Keogh facts. The evidence they kept to themselves. The data, dates and documents that don’t add up. The evidence changed from one court to the next.

While these words were being said, a picture of Dr Manock was displayed in

the background, slightly above the presenter. The presenter then said: They are so smug and complacent about how fantastic our court system is, that we need an urgent wake up call. Unless the investigation is thorough then the court proceedings aren’t going to be complete because they are only getting part of the story.

Dr Manock brought proceedings, pleading that the promotion conveyed the meaning that he had deliberately concealed evidence at the trial of Mr Keogh for murder. Channel Seven filed a defence of fair comment alleging the comment was based on factual material which it said showed that Dr Manock had conducted an inadequate investigation and given inaccurate evidence. Channel Seven pleaded the defence of fair comment in the following form: Further, or in the alternative, the defendant says that the following words: 3.1 the new Keogh facts; 3.2 the evidence they kept to themselves; 3.3 the data, dates and documents that don’t add up; and 3.4 the evidence changed from one court to the next, constitute fair comment on a matter of public interest.

Dr Manock applied to strike out the defence. The High Court held that the statements pleaded in paragraphs 3.1–3.4 of the defence, whether taken separately or together, were not comments and the facts asserted to be the facts on which the comments were based were not sufficiently indicated or notorious to enable the viewers who saw the promotion to judge for themselves how far the opinions expressed in the ‘comments’ were well founded. Further, the High Court held that the defendant’s comment as pleaded was not ‘relevant’ to the meaning pleaded by the plaintiff and raised a ‘false’ issue for the purposes of the proceedings. The defendant’s submissions would have led to the conclusion that if Dr Manock established the meaning pleaded, he would have been accused of deliberately concealing evidence, while Channel Seven would escape liability by saying merely that he was incompetent and mistaken in various respects. The court said, ‘There is a great gulf between displaying incompetence and deliberately concealing evidence’.60 Justice Kirby disagreed with the majority about whether the statements were recognisable as comment and whether the factual basis for the comment was [page 515]

sufficiently indicated, taking a broader approach reflected by McHugh J in Pervan v North Queensland Newspaper Company Ltd.61 The factual material on which the comment is based must self-evidently exist at the time the publication is made and must also be known to the defendant in order for it to be able to make the comment.62 The extent of the defendant’s knowledge of the factual material may be relevant to the extent to which the factual material is indicated in the publication. If the facts as stated or referred to in the publication are untrue, the defendant cannot seek to rely on alternative facts, later discovered, and not stated or referred to by the defendant in the publication, as the basis for the comment expressed. In other words, if the defendant does not know of the existence of certain facts at the time of publication, but becomes aware of them later, those facts cannot be part of the factual material on which the comment as expressed was based and communicated to the audience at the time of publication. Similarly, the defendant cannot invent facts and then comment on those facts so invented on the supposition that the facts are true.63 Comment based on others’ expressions of opinion, which may or may not be true, is not a proper basis for the defence.64

PRIVILEGED MATERIAL 27.7 The statement of facts which are untrue but published on a privileged occasion entitles a defendant to make a fair and honest comment on the facts so stated so long as he or she bases that comment on a fair and accurate account of the occasion on which the statement was made.65 If by some unfortunate error a vote in Parliament recites, or a judge in giving the reasons of his judgment states, that which is derogatory to some person, and the charge is mistaken and illfounded, and a newspaper reports such vote or judgment, and proceeds in another part of its issue to comment upon the character of the person affected in terms which would be fair if the charge were well founded, the newspaper which so reports and comments should be entitled to the protection of fair comment.66

The defence of comment derives protection from the privileged publication of defamatory facts.67 [page 516]

PUBLIC INTEREST 27.8 The comment to be defensible must relate to a matter of public interest. For example, the administration of justice and the conduct of those who take part in it are matters of public interest.68 It was unclear in the Code states under previous legislation whether proper material should also be published ‘for the public benefit’.69 For this reason, s 31(5) of the Defamation Act 2005 makes a statement of fact ‘proper material’ for comment whether or not the statement relates to a matter of public interest. It is proper material for comment if it is substantially true alone. The comment, however, must relate to a matter of public interest. Public interest has not been defined, but it should not be confined to narrow limits.70 A subject of public interest is understood at common law to refer to the conduct of a person engaged in activities that either inherently, expressly or inferentially invite public criticism or discussion.71 For example, a matter will be of public interest if the person exposes himself or herself to comment by inviting the acceptance or approval from the public of his or her literary or artistic productions. This applies to authors, artists or sculptors who offer or display their work to the public, and to musicians, singers or actors who perform in public. In these cases, since the persons concerned have invited the public to interest itself in their work, they cannot be heard to say that its quality is not a matter of public interest.72 Similarly, the plaintiff’s conduct or office may be a matter of legitimate interest to the public.73 The conduct of an industry which provides a public spectacle is a matter of public interest.74 At common law, the judge rather than the jury has the function of determining the subjects of public interest. The reason for this was expressed as follows: It would be abolishing the law of privileged discussion, and deserting the duty of the court to decide upon this as upon any other question of law, if we were to hand

[page 517]

over the decision of privilege or no privilege to the jury. A jury, according to their individual views of religion or policy, might hold the church, the army, the navy, parliament itself, to be of no national or general importance, or the liberty of the press to be of less consequence than the feelings of a thin-skinned disputant.75

FAIRNESS 27.9 At common law the test of fairness of the comment is the defendant’s honesty.76 Comments do not have to be correct, justified or reasonable provided they are honestly held. A defendant is entitled to express an opinion even though lawyers might regard the views as prejudiced, exaggerated or obstinate,77 provided certain conditions of the defence are satisfied.78 In other words, comment may be wrong, grossly exaggerated or based on prejudice or bias — it does not have to be reasonable.79 The question is not whether the comment is fair in the ordinary sense of that word, but whether the words complained of can fairly be regarded as comment.80 Fairness is judged by the objective standard of whether any fair-minded person could honestly express the opinion in question, not whether the tribunal of fact agrees with the opinion.81 The burden is on the defendant to prove fair comment and there must be some evidence that the comment represents the defendant’s own honest view. Where the defendant’s comment is fair by the objective test, it is presumed to be the honest expression of the defendant’s view unless the plaintiff pleads and proves express malice. It has been argued that there needs to be a relationship between the proper material for comment and the comment. The requirement is that any comment be ‘based on’ the ‘proper material’. It has been thought necessary to show a ‘rational relationship’ between the material relied upon by the defendant and the imputation relied upon by the plaintiff.82 However, the concept of a ‘rational’ relationship may undermine the concept which provides that the opinion be honestly held and be based on proper material for [page 518]

comment. The opinion does not have to be ‘right or wrong’, sound or unsound, or even rational. It may be extreme, stupid, biased or prejudiced. It is because expressions of opinion may reflect such attitudes that there is a requirement that the opinion be honestly held based on proper material. If the concept of ‘rational relationship’ between that material is necessary or part of the defence, it may reduce the scope of the defence which might otherwise support unreasonable opinion.83 The reason why the defendant holds the opinion is not relevant, only whether he or she honestly did. Otherwise, the defendant’s reasoning could only be relevant to the reasonableness of the opinion and not to the honesty with which that opinion was held.84 Whether the opinion is biased or prejudiced is not the test, only whether it is honestly held.

MALICE 27.10 At common law a defence of fair comment may be defeated by proof of malice ‘in fact’, namely that the opinion of the defendant, though truly expressed in the comment, was distorted by malice or the product of a judgement warped by malice.85 Malice may be shown in the sense that the author was prompted by some purpose other than the purpose of communicating to the interested public the author’s genuine opinion.86 In this context ‘malice’ may be evident, it has been said, where the defendant’s opinion was affected or distorted by personal hostility or some other irrelevant motive, in such a way that it does not represent a ‘disinterested judgement’ upon the matter which is the subject of the comment.87 However, personal hostility is often present in an expression of opinion and may not be sufficient to defeat the defence. The fact that a defendant does not believe in the truth of his or her comment is the strongest possible evidence of malice.88 Proof of motivation, such as spite or animosity, may be evidence from which lack of genuine belief in the opinion expressed may be inferred.89 However, the test is whether the evidence shows that the defendant did not have a genuine or honest belief as to the comment made, or was recklessly indifferent to the truth or falsity of the comment made.90 That must be the dominant purpose of the publication of the matter by the

[page 519] defendant.91 Once malice is proved, what would otherwise be fair comment by the objective test becomes ‘unfair’ overall.92 The plaintiff bears the onus to prove that the defendant was actuated by express malice.93 ____________________ 1.

2.

3.

4. 5. 6.

7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21.

Campbell v Spottiswoode (1863) 3 B&S 769 at 779; 122 ER 288 at 291; Lyon v Daily Telegraph Newspaper Ltd [1943] 1 KB 746 at 753; Slim v Daily Telegraph Ltd [1968] 2 QB 157 at 170; Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60 at [115]. Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1 at [259]; Carleton v Australian Broadcasting Corporation (2002) 172 FLR 398 at 434–5; Tse Wai Chun Paul v Cheng [2001] EMLR 777 at [16]–[21]; O’Brien v Australian Broadcasting Corporation [2016] NSWSC 1289 at [48]. Merivale v Carson (1887) 20 QBD 275 at 280–1, 283–4; Adams v Sunday Pictorial Newspapers (1920) Ltd & Champion [1951] 1 KB 354 at 359–60; Pervan v North Queensland Newspaper Company Ltd (1993) 178 CLR 309; Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60 at [3]. Spiller v Joseph [2010] UKSC 53 at [117]. Petritsis v Hellenic Herald Pty Ltd [1978] 2 NSWLR 174 at 182; Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60 at [35]. Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474 at 490; Bjelke-Petersen v Burns [1988] 2 Qd R 129 at 131; Rocca v Manhire [1992] 57 SASR 224 at 235; John Fairfax Publications Pty Ltd v O’Shane [2005] NSWCA 164 at [32]; Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60 at [36]. Clarke v Norton [1910] VLR 494 at 507; Smith’s Newspapers Ltd v Becker (1932) 47 CLR 279 at 302–4; Telnikoff v Matusevitch [1992] 2 AC 343 at 358. Lewis v Daily Telegraph Ltd [1964] AC 234 at 259–60. Buckley v Herald & Weekly Times Pty Ltd [2008] VSC 459 at [28]. Comalco Ltd v Australian Broadcasting Corporation (1985) 64 ACTR 1 at 40; Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60 at [37]. David Syme & Co Ltd v Hore-Lacy (2000) 1 VR 667 at [53]–[54]. Newnham v Davis [2010] VSC 94 at [19]. Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60 at [84], [171]. Herald & Weekly Times Ltd v Buckley [2009] VSCA 75 at [42]. Hore-Lacy v Cleary [2007] VSCA 314 at [54]. Soultanov v The Age Company Ltd [2009] VSC 145 at [44]–[46]. Harbour Radio Pty Ltd v Ahmed [2015] NSWCA 290 at [44]; O’Brien v Australian Broadcasting Corporation [2016] NSWSC 1289 at [45]–[46]. O’Brien v Australian Broadcasting Corporation [2016] NSWSC 1289 at [49]–[50]. O’Brien v Australian Broadcasting Corporation [2016] NSWSC 1289. O’Brien v Australian Broadcasting Corporation [2016] NSWSC 1289 at [61]. O’Brien v Australian Broadcasting Corporation [2016] NSWSC 1289 at [58].

22. 23. 24. 25.

26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41.

42. 43.

44. 45. 46. 47. 48. 49. 50.

O’Brien v Australian Broadcasting Corporation [2016] NSWSC 1289 at [60]. Gorton v Australian Broadcasting Commission (1973) 1 ACTR 6 at 16. Pervan v North Queensland Newspaper Company Ltd (1993) 178 CLR 309 at 317. O’Brien v Marquis of Salisbury (1889) 6 TLR 133 at 137; Clarke v Norton [1910] VLR 494 at 499; James Mackay v Walter W Bacon (1910) 11 CLR 530 at 535–6; John Fairfax Publications Pty Ltd v O’Shane [2005] NSWCA 164 at [25]–[26]. Kemsley v Foot [1952] AC 345 at 356–7. John Fairfax Publications Pty Ltd v O’Shane [2005] NSWCA 164 at [27]. O’Brien v Marquis of Salisbury (1889) 6 TLR 133 at 137; Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60 at [35]; Spiller v Joseph [2010] UKSC 53 at [17]. Hunt v Star Newspaper Co Ltd [1908] 2 KB 309 at 319–20. Turner v Metro-Goldwyn-Mayer Pictures Ltd [1950] 1 All ER 449 at 474; Dakhyl v Labouchere [1908] 2 KB 325. Renouf v Federal Capital Press of Australia Pty Ltd (1977) 17 ACTR 35 at 41. Associated Leisure v Associated Newspapers [1970] 2 QB 450 at 455–6. Seidler v John Fairfax & Sons Ltd (1986) Aust Torts Reports 80-002 at 67,476. O’Shaughnessy v Mirror Newspapers Ltd (1970) 125 CLR 166 at 167. O’Shaughnessy v Mirror Newspapers Ltd (1970) 125 CLR 166. See also Campbell v Spottiswoode (1863) 3 B&S 769 at 776; 122 ER 288 at 290. Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474 at 491; Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60 at [36]. Davis v Shepstone (1886) 11 App Cas 187. Goldsbrough v John Fairfax & Sons Ltd (1934) 34 SR (NSW) 524 at 532; Bjelke-Petersen v Burns [1988] 2 Qd R 129 at 133. Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60 at [35]–[36]. Harbour Radio Pty Ltd v Ahmed [2015] NSWCA 290 at [41]. Kemsley v Foot [1952] AC 345 at 357–8; Digby v Financial News Ltd [1907] 1 KB 502 at 508; Peter Walker & Son Ltd v Hodgson [1909] 1 KB 239 at 250, 254 and 256–7; Pervan v North Queensland Newspaper Company Ltd (1993) 178 CLR 309 at 335. Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1 at [270]. Mangena v Wright [1909] 2 KB 958; Thompson v Truth and Sportsman Ltd (No 4) (1934) 34 SR (NSW) 21; Bailey v Truth and Sportsman Ltd (1938) 60 CLR 700; Grech v Odhams Press Ltd [1958] 1 QB 310; Orr v Isles [1965] NSWR 677 at 700. Wason v Walter (1868) LR 4 QB 73; Thompson v Truth and Sportsman Ltd (No 4) (1934) 34 SR (NSW) 21 at 23–4. Peter Walker & Son Ltd v Hodgson [1909] 1 KB 239 at 250, 254 and 256–7; Digby v Financial News Ltd [1907] 1 KB 502 at 508. See, for example, Gardiner v John Fairfax & Sons Pty Ltd (1942) 42 SR (NSW) 171. Pervan v North Queensland Newspaper Company Ltd (1993) 178 CLR 309 at 336 (McHugh J). Pervan v North Queensland Newspaper Company Ltd (1993) 178 CLR 309 at 327. Pervan v North Queensland Newspaper Company Ltd (1993) 178 CLR 309 at 341 (McHugh J). See authorities collected in Sims v Wran [1984] 1 NSWLR 317 at 322; Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60.

51. London Artists Ltd v Littler [1969] 2 QB 375; Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1 at [268]–[269]. 52. Pryke v Advertising Newspapers Ltd (1984) 37 SASR 175 at 192; Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60 at [45]; Spiller v Joseph [2010] UKSC 53 at [105]. 53. Pervan v North Queensland Newspaper Company Ltd (1993) 178 CLR 309; Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60 at [45]. 54. Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60 at [49]. 55. Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60 at [51]. 56. Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60 at [4]. 57. Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60 at [8]. 58. Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60 at [70]; Spiller v Joseph [2010] UKSC 53 at [98]. 59. [2007] HCA 60. 60. Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60 at [86]. 61. (1993) 178 CLR 309 at 341–2. 62. Cohen v Daily Telegraph Ltd [1968] 1 WLR 916 at 919–20; Spiller v Joseph [2010] UKSC 53 at [59]. 63. H C Folkard, The Law of Slander and Libel, 5th ed, Butterworths, 1891, pp 268–9; Gatley on Libel & Slander, 12th ed, Sweet & Maxwell, 2013, [12.15]; Galloway v Telegraph Group Ltd [2004] EWHC 2786 QBD; [2006] EWCA CIV 17 at [88]. 64. Australian Ocean Lines v Western Australian Newspapers (1985) 58 ALR 549. 65. Wason v Walter (1868) LR 4 QB 73; Mangena v Wright [1909] 2 KB 958. 66. Mangena v Wright [1909] 2 KB 958 at 976–7. 67. Pervan v North Queensland Newspaper Company Ltd (1993) 178 CLR 309 at 321. See also Grech v Odhams Press Ltd [1958] 1 QB 310; Brent Walker Group plc v Time Out Ltd [1991] 2 QB 33 at 45; Thompson v Truth and Sportsman Ltd (1930) 31 SR (NSW) 292 at 296, 297, 301; but see the conflicting views in Bailey v Truth and Sportsman Ltd (1938) 60 CLR 700 at 722–3 (Dixon J) and at 717–18 (Starke J), referred to in Pervan v North Queensland Newspaper Company Ltd (1993) 178 CLR 309 at 328. 68. Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 217–18; Goldsworthy v Radio 2UE Sydney Pty Ltd [1999] NSWSC 547 at [25]. 69. Bailey v Truth and Sportsman Ltd (1938) 60 CLR 700 at 722; Orr v Isles [1965] NSWR 677 at 690; but see Jones v Skelton [1963] 1 WLR 1362 at 1372–4; O’Shaughnessy v Mirror Newspapers Ltd (1970) 125 CLR 166 at 361. 70. London Artists Ltd v Littler [1969] 2 QB 375 at 391; Reynolds v Times Newspapers Ltd [2001] 2 AC 127 at 193. 71. Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 220. 72. Gardiner v John Fairfax & Sons Pty Ltd (1942) 42 SR (NSW) 171; Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 217–18. 73. Renouf v Federal Capital Press of Australia Pty Ltd (1977) 17 ACTR 35; Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 217–18. 74. Wake v John Fairfax & Sons Ltd [1973] 1 NSWLR 43 at 47. 75. Henwood v Harrison (1872) LR 7 CP 606 at 628; Sutherland v Stopes [1925] AC 47 at 63; Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 191. 76. Falcke v Herald & Weekly Times Ltd (1925) VLR 56 at 69–71; Bickel v John Fairfax & Sons Ltd [1981] 2

77.

78. 79. 80. 81. 82. 83. 84. 85. 86. 87.

88. 89. 90. 91. 92.

93.

NSWLR 474 at 487, 498; Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60 at [3]. Cawley v Australian Consolidated Press Ltd [1981] 1 NSWLR 225 at 235; Silkin v Beaverbrook Newspapers Ltd [1958] 2 All ER 516 at 518; Goldsworthy v Radio 2UE Sydney Pty Ltd [1999] NSWSC 547; Sutherland v Australian Consolidated Press Publishing Pty Ltd [2000] NSWSC 1139 at [24]. Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60 at [3]. O’Shaughnessy v Mirror Newspapers Ltd (1970) 125 CLR 166 at 173; Silkin v Beaverbrook Newspapers Ltd [1958] 2 All ER 516 at 518. Telnikoff v Matusevitch [1991] 1 QB 102. McQuire v Western Morning News Ltd [1903] 2 KB 100 at 109; John Fairfax Publications Pty Ltd v O’Shane [2005] NSWCA 164 at [16]. David Syme & Co Ltd v Lloyd [1984] 3 NSWLR 346 at 358, 360; Radio 2UE Sydney Pty Ltd v Goldsworthy [2000] NSWCA 130 at [8]. Sutherland v Australian Consolidated Press Publishing Pty Ltd [2000] NSWSC 1139 at [24]. Lewis v Page (SC (NSW), Hunt J, 14 July 1989, unreported); Prowse v Harbour Radio Pty Ltd [2016] NSWSC 57 at [6]. Thomas v Bradbury Agnew & Co Ltd [1906] 2 KB 627 at 638, 642. O’Shaughnessy v Mirror Newspapers Ltd (1970) 72 SR (NSW) 347 at 352. Renouf v Federal Capital Press of Australia Pty Ltd (1977) 17 ACTR 35 at 53–4. See also Peterson v Advertiser Newspapers Ltd (1995) 127 FLR 186 at 193, 223 and 225; Cheng v Tse Wai Chun [2000] 3 HKLRD 418 at [74]; French v Triple M Melbourne Pty Ltd [2008] VSC 553 at [15]–[26]. Cheng v Tse Wai Chun [2000] 3 HKLRD 418 at [74]. Cheng v Tse Wai Chun [2000] 3 HKLRD 418 at [74]; Branson v Bower [2002] QB 737 at 741–2. French v Triple M Melbourne Pty Ltd [2008] VSC 553 at [32]. Szanto v Melville [2011] VSC 574 at [96]. Adams v Sunday Pictorial Newspapers (1920) Ltd & Champion [1951] 1 KB 354 at 360; Slim v Daily Telegraph Ltd [1968] 2 QB 157 at 170; Egger v Viscount Chelmsford [1965] 1 QB 248 at 265; Telnikoff v Matusevitch [1992] 2 AC 343 at 354–5; Pervan v North Queensland Newspaper Company Ltd (1993) 178 CLR 309 at 329; Reynolds v Times Newspapers Ltd [2001] 2 AC 127 at 193. Pervan v North Queensland Newspaper Company Ltd (1993) 178 CLR 309 at 329; Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1.

[page 521]

CHAPTER 28 HONEST OPINION STATUTORY DEFENCE OF HONEST OPINION STATUTORY DEFENCE OF COMMENT WHOSE COMMENT COMMENT IN THE PLEADED IMPUTATIONS COMMENT OF SERVANT OR AGENT COMMENT OF A STRANGER PARTIAL MATERIAL MATERIAL IMPUTING DISHONEST MOTIVE LIMITATION OF STATUTORY DEFENCE OF COMMENT CODE DEFENCE OF COMMENT

28.1 28.2 28.3 28.4 28.5 28.6 28.7 28.8 28.9 28.10

STATUTORY DEFENCE OF HONEST OPINION 28.1 The Defamation Act 2005 provides a statutory defence, in addition to the common law defence of fair comment, for the expression of opinion relating to a matter of public interest and based on ‘proper material’. Section 31(1) of the Defamation Act 2005 provides a defence to the publication of defamatory matter if the defendant proves that: (a)

the matter was an expression of opinion of the defendant rather than a statement of fact; and (b) the opinion related to a matter of public interest; and (c) the opinion is based on proper material.

The statutory defence of honest opinion is based on many of the concepts of the common law defence of fair comment.1 There is a separate defence for the expression of opinion by an employee or

agent of the defendant, and the other elements of the defence above ((b) and (c)) are proved: s 31(2). [page 522] There is also a separate defence for the expression of opinion by a person (a commentator) other than the defendant or an employee or agent of the defendant, and the other elements of the defence above ((b) and (c)) are proved: s 31(3). ‘Proper material’ is defined in s 31(5) to mean material that is substantially true, was published on an occasion of absolute or qualified privilege (whether under the Act or at general law), or was published on an occasion that attracted the protection of a defence under s 28 (publication of certain public documents), s 29 (fair report of proceedings of public concern) or s 31 (honest opinion). The statutory defence does not address the issue considered under the common law as to the extent to which the proper material should be indicated in the publication itself. The purpose of the defence would suggest that the material should be expressed, sufficiently indicated or notorious.2 The defences of honest opinion are defeated if the plaintiff proves that: (a) in relation to the defendant’s expression of opinion, the opinion was not honestly held by the defendant at the time the defamatory matter was published; (b) in relation to the expression of opinion by an employee or agent of the defendant, the defendant did not believe that the opinion was honestly held by the employee or agent at the time the defamatory matter was published; (c) in relation to the expression of opinion by a commentator, the defendant had reasonable grounds to believe that the opinion was not honestly held by the commentator at the time the defamatory matter was published: s 31(4). It has been suggested that in order for a plaintiff to prove under s 31(4)(b) that a defendant employer did not believe that an opinion expressed was honestly

held by its employee, it is necessary to join the employee as well as the employer to the proceedings, but there is no authority to support the view.3 The uncertainty arises from the wording of s 31(4)(b), which holds the defendant liable if it did not believe that the opinion was honestly held by its employee in relation to a defence based on the expression of opinion by the employee. Under the previous statutory defence of s 33 of the Defamation Act 1974 (NSW), on which s 31 was modelled, the defendant was held liable if the defendant’s employee did not have the opinion (regardless of the defendant’s belief about it). The wording of s 31(4)(b) does not properly address the defeasance for the expression of an employee’s opinion which should concern the employee’s state of mind and not the employer’s. An opinion does not cease to be based on proper material because some of the material on which it is based is not ‘proper material’, if the opinion might reasonably be based on such of the material as is proper material: s 31(6). This means that, to the extent that the defendant has expressed an opinion that is not based on proper material, the defence will not fail provided the opinion might reasonably be based on what is proper material contained in the rest of the matter published. It is an objective [page 523] test applied to the opinion, based on such of the facts which the defendant can prove to be true. This may exclude unreasonable or prejudicial opinion in such circumstances.4 It also excludes any other material as a basis for the opinion. In other words, the proper material for comment must be the entire basis for the comment.5 The statutory defence only requires that the ‘defamatory matter’ be an expression of opinion. It has been argued that this is different to the common law defence which is required to respond to the plaintiff’s pleaded imputation.6 However, this argument is flawed because the only significance of the defamatory matter lies in its meaning and there is generally no relevant distinction between the ‘raw material’ of the defamatory matter and the meaning which, for the purposes of proceedings, the plaintiff particularises by identifying the imputations of which he or she complains.7 The New South

Wales Court of Appeal has expressed the preference that the matter complained of should be the matter which is identified as the expression of opinion or fact and not the pleaded imputations.8 This statutory defence is additional to the common law defence of fair comment which remains available: s 24(1). It is substantially based on the previous New South Wales statutory defence of comment.

STATUTORY DEFENCE OF COMMENT 28.2 A statutory defence was previously provided for comment in New South Wales on the basis that there should be a freedom to express opinions on matters of public interest provided the opinions were founded on proper material stated or sufficiently indicated in the publication.9 The common law defence of fair comment was replaced by this statutory defence10 which was available in relation to comment published by a defendant in three situations — comment of the defendant,11 comment of the defendant’s servant or agent12 and comment of a stranger.13 The defence of comment in New South Wales was governed exclusively by this statutory defence, but the common law as to what constituted ‘comment’, ‘proper [page 524] material for comment’ (at least in part), and what was a matter of ‘public interest’ was not altered.14 It was a defence as to any imputation complained of15 that the imputation: (a) derived from a statement which was understood by the ordinary reasonable reader of the matter complained of as having been intended by its author to be an expression of opinion, and was not understood as a statement of fact;16 (b) was an opinion which an honest person might hold based on material which was completely proper material for comment,17 being material

stated expressly or impliedly in the matter complained of or which constituted a matter of contemporary history or general notoriety and thus, in one way or another, was made known to the persons to whom the publication was made to enable those persons to judge for themselves whether they agreed with the opinion published and based upon that material;18 (c) alternatively to (b), was an opinion which a reasonable person might hold based on material which was to some extent, but not completely, proper material for comment;19 (d) related to a matter of public interest;20 and (e) was the opinion of the defendant,21 the defendant’s servant or agent22 or a stranger23 at the time the statement was made.24 The statutory defence of comment did not require the defendant to prove that the comment was ‘fair’. This was covered indirectly, if fairness related to the need to express the opinion based upon proper material, as required under s 30. It would be unfair if the defendant misstated the facts upon which the comment was based.25 The comment would be fair if it was an expression of opinion based upon proper material and it was opinion which the defendant honestly held on the basis of that material.26 [page 525]

WHOSE COMMENT 28.3 Where the author of the comment was the defendant or the defendant’s servant or agent then the defendant was entitled to succeed on the defence under s 32 or s 33 unless the plaintiff established that the defendant or the defendant’s servant or agent did not have the opinion expressed. The statutory defence was defeated if the plaintiff showed that the comment was not an honest expression of opinion of the defendant at the time when the comment was made27 or the defendant did not believe it to be true.28 Section 32(2) did not use the word ‘honest’, but invited a comparison of what the defendant published as his or her opinion with what was in fact that opinion.

The plaintiff had the onus of proof. Malice or absence of good faith in the publication of the comment was not a conclusive answer but was relevant to one of the elements to be considered as to whether the publisher expressed his or her genuine opinion or whether it had distorted his or her opinion.29 The failure of the defendant to give evidence that the imputation did not represent his or her honest opinion did not by itself lead to a positive inference in favour of the plaintiff who had the onus of proof on this issue.30 If a defendant said that he or she did not intend to convey the imputation which the tribunal of fact found was conveyed, it was some evidence that the defendant did not at the time hold the opinion.31 An answer to interrogatory that the defendant did not intend to convey the plaintiff’s pleaded imputations would be sufficient evidence.32 For example, in Meskenas v Capon33 the defendant intended to convey an expression of opinion about a work of art submitted for the Archibald Prize and said: The picture of Rene Rivkin is simply a rotten picture. It is no good at all. I don’t care what Rene thinks, I looked at the picture and thought yuk. The hands in the picture are all wrong. The neck looks like it has been painted with chewing gum.

The imputations complained of were that the plaintiff was incompetent and that the plaintiff was an inferior artist. The defendant said in answers to interrogatories that he did not intend to convey any imputation about the plaintiff (only about the work of art). As a result, the defence of comment was struck out. The jury found that the imputations were conveyed and awarded damages in the sum of $100. [page 526] If it was the comment of a person other than the defendant or the defendant’s servant or agent, then the defendant was entitled to succeed unless the plaintiff established that the defendant’s publication was not in good faith for public information or the advancement of education.34 The defeasance provisions of the defence of ‘comment of a stranger’ were similar to those for the defence of protected report.35

COMMENT IN THE PLEADED IMPUTATIONS 28.4 The question arose in New South Wales as to whether the comment should be contained in the form of the pleaded imputation. If so, the defence might not have been available where the form of the imputation was factual rather than based on opinion or where the publication conveyed a meaning which was unintended by the publisher even though the published material conveyed a different expression of opinion by the defendant which was intended. One view was that the comment should have been contained within the plaintiff’s pleaded imputations and not have been contained elsewhere in the matter complained of.36 The contrary (and generally accepted) view was that the statutory defence of comment was not based upon the form in which the plaintiff chose to formulate the imputations, but should be understood in the context of the published matter from which the pleaded imputation was derived.37 This pleading issue was raised in Sutherland v Australian Consolidated Press Publishing Pty Ltd.38 The jury at a s 7A trial had determined that the following defamatory imputation had been conveyed by Ralph magazine: … that no person in Australian television history has appeared on television as grossly affected by alcohol as often as the plaintiff.39

The defendant had pleaded the statutory defence of comment. The plaintiff objected on the basis that the imputation was a bare statement of fact which could not be understood as an expression of an opinion. The material from which the imputation arose was in these terms: [page 527] ROCK AROUND THE BOX MUSIC AND TELEVISION HAVE CREATED SOME BASTARD OFFSPRING Sounds Host Donnie Sutherland Time Saturday morning

Channel 7 Launched 1973 Axed 1987 No man in the history of Australian TV has appeared hungover — or still pissed — as much as Donnie Sutherland. Sounds (called Sounds Unlimited, until it was presumably privatised) offered all the top-40 hits and countless interviews delivered with an insight and intellect only a smashed Sutherland could muster.40

The court held that the resolution of the question as to whether the relevant statements were made as comments or statements of fact could not depend upon the form of the imputation which was not seen by the recipients of the published matter.41 The actual form of the pleaded imputation was not a relevant consideration. The court was required to consider the published material in order to determine whether the writer or speaker conveyed the imputation pleaded as an expression of opinion or conclusion on the one hand or a statement of fact on the other.42 If it was not possible to decide whether or not an imputation pleaded by the plaintiff as the cause of action was an expression of opinion or conclusion or a statement of fact or some mixture of any two or all three of these, it would sometimes be impossible to decide simply from the terms of the imputation itself. The defendant was entitled to require the tribunal of fact to consider the published matter which made the defamatory imputation or from which it derived.43 Therefore, while the statutory defence of comment was a defence to the cause of action in New South Wales, namely the publication of the imputation, the tribunal of fact was not precluded from referring to the matter complained of in determining whether or not the imputation constituted an expression of opinion. In the court’s view the imputation in Sutherland’s case standing alone could be understood by reference to the extreme language employed in it as an expression of opinion, and this was more so when the imputation was considered in the light of the material published which the jury had said carried that meaning.44 The proposition that the statutory defence of comment could only relate to the imputation and nothing else not only would render Div 7 of the Act of no utility at all but reflect at the highest level the evolution of [page 528] the technical status of the imputation to the point where it was completely

‘detached from’ the published material found to have carried it.45 Where the matter complained of was ambiguous and gave rise to a serious and a fallback imputation at the same time, the former pleaded by the plaintiff and the latter less serious imputation being the comment which the defendant intended to convey, the statutory defence of comment would fail. The imputation intended by the defendant was required not to differ in substance from the pleaded imputation (as understood in the context of the publication).46 Where the published matter conveyed an imputation in general terms, the factual material stated or identified had to relate to the general statement from which the readers or listeners could judge for themselves whether they agreed with the imputation.47

COMMENT OF SERVANT OR AGENT 28.5 There was also a statutory defence of comment in New South Wales if the comment was that of a servant or agent of the defendant. It was defeated if it was shown that at the time when the comment was made the servant or agent did not have the opinion represented by the comment48 or did not believe it to be true.49

COMMENT OF A STRANGER 28.6 There was also a statutory defence of comment in New South Wales where the comment was not, and in its context and in the circumstances of the publication did not purport to be, the comment of the defendant or its servant or agent. For example, a letter to the editor of a newspaper would be a statement by a stranger. It was not necessary for the newspaper to agree with an opinion expressed by a stranger for that purpose. This is considered to be a valuable avenue of public discussion. It provides a forum in which members of the public may take part in the free discussion of matters of public interest without the media becoming liable for defamatory statements simply because they do not agree with the opinion expressed.50

[page 529] For the defence to succeed the statement in question was required to be comment, to be based on proper material for comment,51 to relate to a matter of public interest,52 and not be (and not purport to be) the comment of the defendant (which could be defended separately).53 It required the ‘stranger’ to have made the statements from which the comment derived.54 The defence was defeated if it was shown that the publication was not in good faith for public information or the advancement of education.55

PARTIAL MATERIAL 28.7 Where the defendant was unable to establish that all of the material on which the comment was based was proper material for comment, he or she could nevertheless show in New South Wales that it was to some extent proper material for comment and the comment represented an opinion which might reasonably be based on that material to the extent to which it was proper material for comment.56 If the defendant could not prove the truth of all the statements on which the comment was based, the statutory defence of comment (unlike the common law defence) was still available if the comment represented an opinion which a reasonable person might have held on so much of the statements as were proved to be true.57 Therefore, if the defendant published a report of three court cases in which the plaintiff was defamed and two of the reports were protected but the third was not, the defence of comment while based on the three reports would depend upon whether comment was presented in an opinion which might reasonably be based on the two reports, being the extent to which there was proper material.

MATERIAL IMPUTING DISHONEST MOTIVE 28.8

At common law there was a rule that a comment which imputed to the

plaintiff dishonourable or corrupt motives required proof of an element which was not required for the defence of other comment. It was held that such a comment must be ‘not without foundation’ in fact58 or must be ‘warranted by the facts’59 or must be ‘a reasonable inference from those facts’60 or ‘a conclusion which ought to be drawn [page 530] from those facts’.61 Section 30(4) of the Defamation Act 1974 (NSW) expressly stated that there was no special rule governing the nature of the material which may be the basis of a comment imputing a dishonourable motive or governing the degree of foundation or justification which comment of that nature must have in the proper material on which it was based.62

LIMITATION OF STATUTORY DEFENCE OF COMMENT 28.9 The statutory defences of comment available under Div 7 of the Defamation Act 1974 (NSW) were required to be based on proper material for comment. The defence did not apply to the material upon which the comment was based.63 That material if defamatory was required to be defended on some other basis such as the defence of truth64 or protected report.65

CODE DEFENCE OF COMMENT 28.10 The Code states of Queensland and Tasmania had a statutory defence of fair comment which replaced the common law defence.66 In Western Australia and the Northern Territory, a statutory defence of fair comment was available in addition to the common law defence.67 The Queensland Code defence provided protection if the facts on which the comment were based were not believed to be untrue and the statement or

indication of the facts as such was protected by s 14 of the Defamation Act 1889, subject to the requirements of ‘good faith’ and the other requirements of the section.68 Those requirements included the fairness of the comment and the relevance of the comment to the privileged occasion. The Code states listed the following matters of public importance on which fair comment could be made:69 (a) fair report for the information of the public;70 [page 531] (b) the public conduct of any person who takes part in public affairs, or the person’s character, so far as it appears in that conduct;71 (c) the conduct of a public officer or public servant in the discharge of his public functions, or the person’s character, so far as it appears in that conduct;72 (d) the merits of any civil or criminal case decided by a court, or the conduct of any person in such a case or the person’s character, so far as it appears in that conduct;73 (e) a published book or any other literary production, or the character of the author, so far as it appears from that book or production;74 (f) a composition or work of art or performance that is publicly exhibited, or the person’s character, so far as it appears from the matter exhibited;75 (g) a public entertainment or public sport, or the character of the person who conducts or takes part in that entertainment or sport, so far as it appears from the entertainment or sport or the manner of conducting it;76 (h) a communication made to the public on any subject.77 Section 14(8) required the publication to be made in good faith and be objectively fair. The common law position was that, where a newspaper published letters to the editor, the publisher did not need to hold the opinion expressed in the defamatory publication to obtain the benefit of the defence, otherwise the editor would be left with the position of only publishing those

letters with which he or she agreed.78 In the Code states malice did not automatically defeat the defence, but was one of the elements to be taken into account to determine whether the comment was fair.79 In Pervan v North Queensland Newspaper Company Ltd80 George Pervan was a councillor of the Johnstone Shire Council and Chairman of its Works Committee. A member of parliament made allegations in parliament that Pervan had misapplied the council’s Cyclone Relief Funds and had been ‘feathering his own nest’. The Innisfail [page 532] Advocate published a report of the allegations in parliament and an advertisement in its public notices columns as follows: Councillors feathering their own nests? Funds being misappropriated? This is doing irrepairable [sic] damage to the image of our shire. It is now more important than ever to attend the ratepayers and residents meeting at the Grand Central Hotel Tuesday 12 August at 8pm.81

Pervan sued the publisher of the newspaper and the newspaper relied upon the statutory defence of comment under the Code. The trial judge ruled that the defence was not available, regarding the two questions in the advertisement as comment and the next sentence as a statement of fact. The jury returned a verdict for Pervan in the sum of $4,000. The High Court held that the publication was based upon a clear substratum of fact consisting of the statements made in parliament. In the court’s view, the issue should have been left to the jury on the basis that there were two questions, in essence asking are these allegations true and by the next sentence the author was saying the making of these unresolved allegations was causing irreparable damage to the image of the shire. The two questions could be characterised as comment and the next sentence regarded as an expression of opinion as to the effect of the allegations. The High Court also found that there was no evidence of absence of good faith in that there was no evidence that the publisher through its employees believed or disbelieved the contents of the advertisement, as it was published in accordance with the publisher’s ordinary procedures applicable to the publication of advertisements. The publication did not exceed what was

reasonably sufficient for the occasion even though the newspaper circulated in an area which extended beyond the area of the Johnstone Shire into neighbouring shires. It was held that this would be a matter of public interest to persons resident outside the shire and would be of interest to some ratepayers of the shire who would reside outside the shire boundaries. Justice McHugh dissented on the basis that while the words were commenting on some subject matter they did not indicate sufficiently or at all that the subject matter of the comment consisted of the allegations made in parliament rather than the actual conduct of the persons in question (which would not be protected by privilege). In his view, a defendant cannot use extrinsic evidence to show what was the subject matter of the comment. Where the reader was unable to obtain information to assess the fairness of the comment from the publication, it would be contrary to the principle requiring the reader to be in a position to know what the subject matter of the comment was.82 ____________________ 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17.

See Chapter 27. Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60. Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676 at [18]–[20]. John Fairfax Publications Pty Ltd v O’Shane [2005] NSWCA 164 at [64]; Macquarie Radio Network Pty Ltd v Arthur Dent [2007] NSWCA 261 at [97]. Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474 at 492; Cheikho v Nationwide News Pty Ltd [2016] NSWSC 29 at [53]. Herald & Weekly Times Pty Ltd v Buckley [2009] VSCA 75 at [81]. Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60 at [84]. Harbour Radio Pty Ltd v Ahmed [2015] NSWCA 290 at [43]–[44]; Cheikho v Nationwide News Pty Ltd [2016] NSWSC 29 at [52]. Petritsis v Hellenic Herald Pty Ltd [1978] 2 NSWLR 174 at 181. Defamation Act 1974 (NSW) s 29. Defamation Act 1974 (NSW) s 32. Defamation Act 1974 (NSW) s 33. Defamation Act 1974 (NSW) s 34. Bob Kay Real Estate Pty Ltd v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 505 at 511–12. Lloyd v David Syme & Co Ltd (1985) 3 NSWLR 728 at 732. Lloyd v David Syme & Co Ltd (1985) 3 NSWLR 728 at 733; Goldsworthy v Radio 2UE Sydney Pty Ltd [1999] NSWSC 547 at [21]. Defamation Act 1974 (NSW) s 30(3)(a).

18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37.

38. 39. 40. 41. 42. 43. 44. 45. 46.

47. 48.

See authorities collected in Sims v Wran [1984] 1 NSWLR 317 at 322. Defamation Act 1974 (NSW) s 30(3)(b). Defamation Act 1974 (NSW) s 31. Defamation Act 1974 (NSW) s 32. Defamation Act 1974 (NSW) s 33. Defamation Act 1974 (NSW) s 34. Defamation Act 1974 (NSW) s 32(2). Digby v Financial News Ltd [1907] 1 KB 502 at 508. O’Shaughnessy v Mirror Newspapers Ltd (1970) 72 SR (NSW) 347 at 361. Defamation Act 1974 (NSW) s 32(2). See also Falcke v Herald & Weekly Times Ltd [1925] VLR 56; O’Shaughnessy v Mirror Newspapers Ltd (1970) 72 SR (NSW) 347 at 361. Seidler v John Fairfax & Sons Ltd [1983] 2 NSWLR 390 at 393–4. Cawley v Australian Consolidated Press Ltd [1981] 1 NSWLR 225 at 237; Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474 at 491; May v TCN Channel Nine Pty Ltd [2007] NSWSC 760. Goldsworthy v Radio 2UE Sydney Pty Ltd [1999] NSWSC 547. Goldsworthy v Radio 2UE Sydney Pty Ltd [1999] NSWSC 547. Lloyd v David Syme & Co Ltd (1985) 3 NSWLR 728 at 735–6. (DC (NSW), Christie DCJ, 28 September 1993, unreported.) Defamation Act 1974 (NSW) s 34. See 26.13. Lloyd v David Syme & Co Ltd (1985) 3 NSWLR 728 at 735–6; David Syme & Co Ltd v Lloyd [1984] 3 NSWLR 346 at 356–8. Petritsis v Hellenic Herald Pty Ltd [1978] 2 NSWLR 174 at 186–93; Bob Kay Real Estate Pty Ltd v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 505 at 508, 515; Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448 at 467; New South Wales Aboriginal Land Council v Perkins (1998) 45 NSWLR 340 at 348; Goldsworthy v Radio 2UE Sydney Pty Ltd [1999] NSWSC 547 at [22]; Sutherland v Australian Consolidated Press Publishing Pty Ltd [2000] NSWSC 1139 at [13]. [2000] NSWSC 1139. Sutherland v Australian Consolidated Press Publishing Pty Ltd [2000] NSWSC 1139. Sutherland v Australian Consolidated Press Publishing Pty Ltd [2000] NSWSC 1139. Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448 at 467. Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448 at 467; New South Wales Aboriginal Land Council v Perkins (1998) 45 NSWLR 340 at 348. New South Wales Aboriginal Land Council v Perkins (1998) 45 NSWLR 340 at 345–6. Sutherland v Australian Consolidated Press Publishing Pty Ltd [2000] NSWSC 1139 at [14]. Sutherland v Australian Consolidated Press Publishing Pty Ltd [2000] NSWSC 1139 at [19]. David Syme & Co Ltd v Lloyd [1984] 3 NSWLR 346 at 358; Bob Kay Real Estate Pty Ltd v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 505 at 513–15; Lewis v Page (SC (NSW), Hunt J, 19 July 1989, unreported); New South Wales Aboriginal Land Council v Perkins (1998) 45 NSWLR 340; Sutherland v Australian Consolidated Press Publishing Pty Ltd [2000] NSWSC 1139. Goldsworthy v Radio 2UE Sydney Pty Ltd [1999] NSWSC 547; O’Shaughnessy v Mirror Newspapers Ltd (1970) 125 CLR 166 at 174. Defamation Act 1974 (NSW) s 33.

49. 50. 51. 52. 53. 54. 55. 56. 57. 58. 59. 60. 61. 62. 63. 64. 65. 66. 67. 68. 69. 70. 71. 72. 73. 74. 75. 76. 77. 78.

Seidler v John Fairfax & Sons Ltd [1983] 2 NSWLR 390 at 393–4. Crawford v Amalgamated Television Services Pty Ltd [1989] A Def R 50-040. Defamation Act 1974 (NSW) s 30. Defamation Act 1974 (NSW) s 31. Defamation Act 1974 (NSW) under s 32 or s 33. Nationwide News Pty Ltd v Sleeman [2005] NSWCA 349 at [55]. Defamation Act 1974 (NSW) s 34(2). Defamation Act 1974 (NSW) s 30(3)(b). Defamation Act 1974 (NSW) s 30(3). Campbell v Spottiswoode (1863) 3 B&S 769 at 776; 122 ER 288 at 290. Campbell v Spottiswoode (1863) 3 B&S 769 at 778; 122 ER 288 at 291; Joynt v Cycle Trade Publishing Company [1904] 2 KB 292; Dakhyl v Labouchere [1908] 2 KB 325 at 329. Dakhyl v Labouchere [1908] 2 KB 325 at 329. Hunt v Star Newspaper Company Ltd [1908] 2 KB 309 at 321. Defamation Act 1974 (NSW) s 30(4). See also Kemsley v Foot [1952] AC 345 at 358. Defamation Act 1974 (NSW) s 35. Defamation Act 1974 (NSW) s 15. Defamation Act 1974 (NSW) s 24. Defamation Act 1889 (Qld) s 14; Defamation Act 1957 (Tas) s 14. Criminal Code Act 1913 (WA) s 355; Defamation Act (NT) s 6A; Toyne v Everingham (1993) 91 NTR 1 at 12. Pervan v North Queensland Newspaper Company Ltd (1993) 178 CLR 309 at 327. Defamation Act 1889 (Qld) s 14; Defamation Act 1957 (Tas) s 14; Criminal Code Act 1913 (WA) s 355; Defamation Act (NT) s 6A. Defamation Act 1889 (Qld) s 14(1)(a); Defamation Act 1957 (Tas) s 14(1)(a); Criminal Code Act 1913 (WA) s 355(1); Defamation Act (NT) s 6A(a). Defamation Act 1889 (Qld) s 14(1)(b); Defamation Act 1957 (Tas) s 14(1)(b); Criminal Code Act 1913 (WA) s 355(2); Defamation Act (NT) s 6A(b). Defamation Act 1889 (Qld) s 14(1)(c); Defamation Act 1957 (Tas) s 14(1)(c); Criminal Code Act 1913 (WA) s 355(3); Defamation Act (NT) s 6A(c). Defamation Act 1889 (Qld) s 14(1)(d); Defamation Act 1957 (Tas) s 14(1)(d); Criminal Code Act 1913 (WA) s 355(4); Defamation Act (NT) s 6A(d). Defamation Act 1889 (Qld) s 14(1)(e); Defamation Act 1957 (Tas) s 14(1)(e); Criminal Code Act 1913 (WA) s 355(5); Defamation Act (NT) s 6A(e). Defamation Act 1889 (Qld) s 14(1)(f); Defamation Act 1957 (Tas) s 14(1)(f); Criminal Code Act 1913 (WA) s 355(6); this subsection has been omitted from the Defamation Act (NT) s 6A. Defamation Act 1889 (Qld) s 14(1)(g); Defamation Act 1957 (Tas) s 14(1)(g); Criminal Code Act 1913 (WA) s 355(7); Defamation Act (NT) s 6A(g). Defamation Act 1889 (Qld) s 14(1)(h); Defamation Act 1957 (Tas) s 14(1)(h); Criminal Code Act 1913 (WA) s 355(8); this subsection is not included in Defamation Act (NT) s 6A. Pervan v North Queensland Newspaper Company Ltd (1993) 178 CLR 309 at 329; Telnikoff v Matusevitch [1992] 2 AC 343.

79. 80. 81. 82.

Cawley v Australian Consolidated Press Ltd [1981] 1 NSWLR 225 at 231–7. (1993) 178 CLR 309. Pervan v North Queensland Newspaper Company Ltd (1993) 178 CLR 309 at 310. Pervan v North Queensland Newspaper Company Ltd (1993) 178 CLR 309 at 349–50.

[page 533]

CHAPTER 29 INNOCENT DISSEMINATION COMMON LAW DEFENCE OF INNOCENT DISSEMINATION STATUTORY DEFENCE OF INNOCENT DISSEMINATION STATUTORY DEFENCE FOR ISPs

29.1 29.2 29.3

COMMON LAW DEFENCE OF INNOCENT DISSEMINATION 29.1 There is a defence of innocent dissemination at common law, where the defendant can prove that he or she did not know that the publication contained the defamation complained of, that he or she did not know that the publication was of a character likely to contain defamatory material and that his or her lack of knowledge was not due to negligence on his or her part.1 The defence was reformulated in Sun Life Assurance Company of Canada v W H Smith & Son Ltd2 to be whether the defendant knew or ought to have known that the publication contained a libel. This was adopted in Goldsmith v Sperrings Ltd.3 The liability arises from participation in or authorisation of the publication. The defence is generally only available to a limited class of people, namely distributors or carriers such as newsagents, booksellers, librarians and telephone companies. Others have sought to prove the defence, such as printers,4 broadcasters5 and service providers.6 The concept of innocent dissemination was developed to take account of the practices and technology of the day with respect to the publication [page 534]

of printed matter and now must take into account publication by broadcast or transmitted matter. Cases involving purely accidental publication of defamatory matter should be distinguished, such as where a letter is intercepted and read by some unauthorised third person.7 The sender of the letter is not liable in these circumstances unless the letter is intercepted and opened by a servant or agent in the ordinary course of the addressee’s business and that possibility is known to the sender.8 It has been suggested that innocent dissemination does not amount to ‘publication at law’,9 but this has been questioned by the High Court.10 It appears that ‘innocence’ or ignorance of the contents of the matter published arose from the question whether the defendant actually participated in the publication. In R v Nutt11 the person was bedridden and lived a mile away from the place of sale of the publication and therefore not only did not know of the contents of the publication but could not have been expected to know, not having actually participated in its sale. In Chubb v Flannagan12 the defendant was a vendor selling the publication and made profits out of the sale. It was held that he knew or ought to have known, though in fact he did not, what he was selling, and was held liable. In Day v Bream13 a porter distributed defamatory handbills and was held not liable, not knowing the contents of the handbills and having regard to the nature of his occupation. In McLeod v St Aubyn14 a private individual lent a copy of a newspaper to a friend and was held not liable on proving not only ignorance but lack of negligence on his part in knowing that the contents contained defamatory matter. As the onus is upon the defendant to prove the lack of knowledge and the lack of negligence, the position in principle is that, rather than there be no publication at law which is part of the plaintiff’s case, it is a lawful excuse and there is no liability for that publication by reason of the defence of innocent dissemination. In cases involving principals and agents, the liability of the principal is dependent usually upon the issues of authorisation or participation. A person who makes a defamatory statement to another and authorises or intends its repetition to some third person is liable for its repetition or is liable for the publication of the statement to that

[page 535] third person.15 A person is liable for acts done by a servant in the course of his or her employment or by an agent acting within actual or implied authority or with ostensible authority, notwithstanding that he or she lacks knowledge of the acts in question.16 A newspaper proprietor is liable for defamation even though the defamatory matter is published without its knowledge. The editor, its servant, sends to the printers whatever matter he or she thinks ought to be published within the scope of his or her employment and therefore within the proprietor’s authority. The defence of innocent dissemination which is based on the want of knowledge can have no application to one who publishes or participates in publication by authorising the publication in question. Therefore, one who publishes by authorising a communication is not a ‘subordinate distributor’ and cannot rely upon the defence of innocent dissemination.17 One who does not authorise the communication but participates in some other way should be a subordinate distributor and entitled to rely upon the defence of innocent dissemination. It is, however, a question of fact in each case. The defence is available to subordinate distributors who can establish as a matter of fact that they did not know the character of the material in question. In Emmens v Pottle18 a vendor of a newspaper, the equivalent of a newsagent, was held not liable on the basis that ‘[a] newspaper is not like a fire; a man may carry it about without being bound to suppose that it is likely to do an injury’.19 The defence of innocent dissemination was applied in Mallon v W H Smith & Sons20 in relation to the owner of a book store. In Martin v British Museum Trustees No 221 the defendants pleaded that they had a statutory duty to catalogue and produce certain works including the pamphlet containing matter defamatory of the plaintiff; in Vizetelly v Mudie’s Select Library Ltd22 a library was put on notice of the plaintiff’s action against the publishers of a book, The Life and Work of Emin Pacha, but did not stop distribution of the book. The library was found liable.23 It was traditionally accepted that a printer could not rely upon the defence because in times past printing methods were such that the printer inevitably acquired a knowledge of what was being printed. However, technology has

changed and the degree of scrutiny which printers can reasonably be expected to make of the content [page 536] of such publications has changed. In McPhersons Ltd v Hickie24 the New South Wales Court of Appeal considered that the defence could be available to a printer who had no reason to know and no reason to suspect that the printed material contained or was likely to contain libellous matter if the printer could prove those facts. Under the Defamation Act 1996 (UK) the innocent dissemination defence is extended to printers and to broadcasters of live programs such as radio talkbacks and television chat shows where the station has no control over defamatory statements made by guests.25 In Thompson v Australian Capital Television Pty Ltd26 a defendant television station broadcast live to viewers in the Australian Capital Territory a current affairs program produced and relayed by another television station from New South Wales. Under the licence to broadcast granted by the other television station, the defendant acted in its own right and had the ability to control and supervise the material it televised even though it took no part in the production of the program. It voluntarily decided to broadcast live. The High Court held that the television station was by no means merely a conduit for the program and hence was not a subordinate disseminator. The nature of a live-to-air current affairs program carries a high risk of defamatory statements being made. It broadcast for its own purposes and not as agent for the other station; it authorised the broadcast itself.27 The television station therefore authorised the retransmission to its viewers by its servants or agents of the material which was defamatory of the plaintiff. Without its authority, the material would not have been retransmitted. It is sufficient that it authorised the retransmission to its viewers of whatever was transmitted by the other television station without regard to its contents. The defence of innocent dissemination was therefore not available. The television station did not prove the exercise of due care which it was required to show even though it knew in advance of the nature of what would

be said on the program and, if it took no precautions of any kind, knowing the program was a current affairs program, it could not make out the defence. The High Court suggested, however, that there was ‘no reason in principle why a mere distributor of electronic material should not be able to rely upon the defence of innocent dissemination if the circumstances so permit’.28 [page 537]

STATUTORY DEFENCE OF INNOCENT DISSEMINATION 29.2 Under s 32(1) of the Defamation Act 2005, it is a statutory defence to the publication of defamatory matter if the defendant proves that: (a)

the defendant published the matter merely in the capacity, or as an employee or agent, of a subordinate distributor, and (b) the defendant neither knew, nor ought reasonably to have known, that the matter was defamatory, and (c) the defendant’s lack of knowledge was not due to any negligence on the part of the defendant.

‘Subordinate distributor’ is defined in s 32(2) as a person who: (a) was not the first or primary distributor of the matter, and (b) was not the author or originator of the matter, and (c) did not have any capacity to exercise editorial control over the content of the matter (or over the publication of the matter) before it was first published.

Section 32(3) of the Act deems that a person will not be the first or primary distributor of matter merely because the person was involved in the publication of the matter in the capacity as: (a) (b) (c) (d) (e)

(f)

a bookseller, newsagent or news-vendor; or a librarian; or a wholesaler or retailer of the matter; or a provider of postal or similar services by means of which the matter is published; or a broadcaster of a live programme (whether on television, radio or otherwise) containing the matter in circumstances in which the broadcaster has no effective control over the person who makes the statements that comprise the matter; or a provider of services consisting of:

the processing, copying, distributing or selling of any electronic medium in or on which the matter is recorded; or (ii) the operation of, or the provision of any equipment, system or service, by means of which the matter is retrieved, copied, distributed or made available in electronic form; or (g) an operator of, or a provider of access to, a communications system by means of which the matter is transmitted, or made available, by another person over whom the operator or provider has no effective control; or (h) a person who, on the instructions or at the direction of another person, prints or produces, reprints or reproduces or distributes the matter for or on behalf of that other person. (i)

It can be seen that the Act removes the doubt that exists at common law as to whether the defence should apply to printers, broadcasters and service providers. The test of innocence is substantially similar to the defence at common law. [page 538] A search engine operator such as Google Inc should be able to rely on the defence under s 32 of the Defamation Act 2005 or at common law.29 Prior to its repeal in 2002, Div 8 of the Defamation Act 1974 (NSW), provided a statutory defence in New South Wales of offer of amends where the publication was ‘innocent’, namely where the defendant (at or before the time of publication) did not intend the matter to be defamatory of the plaintiff, did not know of circumstances by reason of which the matter might be defamatory of the plaintiff and exercised reasonable care in relation to the matter and its publication.30 If the publication was ‘innocent’ for the purposes of the Act, the publisher could make an offer of amends to the plaintiff strictly in accordance with Div 8 by publication of a correction or apology, and the taking of steps to notify the recipients that the matter in question was or might be defamatory of the plaintiff.31 Compliance with the provisions of s 37 was mandatory.32 Where the test of innocence was satisfied and the requisite steps taken, but the offer not accepted, there was a defence to proceedings in respect of the matter in question.33 Where the offer was accepted, the complainant could not

commence or continue any proceedings for defamation in relation to the matter in question.34 However, the procedures set out in ss 37–45 were so strictly applied that the defence became useless in practice. These provisions were replaced by Pt 2A of the Act, in particular ss 9D–9G (for publications made after 25 August 2003), which are substantially the same as in ss 12–19 of the Defamation Act 2005.35 In the Code states, there was a defence given to the seller of periodicals (defined as including newspapers, magazines, etc) unless the person knew that the periodical contained defamatory matter or that defamatory matter was habitually or frequently contained in the periodical.36 There was also a defence for a person selling a book, pamphlet, print or writing or other thing not forming part of a periodical if at the time of sale the person did not know that the book, etc, contained defamatory matter.37 [page 539]

STATUTORY DEFENCE FOR ISPS 29.3 Schedule 5 cl 91(1) of the Broadcasting Services Act 1992 (Cth) provides that a law of a state or territory or rule of common law or equity has no effect to the extent to which it subjects or would have the effect of subjecting an Internet Content Host (ICH) or an Internet Service Provider (ISP) to liability in respect of hosting/carrying particular internet content in a case where the ICH/ISP was not aware of the nature of the internet content,38 or requires or would have the effect of requiring an ICH or an ISP to monitor, make inquiries about or keep records of internet content hosted/carried by the ICH/ISP.39 An ISP is defined as offering access to the internet whereas an ICH is defined as hosting internet content without providing an internet connection. Internet content excludes email. The ISP or ICH bears the onus of proving the lack of awareness of the nature of the internet content. There is no requirement of reasonable care as in the defence of innocent dissemination. Liability arises from being aware or being made aware and not removing the internet content. If the ISP or ICH has acted

in compliance with an industry code registered under the Act, the ISP or ICH will be protected from civil liability which will include defamation.40 The Internet Industry Association (‘Internet Industry Code of Practice’) has been registered under the Act. In Godfrey v Demon Internet Ltd41 under s 1 of the Defamation Act 1996 (UK) the defence of innocent dissemination in the United Kingdom was held not to be available to an ISP for the period after which it had been put on notice of the anonymous posting of a defamatory statement. ISPs that knowingly carry defamatory material and fail to remove it on request could not avail themselves of the innocent publication defence as provided. A different result was found in Bunt v Tilley42 where an English court considered the transmission and caching of information by ISPs. It held that a person who merely plays a ‘passive instrumental role’ in the process could not be liable for publication of defamatory material. There must be knowing involvement in the process of publication of the relevant words.43 Similarly, the display of a ‘snippet’ from a Google search engine, where no human input is involved, was held by another English court not to amount to a publication by the operator and the role played was that of a facilitator rather than a participant in the publication.44 Even if the search engine operator became aware of defamatory material carried by it, and it had a ‘notice and take down’ procedure, it was held [page 540] that a delay in doing so may not establish liability for publication on the basis of authorisation, approval or acquiescence.45 However, the Court of Appeal in Tamiz v Google Inc46 held that the search engine operator may become a primary publisher after it has had a reasonable time to consider notice of defamatory material and fails to take it down. Section 5 of the Defamation Act 2013 (UK) now provides a defence to operators of websites. In Australia, the Victorian Court of Appeal has determined that a search engine operator is a secondary publisher and an innocent dissemination defence

would ‘almost always if not always’ be maintainable in the period before notification of defamatory matter and for a reasonable time thereafter.47 If it then does not take down the defamatory matter, it loses the defence.48 This position is distinguishable from a website operator which has the ability to control the content.49 ____________________ 1.

2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16.

17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28.

Emmens v Pottle (1885) 16 QBD 354 at 357, 358; Vizetelly v Mudie’s Select Library Ltd [1900] 2 QB 170 at 177, 178 and 179; Goldsmith v Sperrings Ltd [1977] 1 WLR 478; McPhersons Ltd v Hickie (1995) Aust Torts Reports 81-348; Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574. (1933) 150 LT 211 at 212. [1977] 1 WLR 478 at 487. McPhersons Ltd v Hickie (1995) Aust Torts Reports 81-348. Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574. Godfrey v Demon Internet Ltd [2001] QB 201. Huth v Huth [1915] 3 KB 32; Powell v Gelston [1916] 2 KB 615. Gomersall v Davies (1898) 14 TLR 430; Pullman v Hill & Co Ltd [1891] 1 QB 524. Emmens v Pottle (1885) 16 QBD 354; Vizetelly v Mudie’s Select Library Ltd [1900] 2 QB 170 at 179–80. Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574. (1729) 1 Barnard 306. (1834) 6 C&P 431; 172 ER 1307. (1837) 2 M&Rob 54; 174 ER 212. [1899] AC 549. Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 at 595; Webb v Bloch (1928) 41 CLR 331 at 364. Bugge v Brown (1919) 26 CLR 110; Colonial Mutual Life Assurance Society Ltd v Produce & Citizens CoOperative Insurance Company of Australia Ltd (1931) 46 CLR 41; Deatons Pty Ltd v Flew (1949) 79 CLR 370; Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 at 595. Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 at 595. (1885) 16 QBD 354. (1885) 16 QBD 354 at 358. (1893) 9 TLR 627. (1894) 10 TLR 338. [1900] 2 QB 170. See also Weldon v Times Book Company Ltd (1911) 28 TLR 143; Haynes v De Beck (1914) 31 TLR 115. (1995) Aust Torts Reports 81-348. See Defamation Act 1996 (UK) s 1(1)(c). (1996) 186 CLR 574. Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 at 590. Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 at 589 (Brennan CJ, Dawson and

29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49.

Toohey JJ). Google Inc v Trkulja [2016] VSCA 333; see 7.8. Defamation Act 1974 (NSW) s 36. Defamation Act 1974 (NSW) s 37. Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643. Defamation Act 1974 (NSW) s 43. Defamation Act 1974 (NSW) s 40. See 16.2–16.8. Defamation Act 1889 (Qld) s 25; Defamation Act 1957 (Tas) s 26. Defamation Act 1889 (Qld) s 26; Defamation Act 1957 (Tas) s 26. Broadcasting Services Act 1992 (Cth) Sch 5 cl 91(1)(a) and (c). Broadcasting Services Act 1992 (Cth) Sch 5 cl 91(1)(b) and (d). Broadcasting Services Act 1992 (Cth) Sch 5 cl 88. [2001] QB 201. [2006] EWHC 407. Bunt v Tilley [2006] EWHC 407 at [36]. Metropolitan International Schools Ltd v Designtechnica Corporation [2009] EWHC 1765 at [51]. [2009] EWHC 1765 at [58]. [2013] EWCA Civ 68. Google Inc v Trjulka [2016] VSCA 333 at [319]. [2016] VSCA 333 at [319]. See 7.8.

[page 541]

CHAPTER 30 CIRCUMSTANCES OF PUBLICATION STATUTORY DEFENCE OF TRIVIALITY

30.1

STATUTORY DEFENCE OF TRIVIALITY 30.1 The common law presumes that some damage flows from the publication of defamatory matter in permanent form (that is, libel) or from the publication of slander in certain categories. The distinction between libel and slander has been abolished under s 7(1) of the Defamation Act 2005. Publication of defamatory matter of any kind is actionable without proof of special damage: s 7(2). That extends the common law presumption of damage to all forms of publication of defamatory matter. The common law provides no defence to actions for defamation even if damage to the plaintiff’s reputation was unlikely or did not occur. In such cases the court can reflect its attitude by awarding nominal damages. A statutory defence for ‘trivial’ actions for slander was first introduced in New South Wales in 18471 at the same time that slander was made actionable without proof of special damage. Section 2 of the 1847 Act provided a defence to an action for slander where the words complained of did not impute an indictable offence and were spoken on an occasion when the plaintiff’s character was not likely to be injured. It was considered that a plaintiff’s character could only be injured by those who heard it thinking it possible that the slanderous charge might be true; for example, if someone asserted that a servant had stolen his employer’s watch, but the watch was in fact, to the employer’s knowledge, never out of his possession, and could not have been stolen by the servant, the servant’s character was not and would not be at any risk of being injured by the speaking of the words to

the employer. However, if there were others present who heard it and did not know that the watch was in the employer’s possession, and ceased to trust the servant, the defence should not be available.2 [page 542] Section 33 of the Defamation Act 2005 provides a defence to the publication of defamatory matter if the defendant proves that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm. There are two significant elements to this defence; namely the circumstances of publication and whether, because of those circumstances, the plaintiff was unlikely to sustain any harm. Substantially the same defence had existed in New South Wales under s 13 of the Defamation Act 1974 — that the circumstances of the publication of the matter complained of were such that the person defamed was not likely to suffer harm. The defence should be understood in the context of the traditional plea of ‘confession and avoidance’. If it is held that the matter is defamatory, the publication of it will have had the ‘tendency’ to harm the plaintiff. The defendant must show that, notwithstanding that tendency, the ‘circumstances of publication’ were such that the plaintiff was unlikely to sustain any harm as a result.3 If the defence is established, the presumption of damage from the publication of defamatory matter will not operate.4 It has been held that the phrase ‘the plaintiff was unlikely to suffer harm’ (under s 13 of the Defamation Act 1974) refers to the ‘absence of a real chance’ or the ‘absence of a real possibility of harm’.5 It does not equate to ‘the plaintiff probably did not suffer harm’ in the sense that it was ‘more probable than not’, as this may indicate that the defendant need show that the plaintiff did not in fact suffer harm (on the balance of probabilities).6 Section 33 of the Defamation Act 2005 sets an even higher threshold for the defendant to prove: that the plaintiff was unlikely to suffer ‘any’ harm. The origins of the statutory defence indicate that such a defence should not be

available where the matter imputes an indictable offence. The words of s 33 do not expressly exclude such an imputation but, being a serious charge, it is difficult to see how the circumstance of publication of such an imputation would be unlikely to cause the plaintiff harm. The circumstances of publication in which a plaintiff is unlikely to suffer harm cannot be classified with certainty. The circumstances will depend upon the facts relevant to each publication. However, the courts have considered a number of circumstances under similar statutory defences: It would be particularly applicable to publications of limited extent, as, for example, where a slightly defamatory statement is made in jocular circumstances to a few

[page 543] people in a private home. It may be that the knowledge of the plaintiff’s reputation by the persons to whom the publication is made in such a case, and their acceptance of that reputation as truly reflecting the plaintiff’s character, can be taken into account in deciding whether the plaintiff is likely to suffer harm … but it is difficult to apply these considerations where the publication is to a vast number of unknown people whose knowledge of the plaintiff’s reputation, and their acceptance of that reputation as justified, is equally unknown.7

Where the defamation is oral, the defence may be particularly appropriate. It may sometimes extend to a written defamation such as that published by letter or circular to a limited or particular class of persons.8 Section 33 is not limited to publication involving trivial matters or content. The section directs attention to ‘the circumstances of publication’ which include the context of the publication, the imputations conveyed, the extent of the publication, the nature of the recipients, and the relationship, if any, between the recipients and the plaintiff.9 The defence may be relatively easy to make out where the publication is to a small number of persons well acquainted with the plaintiff and able themselves to make a judgement based on their own knowledge as to the likelihood that there was any substance in the imputation conveyed.10 The media is not precluded from relying upon ‘the circumstances of publication’ for the benefit of this kind of defence, although it has been held that the defence was not designed for extensive publication of serious imputations.11 In Sutherland v Australian Consolidated Press Publishing Pty Ltd12 the plaintiff

argued that ‘the circumstances of the publication’ were that the publication was a magazine of unknown circulation and the identity of the recipients was unascertainable, and therefore the defence should be struck out. The defendant argued that the location of the article in the magazine, the context (that is, a whole column of material in respect of other persons in addition to the plaintiff) and the language used amounted to ‘circumstances of the publication’ to be taken into account. The court refused to strike out the defence. The fact that the plaintiff claimed to have sustained hurt to feelings by reference to knowledge in the recipients of the matters the subject of the publication or any matters as to the [page 544] form of the publication, it was held, did not by itself preclude the operation of this kind of defence.13 The occasion or circumstances of the publication is the operative factor. The circumstances must be the facts which operate to establish a causal relationship that the person defamed is unlikely to suffer harm. If other circumstances exist, not part of the context of the circumstances of the publication, they are not relevant to the defence. The quality of the circumstances of the publication determines at the moment of publication whether harm is unlikely and not what thereafter happens and, in particular, whether or not harm in fact probably resulted from the publication or the plaintiff ‘did not suffer any harm of any kind’.14 The defence depends entirely on the causative potency of the ‘circumstances of the publication’ to produce immunity from harm.15 The issue is directed to the quality of the publication in respect of its ‘proneness’ to cause harm. The burden is significant on the defendant to prove that the plaintiff was unlikely to suffer harm, but does not amount to a need to prove that the plaintiff’s reputation did not suffer harm at all.16 Circumstances arising before or after the publication may not be relied upon for this defence as the circumstances must exist as at the time of publication.17 It has been held that earlier newspaper publicity of a highly critical nature or earlier publications that tarnish the plaintiff’s reputation were not ‘circumstances’ within the meaning of the previous New South Wales defence.18

However, reputation may have some role to play under s 33, depending upon the recipients of the defamatory publication and the circumstances in which it was made. If the recipient has some special characteristic such as personal knowledge of the person defamed, it may be a relevant circumstance for the purposes of the defence. A defamation to a group of friends in a bar may attract the defence.19 Prior bad reputation is generally not one of the circumstances of publication to be taken into account, but it may be taken into account in an appropriate case as one of the circumstances of the publication.20 [page 545] The section requires the court to look at the circumstances at the time of publication and ‘to consider prospectively … the likelihood of harm ensuing’.21 Whether the plaintiff’s reputation did in fact suffer harm is not relevant to the defence. It has also been said that the plaintiff’s evidence of hurt to feelings is not relevant to the statutory defence, but only a matter for damages.22 To the contrary, it has been argued that the phrase ‘any harm’ in s 33 of the Defamation Act 2005 must include the distress and hurt to feelings of the plaintiff and is not restricted to harm to the plaintiff’s reputation. The New South Wales and Victorian Courts of Appeal have considered the issue but did not decide it.23 The Queensland Court of Appeal by 2:1 majority decided that ‘harm’ should be interpreted in s 33 as harm to reputation and does not extend to harm to feelings.24 The issue arose in a case where a solicitor was referred to in an email as ‘Dennis Denuto’. Denuto was a solicitor portrayed in an Australian film The Castle who put forward the proposition ‘It’s the vibe’ to support his argument to the court. The reference to Denuto it was held carried the imputation that he was incompetent and unprofessional. However, the triviality defence was upheld on the basis that the circumstances of publication were such that he was unlikely to sustain any harm to his reputation as the statements were confined to two members of the solicitor’s family with whom the defendant was in dispute and they were able to make their own assessment of the imputation. Further, the statements did not convey any breach of duty, illegal acts or dishonesty and

they were not made in a form that was intended to be or likely to be published by the defendant beyond those two persons. A relevant circumstance therefore is whether there is a chance of republication where the content of the matter bears a likelihood of harm. This is particularly relevant to the ‘grapevine effect’. In Jones v Sutton,25 a case involving three conversations, the fact that the recipient did not further repeat the publication and that the recipient comprehensively rejected the allegation contained in the publication were not considered relevant factors for the purposes of the statutory defence, but were relevant for the assessment of damages.26 The fact that an allegation was likely to spark interest and was something that might be passed on from person to person indicated a risk of repetition which was a relevant circumstance for the purposes of the defence. Another relevant circumstance was that there was a potentially large audience to whom the publication could be [page 546] passed on.27 It was not relevant for the purposes of establishing the defence as to whether any importance was attached to the publication. Even if the recipient does not know the plaintiff, harm can occur where the person holds final judgement in suspense.28 If harm can in fact be caused where a person suspends judgement, then when considering the question of potentiality of harm under the defence, the fact that the recipient did not at the time form a final judgement may not of itself establish the defence. The question returns to whether, looked at objectively, the circumstances of publication were such that the plaintiff was unlikely to suffer harm.29 In exceptional cases, the reputation of the defendant may be a relevant circumstance of publication; for example, where the recipient of the publication never as a matter of course believed the maker of the statement.30 Similar statutory defences had existed in Queensland31 and Tasmania32 (but these provisions were limited to cases of slander), and the Australian Capital Territory.33

____________________ 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16.

17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32.

11 Victoria c 13. Perry v Hoskings (1865) NSWR 124. See also Crick v Butler (1891) XII NSWR 70. Barrow v Bolt [2015] VSCA 107 at [38]. Jones v Sutton [2004] NSWCA 439 at [48]; Enders v Erbas & Associates Pty Ltd [2014] NSWCA 70 at [108]. Tillmanns Butcheries Pty Ltd v AMIEU (1979) 42 FLR 331 at 339, 347; Jones v Sutton [2004] NSWCA 439 at [45]–[49]; Barrow v Bolt [2015] VSCA 107 at [36]; Smith v Lucht [2016] QCA 267 at [36]. Jones v Sutton [2004] NSWCA 439 at [45]–[49]. Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 800. Chappell v Mirror Newspapers Ltd (1984) Aust Torts Reports 80-691 at 68,947. See also King & Mergen Holdings Pty Ltd v McKenzie (1991) 24 NSWLR 305 at 309–10; Lang v Willis (1934) 52 CLR 637. Jones v Sutton [2004] NSWCA 439 at [15]; Barrow v Bolt [2015] VSCA 107 at [35]; Smith v Lucht [2016] QCA 267 at [37]. Perkins v NSW Aboriginal Land Council (SC (NSW), Badgery Parker J, 15 August 1997, unreported) at 23–8; Jones v Sutton [2004] NSWCA 439 at [15]. Harrigan v Jones (2000) Aust Torts Reports 81-621 at 67,289; McMullen v TCN Channel Nine Pty Ltd (2001) Aust Torts Reports 81-584 at [84]–[87]. [2000] NSWSC 1139 at [45]–[48]. Sutherland v Australian Consolidated Press Publishing Pty Ltd [2000] NSWSC 1139. Enders v Erbas & Associates Pty Ltd [2014] NSWCA 70. Chappell v Mirror Newspapers Ltd (1984) Aust Torts Reports 80-691. Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 799; Chappell v Mirror Newspapers Ltd (1984) Aust Torts Reports 80-691 at 68,947; King & Mergen Holdings Pty Ltd v McKenzie (1991) 24 NSWLR 305 at 310; Assaf v Skalkos [2000] NSWCA 935 at [73]; Jones v Sutton [2004] NSWCA 439 at [12]–[25]. Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 799; Barrow v Bolt [2015] VSCA 107 at [34]; Smith v Lucht [2016] QCA 267 at [34]. Chappell v Mirror Newspapers Ltd (1984) Aust Torts Reports 80-691 at 68,947. Chappell v Mirror Newspapers Ltd (1984) Aust Torts Reports 80-691 at 68,948. Jones v Sutton [2004] NSWCA 439 at [26]–[31]; Barrow v Bolt [2015] VSCA 107 at [35]. Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 799; Smith v Lucht [2016] QCA 267 at [34]. Jones v Sutton [2004] NSWCA 439 at [38]. Enders v Erbas & Associates Pty Ltd [2014] NSWCA 70 at [104]; Barrow v Bolt [2015] VSCA 107 at [43]. Smith v Lucht [2016] QCA 267 at [54]. [2004] NSWCA 439. Jones v Sutton [2004] NSWCA 439 at [55]. Jones v Sutton [2004] NSWCA 439 at [60]. Dingle v Associated Newspapers Ltd [1961] 2 QB 162 at 196. Jones v Sutton [2004] NSWCA 439 at [63]. Jones v Sutton [2004] NSWCA 439 at [67]. Defamation Act 1889 (Qld) s 20. Defamation Act 1957 (Tas) s 9(2).

33. Civil Law (Wrongs) Act 2002 (ACT) s 58.

[page 547]

CHAPTER 31 DAMAGES AT COMMON LAW GENERAL PRINCIPLES DEFAMATION PERSONAL INJURY IRREPARABLE HARM UNIFORM APPROACH

31.1 31.2 31.3 31.4 31.5

GENERAL PRINCIPLES 31.1 The price of a reputation — lost or destroyed — is very great indeed. According to ancient custom, the wrongdoer who damaged another’s reputation was obliged to pay an equivalent price. So seriously was this wrong viewed, that the price paid was often punishment or death. In more civilised times, the price has become a payment of money in compensation. The law of defamation applies the general principles of the law of torts. Damages are awarded to restore a plaintiff, as far as money can do, to the position he or she would have been in if the tort had not been committed. This is the principle of restitutio in integrum.1 Money is, however, an imperfect remedy for this purpose, with arguments for and against its use instead of non-monetary remedies. The award is made on a ‘once and for all’ basis.2 The award therefore assesses damages for all loss — past, present and future — and cannot be reviewed based on the future as it unfolds. ‘There is really only one certainty: the future will prove the award to be either too high or too low.’3 In an action for negligence where damage has allegedly been suffered, the onus rests with the plaintiff to prove on the balance of probabilities that the loss or injury was

[page 548] caused or materially contributed to by the defendant’s wrongful act.4 The plaintiff need only prove that the defendant’s actions were a cause, not necessarily the sole cause, of injury or damage.5 The question of causation is approached on a commonsense basis.6 A common law court determines on the balance of probabilities whether an event has occurred, and does so on an ‘all or nothing’ approach. But in the case of a claim of lost opportunity where it is alleged that an event would or would not have occurred or might or might not yet occur, the approach of the court is different. The future may be predicted and the hypothetical may be conjectured, but the court can only do so in terms of the degree of probability of those events occurring. Therefore, the court assesses the degree of probability that an event would have occurred, or might have occurred, and adjusts its award of damages to reflect the degree of probability.7 In an action for trespass, the plaintiff is entitled to an award of damages for the invasion of the plaintiff’s rights. The purpose of the action for trespass is not merely to compensate the plaintiff, but also to vindicate the plaintiff’s rights, for example, the right to exclusive use and occupation of land:8 If the courts of common law do not uphold the rights of individuals by granting effective remedies, they invite anarchy, for nothing breeds social disorder as quickly as the sense of injustice which is apt to be generated by the unlawful invasion of a person’s rights.9

DEFAMATION 31.2 In an action for defamation, the effect of the wrongful act is damage to the plaintiff’s reputation. However, compensation is not awarded for the damaged reputation, but because of the invasion of the plaintiff’s rights by the publication of the defamation;10 that is, simply because he or she was publicly defamed.11 A plaintiff need not show actual damage to his or her reputation in order to be entitled to compensation. The plaintiff need only show a settled reputation was enjoyed prior to

[page 549] publication of the defamatory matter, in order to be entitled to compensation for the harm done or likely to have been done to that reputation.12 Damage to reputation is presumed to flow from the defamatory publication.13 It is the ‘tendency’ or effect of the defamatory publication that proves that damage was caused or was likely to be caused to the plaintiff for which the plaintiff is entitled to be compensated. Damages are said to be ‘at large’ because they are not limited to the pecuniary loss that can be specifically proved.14 The process of assessing damages is essentially a matter of impression and not addition.15 It is a matter of subjective rather than objective analysis and no two cases are exactly alike.16 Damages cannot be determined by reference to precise mathematical formulas, nor can they be determined as a percentage of a ‘most extreme’ case. Appeal courts were reluctant to interfere with jury awards of damages. As McHugh J said in Carson v John Fairfax & Sons Ltd:17 No doubt the rough and ready process by which juries assess damages in a defamation action is not one which appeals to the many sophisticated minds of the spreadsheet generation. It does not … purport to be a scientific, or even a pseudo-scientific, process. There are no columns and rows into which the components of the verdict can be conveniently placed, no relationships which can be made the subject of mathematical formulas. The assessment depends upon nothing more than the good sense and sound instincts of jurors as to what is a fair and reasonable award, having regard to all the circumstances of the case. That is why the damages are said to be ‘at large’.18

However, it is said that juries often misunderstood the judges’ direction that damages are ‘at large’, instead understanding that judges meant damages are to be ‘large’. Perhaps the description by Lord Shaw in Watson, Laidlaw & Co Ltd v Pott, Cassels and Williamson19 put the jury’s approach most aptly: … [T]he task of restoration under the name of compensation calls into play inference, conjecture, and the like. This is necessarily accompanied by those deficiencies which attach to the conversion into money of certain elements which are very real, which go to make up the happiness and usefulness of life, but which were never so converted

[page 550] or measured. The restoration by way of compensation is therefore accomplished to a large extent

by the exercise of a sound imagination and the practice of the broad axe.20

The exercise of sound imagination and the use of the broad axe by juries was often breathtaking, particularly for those on the receiving end. In the United Kingdom, a jury awarded the Yorkshire Ripper’s wife the sum of £600,000 against Private Eye. The magazine had suggested that she had profiteered by selling her story, about living with her husband, to newspapers. The Yorkshire Ripper had murdered 13 women whose families were paid only £7,000 each in total compensation. After the jury award, the editor of the magazine protested on the steps of the court: ‘If this is justice, then I am a banana.’ If invested wisely at the prevailing rates, the award would have allowed the wife an income of £1,000 per week with the capital to be passed intact to whoever she wished once she died. The English Court of Appeal set aside the verdict, ruling that judges in future should direct juries to consider the purchasing power of any award, the income that it would produce, and to try to assess the defamation in terms of the cost of a car, a holiday or a house.21 The editor this time announced: ‘The Court of Appeal has decided that I am not a banana.’ This decision was followed by Lord Aldington’s case against Count Tolstoy who had imputed Lord Aldington was involved in war crimes. The trial judge urged the jury not to deal in ‘Mickey Mouse money’, not add noughts because they sounded good, but keep their feet firmly on the ground. The jury, thus enlightened, returned a verdict of £1.5 million.22 In Australia there were similar results. A jury awarded a solicitor a total of $600,000 in damages for two articles in Carson v John Fairfax & Sons Ltd.23 If invested (on the high interest rates then available), this amount would have allowed Carson an income of $74,300 per year (less tax) with the capital to be passed intact to his estate. The New South Wales Court of Appeal overturned the jury’s verdict as excessive, and ordered a new trial limited to the question of damages. The High Court upheld the Court of Appeal decision in a majority (4:3) judgment. At the new trial on damages, however, the jury awarded a total of $1.3 million, unaware of the result of the first trial. Steps were then taken to remove juries from the process of assessing damages in New South Wales. Following the 1994 amendments to the Defamation Act 1974 (NSW), juries no longer awarded damages in defamation cases, leaving determination of the award to the trial judge.24

[page 551] The amendments also required that there be a consideration of the general range of damages for non-economic loss in personal injury awards when determining the amount of damages for non-economic loss in a defamation award.25 Under the Defamation Act 2005, the trial judge (even in those jurisdictions which use juries)26 determines the amount of damages (if any) that should be awarded to the plaintiff and all unresolved issues of fact and law relating to the determination of that amount. An appellate court may interfere with an award of damages for defamation if it appears that the trial judge proceeded upon a wrong principle in fixing the amount of damages or if the court can infer from the amount adopted by the trial judge, or otherwise, that in some way the discretion to award damages must have miscarried. The appellate court cannot interfere merely because it considers that it would itself have fixed some other amount.27

PERSONAL INJURY 31.3 The price of a life or limb — lost or destroyed — is also very great indeed. In personal injury cases, an assessment is made of the monetary value of the loss of an eye or a leg. In New South Wales there is, as in most other states, a maximum amount capable of being awarded for non-economic loss in personal injury cases, starting in 2002 at $350,000 and indexed each year to the change in the average income.28 The indexed amount as from 1 October 2016 was $605,000. This amount equates to a ‘most extreme case’ of personal injury. Cases of quadriplegia, some serious cases of paraplegia, cases of serious brain damage and some cases of extremely serious scarring and disfigurement may fall, in practical terms, into this category.29 Damages are awarded to each plaintiff by determining the severity of the loss as a percentage of a most extreme case. No damages will be awarded unless the severity of the loss is at least 15 per cent of a most extreme case at which point damages begin at one per cent of the maximum amount.30

The comparison of general damages for defamation with general damages in personal injury cases had been stirring for some time at common law. In 1965, Diplock LJ said: I do not believe that the law today is more jealous of a man’s reputation than of his life or limb. That is the scale of values of the duel. Of course, the injuries in the two

[page 552] kinds of case are very different, but each has as its main consequences pain or grief, annoyance or unhappiness, to the plaintiff.31

However, in Australia it was impermissible to compare awards between any two personal injury cases, let alone awards for actions of a different type.32 Contrary to this view, and expressing a minority opinion, Mason CJ and Deane J considered that damages of $200,000 awarded for defamation in Coyne v Citizen Finance Ltd33 were excessive. They compared this with an award for the same amount in a personal injury case where damages were intended to compensate the plaintiff: … for the pain, the suffering and loss of amenities involved in the devastation of the life of a previously active young man who had been made a tetraplegic with ‘no lower limb function and grossly limited upper limb function’, no normal bladder or bowel control, and mobility so restricted that he even required the assistance of another person ‘to get from a lying to a sitting position’.34

In Carson v John Fairfax & Sons Ltd,35 the majority of the High Court (4:3) appeared to be of the view that a general comparison was permitted at common law between compensation cases in defamation and personal injury cases, although this was later doubted.36 The comparison between personal injury and defamation awards draws attention to the difference between the action for negligence, where serious physical injury may have been caused by a negligent act, and the action for defamation where serious damage to reputation may have been caused by an intentional act with malice and at times with substantial profits from the sale of the publication: [T]he comparison between defamation and personal injury damages used often to be drawn in England. The instinctive reaction to a perceived imbalance is understandable. But the parallel is far from exact and upon examination is unconvincing. A truck driver who knocks down and kills or seriously injures a pedestrian is unlikely to have done so deliberately, intending to do

grievous bodily harm. Neither is such a negligent driver likely to have been motivated by the prospect of personal financial gain nor, having damaged the pedestrian, to reverse and then run over the prostrate form a second time. If he does any of these things, he will be faced with grave criminal charges. Yet in England certainly, in the high damage cases, the defendant newspaper will have acted deliberately, will have published in order to sell copies and to make money and in most cases will have repeated the defamatory matter. And when it comes to court, the crossexamination of a personal

[page 553] injury plaintiff is usually mild compared with the vicious attack which a defamation plaintiff will have to endure.37

IRREPARABLE HARM 31.4 In the New South Wales Supreme Court case of Marsden v Amalgamated Television Services Pty Ltd,38 the trial judge, Levine J, reviewed many of the principles applicable to damages in defamation at common law and as modified by the Defamation Act 1974 (NSW). The trial occupied 229 court days. The plaintiff did not give evidence and there were 113 witnesses and over 9,000 pages of transcript. The judgment from the trial extended to seven volumes of approximately 2,500 pages. The parties made submissions on damages at opposing extremes. The plaintiff’s submissions commenced with the proposition that ‘this is the worst defamation ever to be tried in this Court’,39 while the defendant’s submissions concluded with the proposition that, if he won, nothing had been established by the plaintiff that entitled him to more than nominal damages. The trial judge found that Marsden, a prominent solicitor, had been defamed on the Today Tonight program broadcast in 1995. The defendant, Channel Seven, had published imputations that: (a) the plaintiff had sexual intercourse with boys who were under the age of 18, knowing them to be under the age of 18; (b) the plaintiff had sexual intercourse with a 15-year-old boy who was then under the influence of drugs which had been given to him by the

plaintiff. For these imputations the trial judge awarded Marsden damages in the sum of $275,000. Channel Seven broadcast similar imputations over 12 months later, on the Witness program (despite an attempt by Marsden to block the program with an injunction): (a) the plaintiff had sexual intercourse with 15-year-old boys, having deliberately refrained from asking those boys how old they were; (b) the plaintiff had sexual intercourse with 15-year-old male prostitutes, having deliberately refrained from asking them how old they were. The trial judge awarded Marsden damages in the sum of $250,000 for these imputations. [page 554] The damages awarded were ordinary compensatory damages, without any increase for aggravated compensatory damages, and did not include any damages for psychiatric illness which Marsden had claimed. The trial judge also declined to award exemplary damages. He summarised the basis for the damages awarded as follows: An allowance will be made for the causes of action arising from each publication for: (a) a sum for injury to feelings: this, in the scheme of things, is to be modest in the absence of subjective evidence from the plaintiff; otherwise it has been established on the evidence of other witnesses. (b) Actual damage to reputation to a substantial level, has, I am satisfied been established. (c) The extent of the publication in each case was very great in terms of the viewing audiences and the perpetuation of the libels by reason of the issues litigated; this component, I stress, is on an ordinary compensatory basis. (d) The gravity of the false imputations, which I consider to be the worst kind, is taken into account; and (e) accordingly, the requirement for vindication is high indeed. It is important that no element of punishment intrude and that account be taken of the value of money. In the end, in this case, the plaintiff having been injured in his good name, vindication as a purpose of the award, predominates.40

Marsden declared on the steps of the court:

No amount of money can compensate the anguish, the pain and the humiliation of the past few years … I will remain forever tainted by the false claim that I was a pederast … Although I have won, I have lost.41

The total verdict of $525,000 was considered by many in the media to be ‘modest’. One commentator ventured the opinion: It is a low quantum by way of vindication for someone who has been called a paedophile. In fact, it’s difficult to think of a worse thing to call someone.42

The legal costs for each party were estimated to be in the millions of dollars. The judgment went on appeal. The New South Wales Court of Appeal43 found that the trial judge had erred in failing to award aggravated compensatory damages, and in failing to award exemplary damages for publications outside New South Wales. While it was prepared to award exemplary damages, the Court of Appeal decided that there needed to be a new trial for the reassessment of damages. The proceedings settled before a new trial took place. Since Marsden’s case, there have been many changes to the approach of awarding damages for non-economic loss in defamation cases. These will be considered in Chapters 32 and 33. [page 555] In particular, there is a cap on the maximum amount of damages for noneconomic loss under s 35(1) of the Defamation Act 2005. Since the Act was introduced, there have been few cases where the award has approached the statutory cap.44 In Pedavoli v Fairfax Media Publications Pty Ltd,45 Melinda Pedavoli was a teacher at a prestigious Sydney Catholic high school for boys. The Sydney Morning Herald newspaper published an article on pages 2 and 3 of the newspaper which was also promoted as one of the ‘Editor’s picks’ on the website. The article wrongly identified Ms Pedavoli and imputed that she was a sexual predator who used boys at the school for her sexual gratification, that she had committed a criminal offence by having sex with at least two boys and that she had so seriously misconducted herself as a teacher as to deserve to have her employment terminated by the school.

The trial judge awarded her the sum of $350,000 including aggravated damages. The judge recorded the fact that teaching was everything to Ms Pedavoli. It was her life ambition to become a teacher and she had completed her Bachelor of Education at Sydney University and was awarded the University Medal. Until publication of the article, she had enjoyed the ‘undoubted pleasure’ of being talked about only in favourable terms. She gave evidence: I’m still in a very confused state of mind. I feel trapped. I don’t know how to rectify my reputation in the eyes of people who have clearly assumed that the article described me. I feel bound to maintaining my position at St Aloysious in fear of leaving the school and confirming any suspicion that I am the person described and therefore no longer at the school. I’m still scared about the prospects of my career and my reputation and am immensely hurt.46

The expansive use of social media has presented an extraordinary capacity to inflict reputational harm. Some use it for malicious, spiteful and criminal purposes, often behind the mask of anonymity. Some post material no matter how defamatory or scandalous it may be with the misapprehension that the posted material will enjoy a complete immunity.47 The harm is caused not only by the initial publication but the unrestricted dissemination of the material quickly and widely through the ‘grapevine effect’.48 In Al Muderis v Duncan,49 the plaintiff was an orthopaedic specialist who had operated on the second defendant. After experiencing complications associated with the operation, none of which withstood scrutiny, the second defendant launched into a ‘most vicious and vituperative’ series of publications which vilified Dr Al Muderis. The first defendant joined in that vilification and put material on a website using the [page 556] plaintiff’s name in a form similar to the plaintiff’s own legitimate business website and used the same photograph of the plaintiff from that website. The defendants also published material on Facebook and YouTube. The court took into account the grapevine effect but noted that the extent of the publication and its ‘republication’ by the grapevine was unknown. The allegations focussed on the plaintiff’s capacity in his chosen profession. The

court considered that this was more significant in circumstances where his reputation was extremely high or at the highest possible level. Further, his good reputation, particularly in a leading and novel process being developed in his profession, the acceptance of which depended upon the reputation of the plaintiff and the process, was essential and the imputations published were ‘extraordinarily damaging’. The court awarded damages including aggravated damages of $320,000 for the first website publication. For the remaining publications the court awarded damages of $160,000. However, the total noneconomic loss, apart from aggravated damages included in the amounts, for all of the publications together, was held by the court not to exceed the statutory cap of $381,000. In this context, the effect on a claimant of reputational harm caused by breach of confidence or misuse of private information is comparable. Max Mosley was awarded £60,000 against the News of the World for publishing on the front page of its newspaper, with an estimated readership of 10 million people, and video footage on its website, an account of his private sexual activities under the headline ‘F1 boss has sick Nazi orgy with 5 hookers’. The trial judge observed that ‘the claimant … is hardly exaggerating when he says his life was ruined’.50 Mosley later gave evidence at a Parliamentary Committee of how he felt: If somebody takes away your dignity, for want of a better word, you can never replace it. No matter how long I live, no matter what part of the world I go to, people will know about it … People do not [snigger behind your back and make jokes] but you know that they know … you go into any place, a restaurant or anything and nobody says anything but you know they all know. You know that in any country you go to, and I go all over the world, I know they all know and that is not very nice for me … the suffering [newspapers] impose not just on the victim but on his family is really, really serious.51

UNIFORM APPROACH 31.5 The Defamation Act 2005 generally follows the law as it stood in New South Wales under the Defamation Act 1974. This involves an application of common law principle modified by statute. [page 557]

Accordingly, for publications from 1 January 2006 damages are to be awarded and assessed in Australia in accordance with the common law, but the Act provides that: (a) the amount of damages must bear an appropriate and rational relationship to the harm suffered by the plaintiff: s 34; (b) the maximum amount of damages for non-economic loss is to be limited to $250,000 or such other amount adjusted from time to time: s 35(1); (c) the maximum amount of damages may be increased if the court is satisfied that the circumstances of the publication are such as to warrant an award of aggravated damages exceeding that amount: s 35(2); (d) exemplary or punitive damages may not be awarded: s 37; and (e) damages are to be determined by the judicial officer and not by the jury: s 22(3).52 ____________________ 1. 2. 3. 4. 5. 6. 7.

8. 9. 10. 11. 12. 13.

Livingstone v Rawyards Coal Co (1880) 5 App Cas 25 at 39; Haines v Bendall (1991) 172 CLR 60 at 63. Fitter v Veal (1701) 12 Mod Rep 542; 88 ER 1506; Brunsden v Humphrey (1884) 14 QBD 141; Todorovic v Waller (1981) 150 CLR 402 at 457. Lim Poh Choo v Camden & Islington Area Health Authority [1980] AC 174 at 182–3; Todorovic v Waller (1981) 150 CLR 402 at 457. Malec v J C Hutton Pty Ltd (1990) 169 CLR 638; Haertsch v Channel Nine Pty Ltd [2010] NSWSC 182 at [75]. Chapman v Hearse (1961) 106 CLR 112 at 120; Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; (1998) 193 CLR 519 at 600. March v E & M H Stramare Pty Ltd (1991) 171 CLR 506. Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 at 642–3; Poseidon Ltd v Adelaide Petroleum NL (1994) 179 CLR 332. See also Crampton v Nugawela (1996) 41 NSWLR 176 at 189–90; State of New South Wales v Moss [2000] NSWCA 133 at [67]–[87]; Haertsch v Channel Nine Pty Ltd [2010] NSWSC 182 at [78]. Plenty v Dillon (1990) 171 CLR 635 at 645, 654–5. Plenty v Dillon (1990) 171 CLR 635 at 655 (Gaudron and McHugh JJ). Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 150. Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335 at [150]. Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [1367]. Ratcliffe v Evans [1892] 2 QB 524 at 528; Readers Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 507; Habib v Nationwide News Pty Ltd [2010] NSWSC 924 at [9].

14. Rookes v Barnard [1964] AC 1129 at 1221; Coyne v Citizen Finance Ltd (1991) 172 CLR 211 at 222; Ley v Hamilton (1935) 153 LT 384 at 386. 15. Cassell & Co Ltd v Broome [1972] AC 1027 at 1071–2 (Lord Hailsham). 16. Chulcough v Holley [1968] ALR 274 at 278; Rogers v Nationwide News Pty Ltd [2003] HCA 52 at [69]. 17. (1993) 178 CLR 44. 18. Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 115 [emphasis added]. 19. (1914) 31 RPC 104. 20. Watson, Laidlaw & Co Ltd v Pott, Cassels and Williamson (1914) 31 RPC 104 at 118. See also Cassell & Co Ltd v Broome [1972] AC 1027 at 1070, 1085 and 1125; Blackshaw v Lord [1984] QB 1. 21. Sutcliffe v Pressdram Ltd [1991] 1 QB 153. 22. Overturned on appeal: Tolstoy Miloslavsky v United Kingdom [1996] EMLR 152. 23. (1993) 178 CLR 44. 24. See Defamation Act 1974 (NSW) s 7A. 25. Defamation Act 1974 (NSW) s 46A. 26. Defamation Act 2005 s 22(3). 27. Ali v Nationwide News Pty Ltd [2008] NSWCA 183 at [89]. 28. Civil Liability Act 2002 (NSW) s 16. 29. Owners of Strata Plan v Gray [2004] NSWCA 304. 30. $6,000 as at 2016. 31. McCarey v Associated Newspapers Ltd (No 2) [1965] 2 QB 86 at 109. See also Groom v Crocker [1939] 1 KB 194 at 231; John v Mirror Group Newspapers Ltd [1996] 2 All ER 35 at 54. 32. Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118. 33. (1991) 172 CLR 211 at 219–20. 34. Wilson v Bauer Media Pty Ltd [2017] VSC 521. 35. (1993) 178 CLR 44. 36. Rogers v Nationwide News Pty Ltd [2003] HCA 52 at [182] (Heydon J). 37. M Davies, ‘Jury or Judge’ (1995) 69 Australian Law Journal 161–2, cited with approval in Rogers v Nationwide News Pty Ltd [2003] HCA 52 at [189]; Crampton v Nugawela (1996) 41 NSWLR 176 at 192. 38. [2001] NSWSC 510. 39. Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510 at [4499]. 40. Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510 at [5266]. 41. Sydney Morning Herald, 29 June 2001. 42. R Ackland, Sydney Morning Herald, 29 June 2001. 43. Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419. 44. Pedavoli v Fairfax Media Publications Pty Ltd [2014] NSWSC 1674 ($350,000); Polias v Ryall [2014] NSWSC 1692 ($340,000); Al Muderis v Duncan [2017] NSWSC 726 ($480,000). 45. [2014] NSWSC 1674; see also Fairfax Media Publications Pty Ltd v Pedavoli [2015] NSWCA 237. 46. [2014] NSWSC 1674 at [145]. 47. Douglas v McLernon [2016] WASC 320 at [1]. 48. Mickle v Farley [2013] NSWDC 295 at [21]; Cairns v Modi [2012] EWSCA Civ 1382 at [27]. 49. [2017] NSWSC 726. 50. Mosley v News Group Newspapers Ltd [2008] EWHC 1777 at [236].

51. House of Commons Culture, Media and Sport Committee [2009–10] Second Report: Press Standards, Privacy and Libel, HC 362-II (London: The Stationery Office), Ev 56. 52. See Ryan v Premachandran [2009] NSWSC 1186 at [114]–[122].

[page 559]

CHAPTER 32 GENERAL DAMAGES PURPOSE CONSOLATION — INJURY TO FEELINGS REPARATION/VINDICATION — HARM TO REPUTATION

32.1 32.2 32.3

PURPOSE 32.1 Ordinary compensatory damages are intended to compensate the plaintiff for the harm done by the effect of the publication of the defamatory matter on the plaintiff and on the plaintiff’s reputation.1 This is usually expressed as fulfilling three purposes which may overlap in reality, so that the amount of the verdict is the product of a mixture of inextricable considerations. The three purposes are:2 (1) Consolation for the personal distress and hurt caused to the plaintiff by the publication; (2) Reparation for the harm done to the plaintiff’s personal and (if relevant) business reputation; and (3) Vindication of the plaintiff’s reputation (vindication looks to the attitude of others towards the plaintiff so that the amount awarded is the minimum necessary to signal that vindication to the public). The award is not separated and assessed for each purpose, but is a total award to reflect all three purposes at once. The same amount must operate as consolation, reparation and vindication, and the amount assessed for the first two purposes may itself be sufficient in aggregate to provide the vindication required.3

[page 560]

CONSOLATION — INJURY TO FEELINGS 32.2 The plaintiff may be compensated for injured feelings, including the hurt, anxiety, loss of self-esteem, the sense of indignity and the sense of outrage felt as a result of the publication.4 Damages may also be payable for physical and mental illness caused by the publication.5 Damages for injury to feelings amount to ‘consolation’ or ‘solatium’, the theory being that ‘the jingling of the guinea helps the hurt that honour feels’.6 The ‘guineas got from the defendant jingle more pleasantly than would those given by a sympathetic friend’.7 In Cassell & Co Ltd v Broome Lord Diplock said: The harm caused to the plaintiff by the publication of a libel upon him often lies more in his own feelings, what he thinks other people are thinking of him, than in actual change made manifest in their attitude towards him. A solatium for injured feelings, however innocent the publication by the defendant may have been, forms a large element in the damages … even in cases where there are grounds for ‘aggravated damages’.8

Plaintiffs will normally give evidence about their reaction to the defamatory publication. Family, friends or acquaintances may also be called to add weight to that reaction. Evidence may be given by the plaintiff’s employer as to the impact upon his or her employment or by the plaintiff’s peers as to the impact upon the plaintiff’s standing in a profession.9 The plaintiff’s evidence will cover such matters as the embarrassment and humiliation at what was published, the matter published was false or a lie, the defendant has not apologised, and the anxiety and strain caused by having to bring the proceedings and see them through to trial. The feelings likely affected include the plaintiff’s sense of security, sense of self-esteem, self-perception, anger, resentment, indignity, outrage, hurt and anxiety. A failure to apologise, whether or not an apology was sought in the first place, may be taken into account in awarding damages for injury to feelings.10 [page 561]

The plaintiff may also rely upon the fact that he or she had to bring proceedings for defamation to ‘nail the lie’ or set the record straight, and with the realisation that the court proceedings themselves would be in public and might increase the extended publicity of the defamation which the plaintiff would have to endure during the trial. The plaintiff might also feel that there is no alternative to taking the proceedings because a failure to do so would be seen as an acceptance of the defamatory statements as the truth. The defendant must take the plaintiff as it finds him or her, including any particular sensitivities that the plaintiff may have.11 Compensation should be awarded sufficient to provide for the injury to the plaintiff’s feelings and to nail the falsity of the imputations to the subjective consolation of the plaintiff (as well as to the objective satisfaction of the public by way of vindication of the plaintiff). In Marsden’s case,12 Marsden did not give evidence as to the injury to his feelings. The trial judge accordingly allowed only a modest amount in the absence of his evidence. Marsden did this so as not to expose himself to early cross-examination on a defence of truth which had been particularised but not yet tested through Channel Seven’s own evidence. Marsden had applied to the trial judge for an order that he not be cross-examined at all until Channel Seven’s case on truth had been heard or, alternatively, an order that he be crossexamined only in relation to damages until that time. Justice Levine rejected the application on the basis that he would not depart from the normal course of a defamation trial in which a plaintiff gave evidence as to injury to feelings and could be expected to have the defence case on truth put to him by way of crossexamination. The New South Wales Court of Appeal reviewed the exercise of the trial judge’s discretion and said: It must be remembered that a trial is not conducted as an unstructured free for all. According to the customs and usages of our system of justice, it generally follows a course founded in rules of law to do with burdens of proof and admissibility of evidence. That can be called a normal course, but there can be departure from the normal course. Where one party seeks departure to obviate a perceived disadvantage, the departure will usually deprive the other party of a corresponding perceived advantage.13

The Court of Appeal considered that Levine J was entitled to exercise his discretionary control over the conduct of the trial in the manner he did.14 At the trial, Marsden had applied to re-open his case in chief to give evidence about

hurt feelings in addition to other matters. Justice Levine refused the application because Marsden had made ‘a considered and deliberate choice’ not to give the evidence before he closed his case in chief. There was evidence from a number of witnesses of contemporaneous statements by Marsden going to his reaction to the broadcasts of the programs and to what they [page 562] observed about his reaction. Evidence of that nature, the Court of Appeal accepted, could establish injury to feelings even without evidence from Marsden himself.15 However, the court observed that the evidence of witnesses other than the plaintiff may not make out a case of such grave injury to feelings as might have been made out if the plaintiff had given evidence. The weight of that evidence can prove the fact that the plaintiff had a particular reaction to the defamatory publication, without it being discounted from its true weight, because the plaintiff could have, but did not, give evidence of injury to feelings.16 This head of damage (injury to feelings) cannot be awarded to a corporation because a corporation cannot be injured in its feelings, but only in its pocket or balance sheet.17 Expert evidence may be given in support of the physical or mental illness experienced by the plaintiff. In Marsden’s case,18 Marsden particularised a claim for psychiatric injury. These particulars included suffering from a major depressive episode, post-traumatic stress disorder type II, stress, agitation, lethargy, fatigue, impairment of cognitive function, mood swings, irritability, despair, anxiety, loss of sense of control over life, chronic nervousness, loss of self-esteem and feelings of personal humiliation. Physical effects particularised included constant agitation, shortness of breath, tightness in the chest, muscle tension, abdominal discomfort, insomnia, night sweats, loss of libido, numbness and tingling. It was further claimed that there had been a period of increased alcohol consumption to mitigate other symptoms, and that there had been an increase in food intake because of comfort eating.19

The trial judge found that Marsden did have psychiatric illnesses, as diagnosed by experts called on his behalf, but found that the psychiatric illnesses had not been shown to have been caused by the broadcast of the defamatory programs. The Court of Appeal accepted the trial judge’s assessment that Marsden had not established that the broadcast of the programs was, on a commonsense approach, causative of any psychiatric injuries suffered by him.20 The plaintiff’s distress and hurt to feelings may occur as a result of events not actually caused by the publication itself but by the plaintiff’s belief that the events were connected. Where that belief is genuine or bona fide and not irrational, the relevant degree of causation between the publication and the plaintiff’s distress as a consequence will be established.21 [page 563]

REPARATION/VINDICATION — HARM TO REPUTATION 32.3 A person’s reputation is the character which he or she bears in public estimation; that is, what other people think of the person.22 Plaintiffs are compensated for the harm done to their reputations because they have been publicly defamed. Damages in a defamation action should also vindicate the plaintiff in the eyes of the public (in addition to the consolation for a wrong done).23 Damage to reputation is presumed to flow from the defamatory publication.24 Damage to reputation is not a commodity having a market value. Reputation is not bought and sold. Only in the courts can a monetary value be placed on the consequence of inflicting harm to reputation.25 The evidence to be called in support of a good reputation must be evidence of general reputation or the esteem in which the person is held by others who know the plaintiff and are in a position to judge the person’s worth, but not evidence of specific events going to make up the general reputation.26 Reputation can be contrasted with character; that is, what a person is, as

distinct from what other people think of that person. Character has been and can properly be used in the same sense as ‘reputation’.27 In assessing damage to reputation, it is necessary to consider the reputation said to have been injured, or what reputation was enjoyed before the publication. In principle, a plaintiff with a bad reputation will be entitled to lower damages than a plaintiff with a high reputation, because the injury to the reputation will be less if the reputation is already diminished.28 Although the most direct evidence of damage to reputation is from witnesses in whose esteem the plaintiff has been lowered, it is more likely that the plaintiff will give evidence as to the change of attitude or behaviour towards him or her as a result of the defamatory publication. In some cases, the particular imputations will have an ‘especially adverse impact upon the plaintiff’s reputation in the eyes of some group or class in the community’.29 It is not necessary for a plaintiff to call witnesses to say that they thought less of the plaintiff as a result of receiving the defamatory publication. [page 564] If witnesses who are called by the plaintiff say that the defamation did not alter their opinion of the plaintiff, it does not preclude an award of damages for harm to reputation. It means that some people did not believe the defamation to be true.30 In Marsden’s case,31 Channel Seven submitted that the trial judge had failed to take into account evidence of Marsden’s lifestyle and the judge’s own findings adverse to Marsden in the judgment. Had he done so, it submitted, the trial judge would have found that Marsden did not enjoy a good settled reputation, but a poor reputation to which the broadcast of the programs did no or little harm. Justice Levine held that Marsden enjoyed a good settled reputation established over the whole of his life. His reputation was founded in many areas, both public and personal, and was a good settled reputation, in respect of which the false charges (captured in the several imputations of such gravity) were damaging in the highest degree. His Honour had therefore found that there was

actual damage to reputation ‘to a substantial level’ and the need for a high requirement for vindication. In Markovic v White32 the plaintiff, who was a solicitor, was found to have enjoyed a good settled reputation, vulnerable to an impact particularly in the group or class in the community in which the plaintiff moved, especially legal and government circles.33 The plaintiff was awarded $220,000. In Haertsch v Channel Nine Pty Ltd,34 the plaintiff was found to have a settled and high reputation in the medical profession as a very competent surgeon. He was a specialist plastic surgeon and had been a medical practitioner for over 40 years. The plaintiff was awarded $240,000. In Greig v WIN Television NSW Pty Ltd,35 the plaintiff was the deputy mayor of a local council and was found to enjoy a reputation as both a communityminded person and as a successful local business woman. She had a reputation for taking her civic responsibilities very seriously and a reputation as an honest person. The plaintiff was awarded $200,000. In Davis v Nationwide News Pty Ltd,36 the plaintiff was an actor who was widely accepted as having extraordinary talent. She had been nominated for two Academy Awards and had appeared in many films. She had an international reputation as an actor of the highest quality. She also gave evidence that she was a private person who shunned publicity. She was awarded $140,000. [page 565] In Pedavoli v Fairfax Media Publications Pty Ltd,37 the plaintiff was a teacher at a prestigious private school for boys and was awarded the University Medal in her Bachelor of Education course. The article published in the Sydney Morning Herald newspaper made allegations of unlawful sexual misconduct against her with a number of boys at the school. She was awarded $350,000. In French v Fraser,38 the plaintiff was found by the court to enjoy an outstanding reputation for honesty and integrity, and to be an intelligent and well educated man who had extensive expertise in alternate dispute resolution. He was the ‘Head of Customer Relations’ in the retail division of the Commonwealth Bank of Australia. In that role, he became the unsuspecting

target of the defendant who styled himself ‘The Arbitrator’ and claimed to be ‘keeping big business honest’. The defendant subjected Dr French to two years of bullying and harassment, publicly mounting a wide reaching and wholly unfounded attack on Dr French’s reputation but in a more sinister private campaign, ‘bombarded Dr French with hundreds of emails, texts and voice messages, many containing thinly veiled threats evidently motivated by homophobia and other senseless vitriol’.39 He was awarded $300,000. In Al Muderis v Duncan,40 the plaintiff was an orthopaedic specialist who was the subject of a vicious campaign carried out by a former patient and his brother on a website mimicking the plaintiff’s legitimate business website, and on Facebook and YouTube. The plaintiff’s reputation was so high that the total amount awarded, including aggravated damages, for all publications in the proceedings was $480,000. The highest damages awards for non-economic loss in each jurisdiction under the Defamation Act 2005 are set out in Chapter 33. The gravity of the imputations and the extent of publication are the most relevant factors to the harm to reputation.41 If the publication is limited, the award should be less than if the matter had been published to the world at large. Even in cases of limited publication, the court may take into account the ‘grapevine effect’ which increases the extent of publication by the likely republication in the circumstances.42 The amount awarded must be at least the minimum necessary to convince persons who have heard of the defamatory allegation, be they the public at large or those who heard it through media reports of the proceedings or the grapevine or the limited places in which it has been received, that the allegation is untrue. [page 566] A solicitor, John Marsden, was awarded $525,000, prior to the introduction of the Defamation Act 2005. On appeal,43 Channel Seven submitted that it was not reasonable to treat the imputations against Marsden as allegations of the worst kind of conduct and that the damages awarded by the trial judge were therefore excessive. The Court of Appeal considered that Levine J had not found that the imputations meant the ‘pinnacle of depravity’, but that there were differences of

degree, and that the imputations were very serious, leading to injury to reputation ‘to a substantial level’, but not the highest possible level.44 Channel Seven also argued that Levine J had mistakenly taken into account ‘the perpetuation of the libels by reason of the issues litigated’ and that the ventilation of the imputations in the course of the trial was simply an incident of the litigation undertaken and not a matter relevant to ordinary compensatory damages. In the absence of any question of aggravated damages, an unsuccessful defendant could not be worse off through maintaining legitimate defences.45 The Court of Appeal viewed Levine J’s determination on this issue as correct. The trial had in fact enhanced the extent of the publication. His Honour was entitled as a result to have regard to the continuance of the defamatory imputations in the minds of the persons to whom the defamatory matter was published, and to the extension of their ‘vitality and capacity’ to harm the plaintiff.46 Marsden submitted that the damages awarded were not adequate to meet the high requirement for vindication. The Court of Appeal declined to deal with this issue in view of its decision that the award of damages to Marsden needed to be re-assessed for other reasons.47 An award must be sufficient to vindicate a plaintiff’s reputation both up to the time of judgment and in the future: Not merely can he recover the estimated sum of his past and future losses, but in case the libel, driven underground, emerges from its lurking place at some future date, he must be able to point to a sum awarded by a jury sufficient to convince a bystander of the baselessness of the charge.48

It has also been observed that where persons occupy eminent and honoured positions, the loss of the position cannot be reflected in financial terms. Men and women pursue careers and associated activities for reasons other than money, such as job satisfaction, prestige, honour, and recognition by one’s professional peers, locally, nationally and internationally. Successful Queen’s Counsel give up highly paid careers [page 567] at the Bar to accept judicial appointment. A Queen’s Counsel about to be appointed to the High Court of Australia, and passed over because he or she has

been seriously defamed, would suffer a great injury. Substantial damages can properly be awarded for such a loss, consequent upon the attitude adopted towards the plaintiff by other persons as a result of the diminution of the esteem in which they are held because of the defamatory statement. Professional disadvantages which do not cause actual pecuniary loss should nevertheless be recoverable.49 ____________________ 1. 2.

3. 4. 5. 6. 7. 8. 9. 10.

11. 12. 13. 14. 15.

16. 17. 18. 19. 20.

Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [1315]. Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 60–1. See also Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 150; John Fairfax & Sons Ltd v Kelly (1987) 8 NSWLR 131 at 142; John v Mirror Group Newspapers Ltd [1996] 2 All ER 35 at 47–8; Rogers v Nationwide News Pty Ltd [2003] HCA 52 at [60]; Ali v Nationwide News Pty Ltd [2008] NSWCA 183 at [70]; Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335 at [151]; Cerutti v Crestside Pty Ltd [2014] QCA 33 at [25]. Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 72 (Brennan J); Crampton v Nugawela (1996) 41 NSWLR 176 at 195; Rogers v Nationwide News Pty Ltd [2003] HCA 52 at [60]. Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 71 (Brennan J); McCarey v Associated Newspapers Ltd (No 2) [1965] 2 QB 86 at 104; Crampton v Nugawela (1996) 41 NSWLR 176 at 191–2. Sattin v Nationwide News Pty Ltd (1996) 39 NSWLR 32 at 45 (Levine J). Lord Alfred Tennyson, Locksley Hall (1842) cited in Herald & Weekly Times Ltd v McGregor (1928) 41 CLR 254 at 272 (Higgins J). Uren v J Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 151 (Windeyer J). [1972] AC 1027 at 1125; see also Ali v Nationwide News Pty Ltd [2008] NSWCA 183 at [72]. Readers Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 508. Clark v Ainsworth (1996) 40 NSWLR 463 at 469; Jools v Mirror Newspapers Ltd (1984) 56 ACTR 1 at 10; Rantzen v Mirror Group Newspapers Ltd [1994] QB 670; Thompson v Australian Capital Television Pty Ltd (1997) 129 ACTR 14 at 19; Ali v Nationwide News Pty Ltd [2008] NSWCA 183 at [82]. Ali v Nationwide News Pty Ltd [2008] NSWCA 183 at [77]–[78]. Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419. Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [1341]. Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [1341]. Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [1353]; Packer v Australian Broadcasting Corporation (1993) 116 FLR 306; Habib v Nationwide News Pty Ltd [2010] NSWSC 924 at [36]. Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [1362]. Church of Scientology of California Inc v Reader’s Digest Services Pty Ltd [1980] 1 NSWLR 344 at 357 (Hunt J). [2002] NSWCA 419. Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [1422]. Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [1448].

21. Ali v Nationwide News Pty Ltd [2008] NSWCA 183 at [116]. 22. Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [1371]; Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335 at [152]. 23. Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 150; Ali v Nationwide News Pty Ltd [2008] NSWCA 183 at [73]. 24. Ratcliffe v Evans [1892] 2 QB 524 at 528; Readers Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 507; Bristow v Adams [2012] NSWCA 166; Cerutti v Crestside Pty Ltd [2014] QCA 33 at [31]. 25. Rogers v Nationwide News Pty Ltd [2003] HCA 52 at [67]–[68]. 26. Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [1371]. 27. Plato Films Ltd v Speidel [1961] AC 1090 at 1138 (Lord Denning). 28. Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [1370]. 29. Readers Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 507 (Brennan J). 30. Cerutti v Crestside Pty Ltd [2014] QCA 33 at [29]. 31. Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419. 32. [2004] NSWSC 37. 33. See also Readers Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 507. 34. [2010] NSWSC 182. 35. [2009] NSWSC 632. 36. [2008] NSWSC 693. 37. [2014] NSWSC 1674. 38. [2015] NSWSC 1807. 39. [2015] NSWSC 1807 at [3]. 40. [2017] NSWSC 726. 41. John Fairfax & Sons Ltd v Kelly (1987) 8 NSWLR 131 at 141–2 (McHugh J); John v Mirror Group Newspapers Ltd [1996] 2 All ER 35 at 48; Ali v Nationwide News Pty Ltd [2008] NSWCA 183 at [76]. 42. Palmer Bruyn & Parker v Parsons [2001] HCA 68 at [89]; Haertsch v Channel Nine Pty Ltd [2010] NSWSC 182 at [82]; Cairns v Modi [2012] EWCA Civ 1382 at [27]; Belbin v Lower Murray Urban & Rural Water Corp [2012] VSC 535; Mickle v Farley [2013] NSWDC 295. 43. Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419. 44. Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [1412]. 45. Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 at 379 (Samuels JA). 46. Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [1418]. 47. Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [1527]. 48. Cassell & Co Ltd v Broome [1972] AC 1027 at 1071 (Lord Hailsham), 1125 (Diplock LJ); Ley v Hamilton (1935) 153 LT 384 at 386; Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 61, 70; ‘the grapevine effect’: Crampton v Nugawela (1996) 41 NSWLR 176 at 194–5; Ali v Nationwide News Pty Ltd [2008] NSWCA 183 at [74]. 49. Crampton v Nugawela (1996) 41 NSWLR 176 at 198–9 (Handley J); McCarey v Associated Newspapers Ltd (No 2) [1965] 2 QB 86 at 107–8.

[page 569]

CHAPTER 33 AWARD OF DAMAGES VALUE OF MONEY CAP ON DAMAGES CALCULATION OF DAMAGES PERSONAL INJURY AWARDS

33.1 33.2 33.3 33.4

VALUE OF MONEY 33.1 In determining the amount of damages to be awarded in any defamation proceedings, the court must ensure that there is an ‘appropriate and rational relationship’ between the harm sustained by the plaintiff and the amount of damages awarded: Defamation Act 2005 s 34.1 This is a requirement to have regard to the value of money in awarding damages for the harm caused to the plaintiff’s reputation. The relationship between the amount awarded and the harm sustained must be ‘appropriate and rational’. The value of money has been referred to in terms of the cost of a car, a holiday or a house.2 If the relevant value is the cost of a house, it can be observed that the average cost of a house in Sydney in 2017 was $970,000.3 This value differs in each jurisdiction,4 as will the cost of living. While these costs provide some meaning to the value of money, they do not provide a value which has an ‘appropriate and rational relationship’ with the harm suffered by a plaintiff for defamation. The value of money in this context may have more of a relationship to the average annual income of a person in the plaintiff’s position. For example, the average annual income of full-time adults in Australia in 2017 was approximately $82,804.80.5 Even

[page 570] in the absence of a claim for actual loss of income as a result of the defamation, this amount may provide a meaningful relationship between the loss of reputation over a period of time and the amount to be awarded. Importantly, it is not necessarily the actual loss of income that will occur as a result of the defamation, but the loss of opportunities in terms of career advancement or offers of employment. This is particularly applicable to persons who have been defamed in their trade or profession.6 More difficult in determining the relationship of the value of money to the harm to reputation are those defamations concerning criminal acts and the like. It is also inherently difficult to place a value on the loss of trust or confidence in a person, which may never be restored despite the defamation action, and likewise the loss of a relationship, which may be lost for life, as a result of the defamatory statement. Equally difficult are those circumstances involving reputations which do not depend upon money for their honour and esteem, such as the position of a judge. It has been suggested that substantial damages should be awarded for loss caused by defamation in these circumstances.7 Also relevant is the time involved in restoring the plaintiff’s reputation from the date of publication. For the period of time that it takes for the plaintiff to succeed with a defamation action, the plaintiff’s reputation sustains harm. Theoretically the reputation will be restored at the date of the verdict and properly vindicated by the amount of damages awarded so that the plaintiff need not be concerned about the future effect of the defamatory matter after the verdict is given. Yet the plaintiff will often feel that, regardless of the monetary compensation, the slur remains or the mud sticks, to be resurrected whenever the opportunity may arise. The defamation is remembered, not the outcome.

CAP ON DAMAGES 33.2 Under the Defamation Act 2005, the maximum amount of damages for non-economic loss that may be awarded in defamation proceedings, at the time

damages are awarded, was initially capped at $250,000 in 2006 and the amount has been adjusted under the Act from time to time since: s 35(1). As at 2017, the amount was adjusted up to $389,500. However, a court may order a defendant in defamation proceedings to pay damages for non-economic loss that exceed the maximum damages amount applicable at the time the order is made if the court is satisfied that the circumstances of the publication of the defamatory matter are such as to warrant an award of aggravated damages: s 35(2). The Minister has power to declare the amount that is to apply as from the date specified in the order published in the Gazette (or such manner as applicable in the jurisdiction) for the purposes of the maximum damages amount: s 35(3). The Minister did this on [page 571] or before 1 July 2006 and is required to do so on or before 1 July in each succeeding year. The amount declared is to be the amount applicable adjusted by the percentage change in the amount estimated by the Australian Statistician of the average weekly total earnings of full-time adults in Australia over the four quarters preceding the date of the declaration for which those estimates are, at that date, available: s 35(4).8 The maximum amount of damages stipulated as from 1 January 2006 was $250,000: s 35(5). It has since increased by Government Gazettal.9 The cap on damages for defamation arose from the principle of proportionality with damages in personal injury cases, in which caps had been imposed in most jurisdictions in Australia by 2005. They were considered to be justified because of the high cost of insurance. This would not appear to be directly relevant as a rationale for capping damages for defamation.10 By reason of the requirement under the Defamation Act 1974 (NSW) that damages for defamation have a proportionate relationship to damages for personal injury, it was thought that a cap for defamation awards was appropriate. However, the Defamation Act 2005 does not require a comparison with personal injury awards and, in any case, the amount of the cap imposed under

the Defamation Act 2005 is significantly lower than the cap for personal injury claims. This does not seem justified when the latter cap was imposed for insurance purposes. While the purpose of damages for defamation is compensatory, it has been said that there is a need to preserve the ‘deterrent effect’ of damages. The argument that is often put by the media against substantial defamation awards is the ‘chilling effect’ on future publications. However, an adequate amount for damages is also necessary to justify the caution exercised in relation to interim injunctions, where it is a relevant factor that damages are considered an adequate remedy, and to deter the media from ‘riding roughshod over the rights of other citizens’.11 It is possible under s 35(2) of the Act that a court may award in excess of the cap where an award of aggravated damages is warranted.12 Damages may only be awarded up to the maximum amount for a single cause of action for defamation. Therefore, regardless of the number of defamatory imputations conveyed by the publication of the defamatory matter, the plaintiff will only be entitled to the maximum capped sum for that publication. An issue arises as to multiple publications where in theory there are multiple causes of action and therefore the maximum amount may be multiplied by the number of [page 572] separate causes of action. The Act appears to deal with this by making the maximum amount that may be awarded in ‘defamation proceedings’ rather than for ‘a cause of action’: s 35(1). To overcome this, a plaintiff could conceivably bring separate defamation proceedings for each separate publication, but s 23 of the Act requires leave from the court in which the further proceedings are to be brought. As a result, all actions arising from the multiple publication of the same defamatory matter should be determined in the one set of proceedings for which the court within its discretion may assess damages in a single sum: s 39. In Davis v Nationwide News Pty Ltd13 the plaintiff was successful in relation to the cause of action from publication of an article in the Daily Telegraph and a

similar but not identical article in the Sunday Mail. The plaintiff submitted that the statutory cap was applicable to each cause of action. The trial judge held that the statutory cap applied to the damages to be awarded ‘in the proceedings’ by virtue of s 35(1) of the Act even if those proceedings involved multiple causes of action. This was reinforced by s 22(4) of the Act which provided that proceedings for defamation may relate to more than one cause of action, while s 23 had the purpose of generally confining the plaintiff to a single ‘defamation proceeding’ and provides that a plaintiff may only bring further defamatory proceedings against the same defendant ‘in relation to the same or any other publication of the same or like matter’ with the leave of the court.14 The maximum amount of damages therefore that can be awarded for defamation in Australia was capped at $250,000 in most jurisdictions from 1 January 2006 and at the time damages are awarded will be capped at the adjusted amount under s 35(3). However, a court may increase this amount where the circumstances of the publication of the defamatory matter are such as to warrant an award of aggravated damages in excess of the cap (s 35(2)). It appears that even where there are multiple publications of the same matter across different states and territories, the proceedings will be confined to the jurisdiction in which the harm occasioned by the publication as a whole had its closest connection (s 11(2)) and any further proceedings against the same defendant would require the court’s leave under s 23 of the Act. In the event of single proceedings for that multiple interstate publication, s 35 imposes one cap for all publications and causes of action in the proceedings. The view has been expressed that the cap operates to provide the outer limit of damages for non-economic loss for the worst category of defamation (such as an imputation of paedophilia published prominently in the media) and that relative to the worst category, a lesser amount may be awarded on a sliding scale for cases involving lesser harm.15 However, the amount at which the cap is fixed is not equivalent to the amount fixed for a worst case personal injury non-economic loss award and there is scope [page 573]

for argument that the cap represents a statutory limit which might be reached in a number of relatively serious cases and might well have exceeded that amount in the absence of the cap.16 The legislation does not stipulate that the maximum can only be awarded in the worst or most serious case. It operates as a ceiling beyond which an award may not be made, except where aggravated damages are warranted: s 35(2). In multiple publication cases, the cap may more readily be reached because of s 35(1) of the Act which applies the cap to ‘the proceedings’ and not to each publication or cause of action. In Al Muderis v Duncan,17 the court awarded damages for multiple publications in the proceedings under the cap (of $320,000 for the first publication and $160,000 for the later publication) but when combined exceeded the cap in the proceedings. The court specifically held that aggravated damages enabled the cap to be exceeded, with the total award at $480,000. In Wilson v Bauer Media Pty Ltd18, the court awarded damages for multiple publications taken together with aggravated damages to exceed the cap at $650,000 (plus an additional amount of $3.9 million for economic loss).

CALCULATION OF DAMAGES 33.3 Although it will continue to be said that damages for defamation are not arrived at by calculation or the application of a formula, there is a ‘broad brush’ way of defining the range of damages that may be awarded.19 At one end of the scale, nominal damages may reflect contempt for the plaintiff by awarding the ‘smallest coin in the realm’.20 It has been held that no damages may be awarded in the discretion of the trial judge under the Defamation Act 2005 where circumstances warrant it.21 At the other end of the scale, in the history of defamation awards in Australia, the highest award was $2.5 million.22 This award was made by a jury, but was subject to appeal and was ultimately settled for an undisclosed but probably reduced amount. This amount is no longer possible with the statutory cap on non-economic loss, but Rebel Wilson was awarded $650,000 (which exceeded the cap of $389,000) and $3.9 million for economic loss, with the total amount of $4.55 million the highest amount since the introduction of the Defamation Act 2005.

The limit imposed by the Defamation Act 2005 was initially capped at $250,000 in 2006 and has since been adjusted from time to time for the maximum amount of damages for non-economic loss.23 This may only be exceeded if the court is satisfied that the circumstances of the publication are such as to warrant an award of aggravated damages: s 35(2). [page 574] The practice of pleading a multiplicity of imputations has not made the determination of the amount of damages easy. The three purposes for which damages are awarded can become obscured by the number of imputations. As a result, a single award for all of the (separate and distinct) defamatory imputations may not console the plaintiff, or repair the plaintiff’s reputation or vindicate the plaintiff’s reputation to the public for the publication of any particular imputation.24 Under the Defamation Act 2005, there is only one cause of action for the publication of defamatory matter regardless of the number of imputations conveyed: s 8. A single verdict is awarded for that cause of action and there may be a single verdict where there is more than one cause of action in the proceedings: s 39. Leaving aside relevant factors that may increase (aggravate) or decrease (mitigate) the amount of damages in the circumstances of the case, most relevant to the calculation of damages is the nature and gravity of the attack on the plaintiff’s reputation and the extent to which that attack has been spread by the publication. The trial judge will determine the amount of damages under the Defamation Act 2005. Where a jury is used in defamation proceedings, the trial judge and not the jury is to determine the amount of damages that should be awarded to the plaintiff and all unresolved issues of fact and law relating to the determination of that amount: s 22(3). In doing so, and providing reasons for judgment, the judge will normally examine: (a) the nature and extent of the plaintiff’s reputation;

(b) (c) (d) (e)

the nature and gravity of the imputations conveyed by the publication; the mode, extent and duration of publication; the grapevine effect; the effect of the publication on the plaintiff in terms of hurt to feelings and damage to reputation; (f) the conduct of the defendant from the time of publication; (g) the conduct of the defendant at the trial; (h) all the circumstances of the case relevant to the assessment of damages; and consider an amount at which the plaintiff’s reputation will be vindicated in the eyes of the public. In a number of cases, the court takes into account the ordeal the plaintiff suffers by undergoing a public trial, as well as the intensity of the hurt to feelings immediately on discovery of the publication and that it is experienced again during the trial. It is difficult to generalise, from the circumstances of each case, about the amount that might be awarded in any other case for non-economic loss. There are a number of subjective as well as objective factors relevant to the assessment and, as a result, comparisons between verdicts may be misleading.25 [page 575] Table 33.1: Highest damages awards for non-economic loss in each jurisdiction under the Defamation Act 2005 as at July 2017 Jurisdiction & case name ACT Zwambila v Wafawarova26 Reid v Dukic27 New South Wales Al Muderis v Duncan28 Pedavoli v Fairfax Media Publications Pty Ltd29 Polias v Ryall30

Award $180,000 $180,000 $480,000 $350,000 $340,000

Ahmed v Nationwide News Pty Ltd31 McMahon v John Fairfax Publications Pty Ltd32 French v Fraser33 Carolan v Fairfax Media Publications Pty Ltd34 Northern Territory Kunoth-Monks v Healy35 Forrest v Chlanda36 Queensland Sieracki v Klerck37 Flegg v Hallett38

Nowak v Putland39

$325,000 $300,000 $300,000 $300,000 $125,000 $100,000 $260,000 $225,000 (+ $550,000 special damages) $150,000 [page 576]

Table 33.1: Highest damages awards for non-economic loss in each jurisdiction under the Defamation Act 2005 as at July 2017 – Cont‘d Jurisdiction & case name South Australia Duffy v Google Inc40 Cornes v The Ten Group Pty Ltd41 De Poi v Advertiser-News Weekend Publishing Company Pty Ltd42 Tasmania N/A Victoria Wilson v Bauer Media Pty Ltd43

Award $100,000 $85,000 $75,000

$650,000 (+ $3,917,472 special damages)

Cripps v Vakras44

Hardie v Herald & Weekly Times Ltd45 Trkulja v Yahoo! Inc LLC46 Trkulja v Google Inc LLC47 Western Australia Douglas v McLernon (No 4)48

Federal Court Hockey v Fairfax Media Publications Pty Ltd49

$450,000 (set aside on appeal) $250,000 $225,000 $200,000 (3 plaintiffs) $250,000 $250,000 $200,000 $700,000 $200,000 [page 577]

Table 33.2: Results of trials against newspapers and print media under the Defamation Act 2005 as at July 2017 Organisation & case name Sydney Morning Herald / The Age / Fairfax Pedavoli v Fairfax Media Publications Pty Ltd50 McMahon v John Fairfax Publications Pty Ltd51 Carolan v Fairfax Media Publications Pty Ltd52 Hockey v Fairfax Media Publications Pty Ltd53 Sheales v The Age Company Pty Ltd54 Chel v Fairfax Media Publications Pty Ltd55

Award

$350,000 $300,000 $300,000 $200,000 $175,000 $100,000

Daily Telegraph / The Australian / Nationwide News Ahmed v Nationwide News Pty Ltd56 Zoef v Nationwide News Pty Ltd57 Davis v Nationwide News Pty Ltd58 Cheikho v Nationwide News Pty Ltd59 Weatherup v Nationwide News Pty Ltd60 Dank v Nationwide News Pty Ltd61 Hyndes v Nationwide News Pty Ltd62 Herald Sun Hardie v Herald & Weekly Times Pty Ltd63

$325,000 $150,000 $140,000 $100,000 $100,000 $0 Jury verdict for defendant $250,000 [page 578]

Table 33.2: Results of trials against newspapers and print media under the Defamation Act 2005 as at July 2017 – Cont‘d Organisation & case name Adelaide Advertiser De Poi v Advertiser News Weekend Publishing Pty Ltd64 Conlon v Advertiser News Weekend Publishing Company Pty Ltd65 Fleming v Advertiser News Weekend Publishing Company Pty Ltd66 Regional Mundine v Brown67 (Daily Examiner) Foreign language Zwambila v Wafawarova68 (Zimbabwean) Petrov v Do69 (Macedonian) Pak v Korean Times70 (Korean) Restifa v Pallotta71 (Italian)

Award $75,000 $40,000 Judgment for defendants

$60,000 $180,000 $175,000 $80,000 $80,000 (2 plaintiffs)

Greek Orthodox Community of South Australia Inc v Pashalis72 (Greek)

$25,000 (3 plaintiffs)

Magazines Woman’s Day, Australian Women’s Weekly

$ 650,000 (+ $3,917,472 special damages) $4,567,472

Wilson v Bauer Media Pty Ltd73 Table 33.3: Results of trials against television stations under the Defamation Act 2005 as at July 2017 Organisation & case name Channel Ten Cornes v The Ten Group Pty Ltd74

Award $85,000 [page 579]

Table 33.3: Results of trials against television stations under the Defamation Act 2005 as at July 2017 – Cont‘d Organisation & case name Channel Nine Haertsch v Channel Nine Pty Ltd75 Greig v WIN Television NSW Pty Ltd76 Holt v TCN Channel Nine Pty Ltd77 Pahuja v TCN Channel Nine Pty Ltd78 Born Bands Pty Ltd v Nine Network Australia Pty Ltd79 Channel Seven Fisher v Channel Seven Sydney Pty Ltd80 Poniatowska v Channel Seven Sydney Pty Ltd81

Award $250,000 $200,000 $4,900 Verdict for plaintiff Judgment for defendant $75,000 Judgment for defendants

Australian Broadcasting Corporation Voelte v Australian Broadcasting Corporation82 O’Brien v Australian Broadcasting Corporation83

Jury verdict for defendant Judgment for defendant

Table 33.4: Results of trials against radio stations under the Defamation Act 2005 as at July 2017 Organisation & case name Radio 2UE Palavi v Radio 2UE Sydney Pty Ltd84 Radio 2GB Ahmed v Harbour Radio Pty Ltd85

Award Jury verdict for defendant $280,000 [page 580]

Table 33.5: Results of trials against search engines under the Defamation Act 2005 as at July 2017 Organisation & case name Google Inc Trkulja v Google Inc LLC86 Duffy v Google Inc LLC87 Yahoo Inc Trkulja v Yahoo Inc LLC88

Award $200,000 $100,000 $225,000

Table 33.6: The higher awards involving social media/websites under the Defamation Act 2005 as at July 2017 Case name Al Muderis v Duncan89 (Website/Facebook/YouTube) Polias v Ryall90 (Facebook)

Award $480,000 $340,000

French v Fraser91 (Website/Facebook) Sierocki v Klerck92 (Websites) Douglas v McLernon (No 4)93 (Websites)

North Coast Children’s Home Inc v Martin94 (Facebook/Emails)

Reid v Dukic95 (Facebook)

$300,000 $260,000 3 plaintiffs $250,000 $250,000 $200,000 $700,000 3 plaintiffs $100,000 $100,000 $50,000 $250,000 $180,000

[page 581] Table 33.6: The higher awards involving social media/websites under the Defamation Act 2005 as at July 2017 – Cont‘d Case name Dods v McDonald96 (Website) Rothe v Scott97 (Facebook) Mickle v Farley98 (Facebook/Twitter) Hockey v Fairfax Media Publications Pty Ltd99 (Twitter)

Award $150,000 $150,000 $105,000 $80,000

PERSONAL INJURY AWARDS 33.4 At common law, an appellate court hearing appeals in both defamation and personal injury cases is required to ensure that there is an appropriate or rational relationship between the scale of awards in the two classes of case.100 However, there have been conflicting comments made by judges which, taken

together, arguably do not support the use of personal injury awards by courts in assessing defamation damages at common law.101 The comparison is also difficult to make. In Vacik Distributors Pty Ltd v Australian Broadcasting Corporation Sperling J said: The amount of damages awarded in defamation matters must be neither excessive nor close fisted when compared with the damages awarded in personal injury matters for distressing and permanently disabling injuries. It is, however, to be borne in mind that damages for defamation serve the dual purpose of compensation and vindication. Insofar as they serve the latter purpose, a relativity with awards in personal injury cases may not be practicable.102

In Marsden’s case,103 the trial judge considered that under common law principles the court would adopt the approach of informing itself of the general range of awards in personal injury cases, considering the factors which distinguish a defamation case from personal injury cases, and then deciding what relevance, if any, the personal injury awards have to the assessment of damages in the particular case. General damages in serious personal injury cases ranged up to about $360,000 at the time of [page 582] judgment (2001), while statutory limits under the Motor Accidents Compensation Act had an indexed value of $284,000, and under the Workers Compensation Act an indexed value of approximately $250,000. Marsden submitted that the element of non-economic loss in personal injury cases is only one part of an aggregate award for defamation. To treat the general damages figure in isolation, as if it were the amount which society considered to be adequate compensation for a severe injury, was to ignore its place in the totality of the court’s award. Even in common law personal injury cases themselves, judges were not bound to remain within the range. Marsden submitted that the relevant proportionality for which a judge should aim is between the injury and the totality of the damages awarded, not between the award in that and in other cases.104 Prior to the Defamation Act 2005, courts in New South Wales, when assessing the amount of damages for non-economic loss, were required under s 46A(2) of the Defamation Act 1974 (NSW) to take into consideration the general

range of damages for non-economic loss in personal injury awards in New South Wales (including awards made under, or in accordance with, any statute regulating the award of any such damages).105 There is no such requirement in the Defamation Act 2005 but damages for non-economic loss are capped under s 35. In introducing the amendments to the Defamation Act 1974 (NSW) to the Legislative Council in November 1994, the Attorney-General referred in his Second Reading speech to the tasks to be performed by the judge in applying s 46A(2): In performing the task it is not expected that judges will need to tread the torturous path of detailed analysis of every personal injury verdict. It would be nonsense to expect any exact equivalent. It is anticipated that judges will draw on their experience and knowledge of the range of possible verdicts in the light of the seriousness of the cases occasioning them. They will then consider the relative seriousness of the case that they are actually deciding and, having taken into account all other relevant factors, will make an award.106

In Jackson v TCN Channel Nine Pty Ltd107 Adams J applied s 46A(2) in these terms: … [T]he legislative injunction must be obeyed and damages for non-economic loss conscientiously measured in a universe of discourse in which such damages in personal injuries cases form, with damages in defamation cases, a system of justice which should reflect coherence and a reasonable measure of consistency. In the context of this case, I must and do consider that the injuries suffered by the plaintiffs do not approach in pain and disability that which would require compensation at the upper end of the scale of damages for personal injury. At the same time, the imputations conveyed were horrendously, almost uniquely, damning. To borrow language from

[page 583] another field of legal discourse, whilst a worse case can be imagined, the imputations broadcast by TCN of the plaintiffs fall into the worst class of case.108

His Honour then awarded a total amount of $1.7 million to 10 plaintiffs, although the highest individual award was only $200,000.109 Justice Hayne suggested the following approach: … [Section] 46A(2) should be understood, … [first, to invite] attention to the nature of the injury done by defamation compared with the consequences of physical injury … [and] second, … [the] statutory limits imposed in cases of motor or workplace accident are not to be taken as being indirectly imposed as limits on the amount to be allowed in defamation. But the reference to the

general range of damages does identify the highest sums awarded for the non-economic consequences of personal injury as what might be called a presumptive outer limit to awards of defamation. So much follows from the fact that rarely, if ever, will the harm done by a defamation be greater than the most serious form of physical injury which leads to permanent and serious disabilities. And if that represents the presumptive outer limit to awards for defamation, each particular award that is made must find a place within a range which is marked out in that way.110

The High Court in Rogers v Nationwide News Pty Ltd111 did not identify the highest amount awarded in personal injury cases for non-economic loss in New South Wales, but noted there was an award in 2002 of $420,000. The highest amount for general damages for defamation under s 46A(2) would conceivably have been in this vicinity. Judges, however, have experienced difficulty in finding a logical connection between general damages awarded in defamation cases and damages for noneconomic loss awarded in personal injury cases, whether those damages are capped or not by statute:112 … [W]hatever else s 46 and s 46A mean, they point to the need for courts to confine defamation damages to reflect the harm done by the libel. S 46A seems to be a legislative attempt at containment of defamation damages, although perhaps not expressed in a very helpful way.113

[page 584] Justice Heydon observed that s 46A(2) presents difficulties of both construction and application in relation to the role of capped awards of damages for personal injury for non-economic loss: It must be remembered that the statutory capping of damages [in personal injury cases] is not an ethically-driven or value-infused exercise … some classes of compensation have become too substantial and have gone beyond the capacity of those bodies which have to fund them to do so. Motor accident awards lead to what are regarded as insupportably high registration fees. Workers Compensation awards are perceived to lead to excessive premiums or an unacceptable rise in unfunded liabilities. The motivations [of Parliament] are financially based, not value based.114

The damages awarded for defamation should reflect the effect the particular defamation has had on the individual plaintiff. As part of the exercise to ensure there was an ‘appropriate and rational relationship’ between the harm suffered by the person defamed and the amount of damages awarded, s 46A(2) required the court to take into consideration the general range of damages for non-

economic loss in personal injury awards. However, the statutory limits imposed by legislation for certain personal injury awards did not impose a limit on the amount to be allowed and might have been of limited utility, albeit that they were taken into consideration.115 As at 2017, the capped amount for personal injury claims for non-economic loss in the most extreme case in New South Wales116 was $605,000. By comparison, as at 2017, the capped amount for defamation claims for noneconomic loss in New South Wales117 was $389,500. ____________________ 1. 2. 3. 4. 5. 6. 7. 8. 9.

10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21.

Ryan v Premachandran [2009] NSWSC 1186 at [114]. Sutcliffe v Pressdram Ltd [1991] 1 QB 153. Australian Bureau of Statistics, March 2017. Melbourne ($675,000); Brisbane ($515,000); Adelaide ($450,000); Perth ($523,000); Canberra ($650,000); Hobart ($385,000); Darwin ($525,000). Australian Bureau of Statistics, February 2017. Wilson v Bauer Media Pty Ltd [2017] VSC 521. Crampton v Nugawela (1996) 41 NSWLR 176 at 198–9 (Handley J). See also grounds for adjustment in s 35(5)–(8). NSW Gazettes No 84 of 30.6.2006, p 5043 ($259,500); No 80 of 15.6.2007, p 3793 ($267,500); No 72 of 20.6.2008, p 5482 ($280,500); No 90 of 19.6.2009, p 3137 ($294,500); No 79 of 18.6.2010, p 2452 ($311,000); No 62 of 24.6.2011, p 4588 ($324,000); No 60 of 8.6.2012, p 2369 ($339,000); No 65 of 31.5.2013, p 2307 ($355,500); No 57 of 13.6.2014, p 2322 ($366,000); No 52 of 26.6.2015, p 1928 ($376,500); No 50 of 17.6.2016, p 1406 ($381,000); No 56 of 26.5.2017, p 1782 ($389,500). SCAG Working Group of State and Territory Officers, Proposal for Uniform Defamation Laws, July 2004, p 33. Gleaner Company Ltd v Abrahams [2004] 1 AC 628 at [53]. Al Muderis v Duncan [2017] NSWSC 726 at [122]. [2008] NSWSC 693. Davis v Nationwide News Pty Ltd [2008] NSWSC 693 at [8]–[10]; Restifa v Pallotta [2009] NSWSC 958 at [64]; Dank v Whittaker [2014] NSWSC 732 at [34]–[35]. Attrill v Christie [2007] NSWSC 1386 at [44]; Papaconstuntinos v Holmes à Court [2009] NSWSC 903 at [114]–[115]; Visscher v Maritime Union of Australia [2014] NSWSC 350 at [235]. Cripps v Vakras [2014] VSC 279 at [599]–[609]. [2017] NSWSC 726. [2017] VSC 521. Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [1313]. Dering v Uris [1964] 2 QB 669. Dank v Nationwide News Pty Ltd [2016] NSWSC 295.

22. Erskine v John Fairfax Group Pty Ltd (1998) (SC (NSW)). 23. NSW Gazettal notice: 30 June 2006 — $259,500; 15 June 2007 — $267,500; 20 June 2008 — $280,500; 19 June 2009 — $294,500; 18 June 2010 — $311,000; 24 June 2011 — $324,000; 8 June 2012 — $339,000; 31 May 2013 — $355,500; 13 June 2014 — $366,000; 26 June 2015 — $376,500; 17 June 2016 — $381,000; 26 May 2017 — $389,500. 24. Compare Sleeman v Nationwide News Pty Ltd (2004) Aust Torts Reports 81-773; Nationwide News Pty Ltd v Sleeman [2005] NSWCA 349 at [60]–[67]. 25. Rogers v Nationwide News Pty Ltd [2003] HCA 52 at [69]. 26. [2015] ACTSC 171. 27. [2016] ACTSC 344. 28. [2017] NSWSC 726. 29. [2014] NSWSC 1674. 30. [2014] NSWSC 1692. 31. (DC (NSW), Bosic DCJ, 31 May 2012, unreported.) 32. [2013] NSWSC 933. 33. [2015] NSWSC 1807. 34. [2016] NSWSC 1091. 35. [2013] NTSC 74. 36. [2012] NTSC 14. 37. [2015] QSC 92. 38. [2015] QSC 167. 39. [2011] QDC 259. 40. [2015] SASC 206. 41. [2011] SASC 104. 42. [2015] SADC 21. 43. [2017] VSC 521. 44. [2014] VSC 352. 45. [2015] VSC 364. 46. [2012] VSC 88. 47. [2012] VSC 533. 48. [2016] WASC 320. 49. [2015] FCA 652. 50. [2014] NSWSC 1674. 51. [2013] NSWSC 933. 52. [2016] NSWSC 1091. 53. [2015] FCA 652. 54. [2017] VSC 380. 55. [2017] NSWSC 996. 56. (DC (NSW), Bozic DCJ, 31 May 2012, unreported.) 57. [2015] NSWDC 232. 58. [2008] NSWSC 693.

59. 60. 61. 62. 63. 64. 65. 66. 67. 68. 69. 70. 71. 72. 73. 74. 75. 76. 77. 78. 79. 80. 81. 82. 83. 84. 85. 86. 87. 88. 89. 90. 91. 92. 93. 94. 95. 96. 97. 98. 99.

[2016] NSWSC 29. [2016] QSC 266. [2016] NSWSC 295. (SC (NSW), Hislop J, 16 September 2011, unreported.) [2015] VSC 364. [2015] SADC 21. [2008] SADC 91. [2016] SASC 26. [2010] NSWSC 1285. [2015] ACTSC 171. [2012] NSWSC 1382. (DC (NSW), Rolfe DCJ, 19 November 2010.) [2009] NSWSC 958. [2015] SASC 122. [2017] VSC 521. [2011] SASC 104. [2010] NSWSC 182. [2009] NSWSC 632. [2012] NSWSC 770. Damages award pending. [2013] NSWSC 1651. [2014] NSWSC 1616. [2016] SASC 137. (SC (NSW), McCallum J, 18 July 2016.) [2016] NSWSC 1289. (DC (NSW), Elkaim DCJ, 28 March 2012, unreported.) [2013] NSWSC 1928. [2012] VSC 533. [2015] SASC 206. [2012] VSC 88. [2017] NSWSC 726. [2014] NSWSC 1692. [2015] NSWSC 1807. [2015] QSC 92. [2016] WASC 320. [2014] NSWDC 125. [2016] ACTSC 344. [2016] VSC 201. [2016] NSWDC 160. [2013] NSWDC 295. [2015] FCA 652.

100. Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 56–60; Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 132; Costello v Random House Australia Pty Ltd (1999) 137 ACTR 1 (affirmed on appeal); Rogers v Nationwide News Pty Ltd [2003] HCA 52 at [70]. 101. Rogers v Nationwide News Pty Ltd [2003] HCA 52 at [179]–[183] (Heydon J). 102. [2000] NSWSC 732 at [100]. 103. Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419. See also Nationwide News Pty Ltd v Sleeman [2005] NSWCA 349 at [60]–[67]. 104. See also Crampton v Nugawela (1996) 41 NSWLR 176 at 195. 105. Defamation Act 1974 (NSW) s 46A(2). See also Civil Law (Wrongs) Act 2002 (ACT) s 68. 106. NSW Hansard, Legislative Council, Parliamentary Debates, 22 November 1994, p 5472. 107. [2002] NSWSC 1229. 108. Jackson v TCN Channel Nine Pty Ltd [2002] NSWSC 1229 at [89]. 109. See also Cotter v John Fairfax Publications Pty Ltd [2003] NSWSC 503 at [182]–[188]; and Nikolopoulos v Greek Herald Pty Ltd [2003] NSWSC 1060 where 11 plaintiffs were awarded a total of $685,000 with the highest individual award only $80,000. 110. Rogers v Nationwide News Pty Ltd [2003] HCA 52 at [75]–[76]; John Fairfax Publications Pty Ltd v O’Shane (No 2) [2005] NSWCA 291; Moit v Bristow [2005] NSWCA 322. Compare Crampton v Nugawela (1996) 41 NSWLR 176 where $500,000 was considered not beyond the range of a sound and sensible jury as an award to a professional man for defamation. 111. [2003] HCA 52. 112. Rogers v Nationwide News Pty Ltd [2003] HCA 52 at [174]–[187]. See also Cotter v John Fairfax Publications Pty Ltd [2003] NSWSC 503 at [183]; Markovic v White [2004] NSWSC 37 at [34]; Moit v Bristow [2005] NSWCA 322. 113. Rogers v Nationwide News Pty Ltd [2002] NSWCA 71 at [130]. 114. Rogers v Nationwide News Pty Ltd [2003] HCA 52 at [191]. 115. Moit v Bristow [2005] NSWCA 322 at [122]–[123]; Ali v Nationwide News Pty Ltd [2008] NSWCA 183 at [94]. 116. Civil Liability Act 2002 (NSW) s 16(2). 117. Defamation Act 2005 (NSW) s 35(1).

[page 585]

CHAPTER 34 INCREASING DAMAGES — AGGRAVATION INTRODUCTION FALSITY OF THE DEFAMATORY IMPUTATIONS MANNER AND EXTENT OF PUBLICATION MALICE OF THE DEFENDANT TOWARDS THE PLAINTIFF FAILURE OR REFUSAL TO APOLOGISE DEFENDANT’S CONDUCT OF THE LITIGATION

34.1 34.2 34.3 34.4 34.5 34.6

INTRODUCTION 34.1 It is possible for damages to be increased by the aggravating conduct of the defendant, whether at the time of publishing the defamatory matter or later, if the conduct is improper, unjustifiable or lacking in bona fides.1 An award of aggravated damages must be confined to compensation for the relevant harm to the plaintiff caused by the defendant’s conduct and must not include any element of punitive damages.2 The conduct does not have to amount to malice.3 The important element for increased hurt to feelings is the plaintiff’s knowledge or perception of the defendant’s misconduct which as a result increases the damages: … [T]he more insulting or reprehensible the defendant’s conduct the greater the indignity that the plaintiff suffers and the more he should receive for the outrage to his feelings.4

The defendant must take the plaintiff as it finds him or her and it is the plaintiff’s subjective experience as a victim of the defamation that may lead to an increase in damages for aggravation.

[page 586] If the plaintiff is unaware of the defendant’s misconduct, he or she can suffer no increase in injury to feelings: Defamation Act 2005 s 36. However, a plaintiff who mistakenly believes that the defendant was guilty of misconduct, can still recover aggravated compensatory damages: … [T]he harm that a plaintiff suffers cannot be measured by, nor does it necessarily depend at all upon, the motive from which the defendant acted or upon his knowledge or intentions.5

Aggravated compensatory damages are not necessarily limited to injury to the plaintiff’s feelings as there may be conduct of the defendant which has the effect of increasing the injury to the plaintiff’s reputation.6 Damages for non-economic loss may exceed the statutory cap under s 35(2) of the Defamation Act 2005 if, and only if, the court is satisfied that the circumstances of the publication of the defamatory matter to which the proceedings relate are such as to warrant an award of aggravated damages. Section 35(2) does not limit the common law basis for the plaintiff’s entitlement to aggravated damages but is only concerned with the circumstances in which an award of damages for non-economic loss may exceed the statutory cap.7 The defendant’s misconduct usually increases the injury to the plaintiff’s feelings if the plaintiff knows of the following particular matters. The defendant’s conduct remains relevant to aggravated damages up to the moment of verdict.8

FALSITY OF THE DEFAMATORY IMPUTATIONS 34.2 Because the plaintiff knows the imputations are false, the hurt to feelings is increased by that knowledge.9 The trial provides the opportunity for the plaintiff to ‘nail the lie’, and express the aggravation caused by the publication of it.10 [page 587]

MANNER AND EXTENT OF PUBLICATION 34.3 Damages may be increased where the defamatory matter is published in an extravagant and over-sensational manner evidenced by tone of voice, position and prominence in the program and timing of broadcast.11 Likewise, the ‘sensationalist and excessive’ quality of a newspaper article may increase the hurt to the plaintiff.12

MALICE OF THE DEFENDANT TOWARDS THE PLAINTIFF 34.4 The malice may be evidenced not only by improper motive but also by reckless indifference to the falsity of the published matter. This misconduct may include failure to make pre-publication inquiries13 or statements by the defendant which repeat or otherwise draw attention to the defamatory publication. Section 36 of the Defamation Act 2005 excludes the malice or other state of mind of the publisher as a relevant consideration unless it affects the harm sustained by the plaintiff. This is taken to mean that the plaintiff should be aware of the defendant’s state of mind to claim aggravated damages for the defendant’s malice, but in respect of a similar provision in the Defamation Act 1974 (NSW) s 46(3)(b) it was held that, even if there is no evidence from the plaintiff to this effect, the inference may still be drawn that the harm was increased in particular by the recklessness of the publication and the failure by the defendant to make inquiries prior to publication.14

FAILURE OR REFUSAL TO APOLOGISE 34.5 The significance in defamation cases of an apology lies in the necessity to ‘quell the impact’ of the defamatory statement. To achieve that end it is necessary that the apology be published with the same, or similar, degree of prominence as the original publication.15

[page 588] Although the mere failure to make an unsolicited apology might not usually justify an award of aggravated damages,16 the fact that no apology was offered to the plaintiff may in the circumstances satisfy one of the criteria for such an award.17 An inadequate apology may justify an increased award.18 If the apology forms part of, or is accompanied by, a course of unjustifiable and improper conduct on the part of the defendant, it may aggravate damages.19

DEFENDANT’S CONDUCT OF THE LITIGATION 34.6 If the defendant conducts the litigation in an unjustifiable or improper way, damages may be awarded for the increase in injury to feelings. The mere pursuit of a bona fide defence cannot support such a finding.20 In Marsden’s case,21 the particular matters said to give rise to aggravated damages included the absence of an apology, repetition of the allegations (meaning broadcasting the Witness program when Marsden had already sued in relation to the Today Tonight program) and persistence with defences of justification and qualified privilege, which failed. In the absence of evidence from the plaintiff of injury or increased injury to his feelings at the trial, the trial judge held that aggravated damages in relation to injury to feelings could not be awarded. The Court of Appeal, however, considered that the trial judge was in error because, although injury to feelings was not established by evidence from the plaintiff, it could be established by other evidence. In certain circumstances the aggravating misconduct of the defendant may increase the reputational damage suffered (distinct from hurt to feelings). An example may be an inadequate apology which attracts fresh attention to the defamation.22 [page 589]

Conduct of the defendant after publication which tends to increase the ‘vitality [of the defamation] and capability of causing injury to the plaintiff’ is relevant to the assessment of ordinary compensatory damages, not aggravated damages.23 The capacity to increase the actual harm to the plaintiff, for example, by increasing the damage to reputation through publicity at trial, is relevant to ordinary compensatory damages irrespective of whether the conduct is held to be mala fides.24 The conduct of the trial by the defendant may aggravate the plaintiff’s damages; for example, where defence counsel asserts that the plaintiff was lying to the court25 or asserts without foundation that the plaintiff was unable to control her anger to the point that her husband felt it necessary to obtain an apprehended violence order to restrain her26 or where assertions were made to the plaintiff in cross-examination which were ‘without support, gratuitous and calculated to insult’.27 ____________________ 1. 2. 3. 4. 5. 6. 7. 8. 9.

10. 11. 12. 13. 14. 15.

Triggell v Pheeney (1951) 82 CLR 497 at 514; Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 71; Ali v Nationwide News Pty Ltd [2008] NSWCA 183 at [79]. Ryan v Premachandran [2009] NSWSC 1186 at [121]. Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474 at 497. Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 151 (Windeyer J); Fielding v Variety Inc [1967] 2 QB 841 at 849, 851. Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 150 (Windeyer J). Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 75; Ali v Nationwide News Pty Ltd [2008] NSWCA 183 at [80]. Davis v Nationwide News Pty Ltd [2008] NSWSC 693 at [20]. Ali v Nationwide News Pty Ltd [2008] NSWCA 183 at [85]. Rigby v Associated Newspapers Ltd [1969] 1 NSWR 729 at 738 (Walsh JA); see also Australian Consolidated Press Ltd v Uren (1965–1966) 117 CLR 185 at 205; Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 75; Davis v Nationwide News Pty Ltd [2008] NSWSC 693 at [34]; Haertsch v Channel Nine Pty Ltd [2010] NSWSC 182 at [43]. Rigby v Associated Newspapers Ltd [1969] 1 NSWR 729 at 738 (Walsh JA), 743 (Jacobs JA); Singleton v Ffrench (1986) 5 NSWLR 425 at 442–4; Davis v Nationwide News Pty Ltd [2008] NSWSC 693 at [35]. Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 79 (Hunt J). Rogers v Nationwide News Pty Ltd [2003] HCA 52 at [34]. Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 at 250. Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 at 250 (Glass JA). Ali v Nationwide News Pty Ltd [2008] NSWCA 183 at [127].

16. Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 66. See also Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643 at 660; Rantzen v Mirror Group Newspapers Ltd [1994] QB 670; Clark v Ainsworth (1996) 40 NSWLR 463 at 465; but see Cotter v John Fairfax Publications Pty Ltd [2003] NSWSC 503 at [167]; Markovic v White [2004] NSWSC 37 at [26]. 17. Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643 at 659–60; Ali v Nationwide News Pty Ltd [2008] NSWCA 183 at [81]–[84], [126]–[129]; Davis v Nationwide News Pty Ltd [2008] NSWSC 693 at [36]; Haertsch v Channel Nine Pty Ltd [2010] NSWSC 182 at [44]. 18. See Packer v Australian Broadcasting Corporation (1993) 116 FLR 306 at 312; Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 78, 118; Rogers v Nationwide News Pty Ltd [2003] HCA 52 at [138]. 19. Clark v Ainsworth (1996) 40 NSWLR 463; Cotter v John Fairfax Publications Pty Ltd [2003] NSWSC 503 at [167]. 20. Triggell v Pheeney (1951) 82 CLR 497 at 514; Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348; Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474 at 497; Coyne v Citizen Finance Ltd (1991) 172 CLR 211 at 237 (Toohey J); Haertsch v Channel Nine Pty Ltd [2010] NSWSC 182 at [46]–[54]. 21. Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419. 22. Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 74 (Hunt J). 23. Clark v Ainsworth (1996) 40 NSWLR 463; Spautz v Butterworth (1996) 41 NSWLR 1. 24. See Habib v Nationwide News Pty Ltd [2010] NSWSC 924 at [41]. 25. Harbour Radio Pty Ltd v Tingle [2001] NSWCA 194. 26. Davis v Nationwide News Pty Ltd [2008] NSWSC 693 at [32]. 27. Haertsch v Channel Nine Pty Ltd [2010] NSWSC 182 at [54].

[page 591]

CHAPTER 35 EXEMPLARY DAMAGES PUNISHING THE DEFENDANT

35.1

PUNISHING THE DEFENDANT 35.1 At common law it was possible that an additional amount might be awarded in order to punish the defendant for particularly reprehensible conduct whether at the time of, or subsequent to, the defamatory publication.1 Under the Defamation Act 2005, s 37 precludes an award of exemplary or punitive damages for defamation. The purpose of an award of exemplary damages was to punish the defendant for conduct showing a conscious and contumelious disregard for the plaintiff’s rights and to deter the defendant from committing like conduct again.2 Exemplary damages could be awarded: … where the conduct of the defendant merits punishment, which is only considered to be so where his conduct is wanton, as where it discloses fraud, malice, violence, cruelty, insolence or the like, or, as it is sometimes put, where he acts in contumelious disregard of the plaintiff’s rights.3

Where a defendant, with cynical disregard for a plaintiff’s rights, ‘calculates’ that publication would give it a commercial advantage which would outweigh any liability [page 592] to the plaintiff, exemplary damages would be appropriate.4 It was necessary for the law to show that it could not be broken with impunity.5

Prior to the Defamation Act 2005, New South Wales was the only state in Australia which excluded exemplary damages by legislation, although they could be awarded in New South Wales for interstate publications, where such damages were available. In Marsden’s case,6 the trial judge refused to award exemplary damages for publication of the defamatory material outside New South Wales.7 The Court of Appeal agreed with this finding in relation to the Today Tonight program, but held in relation to the Witness program that exemplary damages should have been awarded for interstate publications. The Court of Appeal said: [Channel Seven] broadcast the programme intending that the defamatory imputations be conveyed. The broadcast was nation-wide on a key television programme. The imputations were grave. [Channel Seven’s] personnel were recklessly indifferent to the truth or falsity of the imputations, and did not make the inquiries into their truth or falsity which should have been made. There was time and opportunity for inquiries. [Channel Seven] was not acting through tyros, but through personnel who should have exercised ability and experience. Injury to [Marsden] from the Today Tonight programme was inevitable, and as to the Witness programme, the motive was to injure him. The motive was given effect with contempt for [Marsden’s] known denial of under age sex, with what his Honour called a pretence at balance but in fact a guise used to accuse the respondent of lying.8

In the Court of Appeal’s judgment this amounted to ‘conscious and contumelious’ disregard for Marsden’s rights, calling for ‘curial disapprobation’, for which punitive damages should be awarded. In order to assess damages for broadcast in the states and territories other than New South Wales, the court did not think it was a mathematical task, discounting a global sum of exemplary damages according to population, viewer numbers, ground areas or some similar measure. Rather, the approach adopted was one of assuming publication only in the states and territories other than New South Wales, and asking what amount would punish and deter in respect of that publication, putting out of mind the fact of publication in New South Wales.9 The Court of Appeal initially awarded $200,000 having regard to the usual cautions, namely that exemplary damages are awarded rarely, that they recognise and punish [page 593] fault, but not every finding of fault warrants their award, and that ‘something

more must be found’.10 It was established law that exemplary damages should be awarded if, but only if, the sum awarded as compensation was inadequate to punish defendants for their outrageous conduct, to deter them and others from engaging in similar conduct, and to mark the court’s disapproval of such conduct (the ‘if, but only if’ principle).11 The Court of Appeal, on strict rules of precedent, was not bound to apply the ‘if, but only if’ principle from these decisions. The court observed that compensatory and exemplary damages are different in nature and purpose. What is compensatory is not punitive, because the defendant is not punished by having to pay compensation properly due to the plaintiff. In order to be punitive, damages must be more than compensatory, so that it can be said that exemplary damages are necessarily over and above what has been assessed in compensatory damages. Fulfilling the purpose of teaching the defendant that defamation does not pay, and of marking curial disapprobation of the defendant’s conduct by punishment, is doing something other than compensating the plaintiff.12 Notwithstanding its reservations, the court decided to give effect to the principle, and in this case, where compensatory damages remained to be assessed in a new trial, the court accepted that its award of exemplary damages should be withdrawn (but not the finding that the Witness program entitled Marsden to an award of exemplary damages). Exemplary damages were abolished in New South Wales by legislation for a number of reasons:13 (a) it was considered wrong that one person should profit by the punishment of another; (b) it had been thought that unless the publisher were made to ‘smart for the insult’, the person defamed might attempt punishment outside the courts by challenge to a duel; however, civil proceedings do not provide the safeguards for the accused which a criminal prosecution provides. The defendant is placed at a disadvantage for having to disclose documents which may help the plaintiff to succeed and is liable to answer questions on oath so that the defendant’s answers may be used against him or her at the trial. The standard of proof is only on the balance of probabilities; (c) it was also considered wrong that it should be in the hands of a jury

not only to find the defendant guilty but also to fix the amount of the punishment. A jury might be tempted to award exemplary damages not for the publication of the defamatory matter complained of, but for the general standards of the [page 594] newspaper, standards which the jury as part of the reading public have had a part in forming; (d) the question of punishment should be dealt with if necessary in criminal, not in civil proceedings. It is also difficult to distinguish the reasons for awarding exemplary damages and aggravated compensatory damages, often dependent upon proof of the same element of malice.14 Exemplary damages can no longer be awarded under the Defamation Act 2005 s 37. ____________________ 1.

XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448 at 469; John v Mirror Group Newspapers Ltd [1997] QB 586. 2. XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448 at 471; Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1 at [416]–[420]; Whitbread v Rail Corporation NSW [2011] NSWCA 130 at [28]. 3. Australian Consolidated Press Ltd v Uren (1967) 117 CLR 221 at 237. See also Pollack v Volpato [1973] 1 NSWLR 653; Lamb v Cotogno (1987) 164 CLR 1 at 9; Gray v Motor Accident Commission (1998) 196 CLR 1. 4. Rookes v Barnard [1964] AC 1129 at 1226; Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 153. 5. Australian Consolidated Press Ltd v Uren (1967) 117 CLR 221 at 236; Crampton v Nugawela (1996) 41 NSWLR 176 at 188. 6. Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419. 7. John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; Jackson v TCN Channel Nine Pty Ltd [2002] NSWSC 1229; SRSC v Beaumont [2004] NSWSC 164. 8. Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [1495]. 9. Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [1500]. 10. Gray v Motor Accident Commission (1998) 196 CLR 1 at 6. 11. Rookes v Barnard [1964] AC 1129 at 1228; Cassell & Co Ltd v Broome [1972] AC 1027 at 1089, 1063, 1095, 1118 and 1121–2; John v Mirror Group Newspapers Ltd [1997] QB 586; Backwell v ‘AAA’ [1997] 1

VR 182. 12. Amalgamated Television Services Pty Ltd v Marsden (No 2) [2003] NSWCA 186 at [18]. 13. NSW Law Reform 1971 Report LRC (11) Appendix D, [42]–[55]. 14. Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 149–52.

[page 595]

CHAPTER 36 REDUCING DAMAGES — MITIGATION INTRODUCTION CONDUCT OF THE PLAINTIFF PLAINTIFF’S BAD REPUTATION PREVIOUS PUBLICATIONS OTHER RECOVERIES DEFENDANT’S LACK OF MALICE TRUTH OF THE PLAINTIFF’S IMPUTATIONS APOLOGY CIRCUMSTANCES OF PUBLICATION

36.1 36.2 36.3 36.4 36.5 36.6 36.7 36.8 36.9

INTRODUCTION 36.1 As has been seen in Chapter 34, damages can be increased if the defendant’s conduct is of such a nature that it aggravates the plaintiff. This misconduct may be separate and distinct from the commission of the tort itself. Likewise, a defendant can seek to reduce damages by relying upon certain matters that are subsequent to, separate from, or distinct from the publication of the defamatory material.1 In some cases, the damages awarded have been nominal or derisory. Matters relevant to the plaintiff’s reputation or the circumstances of the publication may reduce the amount of damages which would otherwise be substantial in the absence of a defence. Such cases have included the award of a half penny,2 a pound,3 $104 or $5,000.5 In Dank

[page 596] v Nationwide News Pty Ltd,6 the plaintiff was awarded no damages despite succeeding with the cause of action. Section 42 of the Defamation Act 2005 refers to a number of matters that can be taken into account in mitigation of damage.

CONDUCT OF THE PLAINTIFF 36.2 The plaintiff’s conduct before or after the publication may lead to a reduction in damages.7 For example, if the plaintiff provoked the defamatory publication by libelling the defendant, evidence may be admissible in mitigation as showing the ‘provocation by which the defendants were goaded by the plaintiff himself to do the act’.8 The plaintiff’s delay in commencing proceedings may also lead to an inference that he or she did not regard the defamation as a serious matter.9 Evidence of the plaintiff’s post publication conduct can be taken into account; for example, where a subsequent conviction or adverse judicial finding is made against the plaintiff.10

PLAINTIFF’S BAD REPUTATION 36.3 A prior tarnished reputation of the relevant type provides grounds to mitigate damage caused by the defamatory publication.11 Evidence of persons who testify directly to a tarnishing of a plaintiff’s general reputation in that respect is admissible.12 Evidence of specific past acts of the plaintiff to prove prior bad reputation are excluded,13 unless the specific misconduct is imputed by the defamatory publication,14 and the relevant sector of the plaintiff’s reputation.15 The evidence is inadmissible because it would ‘throw upon the plaintiff the difficulty of showing a uniform propriety of conduct during his whole life’.16 The plaintiff may not be cross-examined about matters which are not

[page 597] relevant to the defamatory imputations, for example violent and abusive language used on occasions, and about people having no connection with the libel sued upon.17 In principle, a plaintiff with a bad reputation will only be entitled to a reduced amount in damages compared to a plaintiff with a high reputation because the injury to the reputation will be less if the reputation is already diminished.18 In Marsden’s case19 the trial judge recorded the evidence of many witnesses as to Marsden’s high reputation as a lawyer; as a participant in politics, political lobbying and law reform; as a person involved in civil liberty issues; as a participant in many other community activities; as a leader and role model within the gay community; and generally in the society in which he mixed and within his own legal practice. Channel Seven submitted that the evidence established that Marsden: … had a reputation ‘as a promiscuous homosexual whose lifestyle involved trawling beats, use of drugs, casual sex, with an indifference to age and identity of partners as sometimes involving prostitutes’ and that this reputation was regarded as unacceptable by ordinary standards of society.20

Indeed, Channel Seven submitted that the reputation, and the effect of the broadcast and the programs on it, were such that no more than a nominal sum was appropriate for compensation for injury to reputation. The trial judge came to the view that Marsden’s lifestyle did not bring to an end the reputation as established, or a materially diminished reputation. Notwithstanding the lifestyle, his Honour concluded that Marsden had a high reputation. The Court of Appeal accepted this view of the facts, saying that reputation is multi-faceted. A person may have a good reputation although: (a) those who know the person recognise flaws of character; (b) those who know the person do not approve of aspects of the person’s way of life; and (c) there is some notoriety in the disapproved aspects of the person’s way of life.21 Channel Seven also submitted that the trial judge had, in his reasons for judgment, made a number of findings adverse to Marsden and that he had

failed to take them into account in mitigation. It submitted that the findings were public findings and hence matters of notoriety, and so were relevant to reputation in the same manner as a conviction for a criminal offence, and that the findings established that Marsden had a reputation for reprehensible conduct and dishonesty affecting his general reputation. Channel Seven submitted that no more than a nominal sum was appropriate for damage to Marsden’s reputation. [page 598] The Court of Appeal observed that findings in a judgment may go to the plaintiff’s reputation including where the judgment postdates the publication of the defamatory matter. Previous convictions are admissible in mitigation of damages.22 However, evidence of a conviction cannot always be given in mitigation of damages in an action for defamation. The relevance of the conviction to the imputation in the article complained of must determine relevance and admissibility.23 Proof of the conviction is conclusive evidence pursuant to s 42(1) of the Defamation Act 2005 (NSW) that the person committed the offence. Findings in civil litigation made in open court can be regarded as evidence of bad reputation because matters of public knowledge are taken to be known, or because they are likely to come to the attention of those who knew the plaintiff, in the same manner, but they are not necessarily in the same position as convictions for criminal offences.24 This may be so even where the judgment or conviction postdates the publication of the defamatory matter.25 The Court of Appeal refused to accept that the trial judge’s findings adverse to Marsden were themselves evidence in the proceedings of bad reputation. Courts act on evidence and the court’s findings are not themselves evidence in the proceedings. The Court of Appeal said: … [T]here is not true incongruity in a court awarding damages on the basis of a good reputation but making findings actual or notional publication of which may (or may not) be detrimental to the plaintiff’s reputation, since the court cannot properly pay regard to the effect of its findings on the plaintiff’s reputation … It would be undesirable that a plaintiff claiming damages for defamation should have taken into account against him findings which are not known until

judgment is given, without the opportunity to address whether or to what extent the findings do affect his reputation.26

The Court of Appeal also did not accept Channel Seven’s submission, because at the trial it had not sought to rely on any findings the trial judge might make adverse to Marsden as going to his reputation in advance of those findings being made.27

PREVIOUS PUBLICATIONS 36.4 Previously published defamatory publications of the plaintiff are not relevant to the plaintiff’s reputation, even if they are to the same effect. It cannot be submitted [page 599] that the plaintiff’s reputation was already damaged at the time of publication by another publication previously published.28 Otherwise, media defendants could rely upon their own or other media publications previously asserted about a plaintiff. Likewise, the repetition of a rumour or suspicion cannot be used in mitigation.29 However, in Carson v John Fairfax & Sons Ltd30 the High Court considered the need to avoid overcompensation in proceedings involving closely related defamatory publications, and whether the total of the two verdicts in that case would exceed the amount appropriate to compensate for the total harm suffered by reason of the combined effect of the two publications. The court said: The fact that the total of the verdicts is obviously excessive in that sense does not mean, of course, that all the verdicts should be set aside. It would be necessary to consider each verdict to ascertain whether, in the context of the case as a whole, it is excessive.31

Justice McHugh said: It is erroneous to consider the reasonableness of a verdict by determining whether the total sum awarded for a number of verdicts is reasonable. Each verdict must be considered separately.32

OTHER RECOVERIES 36.5 Under s 38 of the Defamation Act 2005, there is a statutory exception to the general rule excluding consideration of previous defamatory publications about the plaintiff. Where a plaintiff in proceedings for defamation complains of a publication, the defendant may, in mitigation of damages, adduce evidence that the defendant: (a) has made an apology to the plaintiff about the publication of the defamatory matter: s 38(1)(a); (b) has published a correction of the defamatory matter: s 38(1)(b); or, that the plaintiff: (a) has already recovered damages: s 38(1)(c); (b) has brought proceedings for damages: s 38(1)(d); or (c) has received or agreed to receive compensation: s 38(1)(e); [page 600] for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter.33 These factors do not limit those that may be taken into account in mitigation: s 38(2). Similar legislation existed in each jurisdiction except Western Australia prior to the Defamation Act 2005.34 The provision stems from the Law of Libel Amendment Act 1888 (UK) s 6. However, the provision has been difficult to apply in practice.35 In Marsden’s case,36 Channel Seven submitted that the trial judge had failed to take s 48 of the Defamation Act 1974 (NSW) into account. Section 48 required that the damages awarded in respect of the one program had to take account of the damages awarded in respect of the other program. Channel Seven said that the total of the damages so exceeded the amount appropriate to compensate for the aggregate harm in one of the assessments of damages, that there must have been disregard of the damages awarded in the other — specifically, that the

award of damages in respect of the Today Tonight program meant that the requirement of vindication in respect of the Witness program was much less than the damages actually awarded. The trial judge had therefore failed to take into account ‘the powerful future effect which he himself intended that the Today Tonight award should have’. The Court of Appeal noted that, while the trial judge was plainly concerned that there would not be double damages for substantially the same imputations, the real question was whether the damages in respect of the Witness program were unreasonable given that Marsden had recovered damages in respect of the Today Tonight program. As there was to be a reassessment of compensatory damages, the Court of Appeal considered there was no point in answering the question.37

DEFENDANT’S LACK OF MALICE 36.6 At common law, the defendant’s innocence or inadvertence may lead to a reduction in the amount of damages awarded.38 However, s 36 of the Defamation Act 2005 precludes the state of mind of the publisher as being relevant to damages ‘except to the extent that the malice or other state of mind affects the harm [page 601] sustained by the plaintiff’. In other words, damages will not be reduced unless the defendant’s lack of malice itself actually reduces the harm suffered by the person defamed.

TRUTH OF THE PLAINTIFF’S IMPUTATIONS 36.7 At common law, even if a complete defence of truth is not established, to the extent that the defamatory matter is proved to be true, then damages will be reduced accordingly.39 It was accepted in Plato Films Ltd v Speidel40 that at

common law, in the absence of a defence of truth, evidence of the truth of the imputation was not admissible in mitigation of damages. If a defendant elected not to plead a defence of truth, it cannot seek to mitigate damages on the basis of evidence that tended to prove truth.41 However, if a defendant could only establish that one of two imputations relied on by the plaintiff was substantially true, the defence of justification failed, but the evidence led to establish that defence could be relied upon in mitigation of damages.42 Defendants may rely in mitigation on evidence before the court on an unsuccessful or only partially successful plea of justification.43 The tactical manoeuvring that might be involved in this pleading may not be welcomed by the court.44 In New South Wales prior to the Defamation Act 2005 the only imputation that was relevant to mitigation was the imputation pleaded by the plaintiff.45 A contextual imputation (as understood by the defence of contextual justification) was not relevant to mitigation.46 Notably under s 47 of the Defamation Act 1974 (NSW), there was no presumption that the imputation complained of was true. On the question of damages, the plaintiff could tender evidence as to the falsity of the imputations in aggravation, or the defendant could tender evidence of the truth in order to mitigate damages (without pleading truth as a defence).47 The truth or falsity of the imputation complained of could affect the harm suffered by the plaintiff in the form of mental distress or in the shape of injury to property or financial loss. In assessing damages, there was no presumption as to whether the imputation was or was not true.48 Evidence that the imputation was [page 602] or was not true could be tendered by the plaintiff or the defendant, whether or not the other party did so.49 The object of s 47 of the Defamation Act 1974 (NSW) was that, even in the absence of truth being in issue by way of defence, the plaintiff was able to assert in a public forum at the trial that the defamatory matter was a lie, and that could be taken into account in relation to the question of the amount of damages. However, unlike the common law, s 47 restricted the relevant admissible

evidence to the imputations complained of by the plaintiff, not to other (contextual) imputations conveyed by the same publication.50 The substantial truth of the contextual imputations may be taken into account in assessing damages.51

APOLOGY 36.8 At common law the publication by the defendant of an apology could mitigate the amount of damages awarded.52 This was confirmed in a number of Australian jurisdictions by statute,53 and was initially declared by the Libel Act 1843 (UK) s 1. However, an apology could only mitigate and not eliminate the damage to the plaintiff.54 Under s 38(1) of the Defamation Act 2005, the publication of an apology to the plaintiff or a correction of the defamatory matter is relevant evidence in mitigation of damages. However, under s 20, an apology is not relevant to the determination of fault or liability in connection with the defamatory matter and is not admissible for that purpose. The terms of the apology and the timing of the publication of the apology are significant factors in relation to mitigation. The apology must be in terms of an expression of regret for the hurt and embarrassment caused and the timing must be prompt in order to have any real effect upon the damage caused to the plaintiff. The question may be asked: … [Was it] a genuine attempt on the part of the defendant to right a grave wrong … [or] merely … an attempt to escape from the consequences of its wrongdoing?55

[page 603] The extent to which the defendant retracts the defamatory imputations complained of, or whether the defendant seeks to excuse its publication by publication of the plaintiff’s reply or rebuttal by a third party, is also relevant.56 The Defamation Act 2005 provides that an apology does not constitute an express or implied admission of fault or liability and is not relevant to the determination of fault or liability in connection with the publication of

defamatory matter (s 20(1) and (2)), but also provides that it may be taken into account in mitigation: ss 20(3) and 38. In so far as an apology contains admissions of fact, for example of the falsity of an imputation, it may be argued that the admissions do not directly relate to fault or liability and therefore should be admissible in evidence.57 The Commonwealth proposal for a national code (July 2004) would have included the same provision, but indicated that apologies (defined to include retractions and voluntary corrections) would need to be ‘full and complete’ depending upon the circumstances.58 Where a simple error was made, it would be sufficient to acknowledge the error and identify the true facts. In other cases where the defendant was recklessly indifferent to the truth or falsity of the facts before publication, the defendant would be expected clearly to acknowledge the falsity and identify the true facts. The apology would also need to be published at the ‘earliest opportunity’ after the defendant became aware that the matter was false or defamatory and would need to be of ‘substantially similar prominence’ to the original defamatory story or article.

CIRCUMSTANCES OF PUBLICATION 36.9 The circumstances in which it is proved by the plaintiff that the publication complained of was made may mitigate damages (the defendant is not permitted to lead evidence by way of cross-examination of the plaintiff or his or her witnesses during the plaintiff’s case in chief or by giving specific evidence during the defendant’s own case in order to mitigate damages). ____________________ 1. 2. 3. 4. 5. 6. 7. 8.

Compare Triggell v Pheeney (1951) 82 CLR 497 at 513; Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 at 243; Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335 at [155]–[156]. Dering v Uris [1964] 2 QB 699; Pamplin v Express Newspapers Ltd [1988] 1 WLR 116. Grobbelaar v News Group Newspapers Ltd [2002] 4 All ER 732. Middendorp Electric Co Pty Ltd v Sonneveld [2001] VSC 312. Habib v Nationwide News Pty Ltd [2010] NSWSC 924. [2016] NSWSC 295. See, generally, Cassell & Co Ltd v Broome [1972] AC 1027 at 1071–2. Watts v Fraser (1837) 7 Ad & E 223; 112 ER 455.

9. 10. 11. 12. 13.

14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28.

29. 30. 31. 32. 33. 34.

35. 36. 37.

McCarey v Associated Newspapers Ltd (No 2) [1965] 2 QB 86 at 96–7. Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335. See 4.4. See Chappell v Mirror Newspapers Ltd (1984) Aust Torts Reports 80-691. See Scott v Sampson (1882) 8 QBD 491; Plato Films Ltd v Speidel [1961] AC 1090; Associated Newspapers Ltd v Dingle [1964] AC 371; Pamplin v Express Newspapers Ltd [1988] 1 WLR 116 at 119, 125 and 129. See also s 42 of the Defamation Act 2005 (evidence of criminal offence). Plato Films Ltd v Speidel [1961] AC 1090; Chappell v Mirror Newspapers Ltd (1984) Aust Torts Reports 80-691 at 68,952. Australian Broadcasting Corporation v McBride [2001] NSWCA 322 at 435. Scott v Sampson (1882) 8 QBD 491 at 505; Jones v Stevens (1822) 11 Price 234; 147 ER 458 at 468. Judd v Sun Newspapers (1930) 30 SR (NSW) 294; Mutch v Sleeman (1928) 29 SR (NSW) 125; Australian Broadcasting Corporation v McBride (2001) 53 NSWLR 430. Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [1370]. Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419. Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [1378]. Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [1391]. Goody v Odhams Press Ltd [1967] 1 QB 333 at 340–1 (Lord Denning) (see also Defamation Act 2005 s 42). Goody v Odhams Press Ltd [1967] 1 QB 333 at 343–4 (Salmon LJ). Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [1402]. Television New Zealand Ltd v Quinn [1996] 3 NZLR 24; Australian Broadcasting Corporation v McBride (2001) 53 NSWLR 430; Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335 at [253]. Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [1407]–[1408]. See also Habib v Nationwide News Pty Ltd [2010] NSWSC 924 at [30]–[33]; Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335 at [253]–[255]. Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 99 (McHugh J); Chappell v Mirror Newspapers Ltd (1984) Aust Torts Reports 80-691. See also Saunders v Mills (1829) 6 Bing 213; 130 ER 1262; Associated Newspapers Ltd v Dingle [1964] AC 371 at 410–11. Dingle v Associated Newspapers Ltd [1964] AC 371 at 410. (1993) 178 CLR 44 at 55–6. Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 56 (Mason CJ, Deane, Dawson and Gaudron JJ). Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 100. Waters v John Fairfax Publication Pty Ltd [2005] NSWSC 394. Defamation Act 1974 (NSW) s 48; Wrongs Act 1958 (Vic) s 12; Civil Liability Act 1936 (SA) s 11; Defamation Act 1889 (Qld) s 24; Defamation Act 1957 (Tas) s 25; Civil Law (Wrongs) Act 2002 (ACT) s 67; Defamation Act (NT) s 10. The provisions in Victoria, Queensland and Tasmania were limited to publications by periodical or newspaper. Uren v John Fairfax & Sons Pty Ltd (1965) 66 SR (NSW) 223 at 229; Thompson v Australian Capital Television Pty Ltd (1997) 129 ACTR 14 at 24. See also Harris v Perkins (1993) A Def R 51079. Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419. Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [1535]–[1537].

38. Smith v Harrison (1856) 1 F&F 565 at 566 (Willes J). 39. Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; (1998) 193 CLR 519 at 557. 40. [1961] AC 1090 at 1133–4; Pamplin v Express Newspapers Ltd [1988] 1 WLR 116 at 120–1; The Age Company Ltd v Elliott [2006] VSCA 168 at [14]. 41. Rigby v Associated Newspapers Ltd [1969] 1 NSWR 729 at 738. 42. Fairfax Media Publications Pty Ltd v Kermode [2011] NSWCA 174 at [59]. 43. Holt v TCN Channel Nine Pty Ltd (2014) 86 NSWLR 96 at [26]–[32]. 44. Burstein v Times Newspapers Ltd [2001] 1 WLR 579 at 589. 45. NRMA Insurance Ltd v Amalgamated Television Services Pty Ltd [1989] A Def R 50–055. 46. Waters v John Fairfax Publication Pty Ltd [2005] NSWSC 394 at [15]. 47. Singleton v Ffrench (1986) 5 NSWLR 425 at 443; Ainsworth v Burden [2005] NSWCA 174. 48. Singleton v Ffrench (1986) 5 NSWLR 425. 49. Rigby v Associated Newspapers Ltd [1969] 1 NSWLR 729 at 738–9; Mutch v Sleeman (1928) 29 SR (NSW) 125. 50. NRMA Insurance Ltd v Amalgamated Television Services Pty Ltd [1989] A Def R 50–055; Waterhouse v Hickie (1995) Aust Torts Reports 81-347 at 62,494. 51. John Fairfax Publications Pty Ltd v Zunter [2006] NSWCA 227 at [46]–[51]. 52. Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 66. 53. Wrongs Act 1958 (Vic) s 6; Civil Liability Act 1936 (SA) s 9; Defamation Act 1889 (Qld) s 21; Defamation Act 1957 (Tas) s 22; Libel Act 1843 (UK) s 1 (applicable in WA); Civil Law (Wrongs) Act 2002 (ACT) s 63; Defamation Act (NT) s 8; compare Civil Liability Act 2002 (NSW) s 69. 54. Associated Newspapers Ltd v Dingle [1964] AC 371 at 399. 55. Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 141 (Menzies J). 56. Associated Newspapers Ltd v Dingle [1964] AC 371 at 400. 57. Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317 at [25]. 58. Australian Government, Attorney-General’s Department, Revised outline of a possible National Defamation Law, July 2004, p 33.

[page 605]

CHAPTER 37 SPECIAL DAMAGES ECONOMIC LOSS

37.1

ECONOMIC LOSS 37.1 Plaintiffs may suffer financial or economic loss caused by a defamatory publication. If plaintiffs can prove actual financial loss, they are entitled to claim ‘special damages’.1 This claim must be specifically pleaded and fully particularised. It is essential for plaintiffs to prove that any actual or special damages claimed for defamation were caused by, and were not too remote from, the defamatory publication sued upon. However, the defamation need only be a cause, not necessarily the only cause, of the harm to reputation.2 Special damages may include the actual loss, such as loss of employment, loss of a contract, loss of a client or additional expenses, that would not otherwise have been incurred. It may include a general downturn in the plaintiff’s business. Damages for economic loss are not subject to the cap on damages for non-economic loss imposed by s 35(1) of the Defamation Act 2005. In Flegg v Hallett3 the plaintiff was a Queensland government minister. The defendant was his media adviser. The defendant held a media conference and conducted a radio interview in which he said he had lost trust in the plaintiff, that the plaintiff had tabled an inaccurate lobbyists register and had opened himself to a charge of misleading a parliamentary committee. In the controversy that followed, the plaintiff resigned as minister to put an end to the criticism of the government that had arisen. He claimed special damages in his defamation claim against the defendant for lost salary from the date of his resignation to the end of the then current term of parliament

($330,269.77) and an amount for the value of the reduction in his superannuation entitlements ($750,034). [page 606] The trial judge awarded special damages at $500,000 taking into account the uncertainties of political life which justified a reduction for contingencies. In addition, he awarded general damages for non-economic loss at $275,000. It has been said that, at common law, a corporation cannot recover for noneconomic loss or general damages. Its damage must sound in money.4 An example of the evidence required by a corporation to recover for loss of business, reputation or goodwill is found in Steiner Wilson & Webster Pty Ltd t/as Abbey Bridal v Amalgamated Television Services Pty Ltd.5 Prior to the Defamation Act 2005, it was said that a corporation that did not plead or particularise facts which would establish that it had suffered special damage was liable to have its claim struck out for not pleading an actionable defamation.6 However, it has also been held that damage to a corporation’s trading or business reputation, which might not be suffered in its pocket by loss of income, might still be regarded as a loss of a capital asset. This diminishes its capacity to earn because it reduces the corporation’s ability to induce others to do business with it.7 Under s 9 of the Defamation Act 2005, a corporation no longer has a cause of action for defamation unless it is an ‘excluded’ corporation at the time of publication. The alternative action for injurious falsehood, which is available to a corporation, requires proof of special damage. ____________________ 1. 2. 3. 4. 5. 6.

Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225. Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; (1998) 193 CLR 519 at 600. [2015] QSC 167. Lewis v Daily Telegraph Ltd [1964] AC 234 at 262 (Lord Reid); Australian Broadcasting Corporation v Comalco (1986) 12 FCR 510 at 586–7, 599–603; RSPCA v 2KY Broadcasters (1988) A Def R 50-030. (2000) Aust Torts Reports 81-537. New South Wales Aboriginal Land Council v Jones (1998) 43 NSWLR 300 at 308; Lewis v Daily

7.

Telegraph Ltd [1964] AC 234 at 262; Development and Environmental Professionals’ Association v John Fairfax Publications Pty Ltd [2004] NSWSC 92. Commissioner of Taxation v Sydney Refractive Surgery Centre Pty Ltd [2008] FCAFC 190 at [12]–[13]; see also Feo v Pioneer Concrete (Vic) Pty Ltd [1999] 3 VR 417 at [57].

[page 607]

CHAPTER 38 OTHER ASPECTS OF DAMAGES TAXATION ON DAMAGES INTEREST ON DAMAGES

38.1 38.2

TAXATION ON DAMAGES 38.1 It is well settled that in an action for tort where a person is claiming damages for loss of earning capacity following injury, any allowance in respect of such a claim is made by reference to net loss or on an ‘after tax’ basis. The court does not include the income tax the plaintiff would have had to pay on lost earnings as part of the award because income tax does not have to be paid on that award.1 The award is for lost earning capacity not lost earnings or wages.2 An award of damages for personal injuries is not taxable as income.3 For the purposes of taxation, the Commissioner of Taxation has accepted that a claim for defamation constitutes a claim for personal injury because natural persons can and do suffer injury to their personal reputations by way of hurt feelings and loss of standing in the community, among other things.4 An award is compensatory and is treated as capital, not as income for the purposes of taxation. Some damages awards may be affected by capital gains tax, but there is an exemption in s 118.37 of the Income Tax Assessment Act 1997 (Cth) in relation to capital gains on compensation or damages received for wrongs or injuries suffered in an occupation or suffered personally. By taxation ruling TR 95/35, the Commissioner stated that the exemption from capital gains tax for personal injuries is intended to be read as widely as possible and that the exemption should apply to compensation for defamation. In Lewis v Daily Telegraph Ltd5 it was held that, where a company had

suffered loss of profits as a result of a defamation, the damages awarded are for net profits, after allowing for income tax. [page 608] As to whether a company is also exempt from income tax or capital gains tax in recovering damages for defamation is now clear. In Sydney Refractive Eye Surgery Centre Pty Ltd v Beaumont6 the court reserved leave to the plaintiff to apply for additional damages referable to capital gains tax should the company be found liable to pay such tax, and therefore made no provision in the assessment of damages for capital gains tax. In addition, the court reduced the award for lost net profit by 36 per cent taking account of the tax that would have been payable by the company on that profit.7 After the Commissioner of Taxation assessed the plaintiff corporation’s damages as income, the Full Federal Court held that the compensatory damages were not assessable as income.8 The court said that a corporation’s reputation is part of what enables it to earn money; an injury to that reputation diminishes its capacity to earn because it reduces the corporation’s ability to induce others to do business with it. An award of damages for that injury is no different to an award for personal injuries.9

INTEREST ON DAMAGES 38.2 The plaintiff is entitled to interest on the damages awarded. Interest would normally be calculated from the time of publication to the date of the award. For example, s 100(1) of the Civil Procedure Act 2005 (NSW) provides: … the Court may include interest in the amount for which judgment is given, the interest to be calculated at such rate as the court thinks fit: (a) on the whole or any part of the money, and (b) for the whole or any part of the period from the time the cause of action arose until the time the judgment takes effect.

The purpose of an award of interest is to compensate the plaintiff for having

been kept out of money which was due to the plaintiff at the date that the plaintiff was wronged, and in order to put the plaintiff in the position in which he or she would have been if the damages for the wrong had immediately been paid.10 In John Fairfax & Sons Ltd v Kelly11 McHugh J explained: A plaintiff in [a defamation] action sustains loss for each day that the defendant fails to pay the appropriate damages to him. However it does not follow that the plaintiff is entitled to interest on the whole award. In many cases the award will reflect an amount for continuing injury to feelings and reputation to the date of verdict. Hence the amount awarded may, and usually will, be higher than the amount which

[page 609] would have been awarded as at the date of publication or even as at the date of writ. Paradoxically, the amount awarded as vindication per se will inevitably reduce as the damages increase for continuing injury. This is because the award of damages for actual injury will also partly serve the purpose of vindicating the plaintiff’s reputation … The correct approach in theory would seem to be that, since the plaintiff was entitled to damages immediately upon publication, the proper enquiry is first to determine to what extent the award was increased by reason of continuing injury. In strict theory the interest, in respect of this additional sum, would need to take account of the fact that the injury was spread over a period after publication. That is, leaving aside any question of future loss. The matter should be approached on the basis that the plaintiff is prima facie entitled to interest on the whole amount of the award from the date of publication. However, that amount has to be reduced for any sum additional to ‘vindication damages’ awarded in consequence of injury suffered between publication and verdict. This approach gives rise to obvious difficulties of assessment. But if, as I think is the case, the plaintiff is entitled to at least part of his damages from the date of publication, the choice is between awarding no interest at all and attempting to calculate interest on a basis which, although not mathematically perfect, achieves a measure of justice. Since it is unfair to plaintiffs to deprive them of interest for the period in which they have been deprived of their money, interest ought to be awarded to the extent that it is fair and proper.

His Honour discounted the ordinary rate by half. The prevailing commercial rate was 15 per cent and he awarded interest at the rate of 7.5 per cent per annum.12 In MBP (SA) Pty Ltd v Gogic13 the High Court held that the interest on damages for pre-judgment non-economic loss should be calculated not on commercial interest rates, but on a rate which represents the difference between commercial rates and the rate of inflation. In that case the High Court considered that four per cent was fair and reasonable on the assumption that

damages awarded represent, at least in part, a loss spread over the period from the date of publication to trial.14 To award interest on the sum assessed at the trial for the whole period between publication and trial may overcompensate the plaintiff. The award of interest in those cases must reflect the fact that the plaintiff’s loss is spread over the relevant period and interest of two per cent was awarded as half the appropriate rate (Gogic) for non-economic loss to reflect this.15 It has been observed that the primary damage to a plaintiff’s reputation and injury to feelings is occasioned at the time of publication and shortly thereafter, with both elements diminishing over time. For that reason it is common to award interest at a rate which allows for the diminishing impact of the published libel.16 While the greater part of the [page 610] damage may occur at the time of publication, the major component of harm caused may be the hurt to the plaintiff’s feelings which persists from the date of publication to the date of judgment and which fairly would allow a rate of three per cent.17 In some cases, the injury to reputation and hurt to feelings will continue due to the defendant’s persistence in the allegations or a failure to apologise.18 In Marsden’s case,19 the trial judge ordered interest on the awards at two per cent from the dates on which the respective programs were broadcast to the date of judgment. The question on appeal was whether one treated the damages with an interest rate at the four per cent rate for half the period from the date of publication to trial, or interest at half the four per cent rate for the whole of the period from the date of publication to trial. Marsden submitted that, apart from a modest allowance for injury to feelings, the damages awarded were for injury to, and vindication of, reputation. This was an amount to which he was entitled as at the dates he was wronged, because it was then that his reputation was injured, and it was then that vindication was required. Accordingly, the four per cent rate should have been used because damages were to be assessed according to money values at the date of judgment.

The New South Wales Court of Appeal considered that the trial judge might have erred in treating the damages as representing a loss spread over the period from the broadcast of the programs to judgment, and so might have erred in using half the four per cent rate for that period. His Honour had recognised that vindication was a substantial component of the award, and that the entitlement was as at the date of publication. It was therefore arguable that, on an assessment of damages, the trial judge might have erred in the exercise of his discretion as to interest. The Court of Appeal decided that, as the compensatory damages were to be submitted for a new trial, the discretion as to interest would also need to be re-exercised.20 In Davis v Nationwide News Pty Ltd,21 the trial judge considered the major impact of the damage to the plaintiff’s reputation would have occurred at or around the time of publication (rather than inflicted over an extended period of time).22 He made allowance for the continuing damage and for the component of aggravation caused by the defendant’s conduct at trial by adjusting the conventional rate to three per cent. [page 611] The rate of three per cent from the date of publication has been applied in a number of cases in recent years.23 The fair and proper discounted rate is dependent on the published Reserve Bank Cash Rate for the relevant period and adding the rate pursuant to the court rules as may be applicable.24 The appropriate rate is not ‘automatic or formulaic’ but in defamation cases is often considered to be half of the interest rate applicable in other areas of law.25 The court exercises its discretion in awarding the applicable rate and has awarded four per cent26 and even five per cent.27 To the extent that the plaintiff has delayed in bringing the matter to trial and the delay is not explained, the court has discretion to reduce the period over which interest is calculated, but it would not justify a refusal to award interest at all.28 The governing principle is that interest is awarded to compensate the plaintiff for having been kept out of money from the date the cause of action accrues.29 Where the plaintiff is awarded special damages for actual economic loss

caused by the publication, interest will be calculated in accordance with commercial rates or the applicable court rates on that loss. A plaintiff may also seek an order for interest on costs which have been paid during the course of the proceedings. This compensates the party entitled to interest for being out of pocket in respect of the costs that party has paid.30 Interest is payable at the prescribed rates under the court rules from the date of the payment of the fees until the costs order is satisfied.31 ____________________ 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23.

Cullen v Trappell (1980) 146 CLR 1; British Transport Commission v Gourley [1956] AC 185. Tinkler v Commissioner of Taxation (1979) 29 ALR 663 at 667. Sydney Refractive Surgery Centre Pty Ltd v Commissioner of Taxation (2008) 247 ALR 313 at [65]. Commissioner of Taxation v Sydney Refractive Surgery Centre Pty Ltd [2008] FCAFC 190 at [11]. [1964] AC 234. [2004] NSWSC 164 at [389]–[390]. British Transport Commission v Gourley [1956] AC 185; Commissioner of Taxation v Sydney Refractive Surgery Centre Pty Ltd [2008] FCAFC 190 at [4]. Commissioner of Taxation v Sydney Refractive Surgery Centre Pty Ltd [2008] FCAFC 190 at [1]. Commissioner of Taxation v Sydney Refractive Surgery Centre Pty Ltd [2008] FCAFC 190 at [13]. Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [1540]; Cerutti v Crestside Pty Ltd [2014] QCA 33 at [89]. (1987) 8 NSWLR 131 at 143. See also Australian Consolidated Press v Driscoll (1988) Aust Tort Reports 80-175 at 67,651. (1991) 171 CLR 657. See also McGaw v Channel Seven Sydney Pty Ltd [2006] NSWSC 1270 at [2]; Cerutti v Crestside Pty Ltd [2014] QCA 33 at [89]. Vilo v John Fairfax & Sons Ltd [2000] NSWSC 1206; Hodge v TCN Channel Nine Pty Ltd [2006] NSWSC 1272 at [13]. Greig v WIN Television NSW Pty Ltd [2009] NSWSC 877 at [5]; Fisher v Channel Seven Sydney Pty Ltd [2014] NSWSC 1873 at [21]. McGaw v Channel Seven Sydney Pty Ltd [2006] NSWSC 1270 at [8]; Haertsch v Channel Nine Pty Ltd [2010] NSWSC 182 at [90]. Cerutti v Crestside Pty Ltd [2014] QCA 33 at [91]. Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419. Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [1555]–[1556]. [2008] NSWSC 946. Davis v Nationwide News Pty Ltd [2008] NSWSC 946 at [16]. Haertsch v Channel Nine Pty Ltd [2010] NSWSC 182; Gacic v John Fairfax Publications Pty Ltd [2014] NSWSC 738; North Coast Children’s Home Inc v Martin [2014] NSWDC 142; Fisher v Channel Seven Sydney Pty Ltd [2014] NSWSC 1873; Cerutti v Crestside Pty Ltd [2014] QCA 33 at [92]; Hockey v Fairfax

24. 25. 26. 27. 28. 29. 30. 31.

Media Publications Pty Ltd [2015] FCA 750; Polias v Ryall [2015] NSWSC 1; Hardie v Herald & Weekly Times Pty Ltd [2016] VSCA 130; Weatherup v Nationwide News Pty Ltd [2016] QSC 301. Haertsch v Channel Nine Pty Ltd [2010] NSWSC 182; North Coast Children’s Home Inc v Martin [2014] NSWDC 142 at [5]. Fisher v Channel Seven Sydney Pty Ltd [2014] NSWSC 1873 at [3]–[4]. Habib v Radio 2UE Sydney Pty Ltd [2012] NSWDC 12. Mather v Smith [2014] QCA 66. Cerutti v Crestside Pty Ltd [2014] QCA 33 at [98]. Cerutti v Crestside Pty Ltd [2014] QCA 33 at [102]. Grace v Grace [2014] NSWSC 1239 at [67]; Polias v Ryall [2015] NSWSC 1 at [25]. Civil Procedure Act 2005 (NSW) s 101(4).

[page 613]

CHAPTER 39 ALTERNATIVE REMEDIES INTRODUCTION INTERLOCUTORY AND FINAL INJUNCTIONS ACCOUNT OF PROFITS DECLARATIONS COUNTER-PUBLICITY/CRISIS MANAGEMENT

39.1 39.2 39.3 39.4 39.5

INTRODUCTION 39.1 If the damages which the plaintiff might receive for defamation are inadequate for their purpose, alternative remedies may be more appropriate. Damages may be inadequate because by their nature they do not satisfy the purposes for which they are awarded — consolation, reparation and vindication.1 Money as such is regarded by the law as an imperfect rather than an inadequate means of compensation for damage to reputation. However, capping the amount of damages to a maximum sum may be seen by some judges as leading to an inadequate remedy and there are alternative remedies that are available within the discretion of the court.

INTERLOCUTORY AND FINAL INJUNCTIONS 39.2 As an alternative to damages, the remedy of an interlocutory injunction is possible, but has only been available in the clearest of cases.2 The statutory power in New South Wales for such an injunction is found under s 66 of the Supreme Court Act 1970 (NSW), as an adjunct to its equitable jurisdiction.

[page 614] The classic formulation of the test for an interlocutory injunction in defamation proceedings is set out in Coulson v Coulson3 and Bonnard v Perryman.4 It has been traditional for a plaintiff seeking an interlocutory injunction in defamation cases to satisfy the court of the following. (a) There is a prima facie case or serious question to be tried5 or there is a reasonably arguable case on both the facts and the law6 In Church of Scientology of California Inc v Reader’s Digest Services Pty Ltd7 Hunt J put the test in this way: … [T]he settled law [is] that the power to grant interlocutory injunctions in defamation cases must be exercised with great caution, and only in very clear cases. A plaintiff must establish that a subsequent finding by a jury that the matter complained of was not defamatory of him would be set aside as unreasonable, that there is no real ground for supposing that the defendant may succeed upon any defence of justification, privilege or comment, and that he, the plaintiff, is likely to recover more than nominal damages only. In particular, questions of privilege and malice are not normally appropriate to be decided upon an interlocutory application. Nor will an injunction go which will have the effect of restraining the discussion in the press of matters of public interest or concern.8

The High Court has confirmed that on an application for an interlocutory injunction, the court must address whether the plaintiff has shown that there is a serious question to be tried as to the plaintiff’s entitlement to relief, has shown that the plaintiff is likely to suffer injury for which damages will not be an adequate remedy, and has shown that the balance of convenience favours the granting of an injunction.9 This does not mean that the plaintiff must show that it is more probable than not at trial that the plaintiff will succeed but it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial.10 The requisite strength of the probability of ultimate success depends upon the nature of the rights asserted and the practical consequences likely to flow from the interlocutory order sought.11 In Chappell v TCN Channel Nine Pty Ltd12 the proposed publication on national television concerned allegations of sexual misconduct by the plaintiff. In

considering whether the publication was plainly indefensible in view of the defences of justification, [page 615] comment and qualified privilege proposed by the defendant, Hunt J found that under the relevant provisions of the Defamation Act 1974 (NSW) it was necessary for the defendant to establish that the imputations complained of by the plaintiff related to a matter of public interest in addition to the other elements of the defences. As the imputations related to private matters and not matters of public interest, Hunt J granted an interlocutory injunction. (b) The balance of convenience favours an injunction being granted In an application for an interlocutory injunction to restrain a defamatory publication, plaintiffs assert their interests in protection of reputation pending the trial while defendants may assert special considerations related to the liberty of the press and trial by jury of defamatory matters to allow the publication to take place before trial. The factor traditionally considered by the courts as the most important has been the necessity to protect freedom of speech, leading to the view that an interlocutory injunction to restrain a defamation ought only to be exercised in the clearest of cases.13 This factor was said by some to be an ‘overriding principle’ by which the court would refuse an application for an interlocutory injunction, because to grant the application would prevent the discussion in the media of matters of public interest or concern. The current position is that while public interest in freedom of speech requires caution in the exercise of the discretion, it is not an ‘overriding principle’.14 In some cases, it will be outweighed by the risk that the usual remedy of damages may be inadequate, particularly if the defendant’s conduct is gratuitous and egregious.15 In Australian Broadcasting Corporation v O’Neill16 the ABC proposed to broadcast a documentary film The Fisherman. O’Neill was a prisoner serving a life sentence in Tasmania for the murder of a child. He had also confessed to the murder of another child. The film concerned one of Australia’s most notorious unsolved crimes, the disappearance of the three Beaumont children in South Australia in 1966. O’Neill applied for an interlocutory injunction to restrain the

broadcast as he contended that the film imputed that he was responsible for or was suspected of being responsible for the disappearance or murder of the Beaumont children. After the Supreme Court of Tasmania granted an interlocutory injunction, which was upheld by the Full Court, the High Court set aside the interlocutory injunction on the basis that it had been granted due to the court’s failure to take proper account of the significance of the value of free speech in considering the question of prior restraint of publication and the failure to take proper account of the possibility that, if publication occurred and was found to involve actual defamation, only nominal damages might be awarded.17 [page 616] On general equitable principles, whether the plaintiff is likely to suffer injury for which damages will not be an adequate remedy is an important factor. In Marsden v Amalgamated Television Services Pty Ltd18 the Court of Appeal rejected Marsden’s application for an injunction to restrain the broadcast of the (1996) Witness program. The Court of Appeal considered that on the material before it there was not a substantial prospect of significant further injury to Marsden if the Witness program was broadcast, and that Marsden had made aspects of his private life, such as his sexual preferences and the way in which he satisfied them, matters for public debate. By contrast, at the later trial, Marsden was awarded compensatory damages for the Witness program, and on appeal an entitlement to exemplary damages was also established for the broadcast outside New South Wales of this program. A judge of the High Court, Callinan J, questioned the principle of protecting freedom of speech in circumstances where the publication is likely to cause ‘enormous injury’ to the plaintiff, weighed against the absence of any real detriment to the media defendant if the matter is not broadcast or published.19 The plaintiff is obliged to give an undertaking as to damages (whereby the plaintiff undertakes to the court that the defendant will be compensated for any damage caused by the granting of the injunction in the event that the plaintiff ultimately fails at the trial): To give all weight to … free speech, is to overlook, or to give insufficient weight to the continued

hurt to a defamed person pending trial; the greater resources generally available to a defendant to contest the proceedings; the attrition by interlocutory appeals to which a plaintiff may be subjected; the danger that by the time of vindication of the plaintiff’s reputation by an award of damages not all of those who have read or who have heard of the defamation may have become aware of the verdict; the unreasonableness of requiring the plaintiff, in effect, at an interlocutory stage, unlike in other proceedings for an interlocutory injunction, to prove his or her case; and, the fact that rarely does a publication later, rather than earlier, do any disservice to the defendant or to the opportunity to debate the issues in an informed but not defamatory way, and therefore to free speech.20

Indeed, Callinan J adopted21 the view expressed by I C F Spry,22 that the approach of common law judges in applying equitable principles to the granting of an injunction in defamation cases was misconceived. Spry said that, in circumstances where the prospective injury to the plaintiff was ‘overwhelming’, the detriment to the defendant through any delay of publication was small, and the probability of the wrongfulness of the proposed publication high, an interlocutory injunction on [page 617] general equitable principles might well appear to be appropriate. He noted that, while equity lawyers tended to express principles in terms of general discretionary considerations, common lawyers tended to express themselves in terms of rules with specific and inflexible criteria. In Spry’s view it was clearly contrary to principle that the considerations put forward in respect of applications for interlocutory injunctions in defamation cases should be treated as inflexible bars to relief so that other countervailing considerations are not given due weight.23 Another judge of the High Court, Heydon J, expressed the opinion that in the event that the question of whether the law should become less restrictive in its approach to the grant of interlocutory injunctions to restrain publication of defamatory matter: … attention would have to be given to whether the very narrow capacity of plaintiffs to obtain urgent relief against the publication of defamatory material should be widened in view of the fact, if it is a fact, that it is not only the scale and power of the media which has increased, but its penetration, its pervasiveness, and its capacity to do harm also. Those who decided Bonnard v Perryman had lived through a time when there was no electronic media and no problem of cross media ownership; the print organs were much more fragmented than now, were directed to a

population with much lower literacy than now, were much less able to reach most of the adult population, and were much less able speedily to disseminate defamatory material. In short, attention would have to be directed to whether in modern conditions the mass media are more able to inflict harm which is not also grave but irreparable, and if so, whether it ought to be less difficult for plaintiffs to obtain urgent interlocutory relief to prevent such harm.24

In certain cases plaintiffs have avoided bringing an application for an interlocutory injunction under the cause of action for defamation because of the free speech issue but sought to rely on alternative causes of action such as injurious falsehood, breach of the Competition and Consumer Act 201025 or breach of confidence. Where the matter complained of concerns the reputation of a plaintiff rather than any aspect of their business or confidential information, the issue of free speech by prior restraint is still a most important factor and caution needs to be exercised.26 The true nature of the cause of action must be determined by reference to the substance of the claim that is made in the context of the facts that give rise to the claim. In cases relating to the torts [page 618] previously known as slander of title or slander of goods, where property interests are involved, an injunction may well lie for injurious falsehood but not for defamation.27 An injunction may also be granted where film footage has been obtained through trespass to land but it has been said that the court will only intervene if the circumstances are such as to make publication unconscionable and if it can be seen that irreparable damage will be suffered by the plaintiff should the injunction not be given.28 If the nub of the applicant’s complaint is the protection of reputation and not any other aspect of the applicant’s private life, so that it may be concluded that the application was brought to avoid the caution relating to interlocutory injunctions in defamation cases, then the application based on breach of confidence should be refused.29 In this context it has been said that there is a limited group of cases where there is an overlap between cases concerning the law of defamation and the law of breach of confidence. In the first group, there is no overlap where the information cannot be said to be defamatory, in which case, the laws of breach

of confidence and harassment are likely to govern such cases; the second group involves an overlap where the publication may be defamatory but protection of reputation is not the nub of the claim, such as where it relates to matters which are involuntary, for example a disease; the third group involves an overlap but no inconsistency where the information relates to conduct which is voluntary, and alleged to be seriously unlawful, even if it is personal (for example, sexual or financial), in which case the applicant is unlikely to succeed with an interim application under the law of defamation or the law of breach of confidence; and the fourth group is where it may make a difference which law governs, being where the information relates to conduct which is voluntary, discreditable and personal (for example, sexual or financial) but not unlawful (or not seriously so).30 The freedom of speech element will normally preclude an interim injunction for defamation while an action for breach of confidence is not so restricted. In cases of breach of confidence, the information likely to be published does not depend upon truth or accuracy as it does with defamation. It is the prospect of disclosure that is objectionable. The issue has been raised as to whether it is implicit in the duty of confidence that the publisher has an inherent obligation to give prior notification of publication to the person affected if it intends to rely upon some justification or excuse to do so. While damages may be a remedy for disclosure, it is the value in the information itself which cannot be compensated once it is published. [page 619] Where the information is private or confidential, the court should give weight to the likely level of damages which the plaintiff would recover if an interlocutory injunction was refused. In Douglas v Hello! Ltd,31 the level of damages awarded to the Douglases could not, it was said, fairly be regarded as an adequate remedy. It was also said that the amount could not represent any real deterrent to a newspaper or magazine, with a large circulation, contemplating the publication of photographs which infringed an individual’s privacy. The Court of Appeal observed that the award of damages eventually made to the Douglases, although correct in principle, was not at a level which,

when measured against the effect of refusing them an interlocutory injunction, could fairly be characterised as adequate or satisfactory. Only by the grant of an interlocutory injunction could the Douglases’ rights have been satisfactorily protected. The interests of the magazine at the interlocutory stage, which were essentially only financial, could have been protected by an appropriate undertaking as to damages by the Douglases.32 While courts have traditionally at the interlocutory stage been reluctant to grant injunctions to restrain the publication of defamatory matter, and exercise great caution in doing so, at the trial for final relief, plaintiffs may claim permanent injunctions in addition to claiming damages. These orders may include permanent removal of defamatory material from websites and permanent restraint from publishing the matter complained of or any matter to the same effect. Whether a permanent injunction should be granted depends upon whether it is reasonably necessary in the circumstances and should follow an assessment of the existence and degree of any threat or risk of a repeat of the publication of the defamatory matter successfully sued on in the proceedings. Such an order should only be made where the court is satisfied that the order is reasonably necessary to address that threat or risk.33 Permanent injunctions are not usually issued as a matter of course in Australia. They are issued only when some additional factor is evident, usually an apprehension that the defendant may by reason of irrationality, defiance, disrespect of the court’s judgment or otherwise, publish allegations similar to those found to be defamatory unless restrained from doing so.34

ACCOUNT OF PROFITS 39.3 As an alternative to damages, it is possible that a plaintiff might seek the equitable remedy of account of profits for the profits obtained by the defendant as a result of publication of the defamation. [page 620]

This is a discretionary remedy which is often claimed for infringement of intellectual property rights, such as passing off,35 breach of confidence36 or breach of contract.37 Indeed, the formulation of an action for breach of confidence in relation to private matters as considered by the High Court in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd38 may make an application for an account of profits in a breach of confidence action more likely.39 The equitable remedy of account of profits requires: (a) the making of a detailed profit and loss inquiry into the financial liability of one party to another; and (b) an order, upon the equity of the case, under which the party is ‘stripped’ of any net gain and must pay it to the other.40 It is necessary that the plaintiff prove that the publication was the factual cause of the profit for which the account is ordered.41 Difficulty in determining a defendant’s ‘profit’ will not preclude assessment where possible.42 It should be noted also that a plaintiff cannot, according to the authorities, recover both damages and an account of profits and must make an election.43 As to whether this remedy may be available in defamation cases, it is ‘impossible with precision to lay down rules or establish definitions as to the cases in which it may be proper for this Court to exercise this jurisdiction’.44 If common law damages are an adequate remedy, the equitable remedy will not be appropriate. Alternatively, it has been held that, where the claim for damages at law is too complex, an account of profits may be appropriate.45 This is a recognition of the ability of equity through its auxiliary jurisdiction to assist in the enforcement of common law rights.46 There may be a view that, as this is an equitable remedy, it would not be appropriate for the court to use its discretion to award an account of profits where the action involved a ‘personal’ defamation because in equity the plaintiff would lack a relevant [page 621] proprietary right to be protected.47 However, the courts have ordered accounts

of profits in actions for the tort of passing off. A majority of the Full Federal Court has expressed the view that an account of profits for an action in tort would not be appropriate in order to compensate the plaintiff for actual or presumed loss but, where exemplary damages are available, it is appropriate that illicit profits be taken into account in assessing the quantum of an award of exemplary damages.48 The dissenting view was that the availability of restitution can be based upon a notion of deterrence. This approach emphasises the injustice and inequity of permitting a wrongdoer to keep the profits derived from the wrongdoing, rather than the usual approach founded upon the notion of property, that the profits belong to the claimant. As restitution based on deterrence may be seen as punitive, it ought generally to be confined to exceptional circumstances.49 Under an order for an account of profits, a wrongdoer is made to account for, and is then stripped of, profits which the wrongdoer has dishonestly made by the wrongdoing and which it would be unconscionable for it to retain. ‘Dishonestly’ is understood in the sense of knowing infringement distinct from innocent infringement.50 If a plaintiff seeks an account of profits it may also be necessary to seek a permanent injunction to restrain further publication because of the view that a court of equity grants an account of profits as ancillary or incidental to an injunction and not otherwise.51

DECLARATIONS 39.4 Under the Defamation Bill 1996 (NSW) a proposal was advanced to provide a remedy to plaintiffs of a declaration of falsity.52 A plaintiff would be required to seek a declaration that the published defamatory imputation was false. The court would have the discretion to order the defendant to publish the declaration. If the defendant complied, no proceedings could be brought for damages for non-economic loss. There were also special costs rules. However, the proposal did not proceed. Notwithstanding, courts have the power to make declarations,53 but there is no real incentive for a plaintiff to seek a declaration that the matter is defamatory as an

[page 622] alternative to damages as there is no power to require publication of the order and there are no special costs provisions. The proposal was a way of dealing with the problematic issues of unintentional defamation and the award of adequate damages for vindication.

COUNTER-PUBLICITY/CRISIS MANAGEMENT 39.5 In many situations, the defamed person may reserve the right to bring proceedings, but actively take steps on his or her own behalf to mitigate the harm caused to reputation. The harm may be avoided or substantially reduced if the defamed person can capture or persuade the thinking of the audience on the particular allegation. These steps will usually be taken with the assistance of a public relations adviser, having the necessary skills and experience in crisis management. In some situations, the defamed person may find a rival publisher which can ‘spoil’ the defamatory publication by sympathetically portraying the defamed person or revealing unknown or suppressed facts. An alternative is for the defamed person to offer to cooperate with the original publisher and provide an interview on the best terms that can be arranged in the circumstances. This publicity has the advantage of addressing the matter quickly and before the harm to reputation takes hold. It could confuse the issue by presenting another version of events, leaving the audience suspicious of the original publication and disinclined to accept it, and then become distracted by other news. Another approach is to identify an issue of greater public importance and urge the public that ‘it’s time to move on’.54 At times, a person’s sensitivity can magnify the issue out of all proportion to the actual effect that the publication has on the audience and people who know the person. In these situations, the publication of an apology might only serve to increase the publicity given to the original defamation, which otherwise might have passed unnoticed, and increase the extent of harm to reputation. Instead it may be better to let the matter go ‘through to the keeper’. This is a question of perspective and judgement, and needs to be borne in mind when proceedings

are brought with the consequence of further publicity, substantial costs, stress in running the proceedings, the risk of the defendant searching for and exposing other embarrassing matters, and the delay, in some cases years, before the trial of the action. In this regard, an application for an interlocutory injunction may attract publicity and expose a plaintiff to the widespread reporting of the defamatory matter in the media under the protected report defence. Given the lack of success with interlocutory injunctions, the increased publicity would be an undesirable outcome for the plaintiff. ____________________ 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19.

20. 21. 22. 23.

See 32.1. Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153 at 163, 172. (1887) 3 TLR 846 (Lord Esher). [1891] 2 Ch 269 at 284; see also Fraser v Evans [1969] 1 QB 349 at 360–1. Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622–3; Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57. Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199. [1980] 1 NSWLR 344 at 349. Church of Scientology of California Inc v Reader’s Digest Services Pty Ltd [1980] 1 NSWLR 344 at 349– 50. Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [19]. Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [65]. Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [71]. (1988) 14 NSWLR 153. Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [208]. Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [19], [73]–[83] and [271]. Jane Doe 1 v Dowling [2016] NSWSC 1909 at [8]–[9]; [2016] NSWSC 1910 at [8]–[10]. (2006) 227 CLR 57. Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [34]. (CA (NSW), 2 May 1996, unreported.) Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 341; see also Jakudo Pty Ltd v South Australian Telecasters Ltd (1997) 69 SASR 440 at 442; Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [115]. Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 341. Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 339; see also Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [145], [280]. I C F Spry, The Principles of Equitable Remedies, 6th ed, LBC Information Services, Sydney, 2001, p 22. Compare Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 284

24. 25. 26.

27. 28.

29. 30. 31. 32. 33. 34.

35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45.

46. 47. 48.

(Kirby J); Meriton Apartments Pty Ltd v SBS Corporation [2002] NSWSC 915; Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [145] (Kirby J). Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [280]. Previously known as the Trade Practices Act 1974. Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [32]; Kaplan v Go Daddy Group [2005] NSWSC 646 at [38]–[39]; AAMAC Warehousing & Transport Pty Ltd v Fairfax Media Publications Pty Ltd [2009] NSWSC 1030 at [14]; Beechwood Homes (NSW) Pty Ltd v Camenzuli [2010] NSWSC 521 at [13]–[14]. Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [56]; Beechwood Homes (NSW) Pty Ltd v Camenzuli [2010] NSWSC 521 at [15]–[18]. Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR 457 at 463; see also Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 229–30, 245–7; Brighten Pty Ltd v Nine Network Australia Pty Ltd [2009] NSWSC 319 at [11]–[12]. McKennitt v Ash [2006] EWCA Civ 1714 at [79]; Terry v Persons Unknown [2010] EWHC 119 at [95]. Terry v Persons Unknown [2010] EWHC 119 at [96]. [2005] EWCA Civ 595 at [256]–[257]. Douglas v Hello! Ltd [2005] EWCA Civ 595 at [259]. Carolan v Fairfax Media Publications Pty Ltd [2017] NSWSC 351 at [15]. Higgins v Sinclair [2011] NSWSC 163 at [245]; Royal Society for the Prevention of Cruelty to Animals v Davies [2011] NSWSC 1445 at [63]–[66]; Polias v Ryall [2014] NSWSC 1692 at [99]; Sierocki v Klerek [2015] QSC 92 at [52]–[53]; Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 750 at [13]–[15]; Carolan v Fairfax Media Publications Pty Ltd [2017] NSWSC 351 at [20]. My Kinda Town Ltd v Soll [1983] RPC 15. Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (1987) 10 NSWLR 86 at 100; Campbell v Frisbee [2002] EWHC 328 (Ch). Attorney-General v Blake [2001] 1 AC 268 at 285. (2001) 208 CLR 199 at 225 (Gleeson CJ). Douglas v Hello! Ltd [2005] EWCA Civ 595 at [249]. Colbeam Palmer Ltd v Stock Affiliates Pty Ltd (1968) 122 CLR 25 at 34, 38. Consul Development Pty Ltd v DPC Estates Pty Ltd (1975) 132 CLR 373 at 393; Peter Pan Manufacturing Corp v Corsets Silhouette Ltd [1963] 3 All ER 402. Docker v Somes (1834) 39 All ER 1094 at 1101. Colbeam Palmer Ltd v Stock Affiliates Pty Ltd (1968) 122 CLR 25 at 32 (Windeyer J). North-Eastern Railway Company v Martin (1848) 2 Ph 758 at 762; 41 ER 1136 at 1138. O’Connor v Spaight (1804) 1 Sch & Lef 305 at 309; Taff Vale Railway Company v Nixon (1847) 1 HL Cas 111 at 121; 9 ER 695 at 699; Denmark Productions Ltd v Boscobel Productions Ltd [1969] 1 QB 699 at 726–7. See S Doyle and D Wright, ‘Restitutionary Damages — the Unnecessary Remedy’ (2001) Melbourne University Law Review 1. Dyson v Attorney-General [1911] 1 KB 410 at 422. See also Heydon, Leeming & Turner: Equity Doctrines & Remedies, 5th ed, LexisNexis, 2014, Chs 21-125, 26-090. Hospitality Group Pty Ltd v Australian Rugby Union Ltd (2001) 110 FCR 157 at [162]. See also McMillan v Singh (1984) 17 HLR 120 at 125; John v Mirror Group Newspapers Ltd [1997] QB 586 at 619.

49. 50. 51. 52. 53. 54.

Hospitality Group Pty Ltd v Australian Rugby Union Ltd (2001) 110 FCR 157 at [168]. Hospitality Group Pty Ltd v Australian Rugby Union Ltd (2001) 110 FCR 157 at [173]. Delpin Pty Ltd v Nargol Holdings Pty Ltd (2002) Aust Contract R 90-147 at [69] (Windeyer J). Clause 54(1). For example, Supreme Court Act 1970 (NSW) s 75. President Bill Clinton televised address, 17 August 1998: ‘Even Presidents have private lives. It is time to stop the pursuit of personal destruction and the prying into private lives and get on with our national life. Our country has been distracted by this matter for too long … Now it is time — in fact, it is past time — to move on. We have important work to do, real opportunities to seize, real problems to solve, real security matters to face.’

[page 623]

CHAPTER 40 NON-MONETARY REMEDIES INTRODUCTION RIGHT OF REPLY CORRECTION ORDER STRIKING OUT PROCEEDINGS SUMMARY JUDGMENT

40.1 40.2 40.3 40.4 40.5

INTRODUCTION 40.1 The Commonwealth proposal for a national code (July 2004) included new remedies designed to reduce the law’s emphasis on damages as the sole remedy for defamation. These included a right of reply and correction orders. It was proposed that there would also be a power to strike out proceedings and a summary judgment procedure. These are noted here as possible non-monetary remedies which may be considered appropriate in the future.

RIGHT OF REPLY 40.2 Some state defences provided for the publication of a reasonable letter by way of explanation or contradiction as a prerequisite to defences of protected report.1 The Commonwealth proposal for a national code (July 2004) provided that a person claiming to be defamed in a ‘news medium’2 may, within 14 days of becoming aware of the matter, request the defendant in writing to publish, or cause to be published, in the same medium as the publication complained of,

with substantially similar prominence, and at the earliest opportunity, a reply, the content of which would have to be provided at the same time as the request.3 [page 624] It was proposed that, if the defendant complied with the plaintiff’s request, damages would be mitigated or eliminated, and protection would be afforded to the defendant against any subsequent defamation action by a third party if the defendant did not alter the content of the reply in any material way. The author of the reply could be sued for defamation; however, the author would be able to rely on qualified privilege provided they did not have an improper purpose in making the reply. Therefore, by publishing the reply the defendant would be protected from further liability, while the author could not simply take the opportunity to defame others without the risk of liability. If the defendant failed to comply with a reasonable request and lost any subsequent defamation action, the failure would be taken into account in assessing damages, and the possibility of indemnity costs against the defendant would arise.4 The proposal provided guidance about when a request by a plaintiff should be considered reasonable, and about the facts relevant to the publication of the reply. The proposal suggested that the maximum length of the reply would be either 300 words or the approximate length of the story or article complained of (whichever was the longer). The meaning of ‘publication at the earliest opportunity’ would mean a timeframe prescribed by regulation, but, absent such a timeframe, the earliest practical opportunity would depend on the medium in which the original story or article was published. For example, in the case of daily newspapers it was suggested that the reply would generally need to be printed within three days after receipt of the reply. The meaning of ‘substantially similar prominence’ would depend on the medium in which the matter was published. The proposal suggested that if the original story was published in a newspaper or periodical, the defendant would generally have to publish a reply in the same size print, with a heading of similar size to that of the original story, and in the same part of the publication as the original story.5

CORRECTION ORDER 40.3 The proposed national code would have given the court power to make correction orders that would compel a defendant to correct a statement defamatory of the plaintiff and also require the defendant to include summaries of aspects of the case. Unless the plaintiff otherwise agreed, the court would have to ensure that, as far as practicable, the correction had substantially similar prominence to the original defamatory statement and would be likely to reach the same audience. The meaning of the term ‘substantially similar prominence’ would be the same as in relation to rights of reply above. [page 625] The proposed national code would have provided that, if the court found for a plaintiff who had sought only correction orders, the court should award indemnity costs unless there were special reasons for not doing so.6 Correction orders would only be made after a finding in favour of the plaintiff. In general, the media is opposed to this remedy because of the compulsive nature of the order. At common law, the publication of a correction or apology is likely to mitigate damages while the unreasonable failure to publish a correction or apology within a reasonable time may aggravate damages. In practice, apologies are usually related to the meaning of the words, while corrections usually relate to misstatement of facts. The usefulness therefore of correction orders may in practice be limited. The states and territories had proposed that, if a defendant had been found to have defamed a plaintiff, the court should have the power to order the publication of a correction, but the courts should also be given the power to allow a defendant the option of paying an appropriate sum by way of damages instead of publishing a court-ordered correction.7 This proposal did not find its way into the Defamation Act 2005.

STRIKING OUT PROCEEDINGS

40.4 The Commonwealth proposal (July 2004) would have enabled the court to strike out proceedings for want of prosecution in circumstances where the defendant applied to have them struck out, no date had been fixed for the trial of the proceedings and no other step had been taken in the proceedings within 12 months immediately preceding the date of the defendant’s application.8

SUMMARY JUDGMENT 40.5 The Commonwealth proposal (July 2004) also provided that, in addition to any existing power of the court to grant summary judgment, the court could award summary judgment on the whole of a claim, or on a particular issue, if the court considered that the plaintiff or the defendant had no real prospect of succeeding on the claim or issue, and there was no other reason why the case or issue should be disposed of at trial.9 The proposal was intended to avoid a situation where proceedings go to hearing unnecessarily, and therefore spare the parties time and expense. ____________________ 1. 2. 3. 4. 5. 6. 7. 8. 9.

See Wrongs Act 1958 (Vic) s 5; Civil Liability Act 1936 (SA) s 7; Newspaper Libel and Registration Act 1884 (WA) s 2. See Defamation Act 1992 (NZ) s 2 which defines the term as ‘a medium for the dissemination, to the public or a section of the public, of news, or observations on the news, or advertisements’. Australian Government, Attorney-General’s Department, Revised outline of a possible National Defamation Law, July 2004, p 32. See, for example, Defamation Act 1992 (NZ) s 26(3). Australian Government, Attorney-General’s Department, Revised outline of a possible National Defamation Law, July 2004, p 33. See Defamation Act 1992 (NZ) s 26(3). Recommendation 19, Standing Committee Attorneys-General, Proposal for Uniform Defamation Laws, July 2004. See Defamation Act 1992 (NZ) s 50; Australian Government, Attorney-General’s Department, Revised outline of a possible National Defamation Law, July 2004, pp 29–30. Australian Government, Attorney-General’s Department, Revised outline of a possible National Defamation Law, July 2004, p 30. See also Defamation Act 1996 (UK) ss 8–10.

[page 627]

CHAPTER 41 COSTS GENERAL PRINCIPLES CONDUCT OF PROCEEDINGS OFFERS OF COMPROMISE NOMINAL DAMAGES

41.1 41.2 41.3 41.4

GENERAL PRINCIPLES 41.1 An award of costs is compensatory in the sense that costs are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the proceedings.1 The general principle is that costs ‘follow the event’, meaning that the unsuccessful party will be ordered to pay the successful party’s costs.2 However, the trial judge retains a discretion to make whatever order as to costs is appropriate in the circumstances.3 It should be noted that interlocutory costs orders remain on foot notwithstanding the outcome of the litigation, unless otherwise varied. Costs are awarded in New South Wales on the ordinary basis or ‘party and party’ basis (which in practice is generally in the range of 60–80 per cent of actual costs), but the court may make costs orders on a solicitor/client or ‘indemnity’ basis (approximately 80–90 per cent of actual costs).4 Generally it is open to the court to make an order for indemnity costs when the justice of the case requires.5 The purpose of such an order is not to punish an unsuccessful party but to more fully compensate the successful party in respect of such of his or her [page 628]

costs as have been occasioned by conduct involving some ‘relevant delinquency’ on the part of the unsuccessful party.6 Ordinarily, a party in favour of whom an order for costs is made must wait until the conclusion of the proceedings to have those costs assessed and paid.7 Factors which lead the courts to depart from the normal rule and order costs payable ‘forthwith’ include where the application represents the determination of a separately identifiable matter or a discrete aspect of the claim, some unreasonable conduct on the part of the party against whom costs have been ordered, or the fact that there is much to come in the proceedings such that one can see a fairly long time before they are finally disposed of.8 The following circumstances may lead to a change in the usual order as to costs in defamation proceedings: (a) the conduct of the litigation;9 (b) where the parties submit offers of compromise under the rules of court;10 (c) where damages are nominal or low for the jurisdiction of the court.11

CONDUCT OF PROCEEDINGS 41.2 Under s 40(1) of the Defamation Act 2005, a court may have regard to the following matters in awarding costs in defamation proceedings: (a) the way in which the parties to the proceedings conducted their cases (including any misuse of a party’s superior financial position to hinder the early resolution of the proceedings), and (b) any other matters that the court considers relevant.12 Section 40(2) of the Act provides that without limiting s 40(1), a court must, unless the interests of justice require otherwise, where defamation proceedings are successfully brought by a plaintiff and the costs in the proceedings are to be awarded to the plaintiff, order costs to be assessed on an indemnity basis if the court is satisfied that the defendant unreasonably failed to make a settlement offer or agree to a settlement offer proposed by the plaintiff: s 40(2)(a). Alternatively, if proceedings are unsuccessfully brought by a plaintiff and

costs are to be awarded to the defendant, the court must, unless the interests of justice [page 629] require otherwise, order costs to be assessed on an indemnity basis if it is satisfied that the plaintiff unreasonably failed to accept a settlement offer made by the defendant: s 40(2)(b).13 In this context, a settlement offer is defined to mean any offer to settle the proceedings made before the proceedings are determined and includes an offer to make amends (whether made before or after the proceedings are commenced) that was a reasonable offer at the time it was made: s 40(3). A court may have regard to settlement offers made prior to the commencement of proceedings, although s 40 does not expressly refer to that period, on the basis that the court may have regard to any matters it considers relevant or where the interests of justice require it.14 The conditions applicable to the plaintiff’s conduct under s 40(2)(b) and the defendant’s conduct under s 40(2)(a) are different.15 If the defendant does not make a settlement offer, it is at risk as to indemnity costs unless it was reasonable not to do so.16 There is no equivalent condition if a plaintiff fails to make a settlement offer. Where a settlement offer is made, by either party, the court will consider whether the offer was reasonable at the time it was made and whether the failure to agree or accept the offer was unreasonable at that time.17 If an offer of settlement by the defendant is not reasonable, or if an offer of amends under s 18 of the Defamation Act 2005 is held not to be reasonable, then the offer may not be a ‘settlement offer’ for the purposes of s 40 and the defendant will be held not to have made a settlement offer under s 40(2)(b).18 In determining whether a defendant has unreasonably failed to make a settlement offer to the plaintiff, the court will have regard to the issues which were in contention between the parties. While it may be reasonable for the defendant to put matters in issue, it does not follow that the agitation of those issues and the lack of their resolution until trial make it reasonable for a

defendant not to have made any offer of settlement to the plaintiff before the conclusion of the proceedings.19 The court may have regard to the plaintiff’s prospects of success, the hazards of litigation and the costs of litigation.20 The assessment of whether conduct was [page 630] reasonable or unreasonable is a question of fact to be resolved by regard to all relevant circumstances.21 The mere fact that the defendant is unsuccessful in the action, without more, does not mean that the defendant unreasonably failed to make a reasonable settlement offer.22 Alternatively, the mere fact that the defendant has an arguable defence, without more, does not mean that the defendant reasonably did not make a settlement offer.23 If the defendant chooses to litigate all issues in its defence, the costs of the litigation necessarily increase. While a defendant in ordinary proceedings would be ordered to pay costs on an indemnity basis if it did not have an arguable defence, under s 40 of the Defamation Act 2005, the defendant may still be liable for indemnity costs even with an arguable defence. While settlement offers of an amount for compensation plus costs to be agreed or assessed, make the task of assessment of the reasonableness of the settlement offer relatively straight forward with respect to the outcome in the proceedings, additional terms can make the assessment complex and unnecessarily controversial. In particular, the requirement of an apology can make the assessment complex when the court has regard to the content, timing and manner of publication, particularly as the court has no power to order an apology in the proceedings. Instead, the award of damages provides vindication to the plaintiff publicly for the defamation. Nevertheless, courts have considered arguments over the reasonableness of apologies. In Flegg v Hallett,24 the defendant argued that the apology and the method of its publication proposed by the plaintiff would have required the defendant to humiliate himself by advertising it and then conducting a press conference without any other comment or answering of questions. The trial

judge considered that an apology will usually involve an expression of regret for the publication, an unqualified acknowledgement of the falsity of the defamatory imputations and a withdrawal of them. A public apology therefore will frequently involve an element of humiliation and a factor to be considered in determining whether a defendant unreasonably refuses to agree to a settlement offer. However, this factor will often attract little weight when the public apology seeks to redress the effects of a defamation which has done significant damage to a plaintiff’s reputation and has caused substantial hurt to a plaintiff’s feelings.25 In Hyndes v Nationwide News Pty Ltd,26 the trial judge considered an offer from the defendant which did not include public vindication of the plaintiff was not unreasonable but in its absence, a more generous amount of compensation was [page 631] required than otherwise. Taking into account the defamatory imputations, the trial judge considered that the reasonableness of the offer was to be assessed by reference to an estimate of reasonable compensation, with a fair assessment albeit conservative of the likely range of damages undiscounted for the risk of failure, but then subject to a discount of 25 per cent to reflect the possibility that the defence of substantial truth would succeed.27 On this basis, he considered the likely range of damages was $75,000–$125,000 with a midpoint of $100,000. Without making provision arithmetically for any of the uplift factors, a reasonable settlement offer would therefore have been $75,000. The defendant’s highest offer was $45,000 and was therefore below a reasonable range. In Hardie v Herald & Weekly Times Pty Ltd,28 the Court of Appeal in Victoria observed the difficulty of performing the comparison between what the plaintiff had achieved by judgment and what she sought in her various offers. The court queried how one valued the terms of the offers that required the defendants to publish written retractions and apologies and/or to undertake not to allow any third party to publish similar defamatory matter about the plaintiff.29 The defendant’s insistence upon a confidentiality obligation will usually be

considered unreasonable in defamation proceedings.30 It may be otherwise where the plaintiff fails in the proceedings.31 The court may have regard under s 40(1) to the conduct of the parties in the proceedings. In Holt v TCN Channel Nine Pty Ltd,32 the trial judge had regard to the plaintiff’s conduct where he had received a verdict in the sum of $4,900 including interest. Although the court considered that the amount was more than derisory, it was not substantial by reason of the evidence in mitigation of damages. The matters that were established at the trial were of such ‘gravity and heinousness’ that objectively the question was how the plaintiff could, if properly advised by lawyers to whom he had given accurate and comprehensive instructions, have considered it to be worthwhile to prosecute the proceedings. The adverse findings made against him included that he hit his wife when she was dying of cancer, that he made her sleep on the couch while he stayed in the matrimonial bed and that he lacked the insight which would have informed him that her reaction to his drinking was rational and understandable rather than the result of what he termed ‘chemo brain’. The trial judge also found that the plaintiff gave false evidence and that he was an ‘opportunistic and strategic liar’. In the circumstances, the trial judge made a differential costs order, ordering the defendant to pay half of the plaintiff’s costs of the proceedings on a party/party basis. He considered that the defendants had not unreasonably failed to make a settlement offer or unreasonably failed to agree to a settlement offer proposed by the plaintiff within the meaning of s 40(2) of the Act. [page 632] Although s 40(1) refers to a party’s superior financial position, ordinarily the lack of means of a party or impecuniosity would not justify the court in failing to exercise a cost discretion adversely to such a party.33 The reasonableness of an offer of settlement may not only be determined by the financial terms of the offer, but also the amount of time set for acceptance. Reasonableness should also be judged in the context of the stage of the proceedings reached and the overall circumstances.34 In Davis v Nationwide News Pty Ltd,35 the plaintiff submitted that the defendant’s offer that each party should walk away was a failure to make a

reasonable offer as contemplated by s 40(2) of the Defamation Act 2005. Section 40(2) obliges parties to defamation proceedings to take a reasonable approach to negotiations for the settlement of those proceedings. A party who unreasonably fails to make or accept a settlement offer may be ordered to pay costs on an indemnity basis. The amount of the offer is relevant for the purpose of assessing the reasonableness of a party’s conduct. The section contemplates an order for indemnity costs even if a party making the offer does not do better in the proceedings than the offer made.36 The trial judge considered that it should have been apparent to the defendant at the time of the publication that the plaintiff had been defamed and at the very least, a reasonable offer at that time would have included an offer of an apology. The defendant submitted that the plaintiff did not succeed in relation to all imputations sued upon and that an order for half her costs was appropriate. The trial judge considered that because the Act contemplates a single cause of action, even if there is more than one defamatory imputation in a publication (s 8) and the assessment of damages in a single sum (s 39) where there is more than one cause of action the fact that the plaintiff fails in relation to some of the pleaded imputations will be of limited relevance.37 He considered that the special cost rules in the Act are directed towards early settlement of the proceedings and if the failure by the defendant to make a reasonable offer means the proceedings continue to trial, the plaintiff should not be disadvantaged by not succeeding with respect to all imputations. The trial judge noted that the special costs provisions in the Act were introduced following a concern that the costs of defamation proceedings may prohibit persons who have a legitimate claim from pursuing relief. Unless in appropriate cases costs [page 633] are awarded on an indemnity basis, a plaintiff may be out of pocket to such an extent that the risks in bringing proceedings are unacceptable. Further, the intention of the legislation is to promote a ‘speedy and non-litigious method of resolving disputes and to avoid protracted litigation wherever possible’.38 The mere fact that a plaintiff is unsuccessful in proceedings is insufficient to

justify an award of indemnity costs in favour of the defendant under s 40. The central fact that must also be established is that the relevant party’s conduct was unreasonable.39 Section 40 makes provision for the award of costs in ‘defamation proceedings’. It does not apply to appeals.40 Section 40 co-exists with other provisions governing costs, such as court rules for offers of compromise, which include the power to order costs on an indemnity basis where circumstances warrant it. However, if s 40(2)(a) is engaged, then unless the interests of justice require otherwise, a court ‘must’ order costs of and incidental to a proceeding be assessed on an indemnity basis.41

OFFERS OF COMPROMISE 41.3 Under the court rules, if a plaintiff in New South Wales makes an offer of compromise which the defendant does not accept and the plaintiff obtains an order or judgment on the claim to which the offer relates which is no less favourable to the plaintiff than the terms of the offer, then, unless the court otherwise orders, the plaintiff is entitled to an order against the defendant for the plaintiff’s costs in respect of the claim from the day on which the offer was made, assessed on an indemnity basis in addition to costs incurred before and on that day, assessed on a party and party basis.42 In the reverse position, where a defendant makes an offer of compromise which the plaintiff does not accept, and the plaintiff obtains an order or judgment on the claim which is as favourable or less favourable to the plaintiff than the terms of the offer, then the plaintiff is entitled to an order for costs on a party and party basis up to the date the offer was made, and the defendant is entitled to an order for costs assessed on an indemnity basis from that time.43 The ‘entitlement’ to costs arises the day after the offer of compromise is made. By comparison, s 40 of the Defamation Act 2005 provides indemnity costs of the whole proceedings. An offer of compromise (or Calderbank offer) may be considered as a [page 634]

settlement offer for the purposes of s 40.44 It would be prudent for a party seeking to obtain the benefit of s 40, to make reference to that section in the offer. A party that does not do so is at risk that a court will determine that the interests of justice require an order otherwise than in accordance with s 40.45 While offers of compromise under the court rules and conduct under s 40 are concerned with settlement offers, they are not necessarily engaged in the same circumstances. Offers of compromise focus upon the outcome and whether it is more or less favourable than the offer made. Section 40 focuses on the parties’ conduct and in particular their position relating to settlement offers in the course of the proceedings.46 No considerations of unreasonableness of refusal are required under the offer of compromise. The offer must necessarily be more or less than the verdict (depending on which party made the offer) for the comparison to be made. It is relevant to consider the extent (if any) to which the offer truly represented an offer of ‘compromise’ and whether it represented a real effort to effect a resolution and a real compromise.47 Difficulties arise where ready comparison between the offer and the outcome is not possible at least without prolonged examination of documents or costly exploration of other information. Determining a contest about costs should not increase them substantially.48 However, the court retains a discretion to ‘otherwise order’ where the circumstances of the case are exceptional.49 This will mean that in the ordinary case the rules will apply prima facie and that notionally the real cause of the continuation of the litigation is the attitude adopted by the party who rejects the compromise.50 That party must be able to point to special factors which justify departure from the rule in the particular case. The fact that the plaintiff has been awarded only slightly less than the amount of the offer is not sufficient.51 The position in relation to Calderbank52 offers is similar, but the court must consider all the circumstances to depart from the ordinary rule of an order for costs on a party and party basis.53 The court may take into account the fact that the claim as pleaded has significantly changed since the time of making the offer.54 [page 635]

The offer of compromise is made in respect of the claim in the proceedings, meaning the claim for damages for defamation. If there is an amendment to the imputations from the date when the offer of compromise was made to the date of judgment, an issue may arise as to whether the offer is relevant. In Antoniadis v TCN Channel Nine Pty Ltd55 the trial judge held that, where a plaintiff who sued in respect of three separate broadcasts offered to compromise her claim, the offer related to ‘her claim constituted by action against the defendant for the three programs’. In Marsden’s case,56 Marsden had offered to compromise the action for $250,000 plus costs. He obtained judgments no less favourable than the terms of the offer. Channel Seven submitted that the judgments were not ‘on the claim to which the offer relates’, so that the rule had no application, and that, if the rule did have application, the court should ‘otherwise order’. The trial judge took the approach that the claim ‘in substance as opposed to questions of technical form had remained in place since the time of the offer of compromise’ and awarded indemnity costs from the date of the offer of compromise. He held that the substance of the claim and its anticipated litigation never changed in terms of the real issues. The Court of Appeal considered that his Honour did not err in awarding indemnity costs under the rule, but said that it did not follow that amendments to the pleaded imputations should be ignored. They may in a given case be relevant as to whether an order ‘other than’ indemnity costs should be made.57 Parties who succeed only in part may be required to bear the costs of litigating the part upon which they fail. Likewise, a successful party who has failed on certain issues may not only be deprived of the costs of those issues but in addition be ordered to pay the other party’s costs of them.58 However, caution should be exercised and apportionment of costs would not be appropriate unless the issues on which the successful plaintiff failed were ‘clearly dominant or separable’.59 The courts may take into account that parties to litigation should exercise discretion in the selection of the claims or defences they litigate. The demands of the community are for greater economy and efficiency in the conduct of litigation.60 In Hockey v Fairfax Media Publications Pty Ltd,61 the plaintiff had sued on 15 publications but had succeeded only on three. In substance, however, the trial judge

[page 636] found that the plaintiff had been successful in relation to statements made in a poster and in two tweets compared with the articles published in the newspapers and on the websites. In the circumstances, the trial judge awarded the plaintiff 15 per cent of his costs.

NOMINAL DAMAGES 41.4 Where a plaintiff recovers nominal damages, the judge may make no order as to costs or may even order the plaintiff to pay the defendant’s costs.62 The judge may also make a differential costs order of say 50 per cent of the plaintiff’s costs.63 Rules of court used to provide that, if a plaintiff brought proceedings in a superior court such as the Supreme Court, but did not recover more than a stated amount, the plaintiff was not entitled to payment of his or her costs of the proceedings unless it appeared to the court that the plaintiff had sufficient reason for commencing or continuing proceedings in that court. The purpose of these rules was to encourage the plaintiff to commence proceedings in the most appropriate court. However, such rules no longer apply in New South Wales and the court retains the discretion to award costs in accordance with the rules. It has been accepted that complex questions of law and fact where there are legitimate procedural advantages in conducting proceedings in the New South Wales Supreme Court may be sufficient reason for bringing proceedings in that court.64 In other jurisdictions, the rules may not be so generous and a plaintiff might be disadvantaged both in terms of costs orders and the right to a jury.65 ____________________ 1. 2.

Latoudis v Casey [1990] 170 CLR 534 at 543; Griffith v Australian Broadcasting Corporation (No 2) [2011] NSWCA 145 at [36]. See Uniform Civil Procedure Rules 2005 (NSW) Pt 42 r 42.1; Oshlack v Richmond River Council (1998) 193 CLR 72; Hodge v TCN Channel Nine Pty Ltd [2006] NSWSC 1272 at [72]; Hyndes v Nationwide News Pty Ltd [2012] NSWCA 349 at [55].

3.

4. 5. 6. 7. 8.

9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30.

Uniform Civil Procedure Act 2005 (NSW) s 98; Uniform Civil Procedure Rules 2005 (NSW) Pt 42 r 42.2; Hawkesbury District Health Service Ltd v Chaker (No 2) [2011] NSWCA 30; Megna v Marshall (No 2) [2011] NSWSC 52. Uniform Civil Procedure Rules 2005 (NSW) Pt 42 r 42.2. Lahoud v Lahoud [2006] NSWSC 126 at [11]. Oshlack v Richmond River Council (1998) 193 CLR 72 at [44]. Uniform Civil Procedure Rules 2005 (NSW) Pt 42 r 42.7. Fiduciary v Morning Star Research Pty Ltd [2002] NSWSC 432; Palace Films Pty Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 962; Habib v Radio 2UE Pty Ltd [2011] NSWDC 52; Templar v Britton [2014] NSWSC 802 at [3]. Defamation Act 2005 s 40. See, for example, Uniform Civil Procedure Rules 2005 (NSW) Pt 42 r 42.14. See, for example, Uniform Civil Procedure Rules 2005 (NSW) Pt 42 r 42.1. See Colgate-Palmolive Pty Ltd v Cussons (1993) 46 FCR 225; Rivkin v John Fairfax Publications Pty Ltd [2004] NSWSC 671; David v Abdishou [2007] NSWSC 890 at [12]. Compare Kiam v Mirror Group Newspapers Ltd (No 2) [2002] 2 All ER 242; Randwick Labor Club Ltd v Amalgamated Television Services Pty Ltd [2000] NSWSC 1098. Haddon v Forsyth (No 2) [2011] NSWSC 693 at [19]; Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 750 at [50]. Hyndes v Nationwide News Pty Ltd [2012] NSWCA 349 at [59]. Zoef v Nationwide News Pty Ltd [2017] NSWCA 2 at [54]. Davis v Nationwide News Pty Ltd [2008] NSWSC 946; Poniatowska v Channel Seven Sydney Pty Ltd [2017] SASC 32 at [39]. Cornes v The Ten Group Pty Ltd [2011] SASC 141 at [25]–[30]; Holt v TCN Channel Nine Pty Ltd [2012] NSWSC 968 at [50]; Zoef v Nationwide News Pty Ltd [2017] NSWCA 2 at [59]. Trkulja v Yahoo! Inc LLC [2012] VSC 217 at [25]; Zoef v Nationwide News Pty Ltd [2017] NSWCA 2 at [64]. McMahon v John Fairfax Publications Pty Ltd [2014] NSWSC 673 at [26]; Duffy v Google Inc [2016] SASC 1 at [32]. Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 750 at [69]. McMahon v John Fairfax Publications Pty Ltd [2014] NSWSC 673 at [25]; Duffy v Google Inc [2016] SASC 1 at [32]. McMahon v John Fairfax Publications Pty Ltd [2014] NSWSC 673 at [26]; Duffy v Google Inc [2016] SASC 1 at [32]. [2015] QFC 315. Flegg v Hallett [2015] QFC 315 at [20]. [2011] NSWSC 1443. Hyndes v Nationwide News Pty Ltd [2011] NSWSC 1443 at [19]–[23]. [2016] VSCA 130 at [30]. Balnaves v Smith [2012] QSC 408 at [19]–[22]; Weatherup v Nationwide News Pty Ltd [2016] QSC 301 at [14]. Cornes v The Ten Group Pty Ltd [2012] 114 SASR 46 at [119]–[122]; De Poi v Advertiser-News Weekend Publishing Company Pty Ltd [2016] SASCFC 45 at [17]–[20].

31. Poniatowska v Channel Seven Sydney Pty Ltd [2017] SASC 32 at [36]–[38]. 32. [2012] NSWSC 968. 33. Machado v Underwood [2016] SASCFC 123 at [45]; Flegg v Hallett [2015] QFC 315 at [28]; Poniatowska v Channel Seven Sydney Pty Ltd [2017] SASC 32 at [50]. 34. Uniting Church in Australia (NSW Synod) v Legge (2002) 55 NSWLR 293 at [28], where two hours to accept a settlement offer was considered to be unreasonable; Enron Australia Finance Pty Ltd (in liq) v Integral Energy Australia [2002] NSWSC 819 at [19] where a Calderbank offer made 17 to 18 days before the hearing was considered late and unreasonable. See also Jones v Bradley (No 2) [2003] NSWCA 258 where a Calderbank offer was made on the last day of term. 35. [2008] NSWSC 946. 36. Davis v Nationwide News Pty Ltd [2008] NSWSC 946 at [27]; Zoef v Nationwide News Pty Ltd [2017] NSWCA 2 at [61]. 37. Davis v Nationwide News Pty Ltd [2008] NSWSC 946 at [31]–[32]; Megna v Marshall (No 2) [2011] NSWSC 52. 38. Davis v Nationwide News Pty Ltd [2008] NSWSC 946 at [26]; Haddon v Forsyth (No 2) [2011] NSWSC 693 at [5]. 39. Haddon v Forsyth (No 2) [2011] NSWSC 693 at [30]. 40. Roberts v Prendergast [2013] QCA 89 at [31]; Zoef v Nationwide News Pty Ltd [2017] NSWCA 2 at [68]. 41. Nationwide News Pty Ltd v Weatherup [2017] QCA 70 at [73]. 42. Uniform Civil Procedure Rules 2005 (NSW) Pt 42 r 42.14. 43. Uniform Civil Procedure Rules 2005 (NSW) Pt 42 r 42.15; see also Pt 42 r 42.15A where offer not accepted and judgment ‘no less favourable’ to defendant from the date of the offer. 44. Hardie v Herald & Weekly Times Pty Ltd [2016] VSCA 130 at [28]. 45. Hardie v Herald & Weekly Times Pty Ltd [2016] VSCA 130 at [29]. 46. Nationwide News Pty Ltd v Weatherup [2017] QCA 70 at [72]. 47. Haddon v Forsyth (No 2) [2011] NSWSC 693 at [55]. 48. Balnaves v Smith [2012] QSC 408 at [20]. 49. Hillier v Sheather (1995) 36 NSWLR 414 at 422; Davis v Nationwide News Pty Ltd [2008] NSWSC 946 at [23]. 50. Morgan v Johnson (1998) 44 NSWLR 578 at 581; Dering v Uris [1964] 2 QB 669. 51. Houatchanthara v Bednarczyk (CA (NSW), 14 October 1996, unreported). 52. Calderbank v Calderbank [1975] 3 All ER 333. 53. Jones v Bradley (No 2) [2003] NSWCA 258; Leichhardt Municipal Council v Green [2004] NSWCA 341. 54. Van Doore v Mendez (No 2) (SC (NSW), Dunford J, 30 June 1997, unreported). 55. (SC (NSW), Levine J, 24 April 1997, unreported) at 4. 56. Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419. 57. Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [1577]–[1578]. See also Ettingshausen v Australian Consolidated Press Ltd (1995) 38 NSWLR 404 at 408. 58. Cretazzo v Lombardi (1975) 13 SASR 4 at 12. 59. Waters v P C Henderson (Australia) Pty Ltd [1994] NSWCA 338. 60. Bowen Investments Pty Ltd v Tabcorp Holdings Ltd [2008] FCAFC 107 at [3]–[5]; Dowds Family Investments Pty Ltd v Lane Industries Pty Ltd [1993] FCA 259 at 272; Commissioner of Australian Federal Police v Razzi [1981] FCA 267; James v Surf Road Nominees Pty Ltd [2005] NSWCA 296 at [34]; Hockey

61. 62. 63. 64. 65.

v Fairfax Media Publications Pty Ltd [2015] FCA 750 at [84]–[92]. [2015] FCA 750. Pamplin v Express Newspapers Ltd [1988] 1 WLR 116 at 122. See also Dering v Uris [1964] 2 QB 669; Dank v Nationwide News Pty Ltd [2016] NSWSC 295. Holt v TCN Channel Nine Pty Ltd [2012] NSWSC 968. Minehan v Clarke [1970] 9 SCR 227 at 229–30; John Fairfax & Sons Ltd v Palmer (1987) 8 NSWLR 297 at 306, 309. Nationwide News Pty Ltd v Weatherup [2017] QCA 70 at [91].

[page 637]

PART FIVE MISCELLANEOUS

[page 639]

CHAPTER 42 EVIDENCE/TRANSITIONAL EVIDENCE OF PUBLICATION EVIDENCE OF CRIMINAL CONVICTIONS INCRIMINATING EVIDENCE GIVING OF NOTICES AND OTHER DOCUMENTS REGULATIONS FOR DEFAMATION REPEAL OF EXISTING LEGISLATION/TRANSITIONAL PROVISIONS

42.1 42.2 42.3 42.4 42.5 42.6

EVIDENCE OF PUBLICATION 42.1 A statement in a document that the document is printed, produced, published or distributed by or for a particular person is evidence of that fact: s 41(1). This provision facilitates the proof in civil proceedings for defamation of publication in the context of mass-produced copies of matter and periodicals. Similar legislation existed in each state and territory prior to the Defamation Act 2005.1

EVIDENCE OF CRIMINAL CONVICTIONS 42.2 It is a rule of the common law that evidence of a plaintiff’s conviction for an offence is not admissible to prove the truth of an imputation that the plaintiff committed that offence.2 In Hinds v Sparks3 Hinds had been convicted of robbery and sued Sparks for defamation for publishing a statement suggesting that Hinds

[page 640] was guilty of the robbery. Sparks pleaded truth, but failed to prove the truth before a civil jury. Under s 42 of the Defamation Act 2005, if there is a question in defamation proceedings of whether or not a person committed an offence, proof that a person has been convicted of an offence by an Australian court is conclusive evidence that the person committed the offence: s 42(1)(a). Proof of a conviction by a court of any other country (other than an Australian court) or a court martial of any country is evidence that the person committed the offence: s 42(1) (b). Judgments in civil actions are only conclusive evidence of the fact against the parties to the action, not against anyone who was not a party.4 ‘Conviction’ for an offence includes a finding of guilt, but does not include a conviction that has been set aside or quashed or a conviction for an offence for which a person has received a pardon: s 42(4). Therefore, the truth of an imputation cannot be proved by evidence of the conviction if it is shown (the onus being on the plaintiff) that the conviction has been set aside or quashed. The contents of a document which is evidence of the conviction of an offence, or the contents of an information, complaint, indictment, charge sheet or similar document on which a person is convicted of an offence, are admissible in evidence to identify the facts on which the conviction is based: s 42(2). This does not affect the admissibility of other evidence to identify the facts on which the conviction is based: s 42(3). The underlying reason for this provision in the Act is that it is inappropriate that a civil court in an action, to which the Crown is not a party, retries upon a different standard of proof the precise issue of guilt of a criminal offence which has already been tried and determined by a criminal court. A person ought not to be at risk of incurring civil liability for stating that another person was guilty of an offence of which he or she was convicted if the conviction has not been set aside on appeal.5 Similar provisions had existed in a number of states or territories, prior to the Defamation Act 2005, which established that proof of conviction was conclusive evidence of the commission of the offence.6

The Evidence Acts 1995 (NSW) and (Cth) do not affect the operation of the provisions relating to the admissibility or effect of evidence of a conviction in defamation proceedings.7 [page 641]

INCRIMINATING EVIDENCE 42.3 At common law, a person in civil proceedings is excused from answering questions or providing discovery or producing documents on the basis that to do so would be incriminating. Section 43(1) of the Defamation Act 2005 restricts the general privilege at common law against self-incrimination in relation to civil proceedings for defamation. It is considered that the public interest requires that an objection on the grounds of tendency to incriminate should not be allowed.8 This section also applies to a spouse (or de facto within the meaning of the Property (Relationships) Act 1984) of the person required to answer, provide discovery or produce documents. However, the information required to be divulged in civil proceedings for defamation is not admissible in evidence on a prosecution for criminal defamation: s 43(2). The section does not address the prejudice that the defendant in civil proceedings might suffer from being prosecuted at the same time for criminal defamation. It is open to the defendant to seek a stay of the civil proceedings until the conclusion of the criminal prosecution if there might be a potential miscarriage of justice in the prosecution.9

GIVING OF NOTICES AND OTHER DOCUMENTS 42.4 Section 44 of the Defamation Act 2005 provides for how notices and other documents may be given or served. Where the notice or other document is to be served on a natural person, it may be given by delivering it to the person personally, by sending it by post to the address specified by the person for the service of documents or, if no such

address is specified, to the residential or business address of the person last known to the person serving the document, or by sending it by facsimile: s 44(1) (a). If the notice or other document is to be served on a body corporate, it may be given by leaving it with a person apparently of or above the age of 16 years at the head office, a registered office or principal office of the body corporate, by sending it by post to one of those offices or to an address specified by the body corporate for the service of documents, or by sending it by facsimile: s 44(1)(b). These provisions do not affect the operation of any other law or the rules of court authorising a document to be served on a person in any other manner: s 44(2). [page 642]

REGULATIONS FOR DEFAMATION 42.5 Regulations may be made for the purposes of the Defamation Act 2005: s 45.10

REPEAL OF EXISTING LEGISLATION/TRANSITIONAL PROVISIONS 42.6 Under the savings and transitional provisions, the Defamation Act 2005 applies to the publication of defamatory matter after the commencement of the Act (on 1 January 2006 in most jurisdictions) unless otherwise provided. Each jurisdiction expressly repealed its then existing legislation relating to defamation: s 46. It may also have been necessary to insert savings and transitional provisions, as set out in Sch 4 to the Act, that are unique to the respective jurisdictions: s 47. The provisions of the Act do not apply to a cause of action for the publication

of defamatory matter that accrues after the commencement of the Act (the postcommencement action) if: (a) the post-commencement action is one of two or more causes of action in proceedings commenced by a plaintiff; and (b) each cause of action in the proceedings accrues because of the publication of the same, or substantially the same, matter on separate occasions (whether by the same defendant or another defendant); and (c) one or more of the other causes of action in the proceedings accrued before the commencement of the Act (a pre-commencement action); and (d) the post-commencement action accrued no later than 12 months after the date on which the earliest pre-commencement action in the proceedings accrued. The existing law of defamation in each jurisdiction prior to the Defamation Act 2005 continues to apply to the cause of action that accrued before the commencement of the Act, or a post-commencement action to which the above provisions apply, in the same way as it would have applied to those causes of action had the Act not been enacted. ‘Existing law of defamation’ is defined to mean the law (including all relevant statutory provisions, principles and rules of the general law) that applied in each jurisdiction to the determination of civil liability for the publication of defamatory matter immediately before the commencement of the Act. The table below is a summary of the existing law of defamation as at 31 December 2005. The statutes referred to in the summary have been repealed wholly, or to the extent necessary in part, by the Defamation Act 2005. [page 643] The Acts specified in Sch 5 (criminal defamation and limitation periods) and Sch 6 (miscellaneous Acts) of the Defamation Act 2005 are amended as set out in those schedules. Table 42.1: Applicable civil law prior to the Defamation Act 200511

Jurisdiction Applicable civil law prior to the Defamation Act 2005 Australian Capital The general law applies in the Australian Capital Territory Territory subject principally to the provisions of the Civil Law (Wrongs) Act 2002 (ACT), particularly Ch 5 of that Act. New South Wales The general law applies in New South Wales subject principally to the provisions of the Defamation Act 1974 (NSW). Northern The general law applies in the Northern Territory subject Territory principally to the provisions of the Defamation Act 1989 (NT). Queensland The civil law of defamation in Queensland has been codified by the Defamation Act 1889 (Qld). South Australia The general law applies in South Australia subject principally to the provisions of the Civil Liability Act 1936 (SA), particularly Pt 2 of that Act. Tasmania The civil law of defamation in Tasmania has been codified by the Defamation Act 1957 (Tas). Victoria The general law applies in Victoria subject principally to the provisions of the Wrongs Act 1958 (Vic), particularly Pt 1 of that Act. Western Australia The general law applies in Western Australia subject principally to the provisions of the following Acts: (a) the Libel Act 1843 of the United Kingdom; (b) the Newspaper Libel and Registration Act 1884 (WA); (c) the Newspaper Libel and Registration Act 1884 Amendment Act 1888 (WA); (d) the Criminal Code set out in the Criminal Code Act 1913 (WA), but only to the extent that the Code declares the publication of defamatory matter to be lawful: see s 5 of the Criminal Code Act 1913, Chapter XXXV of the Code and West Australian Newspapers Ltd v Bridge (1979) 141 CLR 535.

____________________ 1.

Defamation Act 1974 (NSW) s 48; Wrongs Act 1958 (Vic) ss 13B and 13C; Defamation Act 1889 (Qld) s 28; Newspaper Libel and Registration Act 1884 (WA) ss 9 and 15; Wrongs Act 1936 (SA) s 16; Defamation Act 1957 (Tas) s 28; Civil Law (Wrongs) Act 2002 (ACT) s 69; Defamation Act (NT) s 11. See also Printing and Newspaper legislation in each state and territory. 2. Hollington v F Hewthorn & Co Ltd [1943] 1 KB 587; Duchess of Kingston’s Case (1776) 2 Sm LC, 13 ed, 644; 168 ER 175. 3. The Times, 28 and 30 July 1964. 4. Hollington v F Hewthorn & Co Ltd [1943] 1 KB 587; Burden v Ainsworth (2004) 59 NSWLR 506. 5. See the 15th Report of the Law Reform Committee (UK), Cmnd 3391, 1967. 6. Defamation Act 1974 (NSW) s 55; Evidence Act 1977 (Qld) ss 79, 80; Evidence Act 1958 (Vic) s 91; Evidence Act 1929 (SA) s 34A; Evidence Act 1971 (ACT) s 78; Evidence Act 1939 (NT) s 26A. 7. Evidence Act 1995 (NSW) s 93(a). 8. McMahon v Gould (1982) 7 ACLR 202 at 209–10. 9. Gypsy Fire v Truth Newspapers Pty Ltd (1987) 9 NSWLR 382 at 388. 10. Section numbers vary across jurisdictions. 11. Explanatory Note — Defamation Bill 2005; see also Comparative Table at Appendix II.

[page 645]

CHAPTER 43 REFORM REVIEW OF THE ACT UNIFORMITY DEFENCES REMEDIES ALTERNATIVE DISPUTE RESOLUTION

43.1 43.2 43.3 43.4 43.5

REVIEW OF THE ACT 43.1 Under s 49 of the Defamation Act 2005, the Minister in New South Wales was required to review the operation of the Act after five years from the date of assent of the Act. This provision is exclusive to New South Wales. The date of assent was 26 October 2005. A report on the outcome of the review was to be tabled in Parliament within 12 months after the end of the period of five years. No report was tabled in 2011, if such a review was carried out. The Act has been in operation for over 10 years now and that time has given more scope to review the Act’s benefits, limitations and deficiencies. The provisions of the Act are finely balanced and the effect of any change needs to be carefully measured in any review of the Act. A change to increase freedom of speech might decrease protection of reputation, and vice versa. The Act strikes a balance between these competing interests.

UNIFORMITY 43.2 A review of the Act should necessarily start with the objects of the Act set out in s 3. The utility of the New South Wales review would depend upon

whether any recommended changes to the Act would be agreed uniformly across the other states and territories. If not, a change might separate New South Wales from other jurisdictions and defeat one of the major objects of the Act in s 3(a) of uniformity. [page 646]

Meaning One of the most important procedural matters in defamation proceedings is the pleading of the meaning (the imputations) of the matter complained of. The practice of pleading the natural and ordinary meaning of the defamatory matter should be considered in a review to ensure uniformity and simplicity. The procedural rules of different jurisdictions in Australia have caused a lack of uniformity in the pleading of imputations, and defences to those imputations, particularly arising from the court rules and practices in New South Wales compared with other states and territories (see 19.8). It is proposed in 19.8 that the meaning of the matter complained of should be determined in the proceedings as soon as possible after commencement, desirably after the close of pleadings, to ensure that the trial itself is conducted on a fair basis to both plaintiff and defendant, having regard to the objects of the Act.

Juries Juries are not used in every jurisdiction in Australia for defamation trials (see Chapter 17). The difference permits a degree of forum shopping and a lack of uniformity. It is proposed in 19.8 that in New South Wales (and elsewhere where applicable in Australia) juries should not be used in defamation proceedings except with the leave of the court and only then be ordered in exceptional cases. There have been concerns expressed about the substantial costs of defamation proceedings and the delays that occur from the use of juries. The Chief Judge at Common Law in the Supreme Court of New South Wales observed that the length of trial is three times greater in a jury trial compared to judge alone, with the substantial increase in costs that follow.1

In contrast, juries are often said to be the ‘touchstone of the community’, particularly on the issues of the meaning of the matter complained of, whether it is defamatory and whether it is true. Yet the jury does not determine damages. For reasons of uniformity, cost and the complexity of defamation law, it would be desirable and proportionate to change the process in New South Wales and the other relevant jurisdictions (Queensland, Victoria, Tasmania), from the right to selection of juries by the parties, to selection only by order of the court. The judge would exercise the discretion, having particular regard to the public importance of the matter published, or the need in the particular case for judgment by the claimant’s peers. This is the position adopted in the United Kingdom under s 11 of the Defamation Act 2013 (UK) where a trial for defamation is to be held without a jury unless the court orders otherwise.

Privacy It is relevant to the review under s 49 of the Act that the removal of the public interest element from the defence of truth (which at least in New South Wales had been a [page 647] necessary element of the defence for over 150 years) has prompted recommendations for statutory reform to create a cause of action of ‘serious invasion of privacy’, so far without success (see Chapter 14). If the initiative is not taken by the Commonwealth Parliament, as recommended by the Australian Law Reform Commission, it can be expected that the courts will develop the principles at common law by patchwork, across jurisdictions, and without uniformity or certainty.

Access to justice The most pressing and perennial issue for review is the cost and delay of defamation proceedings. As injunctions are rarely granted in defamation cases to stop publication, a plaintiff has a primary interest in restoring his or her reputation as quickly as possible after publication, and being compensated for the damage caused. Likewise, a defendant has a primary interest in defending

the publication as quickly as possible against unmeritorious plaintiffs who bring proceedings in order to silence or inhibit the defendant from publishing further. Except in the clearest of cases, an action will not be stayed or dismissed as an abuse of process on the grounds that the resources of the court and the costs of the parties that will have to be expended to determine the claim are out of all proportion to the interest at stake.2 For these reasons, it is desirable to establish a specialist tribunal to deal with defamation cases (and media-related cases such as breach of confidence) which would allow the parties to seek a relatively speedy, consistent and cost-effective determination. The New South Wales Supreme Court and District Court have specialist case management lists for defamation cases. Specially tailored rules for the pleading of defamation claims and defences apply.3 However, this has given rise to procedural differences with other jurisdictions tending to a lack of uniformity, and some would argue multiple interlocutory applications, resulting in unnecessary complexity, delay and cost. The Federal Court with its Australia-wide reach would be particularly appropriate for cases involving interstate media publications and internet publications generally. The Commonwealth Government might consider the introduction of a Commonwealth Defamation Act, consistent in terms with the uniform legislation of the states and territories, and the conferral of jurisdiction on the Federal Court, with a specialist division, over interstate and internet publications in defamation cases for the same reason. [page 648]

DEFENCES 43.3 The second object of the Act under s 3(b) is to ensure that the law of defamation does not place unreasonable limits on freedom of expression and on the publication and discussion of matters of public interest and importance.

Truth

The Act provides that only one cause of action arises from the publication of defamatory matter regardless of the number of defamatory imputations pleaded. The defence of truth will therefore fail if any one of the defamatory imputations cannot be proved to be true notwithstanding that the remainder may be true (see Chapter 19). A true imputation of which the plaintiff complains, where there are a number of untrue imputations of which the plaintiff complains, can only be relied upon by the defendant in mitigation of damages (see Chapter 20). This highlights the importance of the procedural rules relating to the pleading of the imputations of the matter complained of, not only for the purposes of uniformity, but also in fairness to a defendant. The issue is whether the meaning of the matter complained of should be restricted to those imputations of which the plaintiff complains, or be open to any imputation which the court determines the matter complained of conveys. As a matter of practice, the determination of the imputations conveyed does not take place until the trial. It is proposed in 19.8 that the imputations of the matter complained of should be determined for the purposes of the proceedings as soon as possible after commencement, desirably after the close of pleadings. The determination would be binding on the parties and would be made regardless of whether complaint had been made by the plaintiff of the imputations found to be conveyed.

Contextual truth Where the imputations are restricted to those of which the plaintiff complains, there may be other contextual imputations conveyed in the matter complained of. For this reason, the contextual truth defence is important to provide some protection to defendants. There are concerns about the wording of the defence in s 26 of the Act. The main issues are, first, whether a defendant should be able to ‘plead back’ contextual imputations, from amongst the imputations complained of by the plaintiff, where those imputations are true, and, second, whether the plaintiff should be able to ‘adopt’ contextual imputations from the defence, by reason of which the defendant can no longer rely upon those imputations in support of the contextual truth defence. Section 26 could be amended so that the defendant

may rely upon any imputation regardless of whether it is pleaded by the plaintiff.

Statutory qualified privilege There are concerns about the operation of the statutory qualified privilege defence under s 30 of the Act because of the complexity of the circumstances in which a [page 649] publication may be judged, in the ‘clear light of hindsight’, to be reasonable or not (see Chapter 25). It may appear to require a standard of perfection. These concerns may ease over time with determinations that find in favour of reasonable journalistic practice, which could usefully be put forward by way of expert evidence based on the circumstances of the publication.4 It may also be appropriate to consider whether a separate statutory defence could be developed to relax the strictness of liability if it can be shown that the defendant did not intend to convey the defamatory imputations and published them without negligence. Section 30 of the Act would govern those cases where the defamatory imputation was intended.5

Honest opinion There are also concerns about the wording of s 31(4)(b) of the Act which has led to the joinder of employees by plaintiffs for more abundant caution.6 Journalists are joined as a necessary party to proceedings so as to defeat the defence under s 31(4)(b) (see 28.1). The relevant opinion is held by the employee journalist but it is the belief of the employer (that the employee honestly held the opinion) which must be shown not to have been held in order to defeat the defence. The employee is joined to ensure his or her liability if the opinion was not held, compared with the obscure test in s 31(4)(b).

Innocent dissemination The continual advance in technology, particularly with respect to the internet and social media, has caused concerns about the liability of ‘innocent’ participants to a publication. Section 32(3) of the Act requires ongoing review to

ensure that persons who may be considered innocent disseminators are protected by the legislation (see 29.2). The variety of participation in a publication on the internet has made this a controversial debate, particularly when the means of publication are not well understood, and internet providers are displacing the press and traditional media in disseminating news.

Trivality There are concerns that the statutory defence available under s 33 of the Act, where the circumstances of the publication are such that the plaintiff is unlikely to suffer harm, should be part of the matters to be proved in the cause of action and not the defence (see Chapter 30). Under s 1 of the Defamation Act 2013 (UK), a plaintiff is required to show that the publication of the matter complained of has caused or is likely to cause serious harm to the plaintiff’s reputation. In this way, the onus is on the plaintiff to prove ‘serious harm’ which would make the statutory defence of triviality otiose. While there may be merit in considering the introduction of this threshold, it may need to be balanced by [page 650] the removal of the cap on damages so that a plaintiff can be awarded substantial damages unrestricted by a cap for serious harm so caused.

REMEDIES 43.4 The third object of the Act under s 3(c) is to ensure that effective and fair remedies are provided for claimants whose reputations are harmed by the publication of defamatory matter.

Cap on damages The statutory cap on damages does not provide an ‘effective and fair’ remedy to a person who has been seriously defamed. The cap devalues the right to compensation ‘at large’ without restriction. The perceived need for the cap arose out of excessive or inconsistent jury

awards of damages. This need was satisfied, however, by the fact that judges are exclusively entrusted with the role of assessing damages, even in those jurisdictions where juries are used. Another basis for imposing the cap was the perceived need for awards in defamation cases to be comparable with personal injury awards for which a statutory cap applied. However, the maximum amount imposed by the cap in defamation cases, at $389,500 (in 2017), is significantly below the amount of the cap in personal injury cases, approximately $605,000 (increase pending in 2017). The comparison is misconceived. An intentional act with malice calculated to cause damage cannot fairly be compared with a negligent act accidentally causing damage.7 The amount of damages within the statutory cap is usually eroded in any event by the significant costs incurred in bringing proceedings. This highlights the issue referred to above of the cost of access to justice in defamation cases. At the least, a review would be appropriate for cases involving multiple publications of the same matter, where the claims must be brought against the same defendant in the same proceedings (see Chapter 33). The issue is whether the cap should continue to apply to all publications or causes of action ‘in defamation proceedings’, or more fairly, apply separately to each of the causes of action in the proceedings.

Limitation periods The strict time limit of 12 months for the commencement of a defamation action from the date of publication can work unfairly to plaintiffs particularly where extensions of time of up to three years are rare because of the wording of the relevant sections of the Limitation Act in each jurisdiction (see 18.6). For example, the negligence of the plaintiff’s lawyers in failing to commence proceedings within time will not be [page 651] sufficient to satisfy the test required for an extension of time.8 This is essentially unfair and unjust. The wording for the discretion to extend time, presently ‘if satisfied that it

was not reasonable in the circumstances for the plaintiff to have commenced the action within 1 year from the date of the publication’, should be changed to ‘where it may be just and reasonable to do so’. The quid pro quo to balance such flexibility might be the introduction of the single publication rule as provided in s 8 of the Defamation Act 2013 (UK). Under that section time accrues on the date of first publication of a statement to the public and any subsequent publication which is substantially the same (and not materially different) is to be treated as having accrued on the date of the first publication.

Corporations The cause of action for defamation is arbitrarily limited to small corporations of less than 10 employees under s 9 of the Act. No such limit is applied in the United Kingdom. This amounts to an unfair restriction on the rights of corporations which suffer substantial financial loss from the publication of defamatory matter. A fairer position would be achieved by restricting a corporation’s cause of action to special damages only, being the financial loss the corporation can prove was caused by the publication.

ALTERNATIVE DISPUTE RESOLUTION 43.5 The fourth object of the Act under s 3(d) is to promote speedy and nonlitigious methods of resolving disputes about the publication of defamatory matter. This seems to be working reasonably well in practice, either through the commonly accepted procedure of mediation or growing acceptance that the offer of amends procedure in Div 2 of the Act promotes that outcome. A defence may be established if a reasonable offer is refused by a claimant, provided the defendant otherwise complies with the procedures set out in Div 2. At the end of the trial, s 40 of the Act enables the court to examine the conduct of the parties in the proceedings and the reasonableness of any settlement offers for the purpose of orders for costs. ____________________ 1.

Hon Justice P McClellan, ‘Eloquence and Reason — are juries appropriate for defamation trials?’ 4

2. 3. 4. 5. 6. 7. 8.

November 2009, Sydney, pp 18–19. Bleyer v Google Inc [2014] NSWSC 897; Ghosh v Nine MSN Pty Ltd [2015] NSWCA 334 at [44]; Watney v Kencian [2017] QCA 116. See Appendices III and IV. See Rogers v Nationwide News Pty Ltd [2003] HCA 52 at [31]. See Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 574. Rodgers v Nine Network Australia Pty Ltd [2008] NSWDC 275 at [3]; Creighton v Nationwide News Pty Ltd [2010] NSWDC 192 at [94]. Rogers v Nationwide News Pty Ltd [2003] HCA 52 at [189]; The Gleaner Co Ltd v Abrahams [2004] 1 AC 628 at [55]. Van Garderen v Channel Seven Melbourne Pty Ltd [2016] VCC 953 at [85]–[89]; Otto v Gold Coast Publications Pty Ltd [2017] NSWDC 101 at [56].

[page 653]

CHAPTER 44 CRIMINAL LAW COMMON LAW CRIMINAL DEFAMATION JURY’S ROLE DEFENCE OF LAWFUL EXCUSE OTHER JURISDICTIONS TRUTH AND OTHER DEFENCES

44.1 44.2 44.3 44.4 44.5 44.6

COMMON LAW 44.1 The common law recognises various forms of criminal libel: see 5.2–5.5. Until the nineteenth century the offence of criminal libel in all its forms was frequently enforced ‘to protect society from itself’ and ‘to keep the peace’.1 This changed with the education of the masses, faster means of communication, the emergence of freedom of speech and tolerance of minority views. The publication of a defamatory libel was a common law misdemeanour. In each state and territory the common law offence was abolished or modified by legislation. The table below is a summary of the criminal law of defamation which existed prior to any amendments effected consequent upon the Defamation Act 2005. Prosecutions for criminal libel at common law or under the statutory modifications/codifications of each jurisdiction have been rare in recent times. Following the introduction of the Defamation Act 2005, each state and territory continues to have its own criminal law of defamation, although the criminal law is substantially the same in New South Wales, Queensland,

Tasmania, the Australian Capital Territory, South Australia and Western Australia. [page 654] Table 44.1: Applicable criminal law prior to the Defamation Act 20052 Jurisdiction Applicable criminal law prior to the Defamation Act 2005 Australian Capital The law of criminal defamation in the Australian Territory Capital Territory was contained in the Defamation (Criminal Proceedings) Act 2001 (ACT), now in the Crimes Act 1900 (ACT) s 439. New South Wales The law of criminal defamation in New South Wales was contained in the Defamation Act 1974 (NSW), particularly Pt 5 of that Act, now in the Crimes Act 1900 (NSW) s 529. Northern Territory The law of criminal defamation in the Northern Territory is contained in the Criminal Code set out in the Criminal Code Act 1983 (NT), particularly Div 7 of Pt VI of the Code. Queensland The law of criminal defamation in Queensland is contained in the Defamation Act 1889 (Qld), particularly ss 8 and 9 and Pt 8 of that Act. South Australia The law of criminal defamation in South Australia is contained in the Criminal Law Consolidation Act 1935 (SA) s 257. Tasmania The law of criminal defamation in Tasmania is contained in the Criminal Code set out in the Criminal Code Act 1924 (Tas), particularly Ch XXIII of the Code. Victoria The general law offence of criminal defamation applies in Victoria, subject to the provisions in Pt 1 of the Wrongs Act 1958 (Vic) and subject to the

Western Australia

maximum term of imprisonment specified for the offence by the Crimes Act 1958 (Vic) s 320. The law of criminal defamation in Western Australia is contained in the Criminal Code set out in the Criminal Code Act 1913 (WA), particularly Ch XXXV of that Code.

CRIMINAL DEFAMATION 44.2 Schedule 5 to the Defamation Act 2005 sets out the statutory modifications in New South Wales concerning criminal defamation. As a result, s 529 was inserted in the Crimes Act 1900 (NSW). Under s 529(1), the common law misdemeanour of criminal libel (see 5.3) has been abolished and replaced by the offence of criminal defamation. The criminal offence is committed where the accused has, without lawful excuse, published matter defamatory of another living person (the victim): (a) knowing the matter to be false; and (b) with intent to cause serious harm to the victim or any other person or being reckless as to whether such harm is caused.3 [page 655] A similar offence exists in Queensland,4 Tasmania,5 the Australian Capital Territory,6 South Australia7 and Western Australia.8 In some jurisdictions, reckless indifference to truth or falsity of the defamatory matter is also a possible element of the offence. In New South Wales, the offence carries a prison term of up to three years or a fine not exceeding 1,000 penalty units on an individual instead of or in addition to a term of imprisonment: Crimes (Sentencing Procedure) Act 1999 (NSW) s 15. In the case of a corporation the fine may not exceed 2,000 penalty units. This is an indictable offence and proceedings may only be instituted with the written consent of the Director of Public Prosecutions: s 529(7). A prosecution is

justified only where the subject of the prosecution is such as to affect the community; it does not concern the vindication or protection of the reputation of the person defamed.9 The statutory offence is unlike criminal libel at common law as it requires a particular mental state (that is, knowledge or intention) to be proved against the accused (not the equivalent of malice)10 and extends the offence to slander as well as libel. The reference to a living person is to overcome any suggestion that there could be liability for defamation of the dead, which may be the case at common law. Communication to the person defamed does not amount to a publication,11 which again is different from criminal libel at common law.12 The meaning of the words ‘publish’ and ‘defamatory’ under the criminal law is the same that they have in the law of tort (as modified by the Defamation Act 2005) relating to defamation: s 529(11). The commencement of criminal proceedings for an offence of criminal defamation under s 529 does not prevent the commencement of civil proceedings for defamation against the accused or the determination of the civil proceedings pending the determination of the criminal proceedings: s 529(9). [page 656]

JURY’S ROLE 44.3 The roles of judge and jury at a criminal trial are specifically set out in s 529(6) of the Crimes Act 1900 (NSW). The judge has the role of determining whether the matter complained of is capable of bearing a defamatory meaning. The jury has the role of determining whether the matter complained of does bear a defamatory meaning. The jury may give a general verdict of guilty or not guilty on the issues as a whole. This reproduces provisions from Fox’s Libel Act 1792 (UK) and retains the constitutional role of the jury for criminal defamation proceedings.13 The same provisions apply in Queensland, Tasmania, the Australian Capital Territory, South Australia and Western Australia.

DEFENCE OF LAWFUL EXCUSE 44.4 There is a defence to criminal defamation under s 529(4) of the Crimes Act 1900 (NSW) where, had the victim brought civil proceedings against the accused for damages for defamation, the accused would be entitled to defend and succeed in those proceedings. This includes defences at common law and statutory defences available under the Defamation Act 2005.14 The defences are restricted to ‘the circumstances happening before or at the time of publication’. This precludes civil defences based upon accord and satisfaction or the expiration of the limitation period. Under s 529(5), the prosecution bears the onus of negating the existence of a lawful excuse. It is not necessary for the prosecution to negative in any information, other statement or charge of the offence or at the trial anything which would amount to lawful excuse. This means that the accused must plead the defence (of lawful excuse) specifically under a plea of not guilty and, once evidence directed to establishing the excuse is first adduced, by or on behalf of the accused, the prosecution bears the onus of proving the absence of the lawful excuse.15 The same defence applies in Queensland, Tasmania, the Australian Capital Territory, South Australia and Western Australia.

OTHER JURISDICTIONS 44.5 In Victoria the common law offence of criminal libel operates. There is also a statutory offence of publication of defamatory libel ‘knowing it to be false’.16 The statutory offence carries a prison term of not more than two years and a fine [page 657] at the discretion of the court. The common law offence carries a prison term of up to one year or a fine, as the court in its discretion might award, or both.

In the Northern Territory there is a statutory offence for the unlawful publication of defamatory matter which requires proof of an intention for various purposes, including to cause loss or to prevent or deter a person from performing any duty imposed on him or her by law.17 The offence carries a prison term of up to three years. Intention is required in all cases other than a publication that caused or was likely to cause a breach of the peace. Proceedings can only be instituted under the direction of the Attorney-General or the Solicitor-General.18

TRUTH AND OTHER DEFENCES 44.6 Prior to 2006, the common law had been modified by legislation in some states, in accordance with Lord Campbell’s Act 1843 (UK) s 6. Truth was a defence to a charge of defamatory libel provided the publication was for the public benefit.19 The defence of truth and public benefit under s 6 of Lord Campbell’s Act 1843 (UK) clearly placed the onus on the accused and was a statutory exception to the position at common law,20 where the onus of proof rests upon the prosecution. This defence remains available in Victoria21 and Queensland.22 In the Northern Territory any defence available under the common law is also available to criminal proceedings.23 ____________________ 1. 2. 3. 4. 5. 6. 7. 8. 9.

R v Holbrook (1878) 4 QBD 42; R v Adams (1888) 22 QBD 66. Explanatory Note — Defamation Bill 2005. R v Grassby (1992) 62A Crim R 351 at 355–60; Spautz v Williams [1983] 2 NSWLR 506; Gypsy Fire v Truth Newspapers Pty Ltd (1987) 9 NSWLR 382. Criminal Code 1899 (Qld) s 365. Criminal Code Act 1924 (Tas) s 196. Crimes Act 1900 (ACT) s 439. Criminal Law Consolidation Act 1935 (SA) s 257. Criminal Code Act 1913 (WA) s 345. Spautz v Williams [1983] 2 NSWLR 506 at 539–40; Williams v Spautz (1992) 174 CLR 509; Gleaves v Deakin [1980] AC 477 at 491; Gypsy Fire v Truth Newspapers Pty Ltd (1987) 9 NSWLR 382; R v Grassby

10. 11. 12. 13. 14. 15. 16. 17. 18. 19.

20. 21. 22. 23.

(1988) 15 NSWLR 109; Waterhouse v Gilmore (1988) 12 NSWLR 270 at 287–9. Waterhouse v Gilmore (1988) 12 NSWLR 270 at 288. R v Grassby (1988) 15 NSWLR 109 at 114. R v Adams (1888) 22 QBD 66 at 69. Spautz v Williams [1983] 2 NSWLR 506 at 529. Spautz v Williams [1983] 2 NSWLR 506 at 530. Spautz v Williams [1983] 2 NSWLR 506 at 531–4; Woolmington v DPP [1935] AC 462 at 473. Wrongs Act 1958 (Vic) s 10(1); see also s 10(2) ‘malicious publication of defamatory libel’. Criminal Code Act 1983 (NT) s 204. Criminal Code Act 1983 (NT) s 208. Wrongs Act 1958 (Vic) s 11(1); Defamation Act 1889 (Qld) s 15; Criminal Code Act 1913 (WA) s 356; Criminal Code Act 1924 (Tas) s 207; Defamation (Criminal Proceedings) Act 2001 (ACT) ss 33 and 35. Spautz v Williams [1983] 2 NSWLR 506 at 533. Wrongs Act 1958 (Vic) s 11. Criminal Code 1899 (Qld) s 365(8). Criminal Code Act 1983 (NT) s 206.

[page 659]

APPENDIX I DEFAMATION ACT 20051 (NSW VERSION)

[page 661]

DEFAMATION ACT 2005 (NSW) TABLE OF PROVISIONS PART 1 — PRELIMINARY 1 2 3 4 5

Name of Act Commencement Objects of Act Definitions Act to bind Crown

PART 2 — GENERAL PRINCIPLES Division 1 — Defamation and the general law 6 7

Tort of defamation Distinction between slander and libel abolished

Division 2 — Causes of action for defamation 8 9 10

Single cause of action for multiple defamatory imputations in same matter Certain corporations do not have cause of action for defamation No cause of action for defamation of, or against, deceased persons

Division 3 — Choice of law 11

Choice of law for defamation proceedings

RESOLUTION OF CIVIL DISPUTES

PART 3 — WITHOUT LITIGATION Division 1 — Offers to make amends 12 13 14 15 16 17 18 19

Application of Division Publisher may make offer to make amends When offer to make amends may be made Content of offer to make amends Withdrawal of offer to make amends Effect of acceptance of offer to make amends Effect of failure to accept reasonable offer to make amends Inadmissibility of evidence of certain statements and admissions

Division 2 — Apologies 20

Effect of apology on liability for defamation [page 662]

PART 4 — LITIGATION OF CIVIL DISPUTES Division 1 — General 21 22 23

Election for defamation proceedings to be tried by jury Roles of judicial officers and juries in defamation proceedings Leave required for further proceedings in relation to publication of same defamatory matter

Division 2 — Defences 24 25 26 27

Scope of defences under general law and other law not limited Defence of justification Defence of contextual truth Defence of absolute privilege

28 29 30 31 32 33

Defence for publication of public documents Defences of fair report of proceedings of public concern Defence of qualified privilege for provision of certain information Defences of honest opinion Defence of innocent dissemination Defence of triviality

Division 3 — Remedies 34 35 36 37 38 39

Damages to bear rational relationship to harm Damage for non-economic loss limited State of mind of defendant generally not relevant to awarding damages Exemplary or punitive damages cannot be awarded Factors in mitigation of damages Damages for multiple causes of action may be assessed as single sum

Division 4 — Costs 40

Costs in defamation proceedings

PART 5 — MISCELLANEOUS 41 42 43 44 45 46 47 48 49

Proof of publication Proof of convictions for offences Incriminating answers, documents or things Giving of notices and other documents Regulations Repeal of Defamation Act 1974 No 18 Savings, transitional and other provisions Amendment of other Acts Review of Act

Schedule 1 Additional publications to which absolute privilege applies Schedule 2 Additional kinds of public documents Schedule 3 Additional proceedings of public concern

[page 663]

Schedule 4 Savings, transitional and other provisions Schedule 5 Amendment of other Acts concerning criminal defamation and limitation periods Schedule 6 Consequential amendment of other Acts Comparable Table of States and Territories Acts

[page 664]

DEFAMATION ACT 2005 (NSW) An Act to enact in New South Wales provisions to promote uniform laws of defamation in Australia; to repeal the Defamation Act 1974; to amend the Crimes Act 1900 in relation to criminal defamation; to amend the Limitation Act 1969 in relation to the limitation period for defamation actions; and for other purposes.

PART 1 — PRELIMINARY 1 Name of Act This Act is the Defamation Act 2005.2 2 Commencement3 This Act commences4 on 1 January 2006.5 3 Objects of Act6 The objects of this Act are: (a) to enact provisions to promote uniform laws of defamation in Australia, and (b) to ensure that the law of defamation does not place unreasonable limits on freedom of expression and, in particular, on the publication and discussion of matters of public interest and importance, and (c) to provide effective and fair remedies for persons whose reputations are harmed by the publication of defamatory matter, and (d) to promote speedy and non-litigious methods of resolving disputes about the publication of defamatory matter. 4 Definitions7 In this Act:8 Australian court means any court established by or under a law of an Australian

jurisdiction (including a court conducting committal proceedings for an indictable offence).9 Australian jurisdiction means: (a) a State, or [page 665] (b) a Territory, or (c) the Commonwealth. Australian tribunal means any tribunal (other than a court) established by or under a law of an Australian jurisdiction that has the power to take evidence from witnesses before it on oath or affirmation (including a Royal Commission or other special commission of inquiry). country includes: (a) a federation and a state, territory, province or other part of a federation, and (b) an Australian jurisdiction. document means any record of information, and includes: (a) anything on which there is writing, and (b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them, and (c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else, and (d) a map, plan, drawing or photograph. electronic communication includes a communication of information in the form of data, text, images or sound (or any combination of these) by means of guided or unguided electromagnetic energy, or both. general law means the common law and equity. matter includes: (a) an article, report, advertisement or other thing communicated by means of a newspaper, magazine or other periodical, and

(b) a program, report, advertisement or other thing communicated by means of television, radio, the Internet or any other form of electronic communication, and (c) a letter, note or other writing, and (d) a picture, gesture or oral utterance, and (e) any other thing by means of which something may be communicated to a person. offer to make amends means an offer to make amends under Division 1 of Part 3.10 parliamentary body means: (a) a parliament or legislature of any country, or (b) a house of a parliament or legislature of any country, or (c) a committee of a parliament or legislature of any country, or (d) a committee of a house or houses of a parliament or legislature of any country.11 [page 666] substantially true means true in substance or not materially different from the truth. Territory means the Australian Capital Territory or the Northern Territory. this jurisdiction means New South Wales.12 5 Act to bind Crown13 This Act binds the Crown in right of this jurisdiction and, in so far as the legislative power of the Parliament of this jurisdiction permits, the Crown in all its other capacities.

PART 2 — GENERAL PRINCIPLES Division 1 — Defamation and the general law 6

Tort of defamation14

(1) (2)

(3)

7

This Act relates to the tort of defamation at general law. This Act does not affect the operation of the general law in relation to the tort of defamation except to the extent that this Act provides otherwise (whether expressly or by necessary implication). Without limiting subsection (2), the general law as it is from time to time applies for the purposes of this Act as if the following legislation had never been enacted: (a) the Defamation Act 1958, (b) the Defamation Act 1974.15

Distinction between slander and libel abolished16 (1) The distinction at general law between slander and libel is17 abolished. (2) Accordingly, the publication of defamatory matter of any kind is actionable without proof of special damage.

Division 2 — Causes of action for defamation 8 Single cause of action for multiple defamatory imputations in same matter18 A person has a single cause of action for defamation in relation to the publication of defamatory matter about the person even if more than one defamatory imputation about the person is carried by the matter. [page 667] 9

Certain corporations do not have cause of action for defamation19 (1) A corporation has no cause of action for defamation in relation to the publication of defamatory matter about the corporation unless it was an excluded corporation at the time of the publication. (2) A corporation is an excluded corporation if: (a) the objects for which it is formed do not include obtaining financial gain for its members or corporators, or (b) it employs fewer than 10 persons and is not related to another

(3)

(4)

(5)

(6)

corporation, and the corporation is not a public body. In counting employees for the purposes of subsection (2)(b), part-time employees are to be taken into account as an appropriate fraction of a full-time equivalent. In determining whether a corporation is related to another corporation for the purposes of subsection (2)(b), section 50 of the Corporations Act 2001 of the Commonwealth applies as if references to bodies corporate in that section were references to corporations within the meaning of this section. Subsection (1) does not affect any cause of action for defamation that an individual associated with a corporation has in relation to the publication of defamatory matter about the individual even if the publication of the same matter also defames the corporation. In this section: corporation includes any body corporate or corporation constituted by or under a law of any country (including by exercise of a prerogative right), whether or not a public body. public body means a local government20 or other governmental or public authority constituted by or under a law of any country.

10 No cause of action for defamation of, or against, deceased persons21 A person (including a personal representative of a deceased person) cannot assert, continue or enforce a cause of action for defamation in relation to: (a) the publication of defamatory matter about a deceased person (whether published before or after his or her death), or (b) the publication of defamatory matter by a person who has died since publishing the matter.

Division 3 — Choice of law 11

Choice of law for defamation proceedings22 (1) If a matter is published wholly within a particular Australian jurisdictional area, the substantive law that is applicable in that area must be applied in this jurisdiction to determine any cause of action for defamation based on the publication.

(2)

If there is a multiple publication of matter in more than one Australian jurisdictional area, the substantive law applicable in the Australian jurisdictional area with which the harm occasioned by the publication as a whole has its closest connection must be applied in this jurisdiction to determine each cause of action for defamation based on the publication. [page 668]

(3)

(4)

(5)

In determining the Australian jurisdictional area with which the harm occasioned by a publication of matter has its closest connection, a court may take into account: (a) the place at the time of publication where the plaintiff was ordinarily resident or, in the case of a corporation that may assert a cause of action for defamation, the place where the corporation had its principal place of business at that time, and (b) the extent of publication in each relevant Australian jurisdictional area, and (c) the extent of harm suffered23 by the plaintiff in each relevant Australian jurisdictional area, and (d) any other matter that the court considers relevant. For the purposes of this section, the substantive law applicable in an Australian jurisdictional area does not include any law prescribing rules for choice of law that differ from the rules prescribed by this section. In this section: Australian jurisdictional area means: (a) the geographical area of Australia that lies within the territorial limits of a particular State (including its coastal waters), but not including any territory, place or other area referred to in paragraph (c), or (b) the geographical area of Australia that lies within the territorial limits of a particular Territory (including its coastal waters), but

not including any territory, place or other area referred to in paragraph (c),24 or (c) any territory, place or other geographical area of Australia over which the Commonwealth has legislative competence but over which no State or Territory has legislative competence. geographical area of Australia includes: (a) the territorial sea of Australia, and (b) the external Territories of the Commonwealth.25 multiple publication means publication by a particular person of the same, or substantially the same, matter in substantially the same form to 2 or more persons.

PART 3 — RESOLUTION

OF CIVIL WITHOUT LITIGATION

DISPUTES

Division 1 — Offers to make amends 12

Application of Division26 (1) This Division applies if a person (the publisher) publishes matter (the matter in question) that is, or may be, defamatory of another person (the aggrieved person). [page 669] (2)

(3)

13

The provisions of this Division may be used instead of the provisions of any rules of court or any other law in relation to payment into court or offers of compromise. Nothing in this Division prevents a publisher or aggrieved person from making or accepting a settlement offer in relation to the publication of the matter in question otherwise than in accordance with the provisions of this Division.

Publisher may make offer to make amends27

(1) (2)

(3)

(4) 14

The publisher may make an offer to make amends to the aggrieved person. The offer may be: (a) in relation to the matter in question generally, or (b) limited to any particular defamatory imputation that the publisher accepts that the matter in question carries.28 If 2 or more persons published the matter in question, an offer to make amends by one or more of them does not affect the liability of the other or others. An offer to make amends is taken to have been made without prejudice, unless the offer provides otherwise.

When offer to make amends may be made29 (1) An offer to make amends cannot be made if: (a) 28 days have elapsed since the publisher was given a concerns notice by the aggrieved person, or (b) a defence has been served in an action brought by the aggrieved person against the publisher in relation to the matter in question. (2) A notice is a concerns notice for the purposes of this section if the notice: (a) is in writing, and (b) informs the publisher of the defamatory imputations that the aggrieved person considers are or may be carried about the aggrieved person by the matter in question (the imputations of concern). (3) If an aggrieved person gives the publisher a concerns notice, but fails to particularise the imputations of concern adequately, the publisher may give the aggrieved person a written notice (a further particulars notice) requesting the aggrieved person to provide reasonable further particulars about the imputations of concern as specified in the further particulars notice. (4) An aggrieved person to whom a further particulars notice is given must provide the reasonable further particulars specified in the notice within 14 days (or any further period agreed by the publisher and

(5)

15

aggrieved person) after being given the notice. An aggrieved person who fails to provide the reasonable further particulars specified in a further particulars notice within the applicable period is taken not to have given the publisher a concerns notice for the purposes of this section.

Content of offer to make amends30 (1) An offer to make amends: (a) must be in writing, and [page 670] (b) must be readily identifiable as an offer to make amends under this Division, and (c) if the offer is limited to any particular defamatory imputations — must state that the offer is so limited and particularise the imputations to which the offer is limited, and (d) must include an offer to publish, or join in publishing, a reasonable correction of the matter in question or if the offer is limited to any particular defamatory imputations, the imputations to which the offer is limited, and (e) if material containing the matter has been given to someone else by the publisher or with the publisher’s knowledge — must include an offer to take, or join in taking, reasonable steps to tell the other person that the matter is or may be defamatory of the aggrieved person, and (f) must include an offer to pay the expenses reasonably incurred by the aggrieved person before the offer was made and the expenses reasonably incurred by the aggrieved person in considering the offer, and (g) may include any other kind of offer, or particulars of any other action taken by the publisher, to redress the harm sustained by the aggrieved person because of the matter in question, including

(2)

(3)

(4)

(but not limited to): (i) an offer to publish, or join in publishing, an apology in relation to the matter in question or, if the offer is limited to any particular defamatory imputations, the imputations to which the offer is limited, or (ii) an offer to pay compensation for any economic or noneconomic loss of the aggrieved person, or (iii) the particulars of any correction or apology made, or action taken, before the date of the offer. Without limiting subsection (1)(g)(ii), an offer to pay compensation may comprise or include any one or more of the following: (a) an offer to pay a stated amount, (b) an offer to pay an amount to be agreed between the publisher and the aggrieved person, (c) an offer to pay an amount determined by an arbitrator appointed, or agreed on, by the publisher and the aggrieved person, (d) an offer to pay an amount determined by a court. If an offer to make amends is accepted, a court may, on the application of the aggrieved person or publisher, determine: (a) if the offer provides for a court to determine the amount of compensation payable under the offer — the amount of compensation to be paid under the offer, and (b) any other question that arises about what must be done to carry out the terms of the offer. The powers conferred on the court by subsection (3) are exercisable: (a) if the aggrieved person has brought proceedings against the publisher in any court for defamation in relation to the matter in question, by that court in those proceedings, and (b) except as provided in paragraph (a), by the Supreme Court.31 [page 671]

16

Withdrawal of offer to make amends32 (1) An offer to make amends may be withdrawn before it is accepted by notice in writing given to the aggrieved person. (2) A publisher who has withdrawn an offer to make amends may make a renewed offer. (3) A renewed offer may (but need not) be in the same terms as the withdrawn offer. (4) A renewed offer is to be treated as a new offer (including for the purposes of section 14). (5) However, the time limit specified in section 14 for the making of offers to make amends does not prevent the making of a renewed offer that is not in the same terms as the withdrawn offer if: (a) the renewed offer represents a genuine attempt by the publisher to address matters of concern raised by the aggrieved person about the withdrawn offer, and (b) the renewed offer is made within 14 days after the withdrawal of the withdrawn offer or any other period agreed by the publisher and the aggrieved person.

17

Effect of acceptance of offer to make amends33 (1) If the publisher carries out the terms of an offer to make amends (including payment of any compensation under the offer) that is accepted, the aggrieved person cannot assert, continue or enforce an action for defamation against the publisher in relation to the matter in question even if the offer was limited to any particular defamatory imputations. (2) A court may (but need not): (a) order the publisher to pay the aggrieved person the expenses reasonably incurred by the aggrieved person as a result of accepting the offer, and (b) order any costs incurred by the aggrieved person that form part of those expenses to be assessed on an indemnity basis. (3) The powers conferred on a court by subsection (2) are exercisable: (a) if the aggrieved person has brought proceedings against the

publisher in any court for defamation in relation to the matter in question, by that court in those proceedings, and (b) except as provided in paragraph (a), by the Supreme Court. 18

Effect of failure to accept reasonable offer to make amends34 (1) If an offer to make amends is made in relation to the matter in question but is not accepted, it is a defence to an action for defamation against the publisher in relation to the matter if: (a) the publisher made the offer as soon as practicable after becoming aware that the matter is or may be defamatory, and (b) at any time before the trial the publisher was ready and willing, on acceptance of the offer by the aggrieved person, to perform35 the terms of the offer, and (c) in all the circumstances the offer was reasonable. [page 672] (2)

In determining whether an offer to make amends is reasonable, a court: (a) must have regard to any correction or apology published before any trial arising out of the matter in question, including the extent to which the correction or apology is brought to the attention of the audience of the matter in question taking into account: (i) the prominence given to the correction or apology as published in comparison to the prominence given to the matter in question as published, and (ii) the period that elapses between publication of the matter in question and publication of the correction or apology, and (b) may have regard to: (i) whether the aggrieved person refused to accept an offer that was limited to any particular defamatory imputations because the aggrieved person did not agree with the

publisher about the imputations that the matter in question carried, and (ii) any other matter that the court considers relevant. 19

Inadmissibility of evidence of certain statements and admissions36 (1) Evidence of any statement or admission made in connection with the making or acceptance of an offer to make amends is not admissible as evidence in any legal proceedings (whether criminal or civil). (2) Subsection (1) does not prevent the admission of evidence in any legal proceedings in order to determine: (a) any issue arising under, or relating to the application of, a provision of this Division, or (b) costs in defamation proceedings.

Division 2 — Apologies 20

Effect of apology on liability for defamation37 (1) An apology made by or on behalf of a person in connection with any defamatory matter alleged to have been published by the person: (a) does not constitute an express or implied admission of fault or liability by the person in connection with that matter, and (b) is not relevant to the determination of fault or liability in connection with that matter. (2) Evidence of an apology made by or on behalf of a person in connection with any defamatory matter alleged to have been published by the person is not admissible in any civil proceedings as evidence of the fault or liability of the person in connection with that matter. (3) Nothing in this section limits the operation of section 38. [page 673]

PART 4 — LITIGATION OF CIVIL DISPUTES

Division 1 — General38 21

Election for defamation proceedings to be tried by jury39 (1) Unless the court orders otherwise, a plaintiff or defendant in defamation proceedings may elect for the proceedings to be tried by jury.40 (2) An election must be: (a) made at the time and in the manner prescribed by the rules of court for the court in which the proceedings are to be tried, and (b) accompanied by the fee (if any) prescribed by the regulations made under the Civil Procedure Act 200541 for the requisition of a jury in that court. (3) Without limiting subsection (1), a court may order that defamation proceedings are not to be tried by jury if: (a) the trial requires a prolonged examination of records, or (b) the trial involves any technical, scientific or other issue that cannot be conveniently considered and resolved by a jury.42

22

Roles of judicial officers and juries in defamation proceedings43 (1) This section applies to defamation proceedings that are tried by jury. (2) The jury is to determine whether the defendant has published defamatory matter about the plaintiff and, if so, whether any defence raised by the defendant has been established. (3) If the jury finds that the defendant has published defamatory matter about the plaintiff and that no defence has been established, the judicial officer and not the jury is to determine the amount of damages (if any) that should be awarded to the plaintiff and all unresolved issues of fact and law relating to the determination of that amount. (4) If the proceedings relate to more than one cause of action for defamation, the jury must give a single verdict in respect of all causes of action on which the plaintiff relies unless the judicial officer orders otherwise. (5) Nothing in this section: (a) affects any law or practice relating to special verdicts, or

(b) requires or permits a jury to determine any issue that, at general law, is an issue to be determined by the judicial officer. [page 674] 23 Leave required for further proceedings in relation to publication of same defamatory matter44 If a person has brought defamation proceedings for damages (whether in this jurisdiction or elsewhere) against any person in relation to the publication of any matter, the person cannot bring further defamation proceedings for damages against the same defendant in relation to the same or any other publication of the same or like matter, except with the leave of the court in which the further proceedings are to be brought.

Division 2 — Defences45 24

Scope of defences under general law and other law not limited46 (1) A defence under this Division is additional to any other defence or exclusion of liability available to the defendant apart from this Act (including under the general law) and does not of itself vitiate, limit or abrogate any other defence or exclusion of liability. (2) If a defence under this Division to the publication of defamatory matter may be defeated by proof that the publication was actuated by malice, the general law applies in defamation proceedings in which the defence is raised to determine whether a particular publication of matter was actuated by malice.

25 Defence of justification47 It is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true. 26 Defence of contextual truth48 It is a defence to the publication of defamatory matter if the defendant proves that: (a) the matter carried, in addition to the defamatory imputations of

which the plaintiff complains, one or more other imputations (contextual imputations) that are substantially true, and (b) the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations. 27

Defence of absolute privilege49 (1) It is a defence to the publication of defamatory matter if the defendant proves that it was published on an occasion of absolute privilege. [page 675] (2)

Without limiting subsection (1), matter is published on an occasion of absolute privilege if: (a) the matter is published in the course of the proceedings of a parliamentary body, including (but not limited to): (i) the publication of a document by order, or under the authority, of the body, and (ii) the publication of the debates and proceedings of the body by or under the authority of the body or any law, and (iii) the publication of matter while giving evidence before the body, and (iv) the publication of matter while presenting or submitting a document to the body, or (b) the matter is published in the course of the proceedings of an Australian court or Australian tribunal, including (but not limited to): (i) the publication of matter in any document filed or lodged with, or otherwise submitted to, the court or tribunal (including any originating process), and (ii) the publication of matter while giving evidence before the court or tribunal, and (iii) the publication of matter in any judgment, order or other determination of the court or tribunal, or

(c)

the matter is published on an occasion that, if published in another Australian jurisdiction, would be an occasion of absolute privilege in that jurisdiction under a provision of a law of the jurisdiction corresponding to this section, or (d) the matter is published by a person or body in any circumstances specified in Schedule 1.50 28

Defence for publication of public documents51 (1) It is a defence to the publication of defamatory matter if the defendant proves that the matter was contained in: (a) a public document or a fair copy of a public document, or (b) a fair summary of, or a fair extract from, a public document. (2) For the purposes of subsection (1), if a report or other document under the law of a country would be a public document except for non-compliance with a provision of that law about: (a) the formal requirements for the content or layout of the report or document, or (b) the time within which the report or document is prepared, or presented, submitted, tabled or laid to or before a person or body, the report or document is a public document despite that noncompliance. (3) A defence established under subsection (1) is defeated if, and only if, the plaintiff proves that the defamatory matter was not published honestly for the information of the public or the advancement of education. [page 676] (4)

In this section, public document means: (a) any report or paper published by a parliamentary body, or a record of votes, debates or other proceedings relating to a parliamentary body published by or under the authority of the

body or any law, or (b) any judgment, order or other determination of a court or arbitral tribunal of any country in civil proceedings and including: (i) any record of the court or tribunal relating to the judgment, order or determination or to its enforcement or satisfaction, and (ii) any report of the court or tribunal about its judgment, order or determination and the reasons for its judgment, order or determination, or (c) any report, or other document, that under the law of any country: (i) is authorised to be published, or (ii) is required to be presented or submitted to, tabled in, or laid before, a parliamentary body, or (d) any document issued by the government (including a local government) of a country, or by an officer, employee or agency of the government, for the information of the public, or (e) any record or other document open to inspection by the public that is kept: (i) by an Australian jurisdiction, or (ii) by a statutory authority of an Australian jurisdiction, or (iii) by an Australian court, or (iv) under legislation of an Australian jurisdiction, or (f) any other document issued, kept or published by a person, body or organisation of another Australian jurisdiction that is treated in that jurisdiction as a public document under a provision of a law of the jurisdiction corresponding to this section, or (g) any document of a kind specified in Schedule 2.52 29

Defences of fair report of proceedings of public concern53 (1) It is a defence to the publication of defamatory matter if the defendant proves that the matter was, or was contained in, a fair report of any proceedings of public concern.

(2)

(3)

It is a defence to the publication of defamatory matter if the defendant proves that: (a) the matter was, or was contained in, an earlier published report of proceedings of public concern, and (b) the matter was, or was contained in, a fair copy of, a fair summary of, or a fair extract from, the earlier published report, and (c) the defendant had no knowledge that would reasonably make the defendant aware that the earlier published report was not fair. A defence established under subsection (1) or (2) is defeated if, and only if, the plaintiff proves that the defamatory matter was not published honestly for the information of the public or the advancement of education. [page 677]

(4)

In this section, proceedings of public concern means: (a) any proceedings in public of a parliamentary body, or (b) any proceedings in public of an international organisation of any countries or of the governments of any countries, or (c) any proceedings in public of an international conference at which the governments of any countries are represented, or (d) any proceedings in public of: (i) the International Court of Justice, or any other judicial or arbitral tribunal, for the decision of any matter in dispute between nations, or (ii) any other international judicial or arbitral tribunal, or (e) any proceedings in public of a court or an arbitral tribunal of any country, or (f) any proceedings in public of an inquiry held under the law of any country or under the authority of the government of any

(g) (h)

(i)

(j)

(k)

(l)

(m)

country, or any proceedings in public of a local government body of any Australian jurisdiction, or proceedings of a learned society, or of a committee or governing body of the society, under its relevant objects, but only to the extent that the proceedings relate to a decision or adjudication made in Australia about: (i) a member or members of the society, or (ii) a person subject by contract or otherwise by law to control by the society, or proceedings of a sport or recreation association, or of a committee or governing body of the association, under its relevant objects, but only to the extent that the proceedings relate to a decision or adjudication made in Australia about: (i) a member or members of the association, or (ii) a person subject by contract or otherwise by law to control by the association, or proceedings of a trade association, or of a committee or governing body of the association, under its relevant objects, but only to the extent that the proceedings relate to a decision or adjudication made in Australia about: (i) a member or members of the association, or (ii) a person subject by contract or otherwise by law to control by the association, or any proceedings of a public meeting (with or without restriction on the people attending) of shareholders of a public company under the Corporations Act 2001 of the Commonwealth held anywhere in Australia, or any proceedings of a public meeting (with or without restriction on the people attending) held anywhere in Australia if the proceedings relate to a matter of public interest, including the advocacy or candidature of a person for public office, or any proceedings of an ombudsman of any country if the

proceedings relate to a report of the ombudsman, or (n) any proceedings in public of a law reform body of any country, or (o) any other proceedings conducted by, or proceedings of, a person, body or organisation of another Australian jurisdiction that are treated in that [page 678]

(5)

jurisdiction as proceedings of public concern under a provision of a law of the jurisdiction corresponding to this section, or (p) any proceedings of a kind specified in Schedule 3.54 In this section: law reform body of a country means a body (however described and whether or not permanent or full-time) established by law to conduct inquiries into, and to make recommendations on, reforming the laws of that country. learned society means a body, wherever formed: (a) the objects of which include the advancement of any art, science or religion or the advancement of learning in any field and (b) authorised by its constitution: (i) to exercise control over, or adjudicate on, matters connected with those objects, and (ii) to make findings or decisions having effect, by law or custom, in any part of Australia. ombudsman of a country means a person (however described and whether or not permanent or full-time) authorised by law to investigate complaints about the actions or other conduct of any public officials or public bodies of that country. relevant objects of a learned society, sport or recreation association or trade association means: (a) in relation to a learned society — objects of the kind referred to

in paragraph (a) of the definition of learned society in this subsection, or (b) in relation to a sport or recreation association — objects of the kind referred to in paragraph (a) of the definition of sport or recreation association in this subsection, or (c) in relation to a trade association — objects of the kind referred to in paragraph (a) of the definition of trade association in this subsection. sport or recreation association means a body, wherever formed: (a) the objects of which include the promotion of any game, sport, or pastime to the playing of which or exercise of which the public is admitted as spectators or otherwise and the promotion or protection of the interests of people connected with the game, sport, or pastime, and (b) authorised by its constitution: (i) to exercise control over, or adjudicate on, matters connected with the game, sport, or pastime, and (ii) to make findings or decisions having effect, by law or custom, in any part of Australia. trade association means a body, wherever formed: (a) the objects of which include the promotion of any calling, that is to say, a trade, business, industry or profession and the promotion or protection of the interests of people engaged in any calling, and [page 679] (b) authorised by its constitution: (i) to exercise control over, or adjudicate on, matters connected with a calling or the conduct of people engaged in the calling, and (ii) to make findings or decisions having effect, by law or

custom, in any part of Australia. 30

Defence of qualified privilege for provision of certain information55 (1) There is a defence of qualified privilege for the publication of defamatory matter to a person (the recipient) if the defendant proves that: (a) the recipient has an interest or apparent interest in having information on some subject, and (b) the matter is published to the recipient in the course of giving to the recipient information on that subject, and (c) the conduct of the defendant in publishing that matter is reasonable in the circumstances. (2) For the purposes of subsection (1), a recipient has an apparent interest in having information on some subject if, and only if, at the time of the publication in question, the defendant believes on reasonable grounds that the recipient has that interest. (3) In determining for the purposes of subsection (1) whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances, a court may take into account: (a) the extent to which the matter published is of public interest, and (b) the extent to which the matter published relates to the performance of the public functions or activities of the person, and (c) the seriousness of any defamatory imputation conveyed56 by the matter published, and (d) the extent to which the matter published distinguishes between suspicions, allegations and proven facts, and (e) whether it was in the public interest in the circumstances for the matter published to be published expeditiously, and (f) the nature of the business environment in which the defendant operates, and (g) the sources of the information in the matter published and the integrity of those sources, and (h) whether the matter published contained the substance of the

(4)

person’s side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person, and (i) any other steps taken to verify the information in the matter published, and (j) any other circumstances that the court considers relevant. For the avoidance of doubt, a defence of qualified privilege under subsection (1) is defeated if the plaintiff proves that the publication of the defamatory matter was actuated by malice. [page 680]

(5)

31

However, a defence of qualified privilege under subsection (1) is not defeated merely because the defamatory matter was published for reward.

Defences of honest opinion57 (1) It is a defence to the publication of defamatory matter if the defendant proves that: (a) the matter was an expression of opinion of the defendant rather than a statement of fact, and (b) the opinion related to a matter of public interest, and (c) the opinion is based on proper material. (2) It is a defence to the publication of defamatory matter if the defendant proves that: (a) the matter was an expression of opinion of an employee or agent of the defendant rather than a statement of fact, and (b) the opinion related to a matter of public interest, and (c) the opinion is based on proper material. (3) It is a defence to the publication of defamatory matter if the defendant proves that: (a) the matter was an expression of opinion of a person (the commentator), other than the defendant or an employee or agent

(4)

(5)

(6)

of the defendant, rather than a statement of fact, and (b) the opinion related to a matter of public interest, and (c) the opinion is based on proper material. A defence established under this section is defeated if, and only if, the plaintiff proves that: (a) in the case of a defence under subsection (1) — the opinion was not honestly held by the defendant at the time the defamatory matter was published, or (b) in the case of a defence under subsection (2) — the defendant did not believe that the opinion was honestly held by the employee or agent at the time the defamatory matter was published, or (c) in the case of a defence under subsection (3) — the defendant had reasonable grounds to believe that the opinion was not honestly held by the commentator at the time the defamatory matter was published. For the purposes of this section, an opinion is based on proper material if it is based on material that: (a) is substantially true, or (b) was published under58 an occasion of absolute or qualified privilege (whether under this Act or at general law), or (c) was published on an occasion that attracted the protection of a defence under this section or section 28 or 29.59 An opinion does not cease to be based on proper material only because some of the material60 on which it is based is not proper material if the opinion might reasonably be based on such of the material as is proper material. [page 681]

32

Defence of innocent dissemination61 (1) It is a defence to the publication of defamatory matter if the defendant proves that:

(a)

(2)

(3)

the defendant published the matter merely in the capacity, or as an employee or agent, of a subordinate distributor, and (b) the defendant neither knew, nor ought reasonably to have known, that the matter was defamatory, and (c) the defendant’s lack of knowledge was not due to any negligence on the part of the defendant. For the purposes of subsection (1), a person is a subordinate distributor of defamatory matter if the person: (a) was not the first or primary distributor of the matter, or (b) was not the author or originator of the matter, and (c) did not have any capacity to exercise editorial control over the content of the matter (or over the publication of the matter) before it was first published. Without limiting subsection (2)(a), a person is not the first or primary distributor of matter merely because the person was involved in the publication of the matter in the capacity of: (a) a bookseller, newsagent or news-vendor, or (b) a librarian, or (c) a wholesaler or retailer of the matter, or (d) a provider of postal or similar services by means of which the matter is published, or (e) a broadcaster of a live programme (whether on television, radio or otherwise) containing the matter in circumstances in which the broadcaster has no effective control over the person who makes the statements that comprise the matter, or (f) a provider of services consisting of: (i) the processing, copying, distributing or selling of any electronic medium in or on which the matter is recorded, or (ii) the operation of, or the provision of any equipment, system or service, by means of which the matter is retrieved, copied, distributed or made available in electronic form, or (g) an operator of, or a provider of access to, a communications system by means of which the matter is transmitted, or made

available, by another person over whom the operator or provider has no effective control, or (h) a person who, on the instructions or at the direction of another person, prints or produces, reprints or reproduces or distributes the matter for or on behalf of that other person. 33 Defence of triviality62 It is a defence to the publication of defamatory matter if the defendant proves that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm. [page 682]

Division 3 — Remedies 34 Damages to bear rational relationship to harm63 In determining the amount of damages to be awarded in any defamation proceedings, the court is to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded. 35

Damages for non-economic loss limited64 (1) Unless the court orders otherwise under subsection (2), the maximum amount of damages for non-economic loss that may be awarded in defamation proceedings is $250,000 or any other amount adjusted in accordance with this section from time to time (the maximum damages amount) that is applicable at the time damages are awarded. (2) A court may order a defendant in defamation proceedings to pay damages for non-economic loss that exceed the maximum damages amount applicable at the time the order is made if, and only if, the court is satisfied that the circumstances of the publication of the defamatory matter to which the proceedings relate are such as to warrant an award of aggravated damages. (3) The Minister is, on or before 1 July 2006 and on or before 1 July in each succeeding year, to declare, by order published in the Gazette,

(4)

(5)

(6)

(7)

(8)

the amount that is to apply, as from the date specified in the order, for the purposes of subsection (1). The amount declared is to be the amount applicable under subsection (1) (or that amount as last adjusted under this section) adjusted by the percentage change in the amount estimated by the Australian Statistician of the average weekly total earnings of full-time adults in Australia over the 4 quarters preceding the date of the declaration for which those estimates are, at that date, available.65 An amount declared for the time being under this section applies to the exclusion of the amount of $250,000 or an amount previously adjusted under this section. If the Australian Statistician fails or ceases to estimate the amount referred to in subsection (4), the amount declared is to be determined in accordance with the regulations. In adjusting an amount to be declared for the purposes of subsection (1), the amount determined in accordance with subsection (4) is to be rounded to the nearest $500. A declaration made or published in the Gazette after 1 July in a year and specifying a date that is before the date it is made or published as the date from which the amount declared by the order is to apply has effect as from that specified date.66

36 State of mind of defendant generally not relevant to awarding damages67 In awarding damages for defamation, the court is to disregard the malice or other state of mind of the defendant at the time of the publication of the defamatory matter to which the [page 683] proceedings relate or at any other time except to the extent that the malice or other state of mind affects the harm sustained by the plaintiff. 37

Exemplary or punitive damages cannot be awarded68

A plaintiff cannot be awarded exemplary or punitive damages for defamation. 38

Factors in mitigation of damages69 (1) Evidence is admissible on behalf of the defendant, in mitigation of damages for the publication of defamatory matter, that: (a) the defendant has made an apology to the plaintiff about the publication of the defamatory matter, or (b) the defendant has published a correction of the defamatory matter, or (c) the plaintiff has already recovered damages for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter, or (d) the plaintiff has brought proceedings for damages for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter, or (e) the plaintiff has received or agreed to receive compensation for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter. (2) Nothing in subsection (1) operates to limit the matters that can be taken into account by a court in mitigation of damages.

39 Damages for multiple causes of action may be assessed as single sum70 If the court in defamation proceedings finds for the plaintiff as to more than one cause of action, the judicial officer may assess damages in a single sum.

Division 4 — Costs 40

Costs in defamation proceedings71 (1) In awarding costs in defamation proceedings, the court may have regard to: (a) the way in which the parties to the proceedings conducted their cases (including any misuse of a party’s superior financial position to hinder the early resolution of the proceedings), and (b) any other matters that the court considers relevant.

[page 684] (2)

(3)

Without limiting subsection (1), a court must (unless the interests of justice require otherwise): (a) if defamation proceedings are successfully brought by a plaintiff and costs in the proceedings are to be awarded to the plaintiff — order costs of and incidental to the proceedings to be assessed on an indemnity basis if the court is satisfied that the defendant unreasonably failed to make a settlement offer or agree to a settlement offer proposed by the plaintiff, or (b) if defamation proceedings are unsuccessfully brought by a plaintiff and costs in the proceedings are to be awarded to the defendant — order costs of and incidental to the proceedings to be assessed on an indemnity basis if the court is satisfied that the plaintiff unreasonably failed to accept a settlement offer made by the defendant. In this section: settlement offer means any offer to settle the proceedings made before the proceedings are determined, and includes an offer to make amends (whether made before or after the proceedings are commenced), that was a reasonable offer at the time it was made.

PART 5 — MISCELLANEOUS72 41

Proof of publication73 (1) If a document appears to be printed or otherwise produced by means adapted for the production of numerous copies and there is in the document a statement to the effect that the document is printed, produced, published or distributed by or for a particular person, the statement is evidence that the document was so printed, produced, published or distributed. (2) Evidence that a number or part of a document appearing to be a periodical is printed, produced, published or distributed by or for a

(3)

42

particular person is evidence in defamation proceedings that a document appearing to be another number or part of the periodical was so printed, produced, published or distributed. In this section: periodical includes any newspaper, review, magazine, or other printed document of which numbers or parts are published periodically.

Proof of convictions for offences74 (1) If the question whether or not a person committed an offence is in question in defamation proceedings: (a) proof that the person was convicted of the offence by an Australian court is conclusive evidence that the person committed the offence, and [page 685]

(2)

(3) (4)

43

(b) proof that the person was convicted of the offence by a court of any other country (other than an Australian court) or a court martial of any country is evidence that the person committed the offence. For the purposes of this section, the contents of a document that is evidence of conviction of an offence, and the contents of an information, complaint, indictment, charge sheet or similar document on which a person is convicted of an offence, are admissible in evidence to identify the facts on which the conviction is based. Subsection (2) does not affect the admissibility of other evidence to identify the facts on which the conviction is based. In this section, conviction for an offence includes a finding of guilt but does not include: (a) a conviction that has been set aside or quashed, or (b) a conviction for an offence for which a person has received a pardon.

Incriminating answers, documents or things75

(1)

(2)

44

A person who is required to answer a question, or to discover or produce a document or thing, in defamation proceedings is not excused from answering the question or discovering or producing the document or thing on the ground that the answer to the question or the discovery or production of the document or thing might tend to incriminate the person of an offence of criminal defamation. However, any answer given to a question, or document or thing discovered or produced, by a natural person in compliance with the requirement is not admissible in evidence against the person in proceedings for criminal defamation.

Giving of notices and other documents76 (1) For the purposes of this Act, a notice or other document may be given to a person (or a notice or other document may be served on a person): (a) in the case of a natural person: (i) by delivering it to the person personally, or (ii) by sending it by post to the address specified by the person for the giving or service of documents or, if no such address is specified, the residential or business address of the person last known to the person giving or serving the document, or (iii) by sending it by facsimile transmission to the facsimile number of the person, or (b) in the case of a body corporate: (i) by leaving it with a person apparently of or above the age of 16 years at, or by sending it by post to, the head office, a registered office or a principal office of the body corporate or to an address specified by the body corporate for the giving or service of documents, or (ii) by sending it by facsimile transmission to the facsimile number of the body corporate. [page 686]

(2)

Nothing in this section affects the operation of any provision of a law or of the rules of a court authorising a document to be served on a person in any other manner.

45 Regulations77 The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act. 46 Repeal of Defamation Act 1974 No 1878 The Defamation Act 1974 is repealed. 47 Savings, transitional and other provisions79 Schedule 4 has effect.80 (1) This Act applies to the publication of defamatory matter after the commencement of this Act, unless subclause (2) provides otherwise. (2) The provisions of this Act (other than this clause) do not apply to a cause of action for the publication of defamatory matter that accrues after the commencement of this Act (the postcommencement action) if: (a) the postcommencement action is one of 2 or more causes of action in proceedings commenced by a plaintiff, and (b) each cause of action in the proceedings accrues because of the publication of the same, or substantially the same, matter on separate occasions (whether by the same defendant or another defendant), and (c) one or more of the other causes of action in the proceedings accrued before the commencement of this Act (a precommencement action), and (d) the postcommencement action accrued no later than 12 months after the date on which the earliest precommencement action in the proceedings accrued. (3) The existing law of defamation continues to apply to the following causes of action in the same way as it would have applied to those causes of action had this Act not been enacted:

(a)

any cause of action that accrued before the commencement of this Act, (b) any postcommencement action to which the other provisions of this Act do not apply because of subclause (2). [page 687] (4)

In this clause:81 existing law of defamation means the law (including all relevant statutory provisions and principles and rules of the general law) that applied in this jurisdiction to the determination of civil liability for the publication of defamatory matter immediately before the commencement of this Act.

48 Amendment of other Acts82 The Acts specified in Schedules 5 and 6 are amended as set out in those Schedules (repealed in NSW). 49

Review of Act83 (1) The Minister is to review this Act to determine whether the policy objectives of the Act remain valid and whether the terms of the Act remain appropriate for securing those objectives. (2) The review is to be undertaken as soon as possible after the period of 5 years from the date of assent to this Act. (3) A report on the outcome of the review is to be tabled in each House of Parliament within 12 months after the end of the period of 5 years.

SCHEDULES Schedule 1 Additional publications to which absolute privilege applies84 New South Wales is the only jurisdiction which has used Schedules 1, 2 and 3 for this purpose. Schedule 2 Additional kinds of public documents

New South Wales is the only jurisdiction which has used Schedules 1, 2 and 3 for this purpose. Schedule 3 Additional proceedings of public concern New South Wales is the only jurisdiction which has used Schedules 1, 2 and 3 for this purpose. Schedule 4 Savings, transitional and other provisions85 [page 688] Schedule 5 Amendment of other Acts concerning criminal defamation and limitation periods86 (Repealed in NSW) Schedule 6 Consequential amendment of other Acts87 (Repealed in NSW)

Comparable Table of States and Territories Acts Defamation Act 2005 (NSW) Part 1 — Preliminary

ACT

NT

QLD

SA

TAS

VIC

WA

1

Name of Act

1

1

1

1

1

1

2

Commencement

2

2

2

2

2

2

3

Objects of Act

115

2

3

3

3

3

3

4

Definitions

116

3

4

4

4

4

4

5

Act to bind Crown

117

4

5

5

5

5

5

Part 2 — General Principles 6

Tort of defamation

118

5

6

6

6

6

6

7

Distinction between slander and libel abolished

119

6

7

7

7

7

7

8

Single case of action for multiple defamatory imputations in same matter

120

7

8

8

8

8

8

9

Certain corporations do not have cause of action for defamation

121

8

9

9

9

9

9

10

No cause of action for defamation of, or against, deceased persons

122

9

10

10

10

10

10

[page 689]

Comparable Table of States and Territories Acts — cont’d Defamation Act 2005 (NSW) 11

Choice of law for defamation proceedings

ACT 123

NT 10

QLD 11

SA 11

TAS 11

VIC 11

WA 11

Part 3 — Resolution of Civil Disputes Without Litigation 12

Application of Division

124

11

12

12

12

12

12

13

Publisher may make offer to make amends

125

12

13

13

13

13

13

14

When offer to make amends may be made

126

13

14

14

14

14

14

15

Content of offer to make amends

127

14

15

15

15

15

15

16

Withdrawal of offer to make amends

128

15

16

16

16

16

16

17

Effect of acceptance of offer to make amends

129

16

17

17

17

17

17

18

Effect of failure to accept reasonable offer to make amends

130

17

18

18

18

18

18

19

Inadmissibility of evidence of certain statements and admissions

131

18

19

19

19

19

19

20

Effect of apology on liability for defamation

132

19

20

20

20

20

20

21

21

21

Part 4 — Litigation of Civil Disputes 21

Election for defamation proceedings to be tried by jury

21

[page 690]

Comparable Table of States and Territories Acts — cont’d Defamation Act 2005 (NSW)

ACT

NT

QLD 22

SA

TAS 22

VIC 22

WA 22

22

Roles of judicial officers and juries in defamation proceedings

23

Leave required for further proceedings in relation to publication of same defamatory matter

133

20

23

21

23

23

23

24

Scope of defences under general law and other law not limited

134

21

24

22

24

24

24

25

Defence of justification

135

22

25

23

25

25

25

26

Defence of contextual truth

136

23

26

24

26

26

26

27

Defence of absolute privilege

137

24

27

25

27

27

27

28

Defence for publication of public documents

138

25

28

26

28

28

28

29

Defences of fair report of proceedings of public concern

129

26

29

27

29

29

29

30

Defence of qualified privilege for provision of certain information

139A

27

30

28

30

30

30

31

Defences of honest opinion

139B

28

31

29

31

31

31

32

Defence of innocent dissemination

139C

29

32

30

32

32

32

33

Defence of triviality

139D

30

33

31

33

33

33

34

Damages to bear rational relationship to harm

139E

31

34

32

34

34

34

[page 691]

Comparable Table of States and Territories Acts — cont’d Defamation Act 2005 (NSW)

ACT 139F

NT 32

QLD 35

SA 33

TAS 35

VIC 35

WA 35

35

Damages for noneconomic loss limited

36

State of mind of defendant generally not relevant to awarding damages

139G

33

36

34

36

36

36

37

Exemplary or punitive damages cannot be awarded

139H

34

37

35

37

37

37

38

Factors in mitigation of damages

139I

35

38

36

38

38

38

39

Damages for multiple causes of action may be assessed as single sum

139J

36

39

37

39

39

39

40

Costs in defamation proceedings

139K

37

40

38

40

40

40

40

41

41

41

42

42

42

43

43

43

41

44

44

44

42

45

45

45

Part 5 — Miscellaneous 41

Proof of publication

139L

38

41

42

Proof of convictions for offences

139M

39

42

43

Incriminating answers, documents or things

139N

40

44

Giving of notices and other documents

41

45

Regulations

42

44

____________________ 1.

2.

No 77 of 2005 (NSW) — Assented to 26 October 2005, Defamation Act 2005 (NSW). No 50 of 2005 (SA) — Assented to 27 October 2005, Defamation Act 2005 (SA). No 75 of 2005 (VIC) — Assented to 2 November 2005, Defamation Act 2005 (VIC). No 55 of 2005 (QLD) — Assented to 18 November 2005, Defamation Act 2005 (QLD). No 73 of 2005 (TAS) — Assented to 9 December 2005, Defamation Act 2005 (TAS). No 44 of 2005 (WA) — Assented to 19 December 2005, Defamation Act 2005 (WA). No 1 of 2006 (ACT) — Notified 22 February 2006, Civil Law (Wrongs) Act 2002 (ACT). No 8 of 2006 (NT) — Assented to 26 April 2006, Defamation Act 2006 (NT). Australian Capital Territory: ‘This Act is the Civil Law (Wrongs) Amendment Act 2006 (No 1)

3. 4. 5. 6. 7.

8. 9. 10.

11.

12. 13.

14.

15.

16. 17. 18. 19. 20. 21. 22. 23. 24.

(ACT)’ amending the Civil Law (Wrongs) Act 2002; Northern Territory: ‘This Act may be cited as the Defamation Act 2006’; Queensland, South Australia, Tasmania: ‘This Act may be cited as the Defamation Act 2005’; Victoria: ‘The purpose of this Act is to enact in Victoria provisions to promote uniform laws of defamation in Australia’. Northern Territory: not used. Australian Capital Territory: ‘on the day after its notification day’, that is, on 23 February 2006; South Australia, Victoria, Western Australia: ‘comes into operation’. Northern Territory 26 April 2006. Australian Capital Territory: Civil Law (Wrongs) Act 2002 (ACT) s 115; Northern Territory: s 2. Australian Capital Territory: Civil Law (Wrongs) Act 2002 (ACT) s 116; Northern Territory: s 3; Queensland: ‘The dictionary in Schedule 5 defines particular words used in this Act’; Western Australia: ‘Terms used in this Act’. Northern Territory, Tasmania: ‘unless the contrary intention appears’. Tasmania: ‘court means the Supreme Court or the Magistrates Court’. Australian Capital Territory and the Northern Territory refer to the definitions of ‘aggrieved person’, ‘matter in question’ and ‘publisher’ in s 124(1) of the Civil Law (Wrongs) Act 2002 (ACT) and s 11(1) of the Defamation Act 2006 (NT), the equivalent of s 12(1) of the New South Wales Act. Victoria, prior to ‘substantially true’: s 4 definition of Royal Commission inserted by No 67/2014 s 147 (Sch 2 item 13.1(a)). ‘Royal Commission’ means — (a) a Royal Commission established under the Inquiries Act 2014; or (b) a Royal Commission established under the prerogative of the Crown; Each jurisdiction. Australian Capital Territory: Civil Law (Wrongs) Act 2002 (ACT) s 117; Northern Territory: s 4; Queensland: ‘This Act binds all persons, including the State and, as far as the legislative power of the Parliament permits, the Commonwealth and other States’. Australian Capital Territory: Civil Law (Wrongs) Act 2002 (ACT) s 118; Northern Territory: s 5. Victoria has an additional note added to the subsection: Note the Limitation of Actions Act 1958 provides a general limitation period of 1 year for defamation actions extendable by a court in certain circumstances to up to 3 years. Each jurisdiction repeals applicable legislation: Civil Law (Wrongs) Act 2002 (ACT) Ch 9; Northern Territory: see Sch 4; Defamation Act 1889 (Qld); Civil Liability Act 1936 (SA) Pt 2; Defamation Act 1957 (Tas); Victoria: see Sch 4; Western Australia: see s 46. Australian Capital Territory: Civil Law (Wrongs) Act 2002 (ACT) s 119; Northern Territory: s 6. Australian Capital Territory, Northern Territory: ‘remains’. Australian Capital Territory: Civil Law (Wrongs) Act 2002 (ACT) s 120; Northern Territory: s 7. Australian Capital Territory: Civil Law (Wrongs) Act 2002 (ACT) s 121; Northern Territory: s 8. Australian Capital Territory, Northern Territory: ‘body’. Australian Capital Territory: Civil Law (Wrongs) Act 2002 (ACT) s 122; Northern Territory: s 9; Tasmania: not used, but referred to for uniformity. Australian Capital Territory: Civil Law (Wrongs) Act 2002 (ACT) s 123; Northern Territory: s 10. Australian Capital Territory, Northern Territory: ‘sustained’. Australian Capital Territory: para (b) not included.

25. Northern Territory, South Australia, Western Australia: ‘external Territory means a Territory, not being an internal Territory, for the government of which as a Territory provision is made by a Commonwealth Act’. 26. Australian Capital Territory: Civil Law (Wrongs) Act 2002 (ACT) s 124; Northern Territory: s 11. 27. Australian Capital Territory: Civil Law (Wrongs) Act 2002 (ACT) s 125; Northern Territory: s 12. 28. Australian Capital Territory: ‘or may carry’. 29. Australian Capital Territory: Civil Law (Wrongs) Act 2002 (ACT) s 126; Northern Territory: s 13. 30. Australian Capital Territory: Civil Law (Wrongs) Act 2002 (ACT) s 127; Northern Territory: s 14. 31. South Australia: ‘or District Court’. 32. Australian Capital Territory: Civil Law (Wrongs) Act 2002 (ACT) s 128; Northern Territory: s 15. 33. Australian Capital Territory: Civil Law (Wrongs) Act 2002 (ACT) s 129; Northern Territory: s 16. 34. Australian Capital Territory: Civil Law (Wrongs) Act 2002 (ACT) s 130; Northern Territory: s 17. 35. Australian Capital Territory, Northern Territory: ‘carry out’. 36. Australian Capital Territory: Civil Law (Wrongs) Act 2002 (ACT) s 131; Northern Territory: s 18. 37. Australian Capital Territory: Civil Law (Wrongs) Act 2002 (ACT) s 132; Northern Territory: s 19. 38. Tasmania: s 20A ‘Proceedings generally to be considered within one year’; s 20B ‘Application of s 20A’. 39. Australian Capital Territory: not used; Northern Territory: not used; South Australia: not used. 40. Queensland: Supreme Court or District Court; Tasmania: Supreme Court; Victoria: Supreme Court or County Court. 41. Victoria: ‘by or under an Act’. 42. Queensland: there is an additional subs (4), ‘In this section — court means the Supreme Court or the District Court.’ 43. Australian Capital Territory: not used; Northern Territory: not used; South Australia: not used. 44. Australian Capital Territory: Civil Law (Wrongs) Act 2002 (ACT) s 133; Northern Territory: s 20; South Australia: s 21. 45. South Australia: section numbers are different due to the non-use of ss 21 and 22. Accordingly, s 24 = s 22 etc. 46. Australian Capital Territory: Civil Law (Wrongs) Act 2002 (ACT) s 134; Northern Territory: s 21; South Australia: s 22. 47. Australian Capital Territory: Civil Law (Wrongs) Act 2002 (ACT) s 135; Northern Territory: s 22; South Australia: s 23. 48. Australian Capital Territory: Civil Law (Wrongs) Act 2002 (ACT) s 136; Northern Territory: s 23; South Australia: s 24. 49. Australian Capital Territory: Civil Law (Wrongs) Act 2002 (ACT) s 137; Northern Territory: s 24; South Australia: s 25. 50. Australian Capital Territory: para (d) not included. 51. Australian Capital Territory: Civil Law (Wrongs) Act 2002 (ACT) s 138; Northern Territory: s 25; South Australia: s 26. 52. Australian Capital Territory: para (g) not included. 53. Australian Capital Territory: Civil Law (Wrongs) Act 2002 (ACT) s 139; Northern Territory: s 26; South Australia: s 27. 54. Australian Capital Territory and South Australia: para (p) not included.

55. Australian Capital Territory: Civil Law (Wrongs) Act 2002 (ACT) s 139A; Northern Territory: s 27; South Australia: s 28. 56. Australian Capital Territory, Northern Territory: ‘carried’. 57. Australian Capital Territory: Civil Law (Wrongs) Act 2002 (ACT) s 139B; Northern Territory: s 28; South Australia: s 29. 58. Australian Capital Territory, Northern Territory and South Australia: ‘on’. 59. Australian Capital Territory: ‘or the defence of fair comment at general law’. 60. Australian Capital Territory: ‘matter’. 61. Australian Capital Territory: Civil Law (Wrongs) Act 2002 (ACT) s 139C; Northern Territory: s 29; South Australia: s 30. 62. Australian Capital Territory: Civil Law (Wrongs) Act 2002 (ACT) s 139D; Northern Territory: s 30; South Australia: s 31. 63. Australian Capital Territory: Civil Law (Wrongs) Act 2002 (ACT) s 139E; Northern Territory: s 31; South Australia: s 32. 64. Australian Capital Territory: Civil Law (Wrongs) Act 2002 (ACT) s 139F; Northern Territory: s 32; South Australia: s 33. 65. Australian Capital Territory: ‘(5) A declaration under subsection (3) is a notifiable instrument.’ 66. Australian Capital Territory: ‘(9) A declaration may provide that it commences retrospectively.’ 67. Australian Capital Territory: Civil Law (Wrongs) Act 2002 (ACT) s 139G; Northern Territory: s 33; South Australia: s 34. 68. Australian Capital Territory: Civil Law (Wrongs) Act 2002 (ACT) s 139H; Northern Territory: s 34; South Australia: s 35. 69. Australian Capital Territory: Civil Law (Wrongs) Act 2002 (ACT) s 139I; Northern Territory: s 35; South Australia: s 36. 70. Australian Capital Territory: Civil Law (Wrongs) Act 2002 (ACT) s 139J; Northern Territory: s 36; South Australia: s 37. 71. Australian Capital Territory: Civil Law (Wrongs) Act 2002 (ACT) s 139K; Northern Territory: s 37; South Australia: s 38. 72. South Australia: s 39 ‘Proceedings for an offence do not bar civil proceedings’. 73. Australian Capital Territory: Civil Law (Wrongs) Act 2002 (ACT) s 139L; Northern Territory: s 38; South Australia: s 40. 74. Australian Capital Territory: Civil Law (Wrongs) Act 2002 (ACT) s 139M; Northern Territory: s 39; South Australia: not used. 75. Australian Capital Territory: Civil Law (Wrongs) Act 2002 (ACT) s 139N; Northern Territory: s 40; Queensland: not used, but referred to for uniformity; South Australia: not used — Amendment of Evidence Act 1929 (SA) s 33. 76. Australian Capital Territory: not used; Northern Territory: s 41; South Australia: s 41. 77. Australian Capital Territory: not used; Northern Territory: s 42; South Australia: s 42. 78. Australian Capital Territory: not used; Northern Territory: s 46 ‘References to repealed Acts’ — see Sch 4; Queensland: section number not used but referred to for uniformity; South Australia: not used; Tasmania: s 46 ‘Rules of Court’ — see s 50 ‘Legislation repealed’ Defamation Act 1957 (Tas); Victoria: s 46 ‘Savings, transitional and other provisions’; Western Australia: s 46 ‘Repeal of existing legislation’ (repeals 6 and 7 Victoria, Chapter 96 (1843) known as the Libel Act 1843 (Imp); Newspaper Libel and Registration Act 1884 (WA); Newspaper Libel and Registration Act 1884 Amendment Act 1888

79.

80.

81. 82.

83.

84. 85.

86.

87.

(WA); Slander of Women Act 1900 (WA)). Victoria: in s 47, no Sch 4; Australian Capital Territory: Civil Law (Wrongs) Act 2002 (ACT) s 230; Northern Territory: s 47 ‘Transitional regulations’ — see s 45 ‘Application of this Act’; Queensland: s 47 ‘Repeal of Defamation Act 1889’; South Australia: not used — see Sch 1 Pt 6; Tasmania: s 47 ‘Administration of Act’; Victoria: s 47 ‘Amendment of Limitation of Action Act 1958’; Western Australia: s 47 ‘The Criminal Code amended’ — see Sch 4. Australian Capital Territory: see Civil Law (Wrongs) Act 2002 (ACT) s 230; Northern Territory: see s 45; Queensland: see s 49; South Australia: see Sch 1; Tasmania: see s 48; Victoria: see s 46; Western Australia: see s 48. Victoria: ‘In this section’. Australian Capital Territory: not used; Northern Territory: Pt 7 Div 1 ‘Amendment of Limitation Act’; Queensland: s 48 ‘Acts amended in Sch 4’; South Australia: see Sch 1 Pts 2–5; Tasmania: s 48 ‘Savings, transitional and other provisions’; Victoria: s 48 ‘New Div 2A inserted in Pt II of Limitation of Actions Act 1958’; Western Australia: s 48 ‘Savings, transitional and other provisions’. Australian Capital Territory: not used; Northern Territory: Pt 7 Div 1 ‘Amendment of Limitation Act’; Queensland: s 49 ‘Savings, transitional and other provisions’; South Australia: not used; Tasmania: s 49 ‘Consequential amendments’; Victoria: s 49 ‘Amendment of other Acts’; Western Australia: not used. Australian Capital Territory: Sch 1 ‘Consequential amendments’; South Australia: Sch A1. Australian Capital Territory: see Sch 1 Pt 5; Northern Territory: Sch 4 ‘Acts repealed — Defamation Ordinance 1938, Defamation Ordinance 1963, Defamation Ordinance 1964, Defamation Amendment Act 1989’; Queensland: Sch 4 ‘Acts amended’; South Australia: see Sch 1 Pt 6; Tasmania: Sch 4 ‘Consequential amendments’; Victoria: Sch 4 ‘Consequential amendments’; Western Australia: Sch 4 ‘Amendments to the Criminal Code’. Australian Capital Territory: see Sch 1 Pt 1.1 and 1.2; Northern Territory: Pt 7 Div 1 ‘Amendment of Limitation Act’; Queensland: Sch 5 ‘Dictionary’; South Australia: see Sch 1 Pts 3 and 5; Tasmania: Sch 5 ‘Legislation repealed’; Victoria: see s 46; Western Australia: see Sch 4. Australian Capital Territory: see Sch 1; Northern Territory: see Pt 7 ss 48–56; South Australia: see Sch 1 Pts 1, 2 and 4; Tasmania: see Sch 4; Victoria: see Sch 4.

[page 693]

APPENDIX II COMPARATIVE TABLES

[page 695]

AUSTRALIAN DEFAMATION ACTS (REPEALED)

[page 696]

[page 697]

[page 698]

[page 699]

[page 700]

[page 701]

[page 702]

[page 703]

[page 704]

[page 705]

[page 706]

[page 707]

[page 708]

[page 709]

[page 710]

LIMITATION ACTS

[page 711]

CRIMINAL LAW ACTS

[page 712]

____________________ 1.

Variations between jurisdictions noted in Appendix I.

[page 713]

APPENDIX III UNIFORM CIVIL PROCEDURE RULES 2005 (NSW)

[page 715]

UNIFORM CIVIL PROCEDURE RULES 2005 (NSW) TABLE OF PROVISIONS PART 14 — PLEADINGS Division 6 — Pleadings Concerning Defamation 14.30 14.31 14.32 14.33 14.34 14.35 14.36 14.37 14.38 14.39 14.40

Allegations in Statements of Claim Generally Defamation Defences Generally Defence of Justification Generally Defence of Contextual Truth Defence of Absolute Privilege Defences for Publication of Public and Official Documents Defences of Fair Report of Proceedings of Public Concern Defence of Qualified Privilege Defences of Comment or Honest Opinion Defence of Innocent Dissemination Defence of Triviality

PART 15 — PARTICULARS Division 1 — General 15.1

Pleadings must give all necessary particulars

Division 4 — Defamation 15.19

Particulars in Relation to Statements of Claim for Defamation

15.20 15.21 15.22 15.23 15.24 15.25 15.26 15.27 15.28 15.29 15.30 15.31 15.32

Particulars in Relation to Statements of Claim by Corporations Particulars of Defamation Defences Generally Particulars in Relation to Defence of Justification Particulars in Relation to the Defence of Contextual Truth Particulars in Relation to Defence of Absolute Privilege Particulars in Relation to Defences for Publication of Public and Official Documents Particulars in Relation to Defences of Fair Report of Proceedings of Public Concern Particulars in Relation to Defence of Qualified Privilege Particulars in Relation to Defences of Comment and Honest Opinion Particulars in Relation to Defence of Innocent Dissemination Particulars in Relation to Defence of Triviality Particulars Concerning Grounds That Defeat Defamation Defences Particulars Concerning Damages

[page 716]

UNIFORM CIVIL PROCEDURE RULES 2005 (NSW) PART 14 — PLEADINGS Division 6 — Pleadings Concerning Defamation Note: The Defamation Act 2005 applies to the publication of defamatory matter after the commencement of that Act. The Act commenced on 1 January 2006. 14.30 Allegations in Statements of Claim Generally (1) A statement of claim seeking relief in relation to the publication of defamatory matter must not include any allegation that the matter or its publication was false, malicious or unlawful. (2) Any such statement of claim must: (a) subject to subrule (3), specify each imputation on which the plaintiff relies, and (b) allege that the imputation was defamatory of the plaintiff. (3) A plaintiff in proceedings for defamation must not rely on two or more imputations alleged to be made by the defendant by means of the same publication of the same matter unless the imputations differ in substance. 14.31 Defamation Defences Generally (1) Subject to rules 14.32-14.40, a defendant in proceedings for defamation must plead any defamation defence specifically. (2) If the plaintiff in defamation proceedings complains of two or more imputations, the pleading of any of the following defences must specify to what imputation or imputations the defence is pleaded: (a) a defence under section 15 (2) or 16 (2) of the Defamation Act 1974,

(3)

(b) a defence under section 25 or 26 of the Defamation Act 2005, (c) the defence of justification at common law. If a plaintiff intends to meet any defamation defence: (a) by alleging that the defendant was actuated by express malice in the publication of the matter complained of, or (b) by relying on any matter which, under the Defamation Act 1974 or the Defamation Act 2005, defeats the defence, then the plaintiff must plead that allegation or matter of defeasance by way of reply.

14.32 Defence of Justification Generally (1) Defence under Defamation Act 1974 Subject to rule 14.31 (2), a defence under section 15 (2) of the Defamation Act 1974 is sufficiently pleaded if it alleges: (a) that the imputation in question was a matter of substantial truth, and (b) either: (i) that the imputation in question related to a matter of public interest, or (ii) that the imputation in question was published under qualified privilege. Note: The defence of justification under section 15 (2) of the Defamation Act 1974 applies to the exclusion of the common law defence of justification. See section 15 (1) of the Defamation Act 1974. [page 717] (2)

Defences under Defamation Act 2005 and at common law Subject to rule 14.31 (2), a defence of justification under section 25 of the Defamation Act 2005 or at common law is sufficiently pleaded if it alleges that the imputation in question was substantially true. Note: The defence of justification under section 25 of the Defamation Act 2005 is in addition to, and does not vitiate, limit or abrogate, the common law defence of justification. See section 24 (1) of the Defamation Act 2005.

14.33 Defence of Contextual Truth (1) Defence under Defamation Act 1974 Subject to rule 14.31 (2), a defence under section 16 of the Defamation Act 1974 is sufficiently pleaded if it: (a) alleges either: (i) that the imputation in question related to a matter of public interest, or (ii) that the imputation in question was published under qualified privilege, and (b) specifies one or more imputations on which the defendant relies as being contextual to the imputation in question, and (c) as to the contextual imputations on which the defendant relies: (i) alleges either that they related to a matter of public interest or that they were published under qualified privilege, and (ii) alleges that they were matters of substantial truth, and (d) alleges that, by reason that the contextual imputations on which the defendant relies are matters of substantial truth, the imputation in question did not further injure the reputation of the plaintiff. (2) Defence under Defamation Act 2005 Subject to rule 14.31 (2), a defence under section 26 of the Defamation Act 2005 is sufficiently pleaded if it: (a) specifies one or more imputations on which the defendant relies as being contextual to the imputation in question, and (b) alleges each contextual imputation on which the defendant relies was substantially true, and (c) alleges that the imputation in question did not further harm the reputation of the plaintiff because of the contextual imputations on which the defendant relies. 14.34 Defence of Absolute Privilege (1) This rule applies: (a) to a defence of absolute privilege under Division 3 of Part 3 of the Defamation Act 1974 or under section 27 of the Defamation Act 2005, and (b) to the defence of absolute privilege at common law.

(2)

A defence to which this rule applies is sufficiently pleaded if it alleges that the matter complained of was published under absolute privilege.

14.35 Defences for Publication of Public and Official Documents (1) Defence under section 25 of Defamation Act 1974 A defence under section 25 of the Defamation Act 1974 is sufficiently pleaded if it alleges that the matter complained of was: (a) a document or record specified as a document or record to which that section applies or a copy of such a document or record, or (b) a fair summary of, or a fair extract from, such a document or record. [page 718] (2)

(3)

Defence under section 27 of Defamation Act 1974 A defence under section 27 of the Defamation Act 1974 is sufficiently pleaded if it alleges that the matter complained of was a notice published in accordance with the direction of a court. Defence under section 28 of Defamation Act 2005 A defence under section 28 of the Defamation Act 2005 is sufficiently pleaded if it alleges that the matter complained of was contained in: (a) a public document or a fair copy of a public document, or (b) a fair summary of, or a fair extract from, a public document.

14.36 Defences of Fair Report of Proceedings of Public Concern (1) Defences under Defamation Act 1974 A defence under section 24 of the Defamation Act 1974 is sufficiently pleaded if it alleges that: (a) the matter complained of was a fair protected report, or (b) the matter complained of was a later publication by the defendant of: (i) a protected report or a copy of the protected report, or a fair extract or fair abstract from, or fair summary of, a protected report that was previously published by another person, or (ii) material purporting to be a protected report or a copy of a protected report, or of a fair extract or fair abstract from, or fair summary of, material purporting to be a protected report that

(2)

was previously published by another person, and the defendant did not have knowledge that should have made the defendant aware that the protected report is not fair or the material purporting to be a protected report was not a protected report or is not fair. Defences under Defamation Act 2005 A defence under section 29 of the Defamation Act 2005 is sufficiently pleaded if it alleges that: (a) the matter complained of was, or was contained in, a fair report of any proceedings of public concern, or (b) the matter complained of: (i) was, or was contained in, an earlier published report of proceedings of public concern, and (ii) was, or was contained in, a fair copy of, a fair summary of, or a fair extract from, the earlier published report, and the defendant had no knowledge that would reasonably make the defendant aware that the earlier published report was not fair.

14.37 Defence of Qualified Privilege (1) This rule applies: (a) to a defence under Division 4 of Part 3 of the Defamation Act 1974 or section 30 of the Defamation Act 2005, and (b) to any other defence of qualified privilege other than any of the following: (i) a defence under Division 5, 6 or 7 of Part 3 of the Defamation Act 1974, (ii) a defence under section 28, 29 or 31 of the Defamation Act 2005, (iii) the defence of fair comment at common law. (2) A defence to which this rule applies is sufficiently pleaded if it alleges that the matter complained of was published under qualified privilege. [page 719] 14.38 Defences of Comment or Honest Opinion

(1)

Defences under Defamation Act 1974 A defence under Division 7 of Part 3 of the Defamation Act 1974 is sufficiently pleaded if, as to the matter it alleges was comment, it: (a) either: (i) alleges that the comment was comment based on proper material for comment and on no other material, or (ii) alleges that the comment was comment based to some extent on proper material for comment and represented an opinion that might reasonably be based on that material to the extent to which it was proper material for comment, and (b) alleges that the comment related to a matter of public interest, and (c) either: (i) alleges that the comment was the comment of the defendant, or (ii) alleges that the comment was the comment of a servant or agent of the defendant, or (iii) alleges that the comment was not, and in its context and in the circumstances of the publication complained of did not purport to be, the comment of the defendant or of any servant or agent of the defendant. Note: A defence of fair comment under Division 7 of Part 3 of the Defamation Act 1974 applies to the exclusion of the common law defence of fair comment. See section 29 of the Defamation Act 1974. (2) Defences under Defamation Act 2005 A defence under section 31 of the Defamation Act 2005 is sufficiently pleaded if, as to the matter it alleges was opinion, it: (a) either: (i) alleges that the opinion was based on proper material and on no other material, or (ii) alleges that the opinion was an opinion based to some extent on proper material and represented an opinion that might reasonably be based on that material to the extent to which it was proper material, and (b) alleges that the opinion was an opinion related to a matter of public

interest, and (c) either: (i) alleges that the opinion was an expression of opinion of the defendant, or (ii) alleges that the opinion was an expression of opinion of an employee or agent of the defendant, or (iii) alleges that the opinion was an expression of opinion of a person other than the defendant or an employee or agent of the defendant. Note: A defence of honest opinion under section 31 of the Defamation Act 2005 is in addition to, and does not vitiate, limit or abrogate, the common law defence of fair comment. See section 24 (1) of the Defamation Act 2005. (3) Defence of fair comment at common law A defence of fair comment at common law is sufficiently pleaded if, as to the matter it alleges was comment, it: (a) alleges that the comment was comment based on true facts or material that was published under privilege, and (b) alleges that the comment related to a matter of public interest. Note: See the note to subrule (2). [page 720] 14.39 Defence of Innocent Dissemination A defence under section 32 of the Defamation Act 2005 is sufficiently pleaded if it alleges that: (a) the defendant published the matter complained of merely in the capacity, or as an employee or agent, of a subordinate distributor, and (b) the defendant neither knew, nor ought reasonably to have known, that the matter was defamatory, and (c) the defendant’s lack of knowledge was not due to any negligence on the part of the defendant. 14.40 Defence of Triviality

(1)

(2)

This rule applies to: (a) a defence under section 13 of the Defamation Act 1974, and (b) a defence under section 33 of the Defamation Act 2005. A defence to which this rule applies is sufficiently pleaded if it alleges that the circumstances of publication of the matter complained of were such that the plaintiff was unlikely to sustain any harm.

PART 15 — PARTICULARS Division 1 — General 15.1 Pleadings must give all necessary particulars (1) Subject to this Part, a pleading must give such particulars of any claim, defence or other matter pleaded by the party as are necessary to enable the opposite party to identify the case that the pleading requires him or her to meet. (2) Subrule (1) does not require a pleading to give any claim for interest up to judgment other than those required by rule 6.12 (7).

Division 4 — Defamation Note: The Defamation Act 2005 applies to the publication of defamatory matter after the commencement of that Act. The Act commenced on 1 January 2006. 15.19 Particulars in Relation to Statements of Claim for Defamation (1) The particulars required by rule 15.1 in relation to a statement of claim seeking relief in relation to the publication of defamatory matter must include the following: (a) particulars of any publication on which the plaintiff relies to establish the cause of action, sufficient to enable the publication to be identified, (b) particulars of any publication, circulation or distribution of the matter complained of or copy of the matter complained of on which the plaintiff relies on the question of damages, sufficient to enable the publication, circulation or distribution to be identified, (c) if the plaintiff alleges that the matter complained of had a defamatory

meaning other than its ordinary meaning — particulars of the facts and matters on which the plaintiff relies to establish that defamatory meaning, including: (i) full and complete particulars of the facts and matters relied on to establish a true innuendo, and (ii) by reference to name or class, the identity of those to whom those facts and matters were known, [page 721]

(2)

(3)

(d) if the plaintiff is not named in the matter complained of — particulars of identification of the plaintiff together with the identity, by reference to names and addresses or class of persons, of those to whom any such particulars were known, and (e) particulars of the part or parts of the matter complained of relied on by the plaintiff in support of each pleaded imputation. Such of the following as is applicable must be filed and served with a statement of claim seeking relief in relation to the publication of defamatory matter (or any amended statement of claim) and be referred to in the statement of claim or amended statement of claim: (a) a legible photocopy of the original publication or, in the case of an internet, e-mail or other computer displayed publication, a printed copy, (b) a typescript, with numbered lines, of: (i) if the original publication is in English — the text of the original publication, or (ii) otherwise — a translation of the text of the original publication. Subrule (2) (b) must be complied with in respect of radio and television publications.

15.20 Particulars in Relation to Statements of Claim by Corporations The particulars required by rule 15.1 in relation to a statement of claim seeking relief in relation to the publication of defamatory matter about a corporation

must include particulars of the facts, matters and circumstances on which the plaintiff relies to establish that the corporation is not precluded from asserting a cause of action for defamation. Note: Subject to limited exceptions, corporations are precluded from bringing defamation proceedings: (a) in relation to causes of action to which the Defamation Act 1974 applies, by section 8A of that Act, and (b) in relation to causes of action to which the Defamation Act 2005 applies, by section 9 of that Act. 15.21 Particulars of Defamation Defences Generally (1) The particulars of a defamation defence required by rule 15.1 must, unless the court orders otherwise, include particulars of the facts, matters and circumstances on which the defendant relies to establish: (a) that any imputation, notice, report, comment or other material was or related to a matter of public interest, (b) that any imputation was published under qualified privilege, (c) that any imputation or contextual imputation was true or was a matter of substantial truth, (d) that any material being proper material for comment was a matter of substantial truth. (2) If a defendant in proceedings for defamation intends to make a case in mitigation of damages by reference to: (a) the circumstances in which the publication complained of was made, or (b) the reputation of the plaintiff, or (c) any apology for, or explanation or correction or retraction of, any imputation complained of, or [page 722] (d) any recovery, proceedings, receipt or agreement to which section 48 of the Defamation Act 1974 or section 38 (1) (c), (d) or (e) of the

(3)

(4)

Defamation Act 2005 applies, the defendant must give particulars of the facts, matters and circumstances on which the defendant relies to make that case. If a defendant in proceedings for defamation intends to show, in mitigation of damages, that any imputation complained of was true or was a matter of substantial truth, the defendant must give particulars identifying the imputation, stating that intention, and of the facts, matters and circumstances the defendant relies on to establish that the imputation was true or was a matter of substantial truth. The particulars required by subrules (2) and (3) must be set out in the defence, or, if that is inconvenient, may be set out in a separate document, referred to in the defence and that document must be filed and served with the defence.

15.22 Particulars in Relation to Defence of Justification (1) Defence under section 15 of Defamation Act 1974 Without limiting rule 15.21, the particulars required by rule 15.1 for a defence under section 15 (2) of the Defamation Act 1974 must (unless the court orders otherwise) include particulars of the facts, matters and circumstances on which the defendant relies to establish: (a) that the imputation in question was a matter of substantial truth, and (b) either: (i) that the imputation in question related to a matter of public interest, or (ii) that the imputation in question was published under qualified privilege. Note: The defence of justification under section 15 (2) of the Defamation Act 1974 applies to the exclusion of the common law defence of justification. See section 15 (1) of the Defamation Act 1974. (2) Defences under section 25 of Defamation Act 2005 and at common law Without limiting rule 15.21, the particulars required by rule 15.1 for a defence of justification under section 25 of the Defamation Act 2005 or at common law must (unless the court orders otherwise) include particulars of the facts, matters and circumstances on which the defendant relies to

establish that the imputation in question was substantially true. Note: The defence of justification under section 25 of the Defamation Act 2005 is in addition to, and does not vitiate, limit or abrogate, the common law defence of justification. See section 24 (1) of the Defamation Act 2005. 15.23 Particulars in Relation to the Defence of Contextual Truth (1) Defence under section 16 of Defamation Act 1974 Without limiting rule 15.21, the particulars required by rule 15.1 for a defence under section 16 of the Defamation Act 1974 must include particulars of the facts, matters and circumstances on which the defendant relies to establish: (a) that the imputation in question related to a matter of public interest or was published under qualified privilege, and (b) that the contextual imputations on which the defendant relies: (i) related to a matter of public interest or that they were published under qualified privilege, and (ii) are matters of substantial truth. [page 723] (2)

Defence under section 26 of Defamation Act 2005 Without limiting rule 15.21, the particulars required by rule 15.1 for a defence of contextual truth under section 26 of the Defamation Act 2005 must include particulars of the facts, matters and circumstances on which the defendant relies to establish that the contextual imputations on which the defendant relies are substantially true.

15.24 Particulars in Relation to Defence of Absolute Privilege (1) This rule applies: (a) to a defence of absolute privilege under Division 3 of Part 3 of the Defamation Act 1974 or under section 27 of the Defamation Act 2005, and (b) to the defence of absolute privilege at common law. (2) Without limiting rule 15.21, the particulars required by rule 15.1 for a defence of absolute privilege to which this rule applies must include

particulars of the facts, matters and circumstances on which the defendant relies to establish that the imputation or matter complained of was published under absolute privilege. 15.25 Particulars in Relation to Defences for Publication of Public and Official Documents (1) Defence under section 25 of Defamation Act 1974 Without limiting rule 15.21, the particulars required by rule 15.1 for a defence under section 25 of the Defamation Act 1974 must include particulars of the facts, matters and circumstances on which the defendant relies to establish that the matter complained of was: (a) a document or record specified as a document or record to which that section applies or a copy of such a document or record, or (b) a fair extract or fair abstract from, or a fair summary of, such a document or record. (2) Defence under section 27 of Defamation Act 1974 Without limiting rule 15.21, the particulars required by rule 15.1 for a defence under section 27 of the Defamation Act 1974 must include particulars of the facts, matters and circumstances on which the defendant relies to establish that the matter complained of was a notice published in accordance with the direction of a court. (3) Defence under section 28 of Defamation Act 2005 Without limiting rule 15.21, the particulars required by rule 15.1 for a defence under section 28 of the Defamation Act 2005 must include particulars of the facts, matters and circumstances on which the defendant relies to establish that the matter complained of was contained in: (a) a public document or a fair copy of a public document, or (b) a fair summary of, or a fair extract from, a public document. 15.26 Particulars in Relation to Defences of Fair Report of Proceedings of Public Concern (1) Defences under section 24 of Defamation Act 1974 Without limiting rule 15.21, the particulars required by rule 15.1 for a defence under section 24 of the Defamation Act 1974 must include particulars of the facts, matters and circumstances on which the defendant relies to establish that:

(a) the matter complained of was a fair protected report, or (b) the matter complained of was a later publication by the defendant of: (i) a protected report or a copy of the protected report, or a fair extract or fair abstract from, or fair summary of, a protected report that was previously published by another person, or (ii) material purporting to be a protected report or a copy of the protected report, or of a fair extract or fair abstract from, or fair summary of, [page 724]

(2)

material purporting to be a protected report that was previously published by another person, and the defendant did not have knowledge that should have made the defendant aware that the protected report is not fair or the material purporting to be a protected report was not a protected report or is not fair. Defences under section 29 of Defamation Act 2005 Without limiting rule 15.21, the particulars required by rule 15.1 for a defence under section 29 of the Defamation Act 2005 must include particulars of the facts, matters and circumstances on which the defendant relies to establish that: (a) the matter complained of was, or was contained in, a fair report of any proceedings of public concern, or (b) the matter complained of: (i) was, or was contained in, an earlier published report of proceedings of public concern, and (ii) was, or was contained in, a fair copy of, a fair summary of, or a fair extract from, the earlier published report, and the defendant had no knowledge that would reasonably make the defendant aware that the earlier published report was not fair.

15.27 Particulars in Relation to Defence of Qualified Privilege (1) This rule applies:

(a)

(2)

to a defence under Division 4 of Part 3 of the Defamation Act 1974 or section 30 of the Defamation Act 2005, and (b) to any other defence of qualified privilege other than any of the following: (i) a defence under Division 5, 6 or 7 of Part 3 of the Defamation Act 1974, (ii) a defence under section 28, 29 or 31 of the Defamation Act 2005, (iii) the defence of fair comment at common law. Without limiting rule 15.21, the particulars required by rule 15.1 for a defence of qualified privilege to which this rule applies must include particulars of the facts, matters and circumstances on which the defendant relies to establish that the imputation or matter complained of was published under qualified privilege.

15.28 Particulars in Relation to Defences of Comment and Honest Opinion (1) Defences under Division 7 of Part 3 of Defamation Act 1974 Without limiting rule 15.21, the particulars required by rule 15.1 for a defence of comment under Division 7 of Part 3 of the Defamation Act 1974 must include: (a) particulars identifying the material on which it is alleged that the matter alleged to be comment was comment and identifying to what extent that material is alleged to be proper material for comment, and (b) as to material alleged to be proper material for comment, particulars of the facts, matters and circumstances on which the defendant relies to establish that allegation. (c) if the defendant relies on a defence under section 33 of that Act — particulars identifying the servant or agent of the defendant whose comment it is alleged to be. Note: A defence of fair comment under Division 7 of Part 3 of the Defamation Act 1974 applies to the exclusion of the common law defence of fair comment. See section 29 of the Defamation Act 1974. [page 725]

(2)

Defences under section 31 of Defamation Act 2005 Without limiting rule 15.21, the particulars required by rule 15.1 for a defence of honest opinion under section 31 of the Defamation Act 2005 must include: (a) particulars identifying the material on which it is alleged that the matter alleged to be an opinion was an opinion and identifying to what extent that material is alleged to be proper material, and (b) as to material alleged to be proper material, particulars of the facts, matters and circumstances on which the defendant relies to establish that allegation, and (c) if the defendant relies on a defence under section 31 (2) of that Act — particulars identifying the employee or agent of the defendant whose opinion it is alleged to be, and (d) if the defendant relies on a defence under section 31 (3) of that Act — particulars identifying the commentator whose opinion it is alleged to be. A defence of honest opinion under section 31 of the Defamation Act 2005 is in addition to, and does not vitiate, limit or abrogate, the common law defence of fair comment. See section 24 (1) of the Defamation Act 2005. (3) Defence of fair comment at common law Without limiting rule 15.21, the particulars required by rule 15.1 for a defence of fair comment at common law must include: (a) particulars identifying the material on which it is alleged that the matter alleged to be comment was comment and identifying to what extent that material is alleged to be based on true facts or material that was published under privilege, and (b) as to material alleged to be true facts or material that was published under privilege, particulars of the facts, matters and circumstances on which the defendant relies to establish that allegation. Note: See note to subrule (2). 15.29 Particulars in Relation to Defence of Innocent Dissemination Without limiting rule 15.21, the particulars required by rule 15.1 for a defence under section 32 of the Defamation Act 2005 must include particulars of the facts, matters and circumstances on which the defendant relies to establish that:

(a)

the defendant published the matter complained of merely in the capacity, or as an employee or agent, of a subordinate distributor, and (b) the defendant neither knew, nor ought reasonably to have known, that the matter was defamatory, and (c) the defendant’s lack of knowledge was not due to any negligence on the part of the defendant. 15.30 Particulars in Relation to Defence of Triviality (1) This rule applies to: (a) a defence under section 13 of the Defamation Act 1974, and (b) a defence under section 33 of the Defamation Act 2005. (2) Without limiting rule 15.21, the particulars required by rule 15.1 for a defence to which this rule applies must include particulars of the facts, matters and circumstances on which the defendant relies to establish that the circumstances of publication of the matter complained of were such that the plaintiff was unlikely to sustain any harm. [page 726] 15.31 Particulars Concerning Grounds That Defeat Defamation Defences (1) If a plaintiff intends to meet any defamation defence: (a) by alleging that the defendant was actuated by express malice in the publication of the matter complained of, or (b) by relying on any matter which, under the Defamation Act 1974 or the Defamation Act 2005, defeats the defence, then the particulars required by rule 15.1 in relation to the reply must include particulars of the facts, matters and circumstances on which the plaintiff relies to establish that allegation or matter of defeasance. (2) The particulars required by subrule (1) must be set out in the reply, or, if that is inconvenient, may be set out in a separate document, referred to in the reply, and that document must be filed and served with the reply. 15.32 Particulars Concerning Damages

The plaintiff must give: (a) particulars of facts, matters and circumstances on which the plaintiff will rely in support of a claim for aggravated damages, and (b) particulars of any claim the plaintiff makes by way of: (i) special damages, or (ii) any claim for general loss of business or custom.

[page 727]

APPENDIX IV DEFAMATION PRACTICE NOTES (NSW) - NSW SUPREME COURT COMMON LAW DIVISION — DEFAMATION LIST - NSW DISTRICT COURT — DEFAMATION LIST

[page 728]

PRACTICE NOTE SC CL 4 Supreme Court Common Law Division — Defamation List Commencement 1. This Practice Note commences on 5 September 2014 and replaces Practice Note SC CL 4 issued on 17 August 2005. Purpose 2. The purpose of this Practice Note is to explain the operation of the Defamation List in the Common Law Division. Application 3. This Practice Note applies to all new and existing proceedings for defamation. Defamation List 4. Proceedings that include a claim for defamation are entered in the Defamation List and case managed by the Defamation List Judge. 5. The Defamation List is conducted each Friday during court term. 6. The judge assigned to conduct the Defamation List is McCallum J. 7. The Defamation List is conducted with the aim of achieving the just, quick and cheap resolution of the real issues in the proceedings and promoting the objects of the Defamation Act 2005. 8. Any urgent application for an injunction to restrain the publication of defamatory matter should be made in the first instance to the Defamation List Judge. If the Defamation List Judge is unavailable the application should be made to the Common Law Duty Judge rather than in the Equity Division. Pleadings 9. Any pleading filed in proceedings in the Defamation List must be

endorsed with the words “Defamation List” in the court details for the pleading. 10. At the filing of a Statement of Claim for defamation, the Court will fix a first listing date before the Defamation List Judge not less than 35 days from the date of filing. The Statement of Claim is expected to be served expeditiously after being filed. 11. It is expected that all pleading requirements and necessary particulars for a claim in defamation, including the matters addressed in rules 14.30, 15.19, 15.20 and 15.32 of the Uniform Civil Procedure Rules 2005, will be included in the Statement of Claim. 12. Before the first listing date: (a) the defendant must notify the plaintiff in writing of any objection to the form of the pleading and any objection that the matter complained of is not capable of conveying any of the imputations pleaded by the plaintiff; (b) the plaintiff must respond in writing to any such objections, indicating as to each objection whether it is accepted or rejected (with brief reasons where appropriate); (c) the defendant must give notice in writing to the Associate to the Defamation List Judge of any objection maintained by the defendant. [page 729] 13. At the first listing: (a) the parties will be expected to be ready to argue any objections to the Statement of Claim maintained by the defendant; (b) the defendant will be required to inform the Court whether the element of publication is admitted; if so, the admitted scope of publication and, if not, the reason publication is not admitted. 14. Upon the determination of any objections to the Statement of Claim raised at the first listing, the Court will make directions for the filing of a defence and any reply and will stand the proceedings over for a second listing in the Defamation List.

15. It is expected that all pleading requirements and necessary particulars of a defence and a reply, including the matters addressed in Division 6 of Part 14 and Division 4 of Part 15 of the Uniform Civil Procedure Rules, will be included in those pleadings. Further Interlocutory Steps 16. At the second listing, the parties: (a) will be expected to be ready to argue any objections to the defence and the reply; (b) will be afforded an opportunity to demonstrate the need for any further interlocutory step before the matter is listed for hearing. 17. In determining the need for any further interlocutory step, the Court: (a) may order the parties to serve their evidence; (b) may order the parties to disclose limited categories of documents but will do so only if such an order is necessary for the resolution of the real issues in dispute in the proceedings; (c) will not order any party to answer interrogatories except where, after considering the draft proposed interrogatories, the Defamation List Judge forms the view that they are necessary for the resolution of the real issues in dispute in the proceedings. 18. No application for any further interlocutory step (apart from the service of evidence) will be entertained unless the party seeking the order has given reasonable notice in writing to the opposing party and the Associate to the Defamation List Judge. Subject to the direction of the Defamation List Judge, any such application, whether by consent or otherwise, must be supported by an affidavit: (a) succinctly stating the reason the party contends the order is necessary for the resolution of the real issues in dispute in the proceedings; (b) in an application for disclosure of documents, identifying the classes of documents sought and the likely cost of such disclosure; (c) in an application for an order to answer interrogatories, stating why interrogatories are considered necessary for the resolution of the real issues in dispute in the proceedings and attaching draft proposed interrogatories.

19. Upon the determination of any issues raised at the second listing, proceedings will ordinarily be allocated a hearing date by the Defamation List Judge. Reasons 20. In determining applications in the Defamation List, the Court will ordinarily give reasons in short form. [page 730] Show Cause Hearings 21. A plaintiff who fails to comply with this Practice Note or a direction of the Court may be called upon to show cause why the proceedings should not be dismissed under s 61 of the Civil Procedure Act 2005 or rule 12.7 of the Uniform Civil Procedure Rules. 22. A defendant who fails to comply with this Practice Note or a direction of the Court may be called upon to show cause why any defence filed should not be struck out and judgment given accordingly under s 61 of the Civil Procedure Act or rule 12.7 of the Uniform Civil Procedure Rules. Proportionality 23. In determining any matter in the Defamation List, including any show cause hearing under clause 21 or 22 above, the Court will have regard to the principle of proportionality reflected in s 60 of the Civil Procedure Act. Costs 24. Parties are reminded that costs in proceedings under the Defamation Act 2005 are governed by s 40 of the Act, which provides that costs are awarded with regard to the way in which parties conduct their cases and imposes costs sanctions in the event of unreasonable failure to engage with the prospects of settlement out of court. 25. In cases in which it appears to the Court that a party has made or opposed an interlocutory application unreasonably, and subject to hearing from the parties, the Court will consider making an order under rule 42.7(2) of the Uniform Civil Procedure Rules that the opposing party’s costs of the

application be payable forthwith. T F Bathurst AC Chief Justice of New South Wales 5 September 2014

[page 731]

PRACTICE NOTE 6 District Court Defamation List Commencement 1. This Practice Note commences on 9 February 2015 and replaces Practice Note 6 issued on 9 August 2005. Purpose 2. This Practice Note explains the operation of the Defamation List in the District Court of New South Wales. Operation 3. This Practice Note applies to all new and existing proceedings for defamation and injurious falsehood filed in the Sydney Registry. 4. Defamation and injurious falsehood proceedings filed in registries other than Sydney will be dealt with according to the usual practice of the relevant registry. 5. A judge, or the Registrar of any registry besides the Sydney Registry, may, of his or her own accord, or upon application by any party to the proceedings, transfer any defamation or injurious falsehood claim to Sydney for inclusion in the Defamation List for case management. Defamation List 6. Proceedings filed in the Sydney Registry that include a defamation claim should contain the words “Defamation List” and be entered in the Defamation List. 7. The Defamation List will be conducted fortnightly on dates allocated at the commencement of the court term. 8. The Defamation List will be conducted with the aim of achieving the just, quick and cheap resolution of the real issues in the proceedings and promoting the objects of the Defamation Act 2005 (NSW). 9. Applications for interim injunctions in proceedings already filed should be

made to the judge conducting the Defamation List or, if that judge is not available, to the List Judge. Pleadings 10. Any pleadings filed in proceedings in the Defamation List will be allocated a return date by the Registry. 11. If the Statement of Claim has not been served within the one-month period provided for by UCPR r 6.2, an application for extension of time to serve the Statement of Claim must be sought, and evidence of attempts at service provided. 12. At the first listing in the Defamation List, the parties will be expected to: (a) Advise the Court of objections to the form of the Statement of Claim, applications for extension of the limitation period or other issues requiring resolution before a Defence may be filed; (b) Provide a timetable for the timely conduct of interlocutory steps; and (c) Advise the Court of steps the parties propose to take in relation to mediation, including any likely future request for court mediation. 13. No application for any interlocutory step (including any application for judgment or to strike out proceedings) will be entertained unless the party seeking the order has given reasonable notice in writing to the opposing party (or parties) and to the Court. [page 732] Any application for interlocutory rulings should include a concise description of the issues and a list of authorities. 14. Notices of Motion are not required for interlocutory arguments unless otherwise ordered. 15. When all interlocutory steps are completed the judge conducting the Defamation List will allocate a hearing date provided the estimate for the hearing is less than five days. Where the estimate for the hearing is five days or more the proceedings will be referred to the List Judge or the Judicial Registrar for a hearing date. Hearing dates, when allocated, will

not be vacated other than in exceptional circumstances. 16. When a hearing date is sought, both parties must inform the Court of the following: (a) An estimate of the trial length and the number of witnesses; (b) Whether there will be an application for evidence to be given by telephone or audio-visual means; (c) Whether there will be an application for expert evidence to be given concurrently; (d) Confirmation that all outstanding interlocutory proceedings have been completed; (e) Where the proceedings are to be heard by a jury, that notice has been served on the opponent and the jury retention fee has been and will continue to be paid; and (f) The names of counsel briefed, if applicable. 17. A hearing date will not be allocated unless the Court is satisfied that the matter is ready for hearing. 18. Where proceedings are listed for hearing, any applications for further rulings should be made to the judge conducting the Defamation List or to the List Judge. Show Cause Hearings and Sections 56–62 Civil Procedure Act 2005 (NSW) 19. A party who fails to comply with this Practice Note or a direction of the Court may be called upon to show cause why the proceedings should not be dismissed under s 61 of the Civil Procedure Act 2005. 20. In determining any matter in the Defamation List, including a show cause hearing, the Court may have regard to the principle of proportionality stated in s 60 of the Civil Procedure Act 2005. Costs 21. The attention of practitioners is drawn to s 40 of the Defamation Act 2005 and UCPR r 42.7(2).

The Hon. Justice D Price AM

Chief Judge District Court of New South Wales 9 February 2015

INDEX References are to paragraph numbers

A Absolute privilege common law defence …. 1.1, 21.1 judicial proceedings …. 21.3 parliamentary …. 21.3 public meetings …. 21.3 Royal Commissions and inquiries …. 21.3 official reports …. 21.3 proceedings …. 21.3 publications …. 21.3 statutory defence …. 21.2, 21.3 Abuse contemptible or ridiculous portrayal of plaintiff …. 11.7 social media …. 11.6 ‘vulgar’ …. 11.6 Accord and satisfaction defence of …. 18.5 Account of profits …. 39.3 Accurate reports see Fair and accurate reports Action on the case …. 2.8, 2.11, 2.15, 5.1 Agents capacity to be sued …. 13.2 comment defence …. 28.5 malice, liability for …. 23.5

Aggravated damages defendant’s conduct …. 34.1, 34.6 failure or refusal to apologise …. 34.5 falsity of imputation …. 34.2 malice …. 34.1, 34.4 publication …. 34.3 Aliens capacity to be sued …. 13.7 capacity to sue …. 12.6 Allegations contagious or infectious disease …. 10.3, 10.6 report or repetition by publisher …. 11.2 Alternative solutions apologies …. 16.10 arbitration …. 16.12 mediation …. 16.11, 43.5 Amends, offer of see Offer of amends Ancient law …. 2.2 Anonymity protection order …. 13.3 publisher …. 7.8 Anti-discrimination …. 5.5, 14.4, 15.7 Apologies damages, relevance to …. 16.10 failure or refusal to apologise …. 32.2 aggravated damages …. 34.5 mitigation of damages …. 36.5, 36.8 power to order …. 41.2 reasonableness …. 41.2 uniform law …. 16.10 Appeals

review of jury’s determination …. 17.3 Apportionment damages …. 13.8 Arbitration …. 16.12 Associations fair report of proceedings …. 26.9 unincorporated capacity to be sued …. 13.10 capacity to sue …. 12.10 Attacks statements in answer to …. 22.5 Australia Constitution …. 3.8, 3.11, 5.6 history of defamation law see History of defamation law Award of damages calculation of …. 33.4 cap on damages …. 31.4, 33.2, 33.4, 39.1, 43.4 capital, as …. 33.4 non-economic loss …. 33.4 highest awards by jurisdiction …. 33.3 ‘once and for all’ basis …. 31.1 personal injury …. 31.3, 33.2, 33.4, 38.1 trespass …. 31.1 trials against media organisations, case examples …. 33.3 value of money …. 33.1

B Bad reputation …. 4.4, 36.3 see also Reputation ‘Bane and antidote’ …. 11.3 Bankrupts

capacity to be sued …. 13.4 capacity to sue …. 12.2 Blasphemous libel …. 5.1, 5.5 Bloggers anonymous, capacity to be sued …. 7.8, 13.3 Breach of confidence cause of action …. 14.4–14.6, 14.8, 14.9, 14.11 defamation law, overlap with …. 39.2 equitable basis …. 14.7 ‘iniquity’ defence …. 14.7 Broadcasters freedom of press …. 2.19, 3.11 qualified privilege …. 22.7 regulation of the press …. 3.3 Business reputation …. 10.5, 11.9

C Calderbank offer …. 16.11, 41.3 Calumny …. 2.2 Capacity to be sued …. 13.1 agents …. 13.2 bankrupts …. 13.4 bloggers …. 13.3 Crown …. 13.5 deceased persons …. 13.6 employees …. 13.2 foreign persons …. 13.7 ‘persons unknown’ …. 13.3 sources …. 13.8 unincorporated associations …. 13.10

Capacity to sue …. 12.1 bankrupts …. 12.2 corporations …. 12.3, 43.4 deceased persons …. 12.4 elected institutions …. 12.5 foreign persons …. 12.6 groups …. 12.7 local government bodies …. 12.3, 12.5 partnerships …. 12.8 politicians …. 12.5 strangers …. 12.9 unincorporated associations …. 12.10 Cause of action anti-discrimination …. 14.4, 15.7 choice of law …. 6.4 common law …. 6.1, 7.1 imputations as …. 19.8 injurious falsehood …. 15.2 misleading or deceptive conduct …. 15.3 multiple causes of action …. 6.5 multiple publication rule …. 6.3, 25.8 negligence …. 15.4 privacy …. 14.10 publication …. 6.1, 7.1, 19.1, 19.2, 19.7, 19.8, 25.6 statutory …. 6.2 trespass …. 2.15, 14.4, 14.6, 14.8, 14.9 Champerty …. 12.9 Character reputation, distinguished …. 4.2, 32.3 Choice of law cause of action …. 6.4

publication …. 6.4, 7.5 Circumstances of publication mitigation of damages …. 36.91 qualified privilege …. 25.5 triviality defence …. 30.1, 43.3 Civil libel …. 5.6 Code states comment defence …. 28.10 fair comment defence …. 28.10 justification defence …. 19.9 qualified privilege …. 25.9 qualified protection …. 25.9 Comment agent, of …. 28.5 author of …. 28.3 Code states …. 28.10 fair comment see Fair comment imputation …. 28.2 dishonest motive, imputing …. 28.8 pleaded …. 28.4 partial material …. 28.7 servant, of …. 28.5 statement of fact, distinguished …. 27.4 statutory defence …. 28.2 limitation of …. 28.9 stranger, of …. 28.6 Common law cause of action …. 6.1, 7.1 codification …. 3.14 criminal law …. 44.1

defamation, of …. 1.1 defamatory meaning …. 9.10 defences …. 18.1 England …. 1.1 history of defamation law …. 2.7, 3.9, 3.11 development of …. 3.12 principles …. 3.16 qualified privilege …. 3.11, 22.1, 22.2 statutory modification …. 3.14, 3.16 ‘Common sting’ …. 19.6 Communication electronic …. 7.9 freedom of see Freedom of speech Community standards defamation …. 10.1, 10.5 natural and ordinary meaning …. 9.8 Companies see Corporations Comparisons …. 11.5 Concerns notice …. 16.5 Conduct rule …. 11.1 Confidentiality see also Privacy Lenah Game Meats case …. 14.6, 14.7, 39.3 misuse of private information …. 14.6, 39.2 Royal confidence, right of …. 14.11 Consent defence …. 18.3 privacy, statutory reform …. 14.10 Consolation general damages …. 32.1, 32.2 Constitution Australian …. 3.8, 3.11, 5.6

United States …. 5.6 Contagious or infectious disease allegation, whether defamatory …. 10.3, 10.6 Contempt of court …. 15.5 Contextual truth adoption …. 20.7 capacity of imputations …. 20.4 further harm …. 20.9 generality …. 20.6 ‘in addition’ imputations …. 20.5 split result …. 20.10 statutory defence …. 19.8, 20.3, 43.3 historical foundation …. 20.8 Contracts choice of law …. 6.4 qualified privilege …. 22.5 Contradictions …. 11.3 Copyright …. 15.6 Corporations damages, taxation consequences of …. 38.1 defamation capacity to sue …. 12.3, 43.4 cause of action …. 37.1 injurious falsehood claims …. 15.2 Correction order …. 40.3 Corruption …. 10.1, 10.6 Costs conduct of proceedings …. 38.2, 41.2 general principles …. 41.1 nominal damages …. 41.4

offers of compromise …. 41.3 Council meetings fair and accurate report defence …. 26.6 Counter-publicity …. 39.5 Court of Appeal juries, review of determinations …. 17.3 Court proceedings absolute privilege …. 21.3 access to justice …. 43.2 cost …. 43.2 defendant’s conduct, damages and …. 34.1, 34.6, 43.5 delay …. 43.2 fair and accurate report defence …. 26.5 pre-trial publicity …. 15.5 publication, whether contempt …. 15.5 specialist tribunals …. 43.2 Credit reputation …. 4.1, 4.4 Crime allegation of …. 10.3, 10.6 reports of …. 11.1 Criminal convictions evidence …. 36.3, 42.2 publication, contempt by …. 15.5 Criminal defamation …. 44.2 Criminal law common law …. 44.1 criminal defamation …. 44.2 juries …. 44.3 lawful excuse defence …. 44.4 other jurisdictions …. 44.5

truth defence …. 44.6 Criminal libel …. 2.16, 5.1, 5.3, 44.1, 44.2, 44.5 Criminality …. 10.3, 10.6, 11.1 Crisis management …. 39.5 Cross-examination reputation …. 4.4 ‘Cross-infection’ error affecting jury verdict …. 17.3 Crown capacity to be sued …. 13.5

D Damages aggravated see Aggravated damages alternatives to …. 39.1 apologies, relevance of …. 16.10 apportionment …. 13.8 assignment …. 12.1 award of see Award of damages calculation of …. 33.4 cap …. 33.2, 33.4, 39.1, 43.4 corporate claim …. 12.3 defamation …. 31.2 defendant’s conduct and …. 34.1, 43.5 derisory …. 36.1 exemplary …. 35.1 general see General damages general principles …. 31.1 interest on …. 38.2 irreparable harm …. 31.4

Marsden’s case …. 31.4, 32.2, 33.4, 35.1, 36.3, 36.5, 38.2 mitigation see Mitigation of damages nominal …. 36.1, 41.4 personal injury …. 31.3, 33.2, 33.4, 38.1 punitive …. 34.1, 35.1 quantum …. 32.3 reputation, injury to …. 4.1, 4.4, 31.1, 32.3 restitutio in integrum …. 31.1 special economic loss …. 37.1 necessity of proving …. 6.1, 7.9 split result and …. 20.10 taxation on …. 38.1 uniform law …. 31.5 value of money …. 33.1 Deceased persons capacity to be sued …. 13.6 capacity to sue …. 12.4 Deceptive or misleading conduct …. 15.3 Declarations …. 39.4 Defamation abuse …. 11.6, 11.7 access to justice …. 43.2 allegations and rumours …. 11.2 ‘bane and antidote’ …. 11.3 breach of confidence, overlap with …. 39.2 business reputation …. 10.5, 11.9 cause of action see Cause of action codification …. 3.14 comment see Comment common accusations …. 10.6

common law see Common law community standards …. 10.1, 10.5 contagious or infectious disease …. 10.3 contradictions …. 11.3 corruption …. 10.1, 10.6 criminality …. 10.3, 10.6, 11.1 damages …. 31.2 dishonesty …. 10.3, 10.6 disparagement …. 10.1, 10.3, 10.6 fair comment see Fair comment fictional publications …. 11.8 ‘free form’ boundary of …. 10.4 freedom of speech and …. 1.1, 3.11, 5.1, 39.2 guidance …. 10.3 homosexuality …. 10.3, 10.5 humour …. 11.6 identification see Identification incompetence …. 10.6 injurious falsehood distinguished …. 15.2 leading cases …. 10.2 libel see Libel meaning see Defamatory meaning mockery …. 11.7 objective …. 5.7 ostracism and …. 4.7 photographs, juxtaposition of …. 11.4 publication see Publication questions, denials and comparisons …. 11.5 reputation see Reputation ridicule …. 10.4, 11.6

scandalous association …. 11.5 sexual immorality or misconduct …. 10.3, 10.6, 11.7 slander see Slander stigma …. 10.3, 10.6 suspicion and guilt …. 11.1 tests of …. 10.1, 10.3 Defamation Act 2005 see Uniform law Defamatory libel …. 5.3 Defamatory meaning common law …. 9.10 extrinsic meaning …. 9.14 interpretation …. 9.2 manner of conveying …. 6.5 natural and ordinary meeting …. 9.3 overview …. 9.1 pleading …. 9.10 form of imputation …. 9.12 imputation …. 9.11, 43.2 uniform approach …. 9.13 reasonableness …. 9.4 separate and distinct meanings …. 9.14 ‘single meaning rule’ …. 9.2 tribunal of fact, determination by …. 9.16 true innuendo …. 6.5, 9.15 Defences absolute privilege see Absolute privilege accord and satisfaction …. 18.5 comment see Comment common law …. 18.1 consent …. 18.3 contextual truth see Contextual truth

fair and accurate reports see Fair and accurate reports fair comment see Fair comment history …. 2.17 honest opinion …. 28.1, 43.3 Hore-Lacy defence …. 19.5, 19.8 illegality …. 18.4 innocent dissemination common law defence …. 29.1 ISPs …. 29.3 statutory defence …. 29.2, 29.3, 43.3 justification history …. 2.17 partial justification …. 20.1 statutory defence …. 19.2, 19.8 uniformity and reform …. 19.8 Lange defence …. 3.11, 24.3, 24.4, 25.5 partial truth …. 20.2 pleading …. 2.17, 18.1 Polly Peck defence …. 19.5, 19.6 privacy, statutory reform …. 14.10 protected reports qualified privilege and …. 22.8 statutory defence …. 26.3 public benefit …. 44.6 qualified privilege see Qualified privilege release …. 18.5 statutory modification …. 18.2 time limitation …. 18.6 triviality …. 30.1, 43.3 truth see Truth

Defendant conduct increasing damages …. 34.1, 43.5 aggravated damages …. 34.6 exemplary damages …. 35.1 imputation, truth of …. 19.5 intention, relevance of …. 8.2 Denials …. 11.5 Discrimination anti-discrimination legislation …. 15.7 remedies …. 5.5 racial …. 2.2, 15.7 Disclosure of sources …. 13.8 Dishonesty imputation …. 10.3, 10.6 Disparagement imputation …. 10.1, 10.3, 10.6 Dispute resolution alternatives to litigation …. 16.1, 43.5 mediation …. 16.11, 43.5 offer to make amends …. 16.2, 43.5 Distinct and separate meanings …. 9.14 Distributors innocent dissemination defence …. 29.1 Documents, public fair and accurate report defence …. 26.11 Duelling …. 2.14

E Ecclesiastical law …. 2.5 Economic loss

special damages …. 37.1 Elected institutions capacity to sue …. 12.5 Election statements qualified privilege …. 24.2 statements to the world at large …. 24.2 Employees capacity to be sued …. 13.2 comment defence …. 28.5 England common law …. 1.1 history of defamation law see History of defamation law European Convention on Human Rights and Fundamental Freedoms Australia, application in …. 14.7 civil libel …. 5.6 history …. 2.22 privacy …. 14.1, 14.3, 14.6, 14.11 European Court of Human Rights …. 14.6 Evidence conduct rule …. 11.1 criminal convictions …. 36.3, 42.2 criminality …. 11.1 expert …. 32.2 incriminating evidence …. 42.3 publication …. 42.1 Excuse, lawful …. 44.4 Exemplary damages …. 35.1 Extrinsic facts identification inferences …. 8.5 not in publication …. 8.5

prior or subsequent publications …. 8.6 Extrinsic meaning …. 9.14

F Facebook …. 2.23, 11.6, 13.3 Fair and accurate reports common law defence …. 26.1 preservation of …. 26.12 council meetings …. 26.6 good faith, lack of …. 26.13 history …. 2.21 international bodies, proceedings of …. 26.10 judicial proceedings …. 26.5 malice …. 2.21, 26.13 parliament …. 26.4 particular associations or bodies, proceedings of …. 26.9 ‘proceedings of public concern’ and …. 26.2, 26.3 public documents …. 26.11 public interest …. 26.3, 26.14 public meetings …. 26.7 qualified privilege and …. 26.1 statutory authorities, proceedings of …. 26.8 statutory defence …. 26.2 Fair comment Code states …. 28.10 ‘comment’, nature of …. 27.2 common law defence …. 27.1 context of comment …. 27.3 elements …. 27.1 factual material …. 27.56

fairness …. 27.9 history …. 2.17 malice …. 27.10 pleading …. 27.3 privileged material …. 27.7 proper material for comment …. 27.2, 27.5, 27.8, 27.9 public interest …. 27.8 statement of fact distinguished from comment …. 27.4 Fake news social networks and …. 2.23 False innuendo …. 6.5, 9.10, 9.12, 9.14, 19.8 Falsehood, injurious …. 15.2 Falsity aggravated damages for falsity of imputation …. 34.2 declarations …. 39.4 presumed falsity of imputed defamation and …. 19.3 Fame …. 4.3 Feelings, hurt damages and …. 34.1–34.3 reputational damage distinguished …. 34.6 Fictional works …. 11.8 Final injunctions …. 39.2 Foreign motive qualified privilege and …. 23.1 Foreign persons capacity to be sued …. 13.7 capacity to sue …. 12.6 Forum non conveniens …. 7.5 Forum shopping …. 6.4 Freedom of speech balancing of rights …. 5.7

blasphemous libel …. 5.1, 5.5 civil libel …. 5.6 criminal libel …. 5.1, 5.3 defamation law …. 1.1, 5.1, 39.2 defamatory libel …. 5.3 implied guarantee …. 3.11, 5.6 obscene libel …. 5.1, 5.4 restrictions …. 5.1 seditious libel …. 5.1, 5.2 United States Constitution …. 5.6 Freedom of the press …. 2.19

G General damages consolation …. 32.1, 32.2 harm to reputation …. 32.3, 33.1 injury to feelings …. 32.2 purpose …. 32.1 reparation/vindication …. 32.1, 32.3 Good faith fair and accurate report defence …. 26.13 Good reputation …. 4.1, 4.2, 4.7, 10.7, 32.3 see also Reputation Government matters …. 3.11, 25.7 statements to the world at large …. 24.3, 24.4 ‘Grapevine effect’ dissemination of defamatory material …. 7.6, 7.8 Groups capacity to sue …. 12.7 identification, plaintiff member of group …. 8.4

Guilt imputation of …. 11.1

H Hearsay reputation evidence …. 4.2 High Court of Australia common law …. 3.9, 3.12 constitutional matters …. 3.8 government or political matters …. 3.11, 5.6 ICCPR and …. 3.10, 5.6 judicial activism …. 3.11 History of defamation law American Revolution …. 2.13 ancient law …. 2.2 Australia, in …. 3.1 codification …. 3.14 common law …. 3.9 development of …. 3.12 principles …. 3.16 statutory modification …. 3.14, 3.16 Constitution …. 3.8, 3.11 government or political matters …. 3.11 ICCPR …. 3.10 national or uniform law …. 3.15 New South Wales …. 3.6, 3.14, 6.5 other states and territories …. 3.7 penal colony …. 3.2 press, regulation of …. 3.3 self-government …. 3.4

Windeyer’s Libel Act 1847 …. 3.5 Bible …. 2.2 censorship …. 2.9 church courts …. 2.5 common law courts …. 2.7 defences …. 2.17 duelling …. 2.14 early England …. 2.4 ecclesiastical law …. 2.5 English civil war …. 2.13 French Revolution …. 2.13, 3.1 Greece …. 2.2 imputation …. 2.16 internet …. 2.22, 2.23 leading cases …. 10.2 lex talionis …. 2.2 libel …. 2.15, 2.16 manorial courts …. 2.6 pleading …. 2.18 public interest …. 2.19 reform …. 3.13 Roman law …. 2.2–2.4 sensus mitior doctrine …. 2.11 Shakespeare …. 2.10 slander …. 2.7, 2.8, 2.11, 2.15 social network …. 2.23 Star Chamber …. 2.12, 2.13 treason …. 2.9 twentieth century England …. 2.22 Victorian Age …. 2.20, 2.21 Windsor era …. 2.22

Homosexuality blasphemous libel …. 5.5 imputation …. 10.3, 10.5 Honest opinion statutory defence …. 28.1, 43.3 Human rights defamation law to balance …. 5.7 European Convention see European Convention on Human Rights and Fundamental Freedoms protection from unlawful or unjustified attack on reputation as …. 1.1 Humour …. 11.6 Hurt feelings see Feelings, hurt

I Identification anonymous bloggers …. 13.3 express or implicit …. 8.3 extrinsic facts inferences …. 8.5 not in publication …. 8.5 prior or subsequent publications …. 8.6 inferences …. 8.5 ordinary reasonable recipient …. 8.2 plaintiff member of group …. 8.4 publication, in …. 8.1, 8.3 preliminary discovery …. 13.8 sources …. 13.8 Illegality defence of …. 18.4

Immorality …. 10.3, 10.6 Imputation cause of action, as …. 19.8 comment defence …. 28.2 dishonest motive, imputing …. 28.8 pleaded imputations, in …. 28.4 criminality …. 11.1 defamatory meaning form of imputation …. 9.12 pleading …. 9.11, 43.2 defendant’s imputation, truth of …. 19.5 dishonesty …. 10.3, 10.6 history …. 2.16 incompetence …. 10.6 mitigation of damages for truth of imputation …. 36.7 multiplicity of imputations …. 19.4 presumed falsity of defamatory imputation …. 19.3 separate and distinct/different in substance …. 19.8 Incompetence imputation …. 10.6 Incriminating evidence …. 42.3 Infectious or contagious disease allegation …. 10.3 Inferences identification …. 8.5 Informants capacity to be sued …. 13.8 Injunctions final …. 39.2 interlocutory …. 39.2 Injurious falsehood …. 15.2

Innocent dissemination common law defence …. 29.1 ISPs …. 29.3 statutory defence …. 29.2, 43.3 Innuendo false …. 6.5, 9.10, 9.12, 9.14, 19.8 Lewis case …. 19.8 true …. 6.5, 9.2, 9.6, 9.10, 9.15 Inquiries fair and accurate report defence …. 26.5 Interest damages, on …. 38.2 Interlocutory injunctions …. 39.2 International bodies fair and accurate report defence …. 26.10 International Court of Justice fair and accurate report defence …. 26.5, 26.10 International Covenant on Civil and Political Rights (ICCPR) …. 3.10 civil libel …. 5.6 privacy …. 14.3, 14.6 Internet award of damages against search engines and websites, case examples …. 33.3 impact on defamation law …. 2.23 publication …. 7.3, 7.5, 7.6, 7.10 place of …. 7.4 publishers …. 7.8 social networks …. 2.23 Internet service providers (ISPs) anonymous bloggers, identification of …. 13.3 innocent dissemination defence …. 29.3

publishers …. 7.8 Interpretation defamatory meaning …. 6.5, 9.2 see also Defamatory meaning natural and ordinary meaning different interpretations …. 9.6 reasonable interpretation …. 9.4 Invasion of privacy statutory reform …. 14.10 tort …. 14.7, 14.8 Islam blasphemous libel …. 5.5

J Joint and several liability publication …. 7.8 Journalists disclosure of sources …. 13.8 Judicial proceedings absolute privilege …. 21.3 fair and accurate report defence …. 26.5 Juries criminal law …. 44.3 ‘cross-infection’ error and …. 17.3 defamation trials …. 17.1, 43.2 pre-trial publicity, influence of …. 15.5 review of determination by Court of Appeal …. 17.3 section 7A trials …. 17.2 Justification history …. 2.17 partial justification …. 20.1

statutory defence …. 19.2, 19.8 uniformity and reform …. 19.8

L Law reform access to justice …. 43.2 defences …. 43.3 history …. 3.13 imputations …. 43.2 juries …. 43.2 privacy …. 14.10, 43.2 remedies …. 43.4 review of Act …. 43.1 uniformity …. 43.2 Lawful excuse …. 44.4 Libel action on the case …. 2.15, 5.1 blasphemous libel …. 5.1, 5.5 civil libel …. 5.6 common law of see Common law criminal libel …. 2.16, 5.1, 5.3, 44.1, 44.2, 44.5 defamatory libel …. 5.3 history …. 2.15, 2.16, 2.21, 5.1 obscene libel …. 5.1, 5.4 seditious libel …. 5.1, 5.2 slander, abolition of distinction …. 3.5, 7.9, 30.1 Limitation of actions …. 18.6 reform …. 43.4 Local government body capacity to sue …. 12.3, 12.5

Lord Campbell’s Libel Act 1843 …. 2.20, 2.21, 44.6

M Maintenance …. 12.9 Malice aggravated damages …. 34.1, 34.4 ‘express’ malice …. 23.2 fair and accurate report defence …. 26.13 fair comment defence …. 27.10 foreign motive …. 23.2 history …. 2.17 injurious falsehood and …. 15.2 mitigation of damages for lack of …. 36.6 motive of others …. 23.5 political motive …. 23.3 profit motive …. 23.4 qualified privilege and …. 23.1 Matter definition …. 6.1 Meaning defamatory see Defamatory meaning extrinsic meaning …. 9.14 natural and ordinary see Natural and ordinary meaning separate and distinct meanings …. 9.14 Media freedom of the press …. 2.19 misleading or deceptive conduct …. 15.3 qualified privilege …. 3.11, 13.8, 22.7 regulation of the press …. 3.3 reputation, influence on …. 4.5

Mediation dispute resolution method …. 16.1, 16.11, 43.5 Meetings, public absolute privilege …. 21.3 fair and accurate report defence …. 26.7 Misleading or deceptive conduct …. 15.3 Mitigation of damages apologies …. 36.5, 36.8 circumstances of publication …. 36.9 conduct of plaintiff …. 36.2 lack of malice …. 36.6 other recoveries …. 36.5 previous publications …. 4.4, 36.4 reputation of plaintiff …. 36.3 timing of publication …. 36.4, 36.8 truth of imputation …. 36.7 uniform law …. 36.1, 36.5–36.8 Mitior Sensus doctrine …. 2.11 Mockery defamation, line between …. 11.7 Motive dishonest, comment defence imputing …. 28.8 foreign …. 23.2 improper …. 23.1, 23.3 others, of …. 23.5 political …. 23.3 profit …. 23.4 Multiple causes of action …. 6.5 Multiple publication rule …. 6.3, 25.8

N Narcissism personality traits …. 4.6 Natural and ordinary meaning community standards …. 9.8 context …. 9.7 different interpretations …. 9.6 form of publication, effect of …. 9.5 overview …. 9.3 reasonable interpretation …. 9.4 Necessity history …. 2.17 qualified privilege and …. 25.7 Negligence cause of action …. 15.4 negligent publication, qualified privilege …. 25.10 New South Wales history of defamation law …. 3.6, 3.14, 6.5 lawful excuse, defence of …. 44.4 personal injury damages …. 31.3 pleaded imputation …. 9.11 reform proposals …. 19.8 section 7A trials …. 9.12, 17.2 triviality defence …. 30.1 Newspaper rule …. 13.8 Newspapers award of damages against, case examples …. 33.3 freedom of the press …. 2.19, 2.21 qualified privilege …. 3.11, 13.8, 22.7 regulation of the press …. 3.3

sources …. 13.8 Nominal damages …. 36.1, 41.4 Non-citizens capacity to be sued …. 13.7 capacity to sue …. 12.6 Non-monetary remedies …. 40.1 correction order …. 40.3 right of reply …. 40.1, 40.2 striking out proceedings …. 40.4 summary judgment …. 40.5 Notices service of …. 42.4

O Obscene libel …. 5.1, 5.4 Offer of amends acceptance …. 16.7 compensation, payment of …. 16.4 content …. 16.3 failure to accept, defence for …. 16.8 inadmissible statements and admissions …. 16.9 overview …. 16.1, 16.2, 43.5 reasonableness …. 16.6 time of …. 16.5 Offer of compromise …. 41.3 Official secrets publication …. 5.2 Opinion, honest statutory defence …. 28.1, 43.3 Ordinary and natural meaning see Natural and ordinary meaning

Ordinary reasonable recipient identification …. 8.2 Ostracism …. 4.7

P Parliament absolute privilege defence …. 21.3 fair and accurate report defence …. 26.4 Partial justification …. 20.1 Partial truth …. 20.2 Parties to proceedings defendants, truth of imputation …. 19.5 plaintiffs identification in publication …. 8.1, 8.3 member of group, identification …. 8.4 Partnerships …. 12.8 Personal injury damages …. 31.3, 33.2, 33.4, 38.1 ‘Persons unknown’ capacity to be sued …. 13.3 Photographs juxtaposition of …. 11.4 Plaintiff capacity to sue see Capacity to sue identification in publication …. 8.1, 8.3 plaintiff member of group …. 8.4 mitigation of damages conduct …. 36.2 reputation …. 36.3

Pleading comment defence in pleaded imputations …. 28.4 defamatory meaning …. 9.10 form of imputation …. 9.12 imputation …. 9.11, 43.2 uniform approach …. 9.13 defences …. 2.17, 18.1 fair comment defence …. 27.3 history …. 2.18 justification, defence of …. 19.5 Political matters …. 3.11, 5.6 statements to the world at large …. 5.6, 24.3, 24.4 Political motive …. 23.3 Politicians capacity to sue …. 12.5 Prescribed information provider misleading or deceptive conduct …. 15.3 Press freedom of …. 2.19 qualified privilege …. 3.11, 13.8, 22.7 regulation of …. 3.3 Presumptions defamatory imputation, presumed falsity of …. 19.3 publication …. 7.6 reputation …. 4.2 Principal malice of agent, liability for …. 23.5 Privacy causes of action …. 14.4 statutory reform …. 14.10 freedom of observation …. 14.5

invasion of privacy statutory reform …. 14.10 tort …. 14.7, 14.8, 14.10 law reform …. 14.10, 43.2 Lenah Game Meats case …. 14.6, 14.7, 39.3 misuse of private information …. 14.6, 39.2 overview …. 14.1 right to …. 14.1, 14.3 Royal confidence, right of …. 14.11 statutory reform …. 14.10 authorised or required by law …. 14.10 cause of action …. 14.10 consent …. 14.10 defences …. 14.10 invasion of privacy …. 14.10 public interest …. 14.10, 43.2 technological change and …. 14.2 Privilege absolute see Absolute privilege fair comment defence and …. 27.7 qualified see Qualified privilege Proceedings court see Court proceedings judicial see Judicial proceedings striking out …. 40.4 Profit motive …. 23.4 Profits account of …. 39.3 Proof of publication …. 7.10 Protected reports

history …. 2.17 qualified privilege and …. 22.8 statutory defence …. 26.3 Public benefit defence …. 44.6 Public documents fair and accurate report defence …. 26.11 Public events criticism, protection of …. 2.17 Public figures privacy and …. 14.1 Public interest …. 2.19 fair and accurate report defence …. 26.3, 26.14 fair comment defence …. 27.8 immunity …. 13.8 privacy, statutory reform …. 14.10 publication on matter of …. 24.7 statements to the world at large …. 24.1 test …. 19.9 truth defence and …. 19.9, 43.2 Public meetings absolute privilege …. 21.3 fair and accurate report defence …. 26.7 Publication act of …. 7.2 aggravated damages …. 34.3 bilateral nature …. 7.2 cause of action …. 6.1, 7.1, 19.1, 19.2, 19.7, 19.8, 25.6 conduct, by …. 7.2 date of …. 7.3 defamatory statements …. 1.1

Dow Jones v Gutnick …. 7.5, 22.3 evidence …. 42.1 ‘fair’ …. 26.1 form of …. 7.9 ‘grapevine effect’ …. 7.6 identification see Identification intermediaries …. 7.8 international …. 6.4, 7.5 internet …. 7.3, 7.5, 7.6, 7.8, 7.10 joint and several liability …. 7.8 multi-state …. 6.4, 7.5 multiple …. 6.4, 7.5, 25.8 nationwide …. 6.4, 7.5 natural and ordinary meaning, effect of form of publication on …. 9.5 negligent publication, qualified privilege …. 25.10 oral …. 7.2, 7.10, 9.7 overview …. 7.1 permanent form …. 7.9 place of …. 7.4 presumptions …. 7.6 previous …. 36.4 proof of …. 7.10 recipients …. 7.6 repetition …. 7.6, 7.8 republication …. 7.8 ‘single publication rule’ …. 6.3, 7.5 subject of …. 7.7 time of …. 7.3, 36.8 transient form …. 7.9, 9.5, 9.7 writing, in …. 7.2. 7.10

Publicity counter-publicity, effect of …. 39.5 Publisher anonymity …. 7.8 defamatory matter, of …. 7.8 relationship with recipient …. 22.3 Punitive damages …. 34.1, 35.1

Q Qualified privilege attacks, statements in answer to …. 22.5 circumstances of publication …. 25.5, 25.7 Code states …. 25.9 common law defence …. 3.11, 22.2 confession and avoidance …. 25.7 connection to occasion of privilege …. 22.3–22.5 contracts …. 22.5 election statements …. 24.2 essence of …. 22.3 fair and accurate report defence and …. 26.1 history …. 2.17 interest of recipient …. 25.2 Lange defence …. 3.11, 24.3, 24.4, 25.5 malice and …. 23.1, 24.3 media, publication by …. 3.11, 13.8, 22.7 necessity and …. 25.7 negligent publication …. 25.10 pre-publication conduct …. 25.6 previous statutory defences …. 25.8 protected reports …. 22.8

qualified protection …. 25.9 reasonableness …. 24.5, 25.3, 25.7 relationship of publisher and recipient …. 22.3 relevancy and …. 22.4 requests for information, statements in answer to …. 22.5 Reynolds defence …. 24.6, 24.7, 25.3, 25.5, 25.7 statements to the world at large see Statements to the world at large strict liability …. 25.4, 25.10 truth and …. 19.3, 19.9 uniform law …. 19.1, 43.3 volunteering information …. 22.6 Qualified protection Code states …. 25.9 Questions …. 11.5

R Racial discrimination …. 2.2, 15.7 Radio award of damages against, case examples …. 33.3 freedom of the press …. 2.19 privacy and …. 14.2 qualified privilege …. 22.7 regulation of the press …. 3.3 Reasonableness interpretation …. 9.4 offer of amends …. 16.6 qualified privilege …. 24.5, 25.3, 25.7 statements to the world at large …. 24.5 Regulations uniform law, under …. 42.5

Release defence of …. 18.5 Relevancy qualified privilege and …. 22.4 reputation and …. 4.2, 4.4 Religion blasphemous libel …. 5.5 sedition and …. 5.2 Remedies account of profits …. 39.3 correction order …. 40.3 costs see Costs counter-publicity …. 39.5 crisis management …. 39.5 damages see Damages alternatives …. 39.1 declarations …. 39.4 injunctions, interlocutory and final …. 39.2 reform …. 43.4 right of reply …. 40.1, 40.2 striking out proceedings …. 40.4 summary judgment …. 40.5 Reparation general damages …. 32.1, 32.3 Reports fair and accurate see Fair and accurate reports protected reports history …. 2.17 qualified privilege and …. 22.8 statutory defence …. 26.3 Republication …. 7.8

Reputation bad …. 4.4, 36.3 character distinguished …. 4.2, 32.3 competing interests …. 4.8 credit …. 4.4 cross-examination …. 4.4 damages for injury to …. 4.1, 4.4, 31.1, 31.2, 32.3 fame and …. 4.3 freedom of speech and …. 3.11 good …. 4.1, 4.2, 4.7, 10.7, 32.3 hearsay …. 4.2 hurt feelings distinguished …. 34.6 illegality …. 18.4 loss …. 4.1 meaning …. 4.1 media influence …. 4.5 mitigation of damages …. 4.4, 36.3 narcissism and …. 4.6 ostracism and …. 4.7 personal asset …. 12.2 persons in eminent and honoured positions …. 32.3 presumptions …. 4.2 protection …. 4.1, 7.1, 12.1, 25.7 relevancy and …. 4.4 scandal and …. 4.5, 4.6 trustworthiness …. 4.1 witnesses …. 4.2, 32.3 Requests for information statements in answer to …. 22.5 Retribution …. 2.2

Reynolds defence …. 24.6, 24.7, 25.3, 25.5, 25.7 Ridicule …. 10.4, 11.6 Right of reply …. 40.1, 40.2 Royal Commissions and inquiries absolute privilege …. 21.3 official reports …. 21.3 proceedings …. 21.3 publications …. 21.3 Royal confidence right of …. 14.11 Rumours …. 11.2

S Scandal reputation and …. 4.5, 4.6 scandalous association …. 11.5 Section 7A trials (NSW) …. 9.2, 17.2 Seditious libel …. 5.1, 5.2 Separate and distinct meanings …. 9.14 Servants capacity to be sued …. 13.2 comment defence …. 28.5 Settlement offers …. 41.2 Sexual immorality or misconduct …. 10.3, 10.6, 11.7 ‘Single meaning rule’ …. 9.2 Single publication rule …. 6.3, 7.5 Slander history …. 2.7, 2.8, 2.11, 2.15, 2.21 libel, abolition of distinction …. 3.5, 7.9, 30.1 Social networks …. 2.23, 14.11, 31.4

abusive material …. 11.6 award of damages against, case examples …. 33.3 Sources apportionment …. 13.8 capacity to be sued …. 13.8 disclosure of …. 13.8 Special damages economic loss …. 37.1 necessity of proving …. 6.1, 7.9 Speech see Freedom of speech Standing see Capacity to sue Statements to the world at large all circumstances …. 24.6 election statements …. 24.2 government or political matters …. 5.6, 24.3, 24.4 Lange defence …. 24.3, 24.4 public interest …. 24.1, 24.7 reasonable conduct …. 24.5 Statutory authorities fair report of proceedings …. 26.8 Statutory interpretation …. 3.14 Stigma …. 10.3, 10.6 Strangers capacity to sue …. 12.9 comment defence …. 28.6 Strict liability …. 1.1, 25.4, 25.10 Striking out proceedings …. 40.4 Summary judgment …. 40.5 Suspicion imputation of …. 11.1

T Taxation damages, on …. 38.1 Technological change privacy and …. 14.2 Television award of damages against, case examples …. 33.3 freedom of the press …. 2.19 qualified privilege …. 22.7 regulation of the press …. 3.3 Time limitations defences …. 18.6 reform …. 43.4 Treason …. 2.9 Trespass…. cause of action …. 2.15, 14.4, 14.6, 14.8, 14.9 damages …. 31.1 land, to …. 39.2 overview …. 2.15, 2.17 physical interference and …. 14.5 Roman law …. 2.4 super casum …. 2.15 Triviality statutory defence …. 30.1, 43.3 True innuendo cause of action …. 6.5, 9.2 false distinguished …. 19.8 inferences and …. 9.6, 9.10 Lewis case …. 19.8 meaning …. 6.5, 9.15

overview …. 9.15 Truth Code states …. 19.9 common law defence …. 4.1, 19.1 ‘common sting’ …. 19.6 contextual truth see Contextual truth criminal law …. 44.6 defendant’s imputation, of …. 19.5 Denning principle …. 19.8 different in kind or different in substance …. 19.7 Diplock principle …. 19.8 history of defence …. 2.17 Hore-Lacy defence …. 19.5, 19.8 multiplicity of imputations …. 19.4 partial truth …. 20.2 Polly Peck defence …. 19.5, 19.6 presumed falsity of defamatory imputation …. 19.3 public interest and …. 19.9, 43.2 qualified privilege and …. 19.3, 19.9 Roman law …. 2.3 Salmon principle …. 19.8 Slim dilemma …. 19.8 statutory defence …. 19.2, 43.3 reform proposals …. 19.8 true and only meaning …. 19.8 uniformity …. 19.8, 43.3 Twitter …. 2.23, 13.3

U Uniform law

abolition of distinction between libel and slander …. 7.9 absolute privilege defence …. 21.2, 21.3 judicial proceedings …. 21.3 parliament …. 21.3 Royal Commissions and inquiries …. 21.3 access to justice …. 43.2 apologies …. 16.10 arbitration …. 16.12 cause of action …. 6.2 choice of law …. 6.4 civil law prior to …. 42.6 common law and …. 1.1 contextual truth …. 20.3, 20.8, 43.3 costs …. 41.2 criminal convictions, evidence of …. 36.3, 42.2 criminal defamation …. 44.2 criminal law prior to …. 44.1 Crown’s capacity to be sued …. 13.5 damages see Damages defamatory meaning, pleading …. 9.10 uniform approach …. 9.13 disparagement …. 10.1, 10.3, 10.6 dispute resolution …. 16.1, 43.5 document, defined …. 7.9 enactment of …. 3.15 fair and accurate report defence see Fair and accurate reports fair comment defence …. 27.8 further harm …. 20.9 government or political matters …. 3.11 honest opinion defence …. 28.1, 43.3 incriminating evidence …. 42.3

innocent dissemination defence …. 29.2, 43.3 juries …. 17.1, 43.2 lawful excuse defence …. 44.4 limitation periods …. 18.6, 43.4 matter, defined …. 6.1, 7.9 modification of common law …. 3.16 multiple causes of action …. 6.5 multiple publication, defined …. 6.3 notices and other documents, service of …. 42.4 objects …. 43.2–43.5 offer of amends …. 16.8, 43.5 overview …. 1.1 personal injury …. 33.2, 33.4, 38.1 privacy …. 43.2 protected report defence …. 26.3 publication, choice of law …. 6.4, 7.5 publication, evidence of …. 42.1 purpose of …. 3.17, 19.8 qualified privilege see Qualified privilege reasonable conduct …. 24.3 regulations …. 42.5 repeal of existing legislation …. 42.6 reputation …. 4.4 review of …. 43.1 statements to the world at large all circumstances …. 24.6 Lange defence …. 24.3 statutory modification of defences …. 18.2 transitional provisions …. 42.6 triviality defence …. 30.1, 43.3

truth defence see Truth value of money …. 33.1 Unincorporated associations capacity to be sued …. 13.10 capacity to sue …. 12.10

V Vindication general damages …. 32.1, 32.3 Volunteering information qualified privilege …. 22.6

W Witnesses reputation …. 4.2, 32.3

RELATED LEXISNEXIS TITLES Balkin and Davis, Law of Torts, 5th edition, 2013 George, Quick Reference Card: Defamation Law, 2015 George et al, Social Media and the Law, 2nd edition, 2016 Lockhart, The Law of Misleading or Deceptive Conduct, 4th edition, 2014 Pearce and Geddes, Statutory Interpretation in Australia, 8th edition, 2014 Stickley, Australian Torts Law, 4th edition, 2016