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.

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.

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

34.

35. 36. 37. 38. 39.

40. 41. 42. 43. 44. 45. 46. 47. 48. 49.

50. 51. 52. 53. 54. 55.

56.

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 Hannov