Defamation in Australia 9780455228570, 0455228574

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Defamation Law

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

Defamation Law

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

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Associate Professor The University of Sydney Faculty of Law

LAWBOOK CO. 2016

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

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

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To

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Jackson Wherrett

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

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

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

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Foreword

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

The Hon Justice Susan Kiefel AC

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High Court of Australia

viii

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

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

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

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

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

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Table of Cases

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

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Table of Cases

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

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Table of Cases

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

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

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Table of Cases

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

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Table of Cases

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

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

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Table of Cases

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

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

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Table of Cases

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

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

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

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

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Table of Cases

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

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

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Table of Cases

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

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

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Table of Cases

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

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

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Table of Cases

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

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

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

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

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Table of Cases

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

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Table of Cases

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

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

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

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Table of Cases

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

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Table of Cases

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

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

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

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

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

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Table of Cases

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

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

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

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

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

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

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Table of Cases

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

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Table of Cases

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

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

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Table of Cases

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

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Table of Cases

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

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

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Table of Cases

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

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

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Table of Cases

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

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

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

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Table of Cases

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

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Table of Cases

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

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

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

Z

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

xlii

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

s 131(1): 18.80 Sch 2: 18.80

Corporations Act 2001: 12.90 Criminal Code s 474.17: 4.40

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

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

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

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

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

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

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

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

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

Parliamentary Proceedings Broadcasting Act 1946: 10.60 s 15: 10.60

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

Telecommunications Act 1997 s 16: 14.60

Trade Practices Act 1974: 18.80, 18.130

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

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

s 51(v): 18.80

Competition and Consumer Act 2010 xliii

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Table of Statutes

Australian Capital Territory

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

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

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Table of Statutes

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Civil Law (Wrongs) Act 2002 — cont

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

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

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

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

Crimes (Sentencing) Act 2005 s 144: 5.60

Defamation Act 1901 s 3: 5.20

Defamation Act 2001 s 14: 5.20

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

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

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

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

Legislation Act 2001 s 88: 5.60 s 133: 4.20

Limitation Act 1985 xlv

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Table of Statutes Limitation Act 1985 — cont

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

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

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

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

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

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

Defamation Act 1901: 3.70 s 6: 9.50

Defamation Act 1912: 3.70 s 7: 9.50

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

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

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Table of Statutes

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Defamation Act 2005 — cont

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

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

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

Table of Statutes Defamation Act 2005 — cont

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

s 4: 3.70

Supreme Court Act 1970 s 75: 17.100

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

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

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

Fair Trading Act 1987

Defamation Act 1938: 3.70 s 2: 5.20

Defamation Act 2006: 3.70

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

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

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

Felons (Civil Proceedings) Act 1981 s 4: 5.60

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

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

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

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

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

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

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

Table of Statutes

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Defamation Act 2006 — cont

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

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

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

Table of Statutes

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Defamation Act 2006 — cont

Personal Injuries (Liabilities and Damages) Act 2003

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

s 27: 15.120 s 28: 15.120

Supreme Court Act 1979 s 18: 17.100

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

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

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

Civil Proceedings Act 2011 s 10(2): 17.100

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

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

Defamation Act 2005: 3.70

Juries Act 1962

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

s 6A: 5.150

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

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

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

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

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Defamation Act 2005 — cont

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

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

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

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Defamation Act 2005 — cont

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

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

Industrial Relations Act 1999 s 423(e): 5.130

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

Jury Act 1995 s 32: 5.160

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

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

Public Interest Disclosure Act 2010 s 38: 10.70

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

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

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

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

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

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

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

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

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

Health Ombudsman Act 2013 s 275(4): 10.70

Defamation Act 2005: 3.70

Hospital and Health Boards Act 2013

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

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

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

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Defamation Act 2005 — cont

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

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

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

Table of Statutes

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Defamation Act 2005 — cont

s 36(2): 15.210 Pt 3: 17.10

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

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

Fair Work Act 1994 s 123: 5.130

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

Legal Practitioners Act 1981 s 84B: 10.70

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

Mining Act 1971 s 14F(2): 10.70

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

Supreme Court Act 1935 s 31: 17.100

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

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

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

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

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

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

Defamation Act 1895: 3.70 liv

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

Table of Statutes

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

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

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

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

Table of Statutes

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

Defamation Act 2005 — cont

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

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

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

Gas Pipelines Act 2000 s 77(2): 10.70

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

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

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

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

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

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

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

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

Table of Statutes

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

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

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

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

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

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

Table of Statutes

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

Defamation Act 2005 — cont

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

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

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

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

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

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

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

Protected Disclosure Act 2012 s 41: 10.70

Safe Drinking Act 2003 s 26F: 10.70

Supreme Court Act 1986 s 36: 17.100

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

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

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

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

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

Table of Statutes Criminal Code Act 1913 — cont

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

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

Criminal Code Act Compilation Act 1913 Sch 1: 3.70

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

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

Table of Statutes

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

Defamation Act 2005 — cont

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

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

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

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

Industrial Relations Act 1979 s 60(2): 5.130

Juries Act 1957 s 19: 5.160 s 24: 5.160

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

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

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

Newspaper Libel and Registration Act 1888 s 6: 12.80

Rules of the Supreme Court 1971 lx

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

Table of Statutes Rules of the Supreme Court 1971 — cont

ss 2 to 4: 17.10 s 14: 12.80

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

Defamation Act 2013: 8.130

Supreme Court Act 1935

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

s 25(6): 17.100

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

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

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

s 3: 12.80

Combines Investigation Act 1927: 10.30 Constitution Act 1982: 2.70

Libel Act 1843 s 6: 4.20, 4.30

Licensing Act 1662: 3.40 Licensing Act 1685

New Zealand

s 15: 3.40

Licensing Act 1692 Defamation Act 1992

s 14: 3.40

s 24: 17.100

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

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

United States

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

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

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

Canada Act 1982 Sch B: 2.70

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

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

International Covenant on Civil and Political Rights

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

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

s 73: 4.40

Universal Declaration of Human Rights

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

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

Defamation Act 1996

lxi

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

1

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

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

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

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

2

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

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1: Introduction

[1.10]

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

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

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

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3 4

5

6

7

8 9

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

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[1.30]

Criticisms

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

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

10 11 12 13

14 15

16 17

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

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[1.30]

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

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

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

19 20 21 22

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

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[1.60]

Australian defamation law

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

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

28 29

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

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5

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6

1: Introduction

[1.60]

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

33

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

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[1.80]

Focus of this book

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

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

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

35

36

37

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

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[1.80]

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

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2

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

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

Introduction

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

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

3

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

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

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

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

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

4 5

6

7

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

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[2.20]

Reputation in the case law

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

13

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

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

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

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

14 15 16 17

18 19 20

21

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

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[2.30]

Reputation in the case law

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

23 24 25 26

27 28

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

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

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

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

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

30 31 32 33 34

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

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[2.50]

Reputation in the academic literature

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

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

Reputation in the academic literature

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

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

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

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

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

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[2.60]

Reputation in the academic literature

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

63

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

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

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64 65 66 67 68 69 70 71 72 73

74

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

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[2.70]

Reputation as a human right

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

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

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

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

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

75 76 77 78 79

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

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

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

87 88 89

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

81 82

83 84 85

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[2.80]

The value of reputation

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

The value of reputation

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

90 91 92 93 94

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

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

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

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

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

96

97 98 99 100 101 102

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

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[2.80]

The value of reputation

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

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

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

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

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

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

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

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

113 114 115

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117

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

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[2.90]

The common law’s approach to freedom of speech

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

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119 120

121 122

123 124 125

126 127

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

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

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

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

128

129 130 131 132

133

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

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

[2.100]

The rationales for protecting free speech

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

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

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

137

138 139

140 141 142 143

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

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

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

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

148 149

150 151 152

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

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[2.110]

The “chilling effect” of defamation law

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

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

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

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

157

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

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

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

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

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

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

158 159 160 161 162

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

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[2.120]

The implied freedom of political communication

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

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

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

166 167 168 169 170 171 172 173

174

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

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

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

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

176

177 178 179

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

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[2.120]

The implied freedom of political communication

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

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182 183

184 185 186 187

188

189

190 191

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

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

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

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

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

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

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[2.140]

Free speech in comparative perspective

Free speech in comparative perspective

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

206

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

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[2.140]

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

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

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

209

210

211

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

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[2.150]

Freedom of speech and freedom of the press

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

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

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212

213 214

215

216

217

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

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37

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3

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

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

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

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

2 3

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

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40

3: The History and Sources of Defamation Law

[3.10]

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

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

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

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

4

5

6

7

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

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[3.20]

The sources of defamation law

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

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

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8

9 10

11

12 13 14 15

16 17

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

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[3.20]

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

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

18 19 20

21

22

23 24 25

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

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[3.30]

The sources of defamation law

The royal courts

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

27 28 29

30 31 32 33

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

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

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

34 35 36 37 38

39

40 41

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

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[3.40]

The sources of defamation law

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

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

The Star Chamber

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

43 44 45

46 47 48 49 50 51

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

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

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

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

62

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

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[3.40]

The sources of defamation law

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

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

64 65 66

67 68 69 70

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

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

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

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

71 72 73 74 75 76 77 78

79

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

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

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

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[3.50]

The sources of defamation law

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

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

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

84 85

86

87 88

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

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

92 93 94 95 96

97 98

99 100

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

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[3.60]

The sources of defamation law

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

The local courts

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

104

105 106 107 108 109 110 111 112

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

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

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[3.60]

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

Overview of sources of Australian defamation law

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

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

118 119 120

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

121 122

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

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

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[3.70]

Overview of sources of Australian defamation law

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

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

126

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

127 128 129 130 131 132

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

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

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[3.70]

Overview of sources of Australian defamation law

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

140 141 142

143

144

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

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4

Criminal Defamation [4.10]

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

[4.20]

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

[4.30]

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

[4.40]

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

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

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

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

3 4

5

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

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4: Criminal Defamation

[4.10]

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

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

11 12

13

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

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[4.20]

Statutory offence of criminal defamation

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

14

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15 16

17

18

19

20

21

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

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59

60

4: Criminal Defamation

[4.20]

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

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23 24 25

26

27 28 29

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

30

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

31 32 33 34

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

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[4.20]

Statutory offence of criminal defamation

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

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

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

37 38

39 40

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

41 42 43

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

44 45 46 47

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

48 49 50 51

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

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61

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[4.20]

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

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53 54

55 56 57 58

59 60

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

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

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[4.30]

Common law offence of defamatory libel

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

67 68 69 70

71 72 73 74

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

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[4.30]

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

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

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

78 79 80 81 82

83

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

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[4.40]

The case for the abolition of criminal defamation

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

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

84 85 86 87

88

89

90

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

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5

Preliminary Matters

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

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

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

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

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[5.20]

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

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2

3

4 5

6

7

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

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[5.20]

Libel and slander

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

8

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9

10 11 12 13

14

15 16 17

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

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[5.20]

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

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

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

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19

20

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

21

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

22

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

23

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

24

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

[5.40]

Limitation periods for defamation claims

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

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

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

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

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

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

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

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33 34 35

36

37 38 39

40

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

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[5.40]

Limitation periods for defamation claims

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

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48 49

50

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

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

51

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52

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

53 54 55 56 57

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

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[5.60]

Standing to sue for defamation

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

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

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

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

61 62

63 64 65

66

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

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

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

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

70

71 72 73 74

75 76

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

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[5.80]

Standing to sue for defamation

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

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

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77 78 79

80 81

82

83

84

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

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

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

Corporations – common law

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

87 88 89 90 91 92

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

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[5.100]

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

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93

94 95

96 97

98 99 100 101 102 103 104

105 106

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

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

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

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

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

107

108 109 110 111 112 113 114

115 116 117

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

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[5.110]

Standing to sue for defamation

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

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

119

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

120

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

121

122

123 124

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

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

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

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126

127 128 129

130

131

132

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

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[5.120]

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

Governmental bodies

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

141 142

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

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

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

143 144 145 146 147 148

149 150

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

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[5.120]

Standing to sue for defamation

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

151

152 153 154 155 156 157 158 159

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

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[5.120]

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

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

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

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

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

161

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

162 163 164 165 166 167 168 169

170

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[5.150]

The role of judge and jury in a defamation trial

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

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

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

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

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

181

182 183 184 185 186

187

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

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[5.160]

The role of judge and jury in a defamation trial

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

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188

189

190 191 192

193

194

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

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

195 196 197 198

199

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

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6

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

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[6.10]

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

The cause of action The matter as the cause of action

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

6

7 8 9

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

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[6.30]

The cause of action

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

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

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

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

12

13

14

15

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

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[6.30]

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

16

17

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18

19

20

21

22 23 24

25

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

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[6.30]

The cause of action

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

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

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

26 27

28 29 30 31 32

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

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

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

Defamatory capacity and meaning Introduction

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

37

38

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

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[6.70]

Defamatory capacity and meaning

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

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

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

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

40 41 42 43 44 45 46

47

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

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

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

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

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

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

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

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[6.80]

Defamatory capacity and meaning

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

60 61

62 63 64 65 66 67 68

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

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

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

Relevance of intention

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

69 70 71 72 73 74 75 76 77 78

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

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[6.110]

Natural and ordinary meaning and true innuendoes

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

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

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

82 83 84

85

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

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[6.110]

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

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86 87 88 89 90 91

92

93

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

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[6.140]

Interpreting defamatory matter

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

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

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

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

95 96

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

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[6.140]

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

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

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

98

99 100 101 102 103 104

105

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

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

[6.160]

Interpreting defamatory matter

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

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

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

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

107 108 109 110 111 112 113 114

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

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[6.160]

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

Bane and antidote

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

115 116 117 118 119

120 121 122

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

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

[6.180]

Interpreting defamatory matter

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

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

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

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

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

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

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[6.180]

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

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

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

137 138 139

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

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[6.200]

Interpreting defamatory matter

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

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

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

143 144 145 146

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

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

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[6.200]

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

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

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

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

The tests for what is defamatory Introduction

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

155 156

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

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

[6.230]

The tests for what is defamatory

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

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

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

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

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

161 162 163 164

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

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[6.230]

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

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

Lowering in the estimation

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

167

168 169 170 171 172 173 174 175

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

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[6.260]

The tests for what is defamatory

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

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

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

177 178

179

180

181 182 183

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

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[6.260]

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

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

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

184 185 186

187

188

189

190 191 192 193

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

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

[6.280]

The tests for what is defamatory

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

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

197 198 199

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

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

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

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

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

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

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

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

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[6.300]

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

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

213 214

215

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

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

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

219 220 221 222

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

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[6.300]

The tests for what is defamatory

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

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

223 224

225

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

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119

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7

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

Introduction

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

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

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122

7: Identification

[7.10]

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

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

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

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8 9 10 11 12 13

14

15 16

17 18

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

19

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

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[7.40]

Indirect identification

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

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

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

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

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

23 24 25

26

27 28

29

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

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123

124

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[7.40]

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

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30 31

32 33

34

35 36

37 38

39 40

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

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[7.40]

Indirect identification

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

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42 43 44 45 46

47 48 49

50

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

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[7.40]

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

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51

52

53 54 55

56 57 58 59

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

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[7.50]

Indirect identification

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

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

60 61

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62 63 64 65 66

67

68 69

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

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[7.50]

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

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

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

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

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

72 73 74 75 76 77

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

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[7.70]

Where plaintiff has same name as fictitious person

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

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

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

79 80

81 82

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

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129

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[7.70]

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

Aspersion against group or class General principles

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

90

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

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[7.80]

Aspersion against group or class

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

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

92 93 94

95 96

97 98 99 100 101

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

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131

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[7.80]

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

Particular examples

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

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

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[7.90]

Aspersion against group or class

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

117 118 119 120 121 122

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

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133

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[7.90]

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

123 124 125 126 127 128 129 130 131

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

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[7.100]

Use of prior and subsequent publications to establish identification

Use of prior and subsequent publications to establish identification

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

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

135 136 137 138 139 140

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

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135

136

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[7.100]

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

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

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

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

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

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[7.100]

Use of prior and subsequent publications to establish identification

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

146 147 148 149 150 151

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

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137

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8

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

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

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

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140

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[8.10]

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

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

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

4 5 6 7

8

9

10

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

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[8.30]

Who is a publisher?

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

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

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

11

12 13 14

15 16

17 18

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

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

141

142

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[8.30]

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

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

Acts or omissions amounting to publication

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

23

24 25 26

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

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[8.50]

Acts or omissions amounting to publication

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

30

31 32 33

34

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

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143

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[8.50]

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

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

Repetition

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

35 36 37 38 39 40

41 42

43

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

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[8.70]

Republication

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

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

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

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45

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

46

47 48

49 50 51 52 53

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

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

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

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

59

60

61 62

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

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[8.90]

Proof of publication

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

Limited publication

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

64 65 66 67 68 69 70 71

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

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

76 77

78 79 80

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

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[8.90]

Proof of publication

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

85 86 87 88 89 90

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

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

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

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

Publication between husband and wife

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

95

96

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

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[8.130]

Multiple publication

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

Multiple publication

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[8.130] Every communication of defamatory matter constitutes a separate

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

98

99 100 101 102 103 104

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

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

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

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105

106 107 108 109

110

111

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

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

[8.150]

Jurisdiction and choice of law in multi-state defamation

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

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

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

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

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115 116 117 118

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

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

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

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122

123 124 125 126 127 128 129

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

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

[8.160]

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

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

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132 133 134

135

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

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

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

138

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139

140

141

142

143 144

145

146

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

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

[8.170]

Jurisdiction over internet defamation

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

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

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

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148 149 150 151

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

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

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

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

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

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

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

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intuition”,158 suggesting that it would “appear to warrant national legislative attention and to require international discussion in a forum as global as the internet”.159 In over a decade since the High Court’s decision in Dow Jones & Co Inc v Gutnick, no meaningful discussion in such a forum has eventuated. Callinan J’s views on the impact of internet technologies were diametrically opposed to those expressed by Kirby J. Callinan J was unconvinced as to the revolutionary nature of internet technologies.160 His Honour stated that “[t]here is nothing unique about multinational business”. By way of analogy, he observed that:

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[s]ome brands of motor cars are ubiquitous but their manufacturers, if they wish to sell them in different jurisdictions, must comply with the laws and standards of those jurisdictions.161

With respect, the analogy works only at a high level of generality, if at all. As the joint judgment in Pfeiffer v Rogerson162 observed, there is a qualitative difference between the harms caused by multi-state defamation and those caused by other forms of multi-state tort claims, such as a product liability claim arising out of a defective imported motor vehicle. Callinan J pointed out that “[m]ultiple publication in different jurisdictions is certainly no novelty in a federation such as Australia”.163 His Honour found that there was no need to revisit settled principles of defamation law and conflict of laws in order to dispose of the appeal. The position adopted in the joint judgment can be characterised as intermediate between that of Kirby and Callinan JJ. Gleeson CJ, McHugh, Gummow and Hayne JJ accepted that “the advent of the World Wide Web is a considerable technological advance” but did not accept that the legal issues it presented were unique. They were amplifications of pre-existing and wellknown problems, which had already been encountered in relation to national and sometimes international newspapers, magazines, radio and television broadcasts.164 Their Honours were reluctant to fashion technology-specific rules to deal with internet publications.165 The effect of the High Court’s decision in Dow Jones & Co Inc v Gutnick on the exercise of jurisdiction over cases of internet defamation should not be overstated. There are a range of principled and practical reasons why multiple proceedings in multiple jurisdictions, concurrently or consecutively, in respect of widespread dissemination of defamatory matter, are unlikely to occur.166 In appropriate cases, the doctrine of forum non conveniens will allow a court to refuse to exercise jurisdiction where it is a clearly inappropriate forum.167 It 158 159 160 161 162 163 164 165 166 167

Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 at 642 (CLR). Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 at 643 (CLR). Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 at 647-8 (CLR). Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 at 649 (CLR) per Callinan J. John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; [2000] HCA 36 at 538-9 (CLR) per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 at 650 (CLR). Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 at 605 (CLR). Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 at 605 (CLR) per Gleeson CJ, McHugh, Gummow and Hayne JJ. D Rolph, “The Message, Not the Medium: Defamation, Publication and the Internet in Dow Jones & Co Inc v Gutnick” (2002) 24 Syd LR 263 at 275-6. Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 at 247-8 per Deane J; Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 557-60 per Mason CJ, Deane,

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-22 20:22:06.

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may be possible for the plaintiff to bring defamation proceedings in one jurisdiction and claim damages for publication within and outside that jurisdiction.168 Where a plaintiff has successfully brought proceedings in one jurisdiction in respect of publication of defamatory matter in that jurisdiction and then commences proceedings in another jurisdiction in respect of publication of the defamatory matter in that jurisdiction, he or she may face having the subsequent proceedings stayed as an abuse of process.169 Under the national, uniform defamation laws, where a plaintiff has brought proceedings against a defendant in relation to the publication of defamatory matter, he or she cannot bring further defamation proceedings for damages against the same defendant in relation to the publication of “the same or like matter” without leave of the court.170 The principles of res judicata, issue estoppel and Anshun estoppel171 can limit a plaintiff from attempting to bring multiple, successive actions. The anti-suit injunction can prevent a plaintiff from maintaining

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Dawson and Gaudron JJ; Henry v Henry (1996) 185 CLR 571 at 586-7 per Dawson, Gaudron, McHugh and Gummow JJ; Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 at 608 (CLR) per Gleeson CJ, McHugh, Gummow and Hayne JJ, at 611 per Gaudron J. The applicable test in Australia diverges from that under English law, which is expressed in terms of identifying a “more appropriate forum”: see Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 at 476-8 per Lord Goff of Chieveley. As to whether the application of these different tests leads to different outcomes in practice, see Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 558 per Mason CJ, Deane, Dawson and Gaudron JJ. Within Australia, there is also the cross-vesting legislation, which permits the transfer of proceedings in the interests of justice to a more appropriate State or Territory Supreme Court: see Jursidiction of Courts (Cross-Vesting) Act 1987 (Cth) s 5; Jurisdiction of Courts (Cross-Vesting) Act 1993 (ACT) s 5; Jurisdiction of Courts (Cross-Vesting) Act 1987 (NT) s 5; Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) s 5; Jurisdiction of Courts (Cross-Vesting) Act 1987 (Qld) s 5; Jurisdiction of Courts (Cross-Vesting) Act 1987 (SA) s 5; Jurisdiction of Courts (Cross-Vesting) Act 1987 (Tas) s 5; Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vic) s 5; Jurisdiction of Courts (CrossVesting) Act 1987 (WA) s 5. For examples of the transfer of proceedings being made in a defamation case, see Waterhouse v Australian Broadcasting Corporation (1989) 86 ACTR 1; Arrowcrest Group Pty Ltd v Advertiser News Weekend Publishing Co Pty Ltd (1993) 113 FLR 57; Bateman & Idameneo (No 123) Pty Ltd v Fairfax Media Publications Pty Ltd (2013) 8 ACTLR 13; [2013] ACTSC 72. For examples of a refusal to order the transfer of proceedings in a defamation case, see Baffsky v John Fairfax & Sons Ltd (1990) 97 ACTR 1; Windschuttle v ACP Publishing Pty Ltd [2002] ACTSC 64. Whitney v Moignard (1890) 24 QBD 630 at 631 per Huddleston B; McLean v David Syme & Co Ltd (1970) 72 SR(NSW) 513 at 525 per Asprey JA; Toomey v Mirror Newspapers Ltd (1985) 1 NSWLR 173 at 184 per Hunt J. However, see also David Syme & Co Ltd v Grey (1992) 38 FCR 303 at 323-7 per Gummow J. Meckiff v Simpson [1968] VR 62 at 65 per Menhennitt J; McLean v David Syme & Co Ltd (1970) 72 SR(NSW) 513 at 528 per Mason and Manning JJA; Maple v David Syme & Co Ltd [1975] 1 NSWLR 97 at 102 per Begg J. Civil Law (Wrongs) Act 2002 (ACT) s 133; Defamation Act 2006 (NT) s 20; Defamation Act 2005 (NSW) s 23; Defamation Act 2005 (Qld) s 23; Defamation Act 2005 (SA) s 21; Defamation Act 2005 (Tas) s 23; Defamation Act 2005 (Vic) s 23; Defamation Act 2005 (WA) s 23. As to the interpretation and application of this section, see Buckley v Herald & Weekly Times Pty Ltd (No 2) [2008] VSC 475 at [12]-[15] per Kaye J; Carey v Australian Broadcasting Corporation (2012) 84 NSWLR 90; [2012] NSWCA 176 at 106 (NSWLR) per McColl JA; Sullivan v Griffin [2012] NSWSC 687 at [21]-[23] per Nicholas J. For judicial consideration of the predecessor provisions, see, eg, Singleton v John Fairfax & Sons Ltd [1982] 2 NSWLR 38 at 41-6 per Hunt J; Lee v Kim (2006) 68 NSWLR 433; [2006] NSWCA 384 at 438-9 (NSWLR) per Handley JA. Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. For the application of Anshun estoppel in the context of a defamation claim, see Lee v Kim (2006) 68 NSWLR 433; [2006] NSWCA 384 at 437-8 (NSWLR) per Handley JA.

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-22 20:22:06.

[8.180]

Internet technologies

multiple, concurrent proceedings.172 The ability to enforce a judgment against a defendant will also be a material consideration for a plaintiff when considering in which jurisdiction to sue. If the defendant does not have assets located in a particular jurisdiction, there will be a real disincentive for a plaintiff to sue the defendant there.173 In addition, it will only be useful to a plaintiff to sue in a jurisdiction or jurisdictions where he or she has a substantial reputation.174 More often than not, a plaintiff will sue for defamation in the jurisdiction where he or she is ordinarily resident, so that the identification of the plaintiff will allow the publisher, in advance, to know which law needs to be considered and which law is likely to apply to any case brought by the plaintiff.175 The legal complexities and costs associated with pleading publication in multiple jurisdictions acts, or should act, as a disincentive to plaintiffs pursuing claims in respect of publication of places in which they have minimal reputations or marginal connections.176 As Gleeson CJ, McHugh, Gummow and Hayne JJ suggested in Dow Jones & Co Inc v Gutnick,177 “the spectre … of a publisher forced to consider every article it publishes on the World Wide Web against the defamation laws of every country from Afghanistan to Zimbabwe is … unreal”.

Internet technologies [8.180] Unsurprisingly, given the pervasiveness of internet technologies in daily life, defamation cases arising from various forms of internet-based communications have been brought before Australian courts. There are now a substantial number of cases dealing with defamatory emails.178 There have also been cases dealing with defamatory Facebook postings.179 There has been one case, to final judgment, of defamation via Twitter in Australia. In Mickle v Farley,180 Elkaim DCJ awarded a schoolteacher $105,000 damages (including a component of $20,000 aggravated damages) arising from an ex-student’s 172

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173 174 175 176 177 178

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Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 at 604, 608 (CLR) per Gleeson CJ, McHugh, Gummow and Hayne JJ, at 611 per Gaudron J. Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 at 609 (CLR) per Gleeson CJ, McHugh, Gummow and Hayne JJ. Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 at 609 (CLR) per Gleeson CJ, McHugh, Gummow and Hayne JJ. Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 at 609 (CLR) per Gleeson CJ, McHugh, Gummow and Hayne JJ, at 634, 639 per Kirby J. See, eg, Whelan v John Fairfax Publications Pty Ltd (2002) 56 NSWLR 89; [2002] NSWSC 1028 at 113 (NSWLR) per Levine J. Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 at 609 (CLR) per Gleeson CJ, McHugh, Gummow and Hayne JJ. See, eg, Enders v Erbas & Associates Pty Ltd [2014] NSWCA 70; Ell v Milne (No 8) [2014] NSWSC 175; Haddon v Forsyth [2011] NSWSC 123; Association of Quality Child Care Centres (NSW) v Manefield [2012] NSWCA 123; Ryan v Premachandran [2009] NSWSC 1186; National Auto Glass Supplies (Australia) Pty Ltd v Nielsen & Moller Autoglass (NSW) Pty Ltd (2006) 156 FCR 148; [2006] FCA 1386; Markovic v White [2004] NSWSC 37. See, eg, Polias v Ryall [2013] NSWSC 1267 at [1], [5]-[6], [20], [27], [30], [34], [38]-[39], [43] per McCallum J; North Coast Children’s Home Inc t/as Child and Adolescent Specialist Programs & Accommodation (CASPA) v Martin [2014] NSWDC 125, [11]-[22], [80], [88], [93] per Gibson DCJ (three plaintiffs awarded combined amount of $250,000 damages arising from, inter alia, Facebook postings); Polias v Ryall [2014] NSWSC 1692 at [98] per Rothman J (plaintiff awarded $340,000 damages against four defendants over six Facebook posts and two conversations including aggravated damages). [2013] NSWDC 295 at [16], [20].

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-22 20:22:06.

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tweets. There are more Twitter defamation cases currently before Australian courts.181 There have also been a number of high-profile Twitter defamation cases internationally.182 Many complaints about defamation arising from social media, such as Facebook and Twitter, are, of course, resolved without recourse to litigation. As the reach of these platforms increases and as new forms of social media develop, defamation cases based upon them will undoubtedly proliferate. Social media communications present some particular problems, which arise more acutely or regularly than they do in relation to more traditional forms of media. For example, anonymity, or more often, pseudonymity, is not uncommon in social media usage. This presents an obvious difficulty for a prospective plaintiff seeking to identify the prospective defendant.183 In dealing with the issues of defamation law raised by internet technologies, courts have been averse to creating or fashioning technology-specific rules.184 Aside from any limits on judicial lawmaking, an obvious practical reason for this approach is that existing technologies become obsolete and new technologies are developed but are not covered by any technology-specific rules. In order to cope with emerging technologies, new, specific rules would have to be developed and would proliferate. Instead, courts have sensibly preferred to extend and adapt existing principles of defamation law by way of analogy, whilst remaining acutely aware of the limitations of analogical reasoning.185 Courts have counselled that attention needs to be given to the particular features of the specific internet intermediary or technology in question. How the general principles of defamation law will apply in a given case will be necessarily fact-sensitive.186

The particular position of internet service providers and search engines

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[8.190] Difficult issues of principle have arisen in relation to determining whether an internet service provider (ISP) or an internet-based search engine is, or should be, a publisher for the purposes of defamation law. These issues invite renewed consideration of the basic principles of defamation law relating to what constitutes publication and who is a publisher.187 They have been explored through a series of English cases over the last 15 years. In Godfrey v 181 182

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See, eg, Crosby v Kelly (2012) 203 FCR 451; [2012] FCAFC 96; see also Crosby v Kelly [2013] FCA 1343. See, eg, Cairns v Modi [2013] 1 WLR 1015; [2012] EWCA Civ 1382 at 1025-7 (WLR) per curiam (£90,000 damages, including £15,000 aggravated damages, for tweet about cricketer by person with 65 followers); McAlpine v Bercow [2013] EWHC 1342 (QB); Murray v Wishart [2014] NZCA 461 (Twitter and Facebook). For a comprehensive analysis of the legal issues relating to defamation via Facebook and Twitter, see J Ireland, “Defamation 2.0: Facebook and Twitter” (2012) 17 Media and Arts Law Review 53. See, eg, Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 at 605 (CLR) per Gleeson CJ, McHugh, Gummow and Hayne JJ; Visscher v Maritime Union of Australia (No 6) [2014] NSWSC 350 at [28] per Beech-Jones J. See, eg, Metropolitan International Schools Ltd (t/as Skillstrain and/or Train2Game) v Designtechnica Corpn (t/as Digital Trends) [2011] 1 WLR 1743; [2009] EWHC 1765 at 1757 (WLR) (QB) per Eady J; Murray v Wishart [2014] NZCA 461 at [99], [125]-[126] per curiam. See, eg, Murray v Wishart [2014] NZCA 461 at [125]-[126] per curiam. D Rolph, “Publication, Innocent Dissemination and the Internet After Dow Jones & Co Inc v Gutnick” (2010) 33 UNSWLJ 562 at 578-9.

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-22 20:22:06.

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[8.190] The particular position of internet service providers and search engines

Demon Internet Ltd,188 the plaintiff was an academic who complained about a posting to a newsgroup on a news server hosted by Demon Internet, which publication was characterised by Morland J as “squalid” and “obscene”. Dr Godfrey contacted Demon Internet, requesting that it take down the posting but it failed to do so, instead allowing the posting to expire automatically.189 Morland J found that the ISP here was a publisher of the defamatory matter, as it had not merely provided the internet service but had also hosted the content.190 Subsequently, in Bunt v Tilley,191 Eady J had to determine whether an ISP was a publisher for the purposes of defamation law in slightly different circumstances. John Bunt sued three personal defendants, as well as three ISPs, AOL UK Ltd, Tiscali Ltd and British Telecommunications plc. Bunt’s claim against the ISPs was only that they provided the internet service which allowed the personal defendants to publish the defamatory matter. They did not host the material in question, unlike in Godfrey v Demon Internet Ltd. The ISPs applied to have the case against them struck out.192 Eady J agreed, drawing, as a matter of principle, a distinction between publication on the one hand and mere passive facilitation on the other hand. A postal service through which a defamatory letter was posted or a telephone company through which a defamatory telephone call was made, or a defamatory text message was sent would be regarded as mere passive facilitators, rather than publishers, according to Eady J’s analysis of the relevant authorities. The ISPs, which provided an internet service to the defendants who composed and communicated the defamatory matter but no more, were properly characterised, in Eady J’s view, as a mere passive facilitator, rather than as a publisher. As a consequence, whether or not the ISPs had knowledge of the defamatory matter was irrelevant: because they were not publishers, they did not require a defence and could not be fixed with liability.193 In Metropolitan Schools Ltd v Designtechnica Corp,194 Eady J extended this reasoning to internet-based search engines. In this case, the plaintiff company sought to sue Google for defamation on the basis that, when a third party typed its name into a Google search, the organic results would direct the user to the defamatory matter originally posted in Designtechnica’s online forums. Google could not control the user’s search terms. The results generated by the Google search were automatic, with no human intervention.195 Eady J held that Google was a mere passive facilitator, not a publisher.196 There are limits as to how far this reasoning can be applied. In Tamiz v Google Inc,197 the Court of Appeal overturned a decision by Eady J that 188 189 190 191 192 193 194 195

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[2001] QB 201. Godfrey v Demon Internet Ltd [2001] QB 201 at 204-5 per Morland J. Godfrey v Demon Internet Ltd [2001] QB 201 at 212. [2007] 1 WLR 1243; [2006] EWHC 407 (QB). Bunt v Tilley [2007] 1 WLR 1243; [2006] EWHC 407 (QB) at 1244-5 (WLR) per Eady J. Bunt v Tilley [2007] 1 WLR 1243; [2006] EWHC 407 (QB) at 1252 (WLR) per Eady J. [2011] 1 WLR 1743; [2009] EWHC 1765 (QB). Metropolitan International Schools Ltd (t/as Skillstrain and/or Train2Game) v Designtechnica Corpn (t/as Digital Trends) [2011] 1 WLR 1743; [2009] EWHC 1765 at 1746-7 (WLR) (QB) per Eady J. Metropolitan International Schools Ltd (t/as Skillstrain and/or Train2Game) v Designtechnica Corpn (t/as Digital Trends) [2011] 1 WLR 1743; [2009] EWHC 1765 at 1757-60 (WLR). For further analysis of these cases, see generally, D Rolph, “Publication, Innocent Dissemination and the Internet After Dow Jones & Co Inc v Gutnick” (2010) 33 UNSWLJ 562. [2013] 1 WLR 2151; [2013] EWCA Civ 68 at 2154-5 (WLR) per Richards LJ.

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-22 20:22:06.

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Google was again a mere passive facilitator rather than a publisher. In this case, the claimant brought defamation proceedings against Google in respect of comments posted on a blog hosted by Google’s Blogger service. Google was notified about the presence of the allegedly defamatory comments but the comments remained online for over a month after that notification, at which time the blogger voluntarily removed them. Richards LJ refused to find that Eady J’s judgment in Bunt v Tilley was wrong. However, his Lordship did find that Eady J’s conclusion that Google’s role in the present case was sufficiently analogous to that of the internet service providers in Bunt v Tilley was in error. He rejected the finding that, in the present case, Google was a mere passive facilitator.198 Google provided the platform and the design tools and made the service available on terms of its own choice.199 It did not control the content of the blogs, thus was not a primary publisher. Prior to the claimant’s notification, Richards LJ’s view was that Google was also not a secondary publisher of the defamatory matter.200 However, after notification, his Lordship was of the view that Google was a secondary publisher, by an application of the Court of Appeal’s earlier, pre-internet decision in Byrne v Deane.201 Just as the Deanes had provided and controlled the noticeboard in the golf club, so Google provided and controlled the Blogger service. Both could be held responsible as secondary publishers if they were notified as to the presence of defamatory matter on areas which they controlled and they took no steps to remove that defamatory matter within a reasonable period of time. The effect of the Court of Appeal’s decision in Tamiz v Google is not to reject emphatically the distinction drawn by Eady J between publishers and mere passive facilitators. That distinction may still hold good. What the Court of Appeal’s decision in Tamiz v Google suggests is that the proper approach is to consider whether the particular type of conduct by the particular internet intermediary constitutes publication for the purposes of defamation law. It seems unhelpful to discuss internet intermediaries’ liability as publishers of defamatory matter in the abstract, divorced from a consideration of what exactly those internet intermediaries did. This line of authority has had a mixed reception in Australian courts. As Mansfield J observed, dealing with an application for leave to serve originating process in a defamation claim against Google Inc outside of Australia, “the law in this regard is far from settled”.202 The decided cases thus far have principally concerned the liability of search engines as publishers of defamatory matter. In 198 199 200

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Tamiz v Google Inc [2013] 1 WLR 2151; [2013] EWCA Civ 68 at 2161 (WLR) per Richards LJ. Tamiz v Google Inc [2013] 1 WLR 2151; [2013] EWCA Civ 68 at 2161-2 (WLR) per Richards LJ. Tamiz v Google Inc [2013] 1 WLR 2151; [2013] EWCA Civ 68 at 2162 (WLR). The characterisation of a publisher as a secondary distributor is important for the purposes of the availability of a defence of innocent dissemination, as to which, see [14.20]–[14.50]. Tamiz v Google Inc [2013] 1 WLR 2151; [2013] EWCA Civ 68 at 2162-5 (WLR) per Richards LJ. As to Byrne v Deane [1937] 1 KB 818 and liability for publication arising out of a failure or refusal to act, see [8.50]. For a similar approach to the liability of Google as a publisher arising out of its Blogger service, see Davison v Habeeb [2011] EWHC 3031 (QB) at [47] per Judge Parkes QC. Rana v Google Australia Pty Ltd [2013] FCA 60 at [50], citing Duffy v Google Inc [2011] SADC 178 at [29]-[31] per Millsteed J. Australian courts will now take judicial notice of the fact that “the use of the internet, to ascertain information about people, is now commonplace”: Trkulja v Yahoo! Inc LLC [2012] VSC 88 at [36] per Kaye J; Cripps v Vakras [2014] VSC 279 at [268] per Kyrou J.

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-23 21:44:50.

[8.190] The particular position of internet service providers and search engines

Trkulja v Yahoo! Inc LLC,203 a search engine was ordered to pay the plaintiff $225,000 damages for page results generated by third party users’ searches for the plaintiff’s name, which results suggested that the plaintiff was a criminal and involved in Melbourne’s criminal underworld.204 At trial, Yahoo! did not take the point that it was not a publisher for the purposes of defamation law, based on the line of authority in English case law.205 In a separate defamation proceeding brought by the same plaintiff against a different search engine, Google did take this point. In Trkulja v Google Inc, the jury found, as it did in Trkulja v Yahoo!, that the search engine published the defamatory matter.206 Google applied for judgment notwithstanding the jury’s verdict.207 It explicitly based its argument on the recent line of English case law.208 Beach J rejected the submission that Google was not a publisher, concluding that: it was open to the jury to find the facts in this proceeding in such a way as to entitle the jury to conclude that Google Inc was a publisher even before it had any notice from anybody acting on behalf of the plaintiff. The jury were entitled to conclude that Google Inc intended to publish the material that its automated systems produced, because that was what they were designed to do upon a search request being typed into one of Google’s search products.209

Beach J distinguished Eady J’s judgment in Metropolitan International Schools Ltd v Designtechnica Corporation in part because:

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his Lordship does not appear to have given any consideration to the fact that internet search engines, while operating in an automated fashion from the moment a request is typed into them, operate precisely as intended by those who own them and who provide their services.210

His Honour went further, holding that the English line of authority “does not represent the common law of Australia”, to the extent that it compelled the conclusion that a search engine, such as Google, was not, as a matter of law, a publisher.211 Beach J awarded Trkulja $200,000 damages.212 More recently, McCallum J had to consider this issue as part of an application by Google permanently to stay defamation proceedings on the basis of proportionality.213 The proceedings again related to snippets as well as the hyperlinked pages which resulted from a third party user’s entry of the plaintiff’s name into the search engine.214 After reviewing the relevant English authorities as well as Beach J’s judgment in Trkulja v Google,215 McCallum J expressed respectful disagreement with Beach J’s view that the English authorities did not represent the common law of Australia.216 Specifically, her 203 204 205 206 207 208 209 210 211 212 213 214 215 216

[2012] VSC 88. Trkulja v Yahoo! Inc LLC [2012] VSC 88 at [63] per Kaye J. As to the facts of the case, see at [2]-[5]. Trkulja v Yahoo! Inc LLC [2012] VSC 88 at [6] per Kaye J. As to the jury’s verdict, see Trkulja v Google Inc [2012] VSC 533 at [11]-[12] per Beach J. Trkulja v Google Inc [2012] VSC 533 at [13] per Beach J. Trkulja v Google Inc [2012] VSC 533 at [15] per Beach J. Trkulja v Google Inc [2012] VSC 533 at [18] per Beach J. Trkulja v Google Inc [2012] VSC 533 at [27]. Trkulja v Google Inc [2012] VSC 533 at [29] per Beach J. Trkulja v Google Inc [2012] VSC 533 at [55]-[56]. Bleyer v Google Inc [2014] NSWSC 897. As to proportionality, see [8.210]. Bleyer v Google Inc [2014] NSWSC 897 at [7]-[8] per McCallum J. Bleyer v Google Inc [2014] NSWSC 897 at [66]-[75]. Bleyer v Google Inc [2014] NSWSC 897 at [77].

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-23 21:44:50.

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Honour rejected the view expressed by Beach J in Trkulja v Google that, as a matter of law, a search engine may be a publisher of defamatory matter even before it was put on notice.217 Instead, her Honour found that, given that “there is no human input in the application of the Google search engine apart from the creation of the algorithm”, Google was not a publisher for the purposes of defamation law, at least prior to notification. In so finding, McCallum J explicitly followed the line of authority in English law.218 The issue of whether a search engine is a publisher for the purposes of defamation law has not only perplexed English and Australian courts. Courts around the world have had to grapple with this difficult issue of principle.219 Undoubtedly, this issue will be revisited by Australian courts, given the pervasiveness of internet technologies in everyday life. Not only is the law on this point “far from settled”, it is likely to remain so for some time.

Hyperlinks

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[8.200] An issue which also arises in relation to internet-based technologies is the liability of a person who provides a hyperlink to defamatory matter. It invites renewed consideration of the basic principles of defamation law relating to republication,220 as it involves the application of such principles to a different technological context. This issue has some specific relevance to determining the liability of search engines as publishers of defamatory matter, as plaintiffs often seek to hold search engines liable not only for the snippets generated as a result of third party users’ searches but also for the hyperlinked page results. It is also highly relevant to cases of Twitter defamation, where a defendant tweets a hyperlink to arguably defamatory matter.221 In addition, it has an application beyond internet intermediaries and platforms. The Supreme Court of Canada considered this issue in Crookes v Newton.222 In this case, the appellant, Wayne Crookes, brought defamation proceedings against the respondent, Jon Newton, who operated a website concerned with, inter alia, freedom of speech and the internet. Newton posted two hyperlinks on the website to publications which Crookes claimed were defamatory of him. Newton refused to remove the hyperlinks from his website.223 A range of different views on the issue of whether providing a hyperlink amounted to publication for the purposes of defamation law were expressed in the various judgments in the Supreme Court of Canada in this case. McLachlin CJ and Fish J held that “[p]ublication of a defamatory statement via a hyperlink should be found if the text indicates adoption or 217 218

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220 221 222 223

Bleyer v Google Inc [2014] NSWSC 897 at [76] per McCallum J. Bleyer v Google Inc [2014] NSWSC 897 at [83]. Cf Tamiz v Google Inc [2013] 1 WLR 2151; [2013] EWCA Civ 68 at 2162 (WLR) per Richards LJ (seemingly accepting the correctness of Metropolitan International Schools Ltd (t/as Skillstrain and/or Train2Game) v Designtechnica Corpn (t/as Digital Trends) [2011] 1 WLR 1743; [2009] EWHC 1765 (QB) on its own facts). See, eg, A v Google New Zealand Ltd [2012] NZHC 2352 at [71]-[73] per Abbott AJ (arguable that search engine publisher); Yeung v Google Inc [2014] HKCFI 1404 at [103] per Ng J (arguable that Google publisher of its automated search results). As to republication, see [8.70]. See, eg, Murray v Wishart [2014] NZCA 461 at [31]-[32] per curiam. [2011] 3 SCR 269; [2011] SCC 47. As to the facts of the case, see [2011] 3 SCR 269; [2011] SCC 47 at 277-9 (SCR) per Abella J.

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[8.200]

Hyperlinks

endorsement of the content of the hyperlinked text.”224 However, “mere general reference to a web site is not enough”. In their Honours’ view, this approach was consistent with the principles of defamation law relating to publication.225 However, they acknowledged that this approach in fact required some refinement of the traditional common law approach to publication. According to McLachlin CJ and Fish J, a hyperlink should be treated presumptively as “a content-neutral reference” unless, in context, the person providing the hyperlink could reasonably be construed as adopting or endorsing the hyperlinked matter.226 In her judgment, Abella J likened a hyperlink to a reference and found that: [a] reference to other content is fundamentally different from other acts involved in publication. Referencing on its own does not involve exerting control over the content. Communicating something is very different from merely communicating that something exists or where it exists.227

According to her Honour, both hyperlinks and references “communicate that something exists, but do not, by themselves, communicate its content. And they both require some act on the part of a third party before he or she gains access to the content.” In her view, a hyperlink, like a footnote, is “content-neutral – it expresses no opinion, nor does it have any control over, the content to which it refers”.228 Abella J was fortified in her reasoning on this issue by the importance of freedom of speech under the Canadian Charter of Rights and Freedoms.229 Hyperlinks are vital to the free flow of information on the internet, thereby performing an important role in the facilitation of free speech in a networked world.230

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In separate reasons for judgment, Deschamps J suggested yet another way of dealing with the issue, namely, by holding a person providing a hyperlink liable as a publisher only where that person deliberately made that defamatory matter available.231 The issue of a defendant’s liability as a publisher for providing a hyperlink to defamatory matter has arisen in Australia in Visscher v Maritime Union of Australia (No 6).232 The plaintiff sought to hold the defendant trade union liable in defamation for, inter alia, providing a hyperlink on its website to a newspaper article, which the plaintiff claimed was defamatory of him.233 BeechJones J found that the approach of McLachlin CJ and Fish J in Crookes v Newton was the most consistent with general principles of liability for publication under Anglo-Australian defamation law.234 Applying that approach to the given facts, the defendant trade union was found to be a publisher of the defamatory matter contained in the hyperlink because, by continuing to 224 225 226 227 228 229 230 231 232 233 234

Crookes v Newton [2011] 3 SCR 269; [2011] SCC 47 at 294 (SCR) (emphasis in original). [2011] 3 SCR 269; [2011] SCC 47 at 294 (SCR). [2011] 3 SCR 269; [2011] SCC 47 at 294-5 (SCR). [2011] 3 SCR 269; [2011] SCC 47 at 285 (SCR) (emphasis in original). [2011] 3 SCR 269; [2011] SCC 47 at 286 (SCR). [2011] 3 SCR 269; [2011] SCC 47 at 286-7 (SCR). [2011] 3 SCR 269; [2011] SCC 47 at 288-9 (SCR) per Abella J. [2011] 3 SCR 269; [2011] SCC 47 at 297-8 (SCR). [2014] NSWSC 350. Visscher v Maritime Union of Australia (No 6) [2014] NSWSC 350 at [17]-[18] per Beech-Jones J. [2014] NSWSC 350 at [29].

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provide access to it via its website, it adopted or promoted that content.235 As with the liability of internet service providers and search engines, issues about liability in defamation for providing hyperlinks are unsettled under Australian law and are likely to be more frequently litigated in the near future.

Proportionality [8.210] Although publication to only one person other than the plaintiff is

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sufficient to establish the tort of defamation, there is, or should be, a live issue as to whether a claim for defamation involving publication to a minuscule audience should be allowed to be litigated. Many of the important authorities in defamation law involve publication to a small audience.236 There are still defamation cases brought, and litigated, to the highest level, arising out of publication to only a small number of recipients.237 Whether the finite time and resources of the judicial system should be able to be absorbed with cases involving publication to a limited audience and consequently, in many instances, involving less substantial damage to reputation, is an open question. In Jameel v Dow Jones & Co Inc,238 the English Court of Appeal struck out a defamation claim brought by a foreign plaintiff in respect of publication to only five internet subscribers in England, three of whom where “members of the claimant’s camp”.239 The court found that there was no “real and substantial tort” committed within England, thus the time and resources involved in allowing Jameel to litigate his claim were so disproportionate to any vindication of his reputation he might achieve as to amount to an abuse of process.240 It identified two principal reasons for this approach, the first being the introduction of the new Civil Procedure Rules 1998 (UK) with their emphasis on enhanced, proactive case management, the second being the incorporation of the European Convention on Human Rights into domestic law through the enactment of the Human Rights Act 1998 (UK).241 In relation to the former, the court observed that: [i]t is no longer the role of the court simply to provide a level playing field and to referee whatever game the parties choose to play upon it. The court is concerned to ensure that judicial and court resources are appropriately and proportionately used in accordance with the requirements of justice.242

In relation to the latter,243 the court was able to point to cases decided before the introduction of the Human Rights Act 1998 (UK) in which English courts had set aside permission to serve originating process outside of the jurisdiction, 235 236 237 238 239

240 241 242 243

[2014] NSWSC 350 at [30]-[31] per Beech-Jones J. See, eg, Duke of Brunswick v Harmer (1849) 117 ER 75; Sim v Stretch [1936] 2 All ER 1237; Consolidated Trust Co Ltd v Browne (1948) 49 SR(NSW) 86. See, eg, Cush v Dillon (2011) 243 CLR 298; [2011] HCA 30; Ritson v Burns [2014] NSWSC 272. [2005] QB 946; [2005] EWCA Civ 75. Jameel v Dow Jones & Co Inc [2005] QB 946; [2005] EWCA Civ 75 at 956-7 (QB). These three recipients were the claimant’s solicitor, the director of a company associated with the claimant and a consultant who had worked with the claimant. Jameel v Dow Jones & Co Inc [2005] QB 946; [2005] EWCA Civ 75 at 970 (QB). Jameel v Dow Jones & Co Inc [2005] QB 946; [2005] EWCA Civ 75 at 966 (QB). Jameel v Dow Jones & Co Inc [2005] QB 946; [2005] EWCA Civ 75 at 965 (QB). Jameel v Dow Jones & Co Inc [2005] QB 946; [2005] EWCA Civ 75 at 964, 966 (QB).

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[8.210]

Proportionality

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as in Kroch v Rossell,244 or struck out the claim as an abuse of process, as in Schellenberg v British Broadcasting Corporation.245 In the latter case, Eady J stated that he was “not only entitled, but indeed bound, to ask whether, in the old colloquial phrase, the game is worth the candle”.246 In Jameel, the court found that the disproportion between the damage done to the claimant’s reputation and the vindication of his reputation on the one hand and the projected cost of the trial on the other hand was so vast that, in their Lordships’ view, “[t]he game will not merely not have been worth the candle, it will not have been worth the wick.”247 In subsequent cases, English courts have applied the principle in Jameel to stay proceedings on the basis that they were an abuse of process or to set aside service of originating process outside the jurisdiction on the ground that there was no “real and substantial tort” committed within the jurisdiction.248 The principle in Jameel has not been limited to defamation proceedings. It has been involved and, on some occasions, succeeded in relation to other causes of action, such as breach of confidence and the tort of misuse of private information.249 The principle in Jameel informs the requirement of “serious harm” before a matter is actionable under the new legislation in England and Wales, the Defamation Act 2013 (UK) s 1(1). The principle in Jameel has been considered by Australian courts in a small group of cases. In Manefield v Child Care NSW,250 Kirby J rejected the submission that proportionality, as applied in Jameel, could form part of Australian law. His Honour did so on the basis that proportionality was based on the Civil Procedure Rules 1998 (UK) and the Human Rights Act 1998 (UK), which did not operate in Australia. In Barach v University of New South Wales,251 Garling J followed Kirby’s approach in Manefield v Child Care NSW. In Bristow v Adams,252 the respondent sought leave to argue proportionality by way of notice of contention, filed out of time and raising the issue for the first time on appeal. Basten JA refused to permit this. Referring briefly to the substantive issue, his Honour observed that, if or when the availability of proportionality in Australia arose for determination, “careful attention to the differences between English and Australian law” would be required. He identified three relevant differences, namely, the differences between the statutory language in the Civil Procedure Act 2005 (NSW) ss 56 – 58 and the Civil Procedure Rules 1998 [1998 (UK)] r 1.1; the availability of a statutory 244 245 246 247 248

249 250 251 252

[1937] 1 All ER 725. [2000] EMLR 296; [1999] EWHC 851 (QB). Schellenberg v British Broadcasting Corporation [2000] EMLR 296; [1999] EWHC 851 at 318 (EMLR). Jameel v Dow Jones & Co Inc [2005] QB 946; [2005] EWCA Civ 75 at 969-70 (QB). For examples of the application of the Jameel principle to stay proceedings, see Williams v MGN Ltd [2009] EWHC 3150 (QB); Budu v British Broadcasting Corporation [2010] EWHC 616 (QB); Kaschke v Gray [2010] EWHC 1907 (QB). For examples of refusal to apply the Jameel principle to stay proceedings, see Mardas v New York Times Co [2009] EMLR 8; [2008] EWHC 3135 (QB); Baturina v Times Newspapers Ltd [2010] EWHC 696 (QB). See, eg, Abbey v Gilligan [2012] EWHC 3217 (QB); Briggs v Jordan [2013] EWHC 3205 (QB). [2010] NSWSC 1420 at [187]. [2011] NSWSC 431 at [122], [128]-[129]. [2012] NSWCA 166.

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defence of triviality under Australian law,253 which has no analogue under English law; and the Human Rights Act 1998 (UK), which conversely has no analogue under Australian law.254 The dicta in these three cases seemed to tell against the recognition of proportionality as part of Australian law. More recently, however, in Bleyer v Google Inc,255 McCallum J applied proportionality permanently to stay a plaintiff’s proceedings. The plaintiff brought defamation proceedings against the search engine, Google, in respect of snippets and hyperlinks generated as a result of third party users’ searches. As to publication, he was only able to point to two people who read the matters in Victoria and only one in New South Wales, the latter only being identified after Google had been notified of Bleyer’s concern and had sought further information.256 McCallum J closely analysed the relevant provisions of the Civil Procedure Act 2005 (NSW), asking rhetorically: “Can it seriously be doubted that the power conferred by s 67 can properly be exercised to stay proceedings in which the resources required of the court and the parties to determine the claim are vastly disproportionate to the interest at stake?”257 Having concluded that considerations of proportionality were relevant to the ways in which courts exercised their procedural powers, her Honour characterised it as “a small and logical step” to hold that courts could stay or dismiss proceedings on the basis of proportionality.258 McCallum J rejected the suggestion that the availability of a defence of triviality was inconsistent with the recognition of proportionality.259 Her Honour pithily observed that “[d]efences protect defendants.” The purpose of proportionality was to allow a court to protect itself against an abuse of its own process.260 McCallum J expressly stated that such disproportionality can be properly regarded as a species of abuse of process.261 Her Honour emphasised that cases in which the principle of proportionality should be applied to stay or dismiss proceedings should be rare. In applying the principle of proportionality, McCallum J noted that the value of the interest at stake would need to be assessed in some instances by reference to matters other than the amount of money involved. Her Honour identified a defamation proceeding as such an instance, given the importance of non-monetary considerations, such as vindication of reputation in defamation cases.262 Applying the principle of proportionality to the given facts, McCallum J permanently stayed Bleyer’s defamation proceedings against Google.263 McCallum J’s judgment has already been followed as a ground to dismiss defamation proceedings.264 253 254 255 256 257 258 259 260 261 262 263 264

As to the defence of triviality, see [14.70]–[14.100]. Bristow v Adams [2012] NSWCA 166 at [41]. [2014] NSWSC 897 at [7]-[9]. Bleyer v Google Inc [2014] NSWSC 897 at [10]-[12]. Bleyer v Google Inc [2014] NSWSC 897 at [51]. Bleyer v Google Inc [2014] NSWSC 897 at [56]-[57]. As to the defence of triviality, see [14.70]–[14.100]. Bleyer v Google Inc [2014] NSWSC 897 at [58]-[59]. [2014] NSWSC 897 at [62]. Bleyer v Google Inc [2014] NSWSC 897 at [63]. As to the purposes of awards of damages for defamation, including vindication of reputation, see [15.50]. Bleyer v Google Inc [2014] NSWSC 897 at [98]. Ghosh v TCN Channel Nine Pty Ltd (No 4) [2014] NSWDC 151 at [122] per Gibson DCJ; Freeburn v Cake Decorators Association of NSW Inc (No 2) [2014] NSWDC 173 at [69]-[72] per Gibson DCJ. However, see also Smith v Lucht [2014] QDC 302 at [25] per McGill DCJ.

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[8.210]

Proportionality

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With respect, there is much to recommend McCallum’s approach in Bleyer v Google. It is consistent with the terms and purpose of the Civil Procedure Act 2005 (NSW), which has analogues in the other Australian States and Territories.265 The statutory defence of triviality may not be the best means by which to deter trivial claims, given the terms of the statutory provision and the fact that it arises for determination after liability has been established.266 Conversely, as Basten JA suggested in Bristow v Adams,267 an application based on proportionality should ordinarily be brought prior to trial, rather than at final judgment. The need to deter trivial claims effectively at the outset is necessary, given that, as the English Court of Appeal identified in Jameel,268 there is no small claims procedure for defamation.

265

266 267 268

F ederal Court of Australia Act 1976 (Cth) s 37M; Court Procedures Rules 2006 (ACT) r 21; Supreme Court Rules 1987 (NT) r 1.10; Civil Procedure Act 2005 (NSW) s 56; Uniform Civil Procedure Rules 1999 (Qld) r 5; Supreme Court Civil Rules 2006 (SA) r 3; Supreme Court Rules 2000 (Tas) r 414A; Civil Procedure Act 2010 (Vic) s 10; Rules of the Supreme Court 1971 (WA) O 1 r 4B. As to the defence of triviality, see [14.70]–[14.100]. [2012] NSWCA 166 at [38]. Jameel v Dow Jones & Co Inc [2005] QB 946; [2005] EWCA Civ 75 at 970 (QB) per curiam.

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9

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Justification [9.10] Defences to defamation.............................................................................173 [9.10] Introduction...................................................................................... 173 [9.20] The defence of justification.......................................................................174 [9.20] Introduction...................................................................................... 173 [9.30] Requirements of the defence of justification.................................. 175 [9.40] Presumption of falsity......................................................................179 [9.50] Public interest and public benefit....................................................180 [9.70] Partial justification.....................................................................................185 [9.80] The Polly Peck and Hore-Lacy defences................................................. 185 [9.80] Introduction...................................................................................... 185 [9.90] Separate and distinct stings............................................................. 187 [9.100] The Polly Peck defence................................................................. 187 [9.110] Criticisms of the Polly Peck defence in Chakravarti v Advertiser Newspapers............................................................................. 189 [9.120] The Hore-Lacy defence................................................................. 191 [9.130] Contextual truth....................................................................................... 194 [9.130] Introduction.................................................................................... 194 [9.140] Elements of the defence of contextual truth.................................195 [9.150] The respective roles of judge and jury......................................... 197 [9.160] The defence of contextual truth in operation............................... 198 [9.170] The practice of pleading back....................................................... 198 [9.180] The relationship between the Polly Peck and Hore-Lacy defences and the defence of contextual truth.......................................... 201

Defences to defamation Introduction [9.10] Once a plaintiff has established a prima facie case of defamation, the onus of proof then shifts to the defendant to establish a defence. Over several centuries, the common law developed a number of important defences to defamation: justification (or truth); absolute and qualified privilege; and fair comment. In addition, there are a number of other defences to defamation that the common law developed, but which are less frequently pleaded. There are also statutory defences to defamation. Although, under previous legislative regimes, defences to defamation were codified, in whole or in part,1 the position now under the national, uniform defamation laws is that common law 1

Prior to the introduction of the national, uniform defamation laws, defamation law was codified in Queensland and Tasmania: see Defamation Act 1889 (Qld); Defamation Act

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and statutory defences co-exist.2 In relation to certain defences, the national, uniform defamation laws are substantially declaratory of the common law; in relation to others, there are minor variations between the common law and statutory defences; and substantive differences in relation to certain other defences. It is important to attend closely to the words of the statute, as subtle changes in terminology or usage can have a significant effect on the form and application of the statutory defences and distinguish such a defence from its common law analogue or an earlier legislative provision. Just as with defamatory capacity and meaning,3 there is a division of responsibilities between judges and juries in relation to defences. Some questions relating to defences are reserved for the judge and some for the jury. The national, uniform defamation laws specifically preserve the allocation of responsibilities between judge and jury at general law.4 In those Australian jurisdictions which still permit the use of juries in defamation trials, juries determine issues relating to defences.5

The defence of justification Introduction [9.20] One of the major defences to defamation is the defence of justification

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(or truth). A defendant can have a complete defence to defamation if he or she is able to establish the substantial truth of the defamatory allegation or allegations made against the plaintiff. In practice, establishing the defence of justification may be difficult for a defendant.6 There are many things one might know to be true which would nevertheless be difficult to prove by admissible evidence. For instance, if a media outlet relies upon confidential sources for a story, it may confront an invidious forensic decision if sued for defamation – either betray the confidence or lose the defamation action. Also, the starting point for the defence of justification is that, if a defendant publishes a specific charge against a plaintiff, the plaintiff is entitled to have the defendant justify that charge. This stricture can also prove difficult for defendants.

2

3 4

5

6

1957 (Tas). For an example of a codified defence in a jurisdiction where defamation law as a whole was not codified, see Defamation Act 1974 (NSW) s 29 (defence of comment not available except in accordance with legislation). As to the history of defamation law in Australia generally, see [3.70]. Civil Law (Wrongs) Act 2002 (ACT) s 134(1); Defamation Act 2006 (NT) s 21(1); Defamation Act 2005 (NSW) s 24(1); Defamation Act 2005 (Qld) s 24(1); Defamation Act 2005 (SA) s 22(1); Defamation Act 2005 (Tas) s 24(1); Defamation Act 2005 (Vic) s 24(1); Defamation Act 2005 (WA) s 24(1). As to the respective roles of judge and jury in a defamation trial, see [5.150]. Defamation Act 2005 (NSW) s 22(5)(b); Defamation Act 2005 (Qld) s 22(5)(b); Defamation Act 2005 (Tas) s 22(5)(b); Defamation Act 2005 (Vic) s 22(5)(b); Defamation Act 2005 (WA) s 22(5)(b). Defamation Act 2005 (NSW) s 22(2); Defamation Act 2005 (Qld) s 22(2); Defamation Act 2005 (Tas) s 22(2); Defamation Act 2005 (Vic) s 22(2); Defamation Act 2005 (WA) s 22(2). This represents an expansion of the jury’s role in New South Wales. Under the Defamation Act 1974 (NSW) s 7A(4)(a), the judge, not the jury, determined all issues of fact and law relating to defences. Juries are not used in defamation trials in the Australian Capital Territory, the Northern Territory and South Australia. See [5.150]. Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 132 per Mason CJ, Toohey and Gaudron JJ.

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[9.30]

The defence of justification

Some latitude has been introduced both at common law and under statute. In terms of common law developments, there has been significant judicial attention given to the reception in Australian law of the English Court of Appeal’s decision in Polly Peck plc v Trelford.7 After more than two decades of case law, it now seems clear that a uniquely Australian, and narrower, form of the Polly Peck defence, the Hore-Lacy defence,8 has been widely, but not universally, accepted. This defence allows for a defendant to depart somewhat from a plaintiff’s particularised meaning and to justify the defendant’s own variant meaning. More radically, the statutory defence of contextual truth permits a defendant to justify imputations in the matter complained of by the plaintiff, and if those true imputations identified by the defendant outweigh the false imputations relied upon by the plaintiff, then the defendant has a complete defence to defamation. Some judges have expressed concern that defences in the nature of justification which depart from the stricter common law approach, such as the Polly Peck and Hore-Lacy defences, partial justification, and contextual truth, may be abused by defendants, “converting a modest and narrow claim by a plaintiff into a wide-ranging expansive and expensive inquiry”9 or, more evocatively, allowing the “hijacking of the plaintiff’s claim”.10 Courts may have more control over the Polly Peck and Hore-Lacy defences and the defence of partial justification than the defence of contextual truth, which has its source in statute and cannot be artificially read down by reference to notions of fairness unconnected to its terms. Perhaps more than any other area of defamation law, the defence of justification and its common law and statutory variants illustrate Australian defamation law’s fixation with the pleading of imputations and the interdependence between the pleading and the substance of the law.

Requirements of the defence of justification [9.30] At common law, truth alone is a complete defence to a claim for

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defamation.11 This now applies across Australia under the national, uniform defamation laws.12 The rationale for this position is explained by Street ACJ in Rofe v Smith’s Newspapers Ltd:13 [A]s the object of civil proceedings is to clear the character of the plaintiff, no wrong is done to him by telling the truth about him. The presumption is that, by telling the truth about a man, his reputation is not lowered beyond its proper level, but is merely brought down to it. 7 8 9

10 11 12

13

[1986] QB 1000. As to the Polly Peck defence, see [9.80]–[9.110]. Derived from the decision of the Victorian Court of Appeal in David Syme & Co Ltd v Hore-Lacy (2000) 1 VR 667; [2000] VSCA 24. As to the Hore-Lacy defence, see [9.120]. Woodger v Federal Capital Press of Australia Pty Ltd (1992) 107 ACTR 1 at 21 per Miles CJ. To similar effect, see Robinson v Laws [2003] 1 Qd R 81; [2001] QCA 122 at 95 (Qd R) per de Jersey CJ: “The conduct of civil litigation cannot be allowed to elasticise to the point where it resembles the workings of a roving commission of inquiry.” Kennett v Farmer [1988] VR 991 at 996 per Nathan J. Sutherland v Stopes [1925] AC 47 at 62 per Viscount Finlay. Civil Law (Wrongs) Act 2002 (ACT) s 135; Defamation Act 2006 (NT) s 22; Defamation Act 2005 (NSW) s 25; Defamation Act 2005 (Qld) s 25; Defamation Act 2005 (SA) s 23; Defamation Act 2005 (Tas) s 25; Defamation Act 2005 (Vic) s 25; Defamation Act 2005 (WA) s 25. Prior to the introduction of the national, uniform defamation laws, a number of jurisdictions required proof of public interest or public benefit, in addition to proof of substantial truth, in order to establish a defence of justification: see [9.50]. (1924) 25 SR(NSW) 4 at 21-2.

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The purpose of defamation law is to protect deserved, not undeserved, reputations. As Littledale J observed in M’Pherson v Daniels,14 “[t]he law will not permit a man to recover damages in respect of an injury to a character he does not or ought not to possess.” If, by telling the truth about the plaintiff, his or her reputation is lowered, the plaintiff’s reputation is not so much damaged as recalibrated down to its proper level. No one is entitled to protect a reputation he or she does not, in truth, deserve. The defendant bears the onus of proof in relation to the truth of the defamatory matter.15 The defendant must prove that the imputations are true in substance and in fact.16 The matter does not need to be completely or strictly accurate in order to be justified. It is sufficient if the matter is substantially true. Thus, “[i]naccuracy, in some detail, which does not alter or aggravate the character of the imputation is immaterial.”17 This is now reflected under the national, uniform defamation laws, which require the defendant to prove that the defamatory imputations conveyed by the matter are substantially true.18 In turn, the term, “substantially true”, is defined to mean “true in substance or not materially different from the truth”.19 There are some classic examples which illustrate this point. In Alexander v North Eastern Railway Co,20 the plaintiff complained that the defendant railway company had defamed him by publishing a notice to the effect that he was convicted of travelling without a ticket and refusing to pay the fare, as a result of which he was ordered to pay a fine or to serve three weeks’ imprisonment. In fact, he was sentenced to two weeks’ imprisonment as an alternative to paying the fine. As Mellor J stated, “[t]he gist of the libel is that the plaintiff was sentenced to pay a sum of money, and in default of payment to be imprisoned.”21 Blackburn J added that “[t]he substance of the libel is true: the question is whether what is stated inaccurately is the gist of the libel.”22 Their Lordships unsurprisingly found in favour of the railway company.

14 15 16 17

18

19

20 21 22

(1829) 10 B & C 263; 109 ER 448 at 272 (B & C), at 451 (ER). Rofe v Smith’s Newspapers Ltd (1924) 25 SR(NSW) 4 at 22 per Street ACJ. Sutherland v Stopes [1925] AC 47 at 62 per Viscount Finlay, at 73 per Lord Shaw of Dunfermline. Rofe v Smith’s Newspapers Ltd (1924) 25 SR(NSW) 4 at 22 per Street ACJ; see also Potts v Moran (1976) 16 SASR 284 at 306 per Bray CJ. See further, Edwards v Bell (1824) Bing 403; 130 ER 162 at 409 (Bing), at 165 (ER) per Burrough J: “As much must be justified as meets the sting of the charge, and if any thing be contained in a charge which does not add to the sting of it, that need not be justified.” Civil Law (Wrongs) Act 2002 (ACT) s 135; Defamation Act 2006 (NT) s 22; Defamation Act 2005 (NSW) s 25; Defamation Act 2005 (Qld) s 25; Defamation Act 2005 (SA) s 23; Defamation Act 2005 (Tas) s 25; Defamation Act 2005 (Vic) s 25; Defamation Act 2005 (WA) s 25. Civil Law (Wrongs) Act 2002 (ACT) s 116; Defamation Act 2006 (NT) s 3; Defamation Act 2005 (NSW) s 4; Defamation Act 2005 (Qld) s 4, Sch 5; Defamation Act 2005 (SA) s 4; Defamation Act 2005 (Tas) s 4; Defamation Act 2005 (Vic) s 4; Defamation Act 2005 (WA) s 4. (1865) 6 B & S 340; 122 ER 1221. Alexander v North Eastern Railway Co (1865) 6 B & S 340; 122 ER 1221 at 343 (B & S), at 1222 (ER). Alexander v North Eastern Railway Co (1865) 6 B & S 340; 122 ER 1221 at 344 (B & S), at 1222 (ER).

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[9.30]

The defence of justification

Writing hypothetically in Sutherland v Stopes,23 Lord Shaw of Dunfermline gave another famous example of the need for substantial, rather than complete, accuracy: If I write the defendant on 6 March took a saddle from my stable and sold it the next day and pocketed the money all without notice to me, and that in my opinion he stole the saddle, and if the facts truly are found to be that the defendant did not take the saddle from the stable but from the harness room, and that he did not sell it the next day but a week afterwards, but nevertheless he did, without my knowledge or consent, sell my saddle so taken and pocketed the proceeds, then the whole sting of the libel may be justifiably affirmed by a jury notwithstanding these errors in detail.

Conversely, his Lordship emphasised that “the allegation of fact must tell the whole story” and must not be “meticulously true in fact” but “false in substance”. Developing his example, Lord Shaw of Dunfermline hypothesised:

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If, for instance, in the illustration given, the facts as elicited show what my writing had not disclosed – namely, that the defendant had a saddle of his own lying in my harness room, and that he took by mistake mine away instead of his own, and still labouring under that mistake, sold it – then the jury would probably declare that the libel was not justified.24

Whilst a defendant need only prove that the imputation as a whole is substantially accurate, he or she must prove that every material part of that imputation is substantially accurate in order to have a complete defence of justification.25 The defence of justification fails if the defendant fails to prove that all the stings complained of are not proven to be substantially true.26 If an imputation comprises multiple allegations of fact, each fact must be proven to be substantially accurate in order to justify the imputation as a whole.27 If an imputation is cast in general terms, the defendant will need to prove an adequate number of substantially accurate and relevant examples in order to justify the imputation as a whole. For example, in Craftsman Homes Australia Pty Ltd v TCN Channel Nine Pty Ltd,28 Smart AJ found that the plaintiffs’ imputations that they had engaged in shoddy building practices and were incompetent at building residential houses were substantially true on the basis

23 24 25

26 27 28

[1925] AC 47 at 79. Sutherland v Stopes [1925] AC 47 at 79. Edwards v Bell (1825) 1 Bing 403; 130 ER 162 at 165 per Burrough J: “as much must be justified as meets the sting of the charge, and if anything be contained in a charge which does not add to the sting of it, that need not be justified”; Helsham v Blackwood (1851) 11 CB 111; 138 ER 412 at 129 (CB), at 419 (ER) per Maule J; Howden v “Truth” and “Sportsman” Ltd (1937) 58 CLR 416 at 419 per Starke J, at 420-1 per Dixon J; Potts v Moran (1976) 16 SASR 284 at 305 per Bray CJ; Cross v Queensland Newspapers Pty Ltd [2008] NSWCA 80 at [71] per Beazley JA; Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1; [2003] VSCA 161 at 57-8 (VR) per Gillard AJA. For example, in Howden v “Truth” and “Sportsman” Ltd (1937) 58 CLR 416, the defendant newspaper was unable to rely upon a defence of justification in relation to a publication that stated that the plaintiff had been convicted and sentenced to imprisonment for a crime but which omitted to mention that the conviction was quashed and that the plaintiff was acquitted of a separate, related charge, both of which occurred before publication. Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1; [2003] VSCA 161 at 58 (VR) per Gillard AJA. Potts v Moran (1976) 16 SASR 284 at 305 per Bray CJ. [2006] NSWSC 519.

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of four proven instances.29 By contrast, in Cross v Queensland Newspapers Pty Ltd,30 the New South Wales Court of Appeal held that a finding by the trial judge, Cooper AJ, that the plaintiff’s imputation that he had “ripped off Mum and Dad investors by selling them investment properties at exorbitant prices” was proven substantially true could not be supported by the evidence. Giving the leading judgment on appeal, Beazley JA (as her Honour then was) found that the evidence of one offer of sale, two sales and (disputed) valuations of a further 11 properties was insufficient to establish that customers had been “ripped off” where they had suffered no detriment and where they paid, or had been asked to pay, a high, but not a grossly excessive, price.

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There is a potential issue in relation to the defence of justification under the national, uniform defamation laws and the extent to which it replicates the common law position. At common law and under the national, uniform defamation laws, the matter, not the imputations conveyed by the matter, is the cause of action. At common law, “the plea of truth is not to individual innuendoes (unless true innuendoes) but rather to the whole of the matter complained of”.31 However, the statutory defence of justification is expressed so as to require the defendant to prove “that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true”.32 The focus of the defendant’s defence of justification under the national, uniform defamation laws seems clearly not to be upon whether the matter is substantially true but whether the plaintiff’s pleaded imputations are substantially true. This has the potential to generate more prolix pleadings and interlocutory skirmishes, for which defamation law is renowned, if not notorious. It arguably represents an unintended development in the approach to justification in jurisdictions other than New South Wales where the imputation was not the cause of action as it was under the Defamation Act 1974 (NSW) s 9(2).33 If the legislative intention of the national, uniform defamation laws was to displace the focus on the imputation and return it to the matter itself, this may not have been given consistent effect in the drafting of the legislation and may require revisiting.34

29

30 31

32

33 34

[2006] NSWSC 519. The plaintiffs did not appeal against the findings in relation to their claim in defamation: see TCN Channel Nine Pty Ltd v Ilvariy Pty Ltd (2008) 71 NSWLR 323; [2008] NSWCA 9 at 326 (NSWLR) per Spigelman CJ. [2008] NSWCA 80. Allworth v John Fairfax Group Pty Ltd (1993) 113 FLR 254 at 265 per Higgins J. As to the consequences for the defence of justification of the increasing obligation at common law for a plaintiff to particularise meanings, see below [9.110]. Civil Law (Wrongs) Act 2002 (ACT) s 135; Defamation Act 2006 (NT) s 22; Defamation Act 2005 (NSW) s 25; Defamation Act 2005 (Qld) s 25; Defamation Act 2005 (SA) s 23; Defamation Act 2005 (Tas) s 25; Defamation Act 2005 (Vic) s 25; Defamation Act 2005 (WA) s 25. As to the imputation as the cause of action under the Defamation Act 1974 (NSW) s 9(2), see [6.20]. Cf Hadzel v De Waldorf (1970) 6 FLR 174 at 179 per Fox J.

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[9.40]

The defence of justification

Presumption of falsity [9.40] The plaintiff does not have to prove that the defamatory imputation is false as part of his or her claim.35 Once the plaintiff has proven that the defendant has published the defamatory matter of and concerning the plaintiff, the onus of proof shifts to the defendant to prove that the imputation is true. There is then a presumption of falsity that arises.36 Like many principles of defamation law, the presumption of falsity might be based on an error, a distortion or a misunderstanding, but it is one that, because it has been repeatedly sanctioned for over two centuries, is difficult to eliminate from the basic structure of Anglo-Australian defamation law.37 As the national, uniform defamation laws purport to enact the common law approach to justification, it can be inferred that they proceed on the basis that the presumption of falsity continues to apply as part of Australian defamation law.38 In many areas of law, the onus of proof is not of great practical importance. Arguably, it is in the context of proving the truth or falsity of defamatory matter. The forensic burden on a defendant seeking to justify, by admissible evidence, defamatory imputations means it is often difficult, though not impossible, for a defendant to establish this defence.39 The resistance to altering the onus of proof of truth suggests it is important. One of the significant differences between Anglo-Australian and United States defamation law is the presumption of falsity. Following its constitutionalisation in the United States Supreme Court’s landmark decision in New York Times v Sullivan,40 United States defamation law requires the plaintiff to prove that the defamatory matter was false. Law reform bodies in Australia and England have not endorsed an alteration to the traditional common law position.41

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35

36 37

38 39

40 41

Singleton v Ffrench (1986) 5 NSWLR 425 at 442 per McHugh JA; Age Co Ltd v Elliott (2006) 14 VR 375; [2006] VSCA 168 at 378 (VR) per Buchanan JA. As to the history of the presumption of damage at common law, see Singleton v Ffrench (1986) 5 NSWLR 425 at 442-3 per McHugh JA. A v Ipec Australia Ltd [1973] VR 39 at 47-8 per Menhennitt J. Age Co Ltd v Elliott (2006) 14 VR 375; [2006] VSCA 168 at 378 (VR) per Buchanan JA, at 379 per Ashley JA. The origin of the presumption of falsity is Roberts v Camden (1807) 9 East 93; 103 ER 508 at 95 (East), at 509 (ER) per Lord Ellenborough CJ: Age Co Ltd v Elliott (2006) 14 VR 375; [2006] VSCA 168 at 378 (VR) per Buchanan JA. As Ashley JA observed: “if the presumption of falsity of defamatory imputations is an error springing from the corruption of the principle, dating from the seventeenth century, that a plaintiff is neither required to aver nor prove that defamatory matter was published ‘falsely and maliciously’, it is an error which occurred nearly 200 years ago, and an error which has become entrenched in the common law defamation”: Age Co Ltd v Elliott (2006) 14 VR 375; [2006] VSCA 168 at 378 (VR). Age Co Ltd v Elliott (2006) 14 VR 375; [2006] VSCA 168 at 379 (VR) per Ashley JA. For cases in which defendants were able to justify their publications, see Li v Herald & Weekly Times Pty Ltd (2007) Aust Torts Reports 81-887; [2007] VSC 109; Shift2Neutral Pty Ltd v Fairfax Media Publications Pty Ltd [2014] NSWSC 86; Sims v Jooste [No 2] [2014] WASC 373. 376 US 254; 84 S Ct 710 (1964). See further, [2.140]. Report of the Committee on Defamation (“Faulks Committee”) (HMSO, London, 1975) [141] p 36 (“tends to inculcate a spirit of caution in publishers of potentially actionable statements which we regard as salutary”); Australian Law Reform Commission, Unfair Publication: Defamation and Privacy, Report No 11 (1979) at [122]. Cf New South Wales Law Reform Commission, Defamation, Report No 75 (1995) at [4.7]-[4.15], Recommendation 5.

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[9.40]

Public interest and public benefit [9.50] Prior to the introduction of the national, uniform defamation laws, the proof of substantial truth alone was insufficient, in a number of Australian jurisdictions, to justify the publication of defamatory matter. Many jurisdictions require, and had required, through various iterations of the defence historically, proof of an additional element of public interest or public benefit.42 The putative rationale for the additional requirement of public interest was explained by Street ACJ in Rofe v Smith’s Newspapers Ltd:43 The law was altered in this respect in New South Wales many years ago. It was felt that to allow past misconduct, or discreditable episodes which were dead and gone, to be revived and dragged into the light of day at will by maliciously minded scandalmongers was too hard upon people who, whatever indiscretions they might have committed in the past, were leading respectable lives.

Previously, this aspect of Australian defamation law has been explained on the basis of features particular to local history. Windeyer suggested that the position under New South Wales, which was included in the first defamation legislation passed in the colony and was retained continuously under the introduction of the national, uniform defamation laws, was motivated by a specific concern, namely “to prevent emancipated convicts being taunted as ‘lags’”.44 Mitchell has compellingly argued that the impetus for the reform in New South Wales was a broader social concern that individuals’ pasts should not be able to be revived and used against them and that the development was an example of law reform succeeding in the colonies where it had failed in Westminster.45 Mitchell’s explanation for this legislative addition seems consistent with that advanced by Street ACJ in Rofe v Smith’s Newspapers Ltd. In Chappell v TCN Channel Nine Pty Ltd,46 Hunt J has a slightly different explanation again, suggesting that:

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[t]he mischief which was sought to be remedied by the statutory requirement that the imputation relate to a matter of public interest was the gratuitous destruction of reputation which was permitted by the defence of truth alone which is available at common law.47

This seems to suggest that the additional requirement of public interest expanded the nature of the wrong done in a claim for defamation. At common law, no harm was done and no wrong was committed by telling the truth about a person’s reputation. In those jurisdictions where an element of public interest or public benefit was required in addition to proof of substantial truth, there 42

43 44 45 46 47

See, eg, Civil Law (Wrongs) Act 2002 (ACT) s 127 (repealed); Defamation Act 1974 (NSW) s 15; Defamation Act 1889 (Qld) s 15 (repealed); Defamation Act 1957 (Tas) s 15 (repealed); see also Criminal Code (WA) s 356 (repealed). However, the common law defence of justification continued to operate in Western Australia: see West Australian Newspapers Ltd v Bridge (1979) 141 CLR 535 at 544 per Jacobs J. For earlier examples of legislation requiring proof of public interest or public benefit as part of a defence of justification, see Defamation Act 1901 (NSW) s 6 (repealed); Defamation Act 1912 (NSW) s 7 (repealed); Defamation Act 1958 (NSW) s 16 (repealed). (1924) 25 SR(NSW) 4 at 21-2; see also Howden v Truth and Sportsman Ltd (1937) 58 CLR 416 at 427 per Evatt J. V Windeyer, “The Truth of a Libel” (1935) 8 ALJ 319 at 323. P Mitchell, “The Foundations of Australian Defamation Law” (2006) 28 Syd LR 477 at 494. (1988) 14 NSWLR 153. Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153 at 165, citing New South Wales Law Reform Commission, Defamation, Report No 11 (1979) at [64].

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[9.60]

The defence of justification

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was an acceptance of the reality that a person’s reputation may be harmed by the publication of the truth and that defamation law should only permit this where there was demonstrable public interest or public benefit. As truth alone was not a complete defence to defamation in those jurisdictions, no presumption of falsity could arise.48 A defamatory matter could be substantially true but nonetheless defamatory if there was no public interest in, or public benefit from, the publication of the defamatory matter. The concept of public interest is not susceptible to comprehensive definition.49 An infinite variety of matters may be of public interest.50 The concept of public interest can be broadly or narrowly construed.51 Although not always borne out by the decided cases, a broad approach to the public interest should be preferred. Defamation law should facilitate freedom of speech on legitimate matters of public interest. Although the concept of public interest may be broadly drawn, courts are averse to allowing matters of public interest to be identified at too high a level of generality or abstraction, instead preferring a concrete articulation of what constitutes the public interest in a given case.52 What is in the public interest or for the public interest changes, as social, political, moral and cultural values change.53 Thus, in Mutch v Sleeman,54 Ferguson J held that reference in a newspaper article to allegations of domestic violence levelled against a politician in divorce proceedings was not for the public benefit as the matter was a private affair between husband and wife. It is difficult to imagine that a court today, called on to determine this issue, would decide it in the same way. [9.60] It is important to note that the common law has long drawn a distinction between a legitimate matter of public interest and that which the public is merely interested in. In the context of a case of breach of confidence, Lion Laboratories v Evans,55 Griffiths LJ asserted that “there is a world of difference between what is in the public interest and what is of interest to the public”.56 Whilst it is vital to distinguish between the public interest, properly

48 49

50 51

52 53 54 55 56

Australian Consolidated Press Ltd v Uren (1966) 117 CLR 185 at 205 per Windeyer J; Singleton v Ffrench (1986) 5 NSWLR 425 at 443-4 per McHugh JA. London Artists Ltd v Littler [1969] 2 QB 375 at 391 per Lord Denning MR; John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484; [2007] NSWCA 364 at 516 (NSWLR) per McColl JA. John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484; [2007] NSWCA 364 at 487 (NSWLR) per Ipp JA. Allworth v John Fairfax Group Pty Ltd (1993) 113 FLR 254 at 262 per Higgins J, citing London Artists Ltd v Littler [1969] 2 QB 375 at 391 per Lord Denning MR; cf Allsop v Incorporated Newsagencies Co Pty Ltd (1975) 26 FLR 238 at 244-5 per Blackburn J. See also Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 193 per Brennan CJ, at 215 per Dawson, McHugh and Gummow JJ. Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 214 per Dawson, McHugh and Gummow JJ. Green v Schneller (2000) Aust Torts Reports 81-568; [2000] NSWSC 548 at 63,895 (Aust Torts Reports) per Simpson J. Mutch v Sleeman (1928) 29 SR(NSW) 125 at 136-7. [1985] QB 526. Lion Laboratories v Evans [1985] QB 526 at 553. This case concerned breach of confidence but the observation is equally applicable to the concept of public interest as it manifests itself across various causes of action at general law.

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so called, and that which the public is merely interested in, the demarcation between the two may not always be so clear in practice.57 It is clear, though, that:

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[a] salacious interest by members of the public in a particular subject matter, of which they had no previous knowledge and which was introduced to them by the very publication in question, does not translate the subject matter of the publication into a matter of public interest.58

Whether the publication related to a matter of public interest or was for the public benefit needed to be determined in light of all the circumstances of the case, including the facts proven and the manner of publication.59 For instance, whether there had been previous publicity given to the matter has been considered relevant to the assessment of whether the publication related to a matter of public interest or public benefit.60 It is a question for the judge, not the jury, to determine.61 A publication will not relate to a matter of public interest merely because it does not relate to a private concern.62 In this way, a matter of public interest is not negatively defined but needs to be positively established. There have been many different articulations of what constitutes a matter of public interest. In London Artists Ltd v Littler,63 Lord Denning MR provided one of the most frequently cited formulations of the public interest, suggesting that a publication will relate to a matter of public interest “[w]henever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on, or what may happen to them or to others.”64 In Bellino v Australian Broadcasting Corporation,65 Dawson, McHugh and Gummow JJ stated that a subject of public interest was one which related to “the actions or omissions of a person or institution engaged in activities that either inherently, expressly or inferentially invited public criticism or discussion”. Although these dicta come from cases dealing with defences other than statutory defences of justification, their treatment of the concept of public interest can be, and has been, applied in cases involving proof of truth.66 Thus, a publication can relate to a matter of public interest if the plaintiff’s conduct or activities were of a nature or otherwise invited, inherently, expressly or inferentially, public criticism or discussion; if the plaintiff had assumed a public persona in which the public could legitimately be interested or which otherwise invited, inherently, expressly or inferentially, public criticism or discussion; if the plaintiff had exposed his or her private life in such a manner as to invite public criticism or discussion; or if the plaintiff had placed his or her 57 58 59

60 61 62 63 64 65 66

John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484; [2007] NSWCA 364 at 520 (NSWLR) per McColl JA. Green v Schneller (2000) Aust Torts Reports 81-568; [2000] NSWSC 548 at 63,896-7 (Aust Torts Reports) per Simpson J. Crowley v Glissan (No 2) (1905) 2 CLR 744 at 756 per Griffith CJ; see also John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484; [2007] NSWCA 364 at 521 (NSWLR) per McColl JA. Cohen v Mirror Newspapers Ltd [1971] 1 NSWLR 623 at 628 per Jacobs and Manning JJA. London Artists Ltd v Littler [1969] 2 QB 375 at 391 per Lord Denning MR; Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 191 per Brennan CJ. Allworth v John Fairfax Group Pty Ltd (1993) 113 FLR 254 at 264 per Higgins J. [1969] 2 QB 375. London Artists Ltd v Littler [1969] 2 QB 375 at 391. (1996) 185 CLR 183 at 215. See, eg, John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484; [2007] NSWCA 364 at 490 (NSWLR) per Tobias JA.

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[9.60]

The defence of justification

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conduct before the public for its approval or attention.67 Merely because a person is a public figure does not mean that all aspects of the public figure’s life relate to a matter of public interest.68 Australian law has not embraced a “public figure” doctrine in the way that United States law has.69 Public figures are entitled to a right to a private life. However, the private conduct or activities of public figures can become matters of public interest if the public figures themselves make their conduct or activities matters of public interest, or if their conduct or activities have a bearing upon their capacity to perform their public activities.70 Where a plaintiff has voluntarily exposed his or her private life to the public or has used his or her private life to attract public attention, favourable or otherwise, he or she has a diminished entitlement to assert that his or her private conduct is not a matter of public interest.71 The concepts of public interest and public benefit are similar but not identical. They will often overlap and, in many circumstances, are interchangeable. As Dawson, McHugh and Gummow JJ observed in Bellino v Australian Broadcasting Corporation,72 “[i]n the great majority of cases, the public discussion of a subject of public interest must be for the public benefit.” Whether the publication of matter is for the public benefit involves an additional element, absent from the public interest, namely “a value judgment as to whether the public would benefit from the publication in issue”.73 Given the forensic difficulty of establishing substantial truth, as well as the breadth of matters which could be of public interest, it was comparatively rare that a defence of justification would fail on the issue of public interest or public benefit. Often, the element of public interest or public benefit would be conceded or readily established. However, there were some instances in which the defence of justification failed due to the fact that the publication did not relate to a matter of public interest or public benefit.74 The concept of public interest occurs in a number of contexts in defamation law, most notably in relation to the defences of fair comment and honest opinion.75 The inclusion of an additional element of public interest or public benefit in variants of the defence of justification served then to provide a measure of protection of privacy. For instance, there is considerable force in the view that the famous case of Ettingshausen v Australian Consolidated Press Ltd 67 68 69

70 71 72 73

74

75

John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484; [2007] NSWCA 364 at 490 (NSWLR) per Tobias JA. John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484; [2007] NSWCA 364 at 521 (NSWLR) per McColl JA. Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153 at 165 per Hunt J; Australian Capital Television Pty Ltd v Commonwealth (No 2) (1992) 177 CLR 106 per Brennan J. Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153 at 165, 167 per Hunt J. John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484; [2007] NSWCA 364 at 528 (NSWLR) per McColl JA. (1996) 185 CLR 183 at 229. Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46 at 69 (CLR) per Gleeson CJ and Crennan J; see also Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 229 per Dawson, McHugh and Gummow JJ. See, eg, Tisdall v Hutton [1944] Tas SR 1 at 11-12 per Morris CJ and Clark J; Green v Schneller (2000) Aust Torts Reports 81-568; [2000] NSWSC 548 at 63,896-7 (Aust Torts Reports) per Simpson J (tabloid current affairs program’s report on neighbourhood dispute did not relate to matter of public interest); see also Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153 at 165 per Hunt J. As to the element of public interest as a part of the defences of fair comment and honest opinion, see [13.70].

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was really concerned with an invasion of the plaintiff’s privacy, rather than damage to his reputation. In the New South Wales Court of Appeal, an inference was drawn that the manifestly excessive award of damages made by the jury was motivated by a desire to provide compensation for the gross invasion of privacy the plaintiff suffered at the hands of the publisher. Given that the focus of defamation is on the plaintiff’s reputation, this was impermissible. Nevertheless, the plaintiff was still entitled to succeed in defamation and was able to receive substantial, albeit reduced, damages.76 The element of public interest, as it is applied across various aspects of defamation law, indicates that this cause of action provides incidental, indirect protection of privacy. As McColl JA observed, “[t]he concept of ‘public interest’ is a critical mechanism for the purposes of the law of defamation by which the law seeks to resolve the tension between privacy and freedom of speech.”77

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The extent to which the inclusion of an additional element of public interest was an effective protection of privacy is open to question. It may have played an important role at a pre-publication stage, preventing stories being published which, whilst true, were invasive of a person’s privacy. It may have been deployed at an early stage of litigation to encourage settlement. Its impact is difficult to quantify. Equally, the impact of the removal of the additional element of public interest or public benefit from defamation law is hard to assess. It is difficult to test empirically whether this reform has led, in practice, to more intrusive but true publications. What can be concluded, though, is that the removal of an additional element of public interest or public benefit from the defence of justification has not been the impetus for the development of direct privacy protection, notwithstanding some encouraging dicta in the High Court of Australia’s decision in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd.78 There is a real issue as to whether it is desirable to protect privacy only indirectly through the tort of defamation. Such protection afforded to privacy could only then be piecemeal, given that the focus of defamation law is upon reputation, not privacy. If privacy is an interest worth protecting by law, it seems preferable to protect it directly.79 76

77

78 79

Australian Consolidated Press Ltd v Ettingshausen (unreported, NSW CA, Gleeson CJ, Kirby P and Clarke JA, 13 October 1993) at pp 26-8 per Kirby P, pp 131-2 per Clarke JA. For a full analysis of this case, see D Rolph, Reputation, Celebrity and Defamation Law (Ashgate, Aldershot, 2008) Ch 7. John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484; [2007] NSWCA 364 at 516(NSWLR) per McColl JA. See also Cohen v Mirror Newspapers Ltd [1971] 1 NSWLR 623 at 628 per Jacobs and Manning JJA: “Public benefit requires a weighing of the right to privacy against the public interest of free discussion of matters of public concern”; Australian Consolidated Press Ltd v Ettingshausen (unreported, NSW CA, Gleeson CJ, Kirby P and Clarke JA, 13 October 1993) at p 27 per Kirby P: “the value of privacy protection may generally inform common law developments”. See further, John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484 at 515 per McColl JA: privacy is a value underlying defamation law, citing Campbell v MGN Ltd [2004] 2 AC 457; [2004] UKHL 22 at 471 (AC) per Lord Hoffmann and explicitly recognising that the European Convention on Human Rights underpins his Lordship’s view. With respect, the extent to which privacy can be said to be a value underlying defamation law in a common law country without a human rights framework, where the central interest protected by defamation law is acknowledged to be reputation and where there is no general, enforceable right to privacy, and the impact which such a recognition could have on the development of defamation law, is open to question. As to the concept of reputation, see [2.20]–[2.80]. As to the interaction between defamation and privacy, see [18.200]–[18.220]. (2001) 208 CLR 199; [2001] HCA 63. See generally, D Rolph, “Preparing for a Full-Scale Invasion? Truth, Privacy and Defamation” (2007) 25(3/4) Communications Law Bulletin 5.

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[9.80]

The Polly Peck and Hore-Lacy defences

Partial justification [9.70] At common law, there is a defence of partial justification.80 If a matter conveys multiple, separate imputations and the defendant is only able to justify some, but not all, of them, he or she does not have a complete defence. It is always open to a defendant to justify some, but not all, of the imputations conveyed by the defamatory matter.81 If he or she only justifies some of the imputations so conveyed, the defence is only established in relation to those imputations which have been justified and, if the remaining imputations are otherwise indefensible, the plaintiff is entitled to have damages assessed in relation to the undefended imputations. However, the defendant may rely upon the imputations which he or she has justified in mitigation of damages.82 Whether this is properly viewed as a defence or merely as a factor affecting the assessment of damages is a difficult issue of taxonomy about which there is no clear, definitive answer.

The Polly Peck and Hore-Lacy defences Introduction

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[9.80] The traditional common law approach required the defendant to justify

the matter he or she published.83 The matter was the cause of action and there was no obligation on the plaintiff to particularise the meanings upon which he or she relied.84 The emergence of the practice, first in England, then in Australia, strongly encouraging or even requiring plaintiffs to particularise the meanings upon which they relied had the advantage of alerting defendants to the case they had to meet.85 It has, however, had other, less desirable consequences.86 There has been considerable debate and confusion in Australian defamation law about the extent to which the plaintiff is bound by his or her pleaded meanings, the extent to which the defendant is bound to meet those pleaded, or is at liberty to advance his or her own alternative meanings, and the extent to which the tribunal of fact is bound by either party’s meanings. At common law, variants of the defence of justification have developed as a result of the practice of particularising meanings: the Polly Peck 80

81

82

83 84 85

86

Whelan v John Fairfax Publications Pty Ltd (2002) 56 NSWLR 89; [2002] NSWSC 1028 at 108 (NSWLR) per Levine J; Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1; [2003] VSCA 161 at 58 (VR) per Gillard AJA. Clarke v Taylor (1836) 2 Bing (NC) 654; 132 ER 252 at 256 per Tindal CJ; Sutherland v Stopes [1925] AC 47 at 78 per Lord Shaw of Dunfermline; Howden v “Truth” and “Sportsman” Ltd (1938) 38 SR(NSW) 287 at 291 per Jordan CJ; Woodger v Federal Capital Press of Australia Pty Ltd (1992) 107 ACTR 1; (1992) 106 FLR 183 at 200 per Miles CJ. As to the role of imputations under the national, uniform defamation laws, see [6.30]. Vessey v Pike (1829) 3 C & P 512; 172 ER 526 at 526 (ER) per Lord Tenterden CJ; Wilson v Mutual Store Ltd (1899) 25 VLR 262 at 268 per Madden CJ; Plato Films Ltd v Speidel [1961] AC 1090 at 1143-4 per Lord Denning; Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1; [2003] VSCA 161 at 58 (VR) per Gillard AJA. As to mitigation of damages, see [15.210]. Allworth v John Fairfax Group Pty Ltd (1993) 113 FLR 254 at 265 per Higgins J). As to the common law approach to pleading a defamation claim, see [6.30]. As to the emergence in English and Australian defamation law of the requirement at common law for a plaintiff to particularise the meanings upon which he or she relies, see [6.30]. Setka v Abbott [2014] VSCA 287 at [51] per Warren CJ and Ashley JA.

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defence87 and its Australian derivative, the Hore-Lacy defence.88 These defences have been the subject of a substantial body of case law, the overwhelming majority comprising interlocutory decisions, over the past three decades, with significant concerns still remaining about their form, their application and even their availability in Australia. In Jones v John Fairfax Publications Pty Ltd,89 Simpson J observed that “[i]t would be an understatement to say that the decision in Polly Peck has not commanded universal admiration in Australia.” As Nicholas J opined almost a decade ago in Woodham v John Fairfax Publications Pty Ltd:90

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One may well wonder whether Lord Justice O’Connor could have ever anticipated that for two decades gallons of ink would have been spent in judicial and academic analysis of his judgment in Polly Peck to no certain conclusion.

In Herald & Weekly Times Ltd v Popovic,91 Gillard AJA noted that the Polly Peck defence was frequently pleaded but rarely successful. (A similar observation might be made about the Hore-Lacy defence.) His Honour went on to suggest that “[u]nfortunately, there is a trend in [Victoria] that defence counsel feel that unless they have pleaded a Polly Peck defence, they have not done their job.” Polly Peck and Hore-Lacy defences are also regularly pleaded, without much ultimate success, in other Australian jurisdictions. These defences and the complex, related issues of pleading and procedure warrant ultimate appellate consideration or, more likely, substantial legislative reform. The prospect of either of these possibilities eventuating seems remote. Two observations should be made at the outset of discussing the reception of Polly Peck in Australian law. First, there is a real question as to whether Polly Peck is, properly understood, a freestanding defence or merely a form of pleading the defendant’s case as to meaning. There is much to recommend the latter characterisation.92 However, given the way in which this concept is ordinarily described and for ease of reference, without foreclosing debate as to its proper classification, the shorthand expression, “Polly Peck defence”, will be used. The second and related point is that it should not be forgotten that it is always open to a defendant to submit that the meanings the plaintiff argues are conveyed by the matter are not in fact conveyed when the matter is viewed in context.93 Expressed another way, it is always open to the defendant to deny that the matter bears a defamatory meaning and, as part of that denial, to articulate an alternative, non-defamatory meaning which it contends the matter should bear. Whether the defendant should be permitted or required to go beyond that, to particularise or plead that alternative, non-defamatory meaning or even to justify it, has been the major source of contention in relation to the reception of the Polly Peck defence in Australia. The case law on the Polly Peck and Hore-Lacy defences suggests that pleading has almost become an end in itself. Pleading should facilitate the timely identification and determination of 87 88 89 90 91 92

See Polly Peck plc v Trelford [1986] QB 1000. See David Syme & Co Ltd v Hore-Lacy (2000) 1 VR 667; [2000] VSCA 24. (2005) 67 NSWLR 434; [2005] NSWSC 1133 at 444 (NSWLR). (2005) Aust Torts Reports 81-822; [2005] NSWSC 1204 at 68,152 (Aust Torts Reports). (2003) 9 VR 1; [2003] VSCA 161 at 62 (VR). See, eg, Bateman v Fairfax Media Publications Pty Ltd (No 2) [2014] NSWSC 1380 at [41] per McCallum J: The contention that the decision in Hore-Lacy does not create a specific defence is plainly right, in my view. What the decision establishes is a principle relating to the proper manner of pleading the defence of justification at common law.

93

Hadzel v De Waldorf (1970) 16 FLR 174 at 179 per Fox J.

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[9.100]

The Polly Peck and Hore-Lacy defences

the real issues between the parties. Further legislative and judicial attention on this area should focus on reforming pleading procedures so that both sides bring forward their respective cases sooner rather than later.

Separate and distinct stings [9.90] In the pleading of his or her case, the plaintiff has a significant forensic advantage. If the matter contains separate and distinct meanings, the plaintiff can elect to complain about some meanings and not others.94 There is no obligation on the plaintiff to plead all possible injurious meanings arising from the matter. Ordinarily, a defendant would then have to justify the meanings the plaintiff pleaded. The fact that the defendant could justify other meanings conveyed by the matter, but not relied upon by the plaintiff, is of no assistance to the defendant.95 Justifying those meanings would be non-responsive to the plaintiff’s pleaded claim. From the defendant’s perspective, this can be productive of unfairness. Whether the matter conveys separate and distinct stings is a question of fact.96 If the defendant is able to identify a meaning which is not separate and distinct from the plaintiff’s pleading meaning but rather is a variant of it, the defendant may be able to particularise and justify his or her own variant meaning, thereby having a complete defence.

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The Polly Peck defence [9.100] The Polly Peck defence is an example of precisely this type of defence. Properly understood, the Polly Peck defence is the justification of a common sting. Under this defence, the defendant is entitled to consider the plaintiff’s pleaded imputation in the context of the matter and, if there are several related defamatory allegations, the defendant is able to extract a common sting and justify it rather than the plaintiff’s pleaded imputation.97 An example of the Polly Peck defence in operation is Khashoggi v IPC Magazines Ltd.98 In this case, the plaintiff, Soraya Khashoggi, sought an interlocutory injunction against the magazine, Woman’s Own, restraining it from publishing an article containing the defamatory allegation that Khashoggi had had an extramarital affair with the president of a named country.99 The article alleged that Khashoggi had had extramarital affairs with other named men, but she made no complaint about that. Refusing the injunction, Sir John Donaldson MR observed that the publisher, IPC Magazines, had an arguable Polly Peck defence, the common sting between the several allegations conveyed in the article being an imputation of promiscuity. IPC Magazines could seek to justify the article not by proving the substantial truth of the specific allegation relied upon by Khashoggi, but by proving the substantial truth of one or more 94 95

96 97 98 99

Hadzel v De Waldorf (1970) 16 FLR 174 at 179 per Fox J; Polly Peck plc v Trelford [1986] QB 1000 at 1032 per O’Connor LJ. Bremridge v Latimer (1864) 10 LT 816; 12 WR 878; Watkin v Hall (1868) LR 3 QB 396 at 401 per Blackburn J, at 403 per Lush J; Polly Peck plc v Trelford [1986] QB 1000 at 1032 per O’Connor LJ. Polly Peck plc v Trelford [1986] QB 1000 at 1032 per O’Connor LJ. Polly Peck plc v Trelford [1986] QB 1000 at 1032 per O’Connor LJ. [1986] 3 All ER 577; 1 WLR 1412. Khashoggi v IPC Magazines Ltd [1986] 3 All ER 577; 1 WLR 1412 at 1413-4.

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of the other allegations. His Lordship suggested that “it is not more defamatory to have an extra-marital affair with one person rather than another in the circumstances of the case”.100 An example of the limitations of a Polly Peck approach to the pleading of a defendant’s case is provided by the decision of the New Zealand Court of Appeal in Templeton v Jones,101 which predated the English Court of Appeal’s decision in Polly Peck but was relied upon heavily by Brennan CJ and McHugh J in Chakravarti v Advertiser Newspapers Ltd,102 the most significant case on the reception of Polly Peck in Australia. In Templeton v Jones, the plaintiff was a candidate in the 1984 general election in New Zealand. The defendant was the sitting member in the seat the plaintiff was contesting.103 The defendant circulated a speech to the parliamentary press gallery, which was subsequently republished in the national media.104 The plaintiff sued, claiming that he had been accused of being anti-Semitic.105 The defendant tried to rely on the other allegations levelled at the plaintiff, including that he was sexist, homophobic and racist, and to suggest that the matter conveyed the true imputation that the plaintiff engaged in “politics of hatred”.106 The New Zealand Court of Appeal held that the defendant had made a specific, concrete allegation – “a distinct charge” – against the plaintiff and the defendant should not be able to justify an imputation at a higher level of generality, which was different from the damaging allegation he had made.107 Some confusion arose in Australian cases between the Polly Peck defence and another decision of the English Court of Appeal, Lucas-Box v News Group Newspapers Ltd108 (Lucas-Box). These cases involve distinct but related pleading points. In some Australian cases, they have been conflated or treated as interchangeable.109 In Lucas-Box, the court held that, in the interests of fairness to the plaintiff, a defendant had to particularise the meaning he or she would seek to justify, just as the plaintiff was ordinarily required to particularise the meanings upon which he or she would seek to rely.110 Such an approach to pleading in defamation cases has not been adopted in Australian defamation practice. The Polly Peck defence was initially applied by Australian courts.111 However, prior to the introduction of the national, uniform defamation laws, the Polly Peck defence was believed not to apply in New 100 101 102 103 104 105 106 107 108 109

110 111

Khashoggi v IPC Magazines Ltd [1986] 3 All ER 577; 1 WLR 1412 at 1417. [1984] 1 NZLR 448. (1998) 193 CLR 519. Templeton v Jones [1984] 1 NZLR 448 at 449. Templeton v Jones [1984] 1 NZLR 448 at 449-50. Templeton v Jones [1984] 1 NZLR 448 at 450. Templeton v Jones [1984] 1 NZLR 448 at 450-1. Templeton v Jones [1984] 1 NZLR 448 at 452. [1986] 1 All ER 517; [1986] 1 WLR 147. See, eg, Woodger v Federal Capital Press of Australia Pty Ltd (1992) 107 ACTR 1 at 24 per Miles CJ; Sands v Channel Seven Adelaide Pty Ltd (2005) 91 SASR 466; [2005] SASC 182 at 478 (SASR) per White J; Sands v Channel Seven Adelaide Pty Ltd (2009) 105 SASR 452; [2009] SASC 215 at 481 (SASR) per Bleby J. Lucas-Box v News Group Newspapers Ltd [1986] 1 All ER 517; [1986] 1 WLR 147 at 152-3 (WLR) per Ackner LJ. The volume of case law on this issue is vast. For a representative selection of Australian cases prior to Chakravarti endorsing or applying Polly Peck, see Kennett v Farmer [1988] VR 991 at 1000 per Nathan J; National Mutual Life Association of Australasia Ltd v GTV Corporation Pty Ltd [1989] VR 747 at 751 per Ormiston J; Kelly v Special Broadcasting

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[9.110]

The Polly Peck and Hore-Lacy defences

South Wales,112 attributable largely to the fact that under the Defamation Act 1974 (NSW) s 9, the imputation was the cause of action, which precluded a defendant from seeking to link imputations together to extract a common sting at a higher level of abstraction and justify the common sting instead. Therefore, the prevailing view was that the Polly Peck defence was not available in New South Wales.113 In Robinson v Laws,114 the Queensland Court of Appeal also firmly rejected the availability of the Polly Peck defence in that State because of the centrality of pleading imputations in that jurisdiction.115 Nevertheless, the weight of authority for over a decade after Polly Peck was decided was that such a defence could be raised in most Australian jurisdictions. The turning point in the reception of the Polly Peck defence in Australian law was the High Court’s decision in Chakravarti v Advertiser Newspapers Ltd.116

Criticisms of the Polly Peck defence in Chakravarti v Advertiser Newspapers

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[9.110] Given the centrality of the High Court’s decision in Chakravarti v Advertiser Newspapers Ltd117 in the development of the common law of Australia in relation to the pleading of defamation claims and defences and the latitude, if any, that parties should be granted to depart from their pleaded cases, it is necessary to set out the reasoning of the various judgments in Chakravarti at length. O’Connor LJ’s judgment in Polly Peck was strongly criticised in the joint judgment of Brennan CJ and McHugh J in Chakravarti. The thrust of their Honours’ criticism of Polly Peck118 was that it “is contrary to the basic rules of common law pleadings and in many contexts will raise issues which can only embarrass the fair trial of the action”.119 They were firmly of the view that a defence of justification raised in relation to an imputation not pleaded by the plaintiff did not plead a good defence.120 Referring to the earlier decision of Cooke J in the New Zealand Court of Appeal in Templeton v Jones,121 Brennan CJ and McHugh J agreed that it was not for a defendant to “take severable parts of a publication each containing defamatory imputations, link them together and give the publication

112 113 114 115

116 117 118 119 120 121

Service [1990] VR 69 at 72 per Murphy J; Woodger v Federal Capital Press of Australia Pty Ltd (1992) 107 ACTR 1 at 23-4 per Miles CJ; Hart v Wrenn (1995) 5 NTLR 17 at 21 per Mildren J; Watt v General Television Corporation Pty Ltd [1998] 3 VR 501 at 506 per Hedigan J. However, see Whelan v John Fairfax Publications Pty Ltd (2002) 56 NSWLR 89; [2002] NSWSC 1028 at 100 (NSWLR) per Levine J. Jones v John Fairfax Publications Pty Ltd (2005) 67 NSWLR 434; [2005] NSWSC 1133 at 445-6 (NSWLR) per Simpson J. [2003] 1 Qd R 81; [2001] QCA 122. Robinson v Laws [2003] 1 Qd R 81; [2001] QCA 122 at 92 (Qd R) per de Jersey CJ, at 101 per Williams JA, at 108 per Mackenzie J. As to the extent to which this decision turns upon the imputation as the cause of action under the Defamation Act 1889 (Qld), see [2003] 1 Qd R 81; [2001] QCA 122 at 100 (Qd R) per Williams JA. (1998) 193 CLR 519. (1998) 193 CLR 519. Polly Peck plc v Trelford [1986] QB 1000. Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 527. Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 528. Their Honours extended this principle to include fair comment and qualified privilege. [1984] 1 NZLR 448.

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a meaning at a sufficiently high level of abstraction to subsume the meanings of the severable parts”. Their Honours gave the following example to illustrate the problem as they perceived it: [A] defendant cannot take a part of an article that wrongly alleges that the plaintiff has convictions for dishonesty and a part that imputes that the plaintiff has defrauded shareholders, assert that the article means that the plaintiff is dishonest, and then justify that meaning, perhaps by proving that the plaintiff had in fact defrauded shareholders. On that hypothesis, it would be outrageous if the defendant could obtain a finding that the article was true in substance and in fact when plainly it was not.122

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They then asserted that “[n]o injustice is done by holding a defendant to the fundamental principles of pleading by requiring a defence to respond to the statement of claim.”123 Brennan CJ and McHugh J then turned, though, to examine what they described as “[a] distinct but related question” of the effect of a plaintiff particularising, or failing to particularise, a meaning.124 Their Honours noted that, at common law, there was no obligation on the plaintiff to particularise meanings where he or she relied upon the natural and ordinary meaning of the words published.125 They observed, however, that, in order to define the issues between the parties, to ensure the efficient use of finite court resources and, as a matter of fairness, to allow a defendant to mount a proper defence, a plaintiff should be strongly encouraged to particularise the meanings upon which he or she intends to rely.126 In the absence of particularised meanings, a defendant might expend considerable time and resources preparing an unnecessary defence. Alternatively, notwithstanding a defendant’s scrupulous preparation for trial, the plaintiff might establish a meaning which the defendant did not anticipate they would need to meet. The effect of the plaintiff particularising the meaning upon which he or she relied was that he or she was then not able to seek a verdict based on a meaning which differed in substance from those pleaded.127 Their Honours considered the extent to which a plaintiff should be bound by their pleaded meanings. They suggested that allowing a plaintiff to rely on a less injurious meaning, or a meaning which was no more than a nuance apart from the plaintiff’s pleaded meanings, would not be unfair to the defendant. Ultimately, Brennan CJ and McHugh J identified the criteria by which to assess whether a plaintiff should be permitted to depart from his or her own pleaded meanings as being whether it would be prejudicial, embarrassing or unfair to the defendant.128 Although forcefully expressed, Brennan CJ and McHugh J’s judgment was not the only one on this issue in Chakravarti. In their joint judgment, Gaudron and Gummow JJ noted that it had become common practice for plaintiffs to particularise the meanings upon which they relied,129 although they observed that the precise legal consequences of this development were “far from 122 123 124 125 126 127 128 129

Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 529. Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 529. Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 530. Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 530. Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 530-1. Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 532. Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 534. Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 542.

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[9.120]

The Polly Peck and Hore-Lacy defences

settled”.130 Their Honours observed that, in the case law considering these consequences, there had been “a tendency to translate into rules what are best seen as considerations going to fair and efficient practice”.131 In the present case, they held that there was no disadvantage to Advertiser Newspapers in allowing Chakravarti’s proposed departure from his pleaded meaning.132 Interestingly, Gaudron and Gummow JJ seem to endorse the practice sanctioned by the English Court of Appeal in Lucas-Box of allowing a defendant to particularise and justify his or her own meanings.133 In his judgment, Kirby J also noted the increasing practice of requiring the plaintiff to particularise the meanings upon which he or she relied.134 His Honour emphasised that this was not a rigid rule and, citing Polly Peck, stressed that the only purpose of this practice was “to facilitate the fair determination of the dispute which the parties bring to court”.135 He rejected an approach which strictly held the plaintiff to his or her pleaded case,136 underlining the need for flexibility.137 Kirby J accepted, as a general proposition, that a more serious allegation comprehended less serious gradations of meaning, so long as they did not differ in substance from those relied on by the plaintiff.138 Ultimately, Kirby J stated that the court could protect the defendant against any “surprise, prejudice or other disadvantage”.139 His Honour noted that such unfairness would not arise where the plaintiff sought to rely on imputations which were no more than nuances of the meanings he or she had already pleaded.140

The Hore-Lacy defence

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[9.120] Given the division of judicial views expressed in Chakravarti v

Advertiser Newspapers Ltd141 and the uncertainty it cast upon the availability of a Hore-Lacy defence in Australia,142 it was to be expected that there would be an attempt to reconcile those divergent views and to seek to clarify the position under Australian law. The most influential attempt to do this was the decision of the Victorian Court of Appeal in David Syme & Co Ltd v Hore-Lacy.143 The first issue addressed in David Syme & Co Ltd v Hore-Lacy was the extent to which the plaintiff could depart from his or her particularised meanings. The Victorian Court of Appeal held that the tribunal of fact could find in favour of the plaintiff on a meaning which was no more than a nuance 130 131 132 133 134 135 136 137 138 139 140 141 142

143

Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 543. Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 544. Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 545. Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 543-4. Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 578. Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 579. Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 580. Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 579. Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 580. Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 580-1. Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 581. (1998) 193 CLR 519. Kelly v Nationwide News Pty Ltd (1998) 147 FLR 410 at 421 per Kelly ACJ; Steiner Wilson and Webster Pty Ltd (t/as Abbey Bridal) v Amalgamated Television Services Pty Ltd (2000) Aust Torts Reports 81-537 at 63,301 per Crispin J. (2000) 1 VR 667; [2000] VSCA 24.

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or a variant of, or not substantially different from, and no more injurious or serious than, the plaintiff’s particularised meaning.144 The complementary issue was whether the defendant was confined to justifying the plaintiff’s particularised meanings, or whether he or she could also depart from them in some way.145 Charles JA, with whom Ormiston JA agreed, held that a defendant could only seek to justify a meaning which was only a nuance or a variant of, or not substantially different from, and no more injurious or serious than, the plaintiff’s particularised meaning.146 By limiting the defendant in this way, mirroring the limitations placed upon the plaintiff, a court can avoid unfairness, prejudice or embarrassment to the plaintiff.147 Charles JA, with whom Ormiston JA agreed, went further, finding that a defendant who intends to justify a meaning which is a permissible nuance or variant must plead the meaning and provide particulars in support of its defence of justification.148 In this way, their Honours did not follow Polly Peck but applied Lucas-Box.149 Just as the Polly Peck defence is not limited to justification but can equally apply to comment, so too it appears that the Hore-Lacy defence can apply to cases of comment as well as cases involving justification.150 The Hore-Lacy defence has been subsequently endorsed by intermediate appellate courts not only in Victoria151 but also in South Australia152 and Western Australia.153 It has also been applied by the Supreme Court of the Australian Capital Territory.154 The Polly Peck defence was rejected in Queensland because of the centrality of the pleading of imputations under the Defamation Act 1889 (Qld). Although the imputation was not the cause of action under the Defamation Act 1889 (Qld), the term, “defamatory matter”, was defined by reference to imputations and, according to de Jersey CJ, it was the “invariable practice” for plaintiffs in Queensland defamation cases to particularise the meanings upon

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144 145 146 147 148 149 150

151 152 153 154

David Syme & Co Ltd v Hore-Lacy (2000) 1 VR 667; [2000] VSCA 24 at 675 (VR) per Ormiston JA, at 686 per Charles JA. As to the interdependence of these issues, see David Syme & Co Ltd v Hore-Lacy (2000) 1 VR 667; [2000] VSCA 24 at 684 (VR) per Charles JA. David Syme & Co Ltd v Hore-Lacy (2000) 1 VR 667; [2000] VSCA 24 at 686-7 (VR) per Charles JA; see also at 675 per Ormiston JA. David Syme & Co Ltd v Hore-Lacy (2000) 1 VR 667; [2000] VSCA 24 at 686-7 (VR) per Charles JA. David Syme & Co Ltd v Hore-Lacy (2000) 1 VR 667; [2000] VSCA 24 at 688-9 (VR) per Charles JA; see also at 675 per Ormiston JA. Lucas-Box v News Group Newspapers Ltd [1986] 1 All ER 517; [1986] 1 WLR 147. See, eg, Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245; [2007] HCA 60 at 288 (CLR) per Gummow, Hayne and Heydon JJ; Hore-Lacy v Cleary (2007) 18 VR 562; [2007] VSCA 314 at 570-1 (VR) per Ashley JA. As to the defence of fair comment, see Chapter 13. Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1; [2003] VSCA 161; Setka v Abbott [2014] VSCA 287 at [42], [45] per Warren CJ and Ashley JA. Advertiser-News Weekend Publishing Co Ltd v Manock (2005) 91 SASR 206; [2005] SASC 82 at 219-20 (SASR) per Doyle CJ. Nationwide News Pty Ltd v Moodie (2003) 28 WAR 314; [2003] WASCA 273; West Australian Newspapers Ltd v Elliott (2008) 37 WAR 387; [2008] WASCA 172. John Holland Group Pty Ltd v John Fairfax Publications Pty Ltd (2006) 204 FLR 290; [2006] ACTSC 108 at 293-6 (FLR) per Connolly J; Betfair Ltd v Nason [2006] ACTSC 111 at [29] per Gray J.

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[9.120]

The Polly Peck and Hore-Lacy defences

which they relied.155 This has presumably deterred consideration of whether the Hore-Lacy defence should be recognised in Queensland. Since the introduction of the national, uniform defamation laws, the Hore-Lacy defence has been endorsed by the New South Wales Court of Appeal.156 However, in Bateman v Fairfax Media Publications Pty Ltd (No 2),157 McCallum J held that the Hore-Lacy pleading had no scope for operation in New South Wales, given the pleading practice in that jurisdiction.158 The correctness of that decision, in light of the authorities to the contrary, may yet be tested on appeal. As yet, though, the Hore-Lacy defence has not been considered by the High Court of Australia.159 The Polly Peck defence, in its pure “common sting” form, therefore, seems to have been rejected in Australia,160 although, as with the Hore-Lacy defence,161 there is no binding decision of the High Court of Australia on this point.162 Some clarity on the common law of Australia on this exceedingly complex area of defamation law, particularly in light of decisions reaffirming jurisdictional differences, would be welcome.

155

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156

157 158 159

160

161 162

Robinson v Laws [2003] 1 Qd R 81; [2001] QCA 122 at 92-5 (Qd R) per de Jersey CJ (describing the imputation as “the heart or essence of the cause of action”); see also Robinson v Laws [2003] 1 Qd R 81; [2001] QCA 122 at 100-1 (Qd R) per Williams JA, at 107-8 per Mackenzie J. As to the position prior to the introduction of the national, uniform defamation laws, see Fawcett v John Fairfax Publications Pty Ltd [2008] NSWSC 139 per Simpson J. Cf John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484 at [233]. [2014] NSWSC 1380. Bateman v Fairfax Media Publications Pty Ltd (No 2) [2013] NSWSC 1380 at [50]-[51]. For examples of the Hore-Lacy defence in operation, see Snedden v Nationwide News Pty Ltd [2011] NSWCA 262 at [48] per McClellan CJ at CL (imputation that plaintiff committed war crimes did not differ in substance from imputation that plaintiff was death squad commander); Fleming v Advertiser-News Weekend Publishing Co Pty Ltd [2012] SASC 58 at [28]-[31] per Peek J (where plaintiff sought to confine allegation of sexual intercourse to penile or vaginal sexual intercourse and defendant sought to justify by proving oral sexual intercourse). John Fairfax Publications Pty Ltd v Zunter [2006] NSWCA 227 at [42] per Handley AJA; John Holland Group Pty Ltd v John Fairfax Publications Pty Ltd (2006) 204 FLR 290; [2006] ACTSC 108 at 292-3 (FLR) per Connolly J; Snedden v Nationwide News Pty Ltd [2011] NSWCA 262 at [152] per McClellan CJ at CL. However, see Li v Herald & Weekly Times Pty Ltd (2007) Aust Torts Reports 81-887; [2007] VSC 109 at 69,502 (Aust Torts Reports) per Gillard J; Buckeridge v Walter [2007] WASCA 19 at [20] per McLure JA; West Australian Newspapers Ltd v Elliott (2008) 37 WAR 387; [2008] WASCA 273 at 411 (WAR) per McClure JA; Sands v Channel Seven Adelaide Pty Ltd (2009) 104 SASR 452; [2009] SASC 215 at 480-1 (SASR) per Bleby J. To the extent that the dicta in the latter cases departs from the dicta in the former cases, it may be that the disagreement turns upon a semantic or a terminological point, rather than a substantive point. Advertiser-News Weekend Publishing Co Ltd v Manock (2005) 91 SASR 206; [2005] SASC 82 at 213 (SASR) per Doyle CJ. Whelan v John Fairfax Publications Pty Ltd (2002) 56 NSWLR 89; [2002] NSWSC 1028 at 100 (NSWLR) per Levine J. Leave to appeal to the High Court of Australia was refused in Robinson v Laws [2003] 1 Qd R 81; [2001] QCA 122 and Elliott v West Australian Newspapers Ltd [2009] HCATrans 153.

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193

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[9.120]

Contextual truth Introduction [9.130] Another means by which the strict common law approach to justification has been overcome or ameliorated is by the enactment of the defence of contextual truth.163 A defendant can have a complete defence to defamation, even if he or she is unable to prove the substantial truth of all of the plaintiff’s pleaded meanings. Under the defence of contextual truth, the defendant is permitted to identify and justify meanings arising from the defamatory matter not relied upon by the plaintiff. If the injury to the plaintiff’s reputation done by the publication of the defendant’s substantially true imputations outweighs that done by the publication of the false imputations complained of by the plaintiff, the defendant has a complete defence. The defence of contextual truth has a narrow scope of operation. It can only effectively operate in circumstances where the plaintiff has elected not to sue upon serious allegations conveyed by the defamatory matter. As McCallum J recently described it:

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[t]he plain object of the section is to preclude a remedy based on the selection of discrete, indefensible defamatory imputations in the context of a publication in which the dominant harm to reputation is justified.164

It does, however, permit a defendant to do the very thing that the common law defence of justification forbids him or her from doing, namely to plead and justify an imputation which is separate and distinct from that complained of by the plaintiff.165 The defence of contextual truth has its origins in the Defamation Act 1952 (UK) s 5.166 Prior to the introduction of the national, uniform defamation laws, New South Wales and Tasmania had variants of this defence.167 Unsurprisingly, the more developed jurisprudence on the defence of contextual truth was that of New South Wales. The case law on the defence of contextual truth under the Defamation Act 1974 (NSW) s 16 may continue to be of relevance to the application of the defence under the national, uniform defamation laws, although some care will need to be taken, given the different wording between the statutory provisions and the fact that the matter, not the imputation, is now the cause of action in defamation, unlike the position that pertained under the Defamation Act 1974 (NSW).168 163

164 165 166 167

168

Civil Law (Wrongs) Act 2002 (ACT) s 136; Defamation Act 2006 (NT) s 23; Defamation Act 2005 (NSW) s 26; Defamation Act 2005 (Qld) s 26; Defamation Act 2005 (SA) s 26; Defamation Act 2005 (Tas) s 26; Defamation Act 2005 (Vic) s 26; Defamation Act 2005 (WA) s 26. As to the stricture of the common law’s approach to justification and the unavailability of a common law variant of contextual truth, see Potts v Moran (1976) 16 SASR 284 at 308 per Wells J. King v Fairfax Media Publications Pty Ltd (No 2) [2014] NSWSC 1244 at [5]. Jones v John Fairfax Publications Pty Ltd (2005) 67 NSWLR 434; [2005] NSWSC 1133 at 445 (NSWLR) per Simpson J; see also Hart v Wrenn (1995) 5 NTLR 17 at 23 per Mildren J. Jackson v John Fairfax & Sons Ltd [1981] 1 NSWLR 36 at 39 per Hunt J. As to the current equivalent provision in England and Wales, see now Defamation Act 2013 (UK) s 2(3). Defamation Act 1974 (NSW) s 16 (repealed); Defamation Act 1957 (Tas) s 18 (repealed). As to the history of the New South Wales provision, see Waterhouse v Hickie (1995) Aust Torts Reports 81-347 at 62,490 per Priestley JA. As to the imputation as the cause of action under the Defamation Act 1974 (NSW) (repealed), see [6.30].

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[9.140]

Contextual truth

Elements of the defence of contextual truth [9.140] In order to establish a defence of contextual truth, the defendant must

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prove that, in addition to the matter conveying the defamatory imputations of which the plaintiff complains, the matter also conveys one or more other substantially true imputations. These true imputations are called “contextual imputations”.169 The contextual imputations must differ in substance from the plaintiff’s pleaded imputations.170 Expressed in this way, the pleading of the defendant’s contextual imputations reflects the pleading of the plaintiff’s imputations, a fundamental requirement of which is that they differ in substance from each other.171 More recently, this requirement has been interpreted to exclude contextual imputations which are merely a reformulation of the plaintiffs’ pleaded imputations.172 The stated rationale for this approach lies in the purpose of the statutory defence of contextual truth, which is “directed to a situation in which the same publication conveyed imputations which differ in their character, not merely a different way of formulating the same imputation at a higher level of generality”.173 Whether a requirement that contextual imputations not only differ in substance but also differ in kind or character is required by the legislation is open to question. The textual basis for this approach under the national, uniform defamation laws is that the contextual imputations need to be “in addition to” the plaintiff’s pleaded imputations. Whether the contextual imputations differ in substance will be a question of fact in each case.174 Just as the plaintiff’s pleaded imputations must be precise,175 so also must the defendant’s contextual imputations be sufficiently precise.176 The defamatory matter must convey the plaintiff’s pleaded imputations and the defendant’s contextual imputations at the same time.177 The contextual imputations must arise from matter published by the defendant. Thus, a defendant cannot rely upon a contextual imputation based upon additional matter published by a third party, even if it is published at the same time as the matter published by the defendant.178 169

Civil Law (Wrongs) Act 2002 (ACT) s 136(a); Defamation Act 2006 (NT) s 23(a); Defamation Act 2005 (NSW) s 26(a); Defamation Act 2005 (Qld) s 26(a); Defamation Act 2005 (SA) s 26(a); Defamation Act 2005 (Tas) s 26(a); Defamation Act 2005 (Vic) s 26(a); Defamation Act 2005 (WA) s 26(a).

170

Jackson v John Fairfax & Sons Ltd [1981] 1 NSWLR 36 at 40 per Hunt J; John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484; [2007] NSWCA 364 at 530 (NSWLR) per McColl JA. As to the requirement that imputations differ in substance from each other, see [6.30]. John Fairfax Publications Pty Ltd v Jones [2004] NSWCA 205 at [16] per Spigelman CJ, at [99] per Hodgson JA; John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484; [2007] NSWCA 364 at 488 (NSWLR) per Ipp JA, at 530 per McColl JA. As to the requirement that the plaintiff’s pleaded imputations differ in substance, see [6.30]. John Fairfax Publications Pty Ltd v Jones [2004] NSWCA 205 at [20] per Spigelman CJ. See, eg, John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484; [2007] NSWCA 364 at 488-9 (NSWLR) per Ipp JA, at 491 per Tobias JA (contextual imputation that plaintiff gatecrashed function did not differ in substance from imputation that plaintiff knowingly gatecrashed function). As to the requirement of precision for the plaintiff’s pleaded imputations, see [6.30]. Australian Broadcasting Corporation v Hodgkinson [2005] NSWCA 190 at [31] per Hodgson JA; King v Fairfax Media Publications Pty Ltd (No 2) [2014] NSWSC 1244 at [11] per McCallum J. Jackson v John Fairfax & Sons Ltd [1981] 1 NSWLR 36 at 39-40 per Hunt J. Pioneer International Ltd v Knox (1991) 22 NSWLR 266 at 269 per Hunt J (where interviewee sued upon comments made in televised interview, he could not rely on other matter in broadcast as part of his defence of contextual truth).

171 172

173 174

175 176

177 178

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195

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196

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[9.140]

The defendant must prove that the substantial truth of the contextual imputations means that the defamatory imputations established by the plaintiff do not further harm the plaintiff’s reputation.179 The test is sometimes colloquially described as deciding whether the defendant’s contextual imputations “swamp” the plaintiff’s pleaded imputations.180 Under the Defamation Act 1974 (NSW) s 16, there was a debate about what the proper focus of the defence of contextual truth should be. There was disagreement expressed as to whether the focus should be on the terms of the contextual imputations themselves or whether it should instead involve an evaluation of the injury to reputation weighed against the facts and circumstances which establish the substantial truth of those contextual imputations.181 The simplification of the language in the defence of contextual truth under the national, uniform defamation laws from the more convoluted language in the Defamation Act 1974 (NSW) s 16(2)(c) has hopefully meant that the somewhat arid debate about the focus of this defence has evanesced. Under the national, uniform defamation laws, the statutory language seems to make it clear that the evaluation which needs to occur is a weighing of the plaintiff’s imputations against the substantial truth of the defendant’s contextual imputations – the focus is on the respective imputations pleaded by the parties. The simplification of the language of the statutory defence of contextual truth has not been entirely positive, having had some unintended consequences.182 This is another aspect of the national, uniform defamation laws which preserves the central role of imputations, notwithstanding that the matter, not the imputation, is now the cause of action.183 The defence of contextual truth thus permits a defendant to do what the defence of justification and its common law variants prohibit, namely to rely on and justify imputations about which the plaintiff does not complain and to have a complete defence by doing so. It sanctions the evaluation of the relative harm to reputation done by the publication of separate and distinct stings.184 In undertaking this assessment, the cumulative effect of the contextual imputations needs to be weighed against the plaintiff’s pleaded imputations. Under the Defamation Act 1974 (NSW), it was established that the cumulative effect of the defendant’s contextual imputations needed to be evaluated as 179

180

181

182 183 184

Civil Law (Wrongs) Act 2002 (ACT) s 136(b); Defamation Act 2006 (NT) s 23(b); Defamation Act 2005 (NSW) s 26(b); Defamation Act 2005 (Qld) s 26(b); Defamation Act 2005 (SA) s 26(b); Defamation Act 2005 (Tas) s 26(b); Defamation Act 2005 (Vic) s 26(b); Defamation Act 2005 (WA) s 26(b). Under the Defamation Act 1974 (NSW) s 16, proof of the substantial truth of the contextual imputation alone was insufficient, just as the defence of justification required the proof of an additional element of public interest or publication on an occasion of qualified privilege. Hepburn v TCN Channel Nine Pty Ltd [1984] 1 NSWLR 386 at 405 per Hunt J; Whelan v John Fairfax Publications Pty Ltd (2002) 56 NSWLR 89 at 96 per Levine J): “It is the custom in the Defamation List for the term ‘swamp’ to be used.” However, note Channel Seven Sydney Pty Ltd v Mahommed (2010) 278 ALR 232; [2010] NSWCA 335 at 264 (ALR) per McColl JA. Cf John Fairfax Publications Pty Ltd v Blake (2001) 53 NSWLR 541; [2001] NSWCA 434 at 543 (NSWLR) per Spigelman CJ, at 556 per Hodgson JA; Australian Broadcasting Corporation v Hodgkinson [2005] NSWCA 190 at [32]-[38] per Hodgson JA; see also Purcell v Cruising Yacht Club of Australia Pty Ltd [2002] NSWSC 557 at [14] per Levine J. See, eg, the impact on the practice of “pleading back”.at [9.170]. As to the matter as the cause of action in defamation law, see [6.20]. Jones v John Fairfax Publications Pty Ltd (2005) 67 NSWLR 434; [2005] NSWSC 1133 at 445 (NSWLR) per Simpson J.

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[9.150]

Contextual truth

against the plaintiff’s pleaded imputations, rather than the contextual imputations being considered in isolation. This approach applied both to the trial judge’s determination of the issues of capacity relating to the defence of contextual truth,185 as well as to the jury’s determination of whether the defence was established.186 The language of the statutory provision permitted this and the defence would be inefficacious if the effect of each contextual imputation had to be considered in isolation. A defendant might then plead a range of contextual imputations unrelated to the plaintiff’s pleaded imputations, raising issues not complained of by the plaintiff and expanding the scope of the trial. A court cannot prevent the defendant pleading contextual imputations, merely because of the adverse impact on the plaintiff’s case and arguably the administration of justice more generally, when the statute allows the defendant to do this. There are, however, two protections for a plaintiff. The first is the court can always strike out a defence of contextual truth or parts of it that are incapable of being established. The second is that if a defendant maintains a baseless defence of contextual truth at trial, this could increase the damages awarded to the plaintiff.187 The difference in wording between the previous provision in New South Wales and the current provision under the national, uniform defamation laws does not appear to provide a basis for arguing that this approach should not continue.

The respective roles of judge and jury

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[9.150] If a jury is empanelled in a proceeding,188 the issues of whether the defendant’s contextual imputations are conveyed by the matter, whether the contextual imputations are substantially true and the ultimate assessment of the harm done to the plaintiff’s reputation are questions of fact for the jury.189 In addition, the jury would need to determine whether the contextual imputations were in fact “in addition to” the plaintiff’s pleaded imputations.190 However, before the defence of contextual truth can be left to the jury, the trial judge needs to be satisfied that the contextual imputations are capable of being conveyed by the matter, that there is sufficient evidence for the jury to find that the contextual imputations are substantially true and that the harm to the plaintiff’s reputation done by the contextual imputations, if substantially true, is capable of outweighing the harm to the plaintiff’s reputation done by the publication of the defamatory imputations of which the plaintiff complained.191 The trial judge also needs to find that the defendant’s

185 186 187 188

189 190 191

Hepburn v TCN Channel Nine Pty Ltd [1984] 1 NSWLR 386 at 400 per Hunt J; Waterhouse v Hickie (1995) Aust Torts Reports 81-347 at 62,495 per Priestley JA. Hepburn v TCN Channel Nine Pty Ltd [1984] 1 NSWLR 386 at 396-7 per Hunt J; Waterhouse v Hickie (1995) Aust Torts Reports 81-347 at 62,495 per Priestley JA. Waterhouse v Hickie (1995) Aust Torts Reports 81-347 at 62,496 per Priestley JA. Before the jury could consider a defence of contextual truth, it would need to find that the plaintiff’s imputations had been conveyed by the matter and were defamatory and that the defendant had failed to justify them. Otherwise, no issue of the defence of contextual truth would arise. As to the role of juries in defamation proceedings generally, see [5.150]. Jackson v John Fairfax & Sons Ltd [1981] 1 NSWLR 36 at 39-40 per Hunt J. Newnham v Davis (No 2) [2010] VSC 94 at [49] per Kaye J; Fleming v Advertiser-News Weekend Publishing Co Pty Ltd [2012] SASC 58 at [42] per Peek J. Jackson v John Fairfax & Sons Ltd [1981] 1 NSWLR 36 at 39-40 per Hunt J. As to the issue of defamatory capacity generally, see [6.60].

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197

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contextual imputations could reasonably be found by the jury to be “in addition to” the plaintiff’s pleaded imputations.192

The defence of contextual truth in operation

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[9.160] In what he styles as the first exegesis on the Defamation Act 1974 (NSW) s 16, the predecessor provision and model for the current defence of contextual truth, Hunt J, as his Honour then was, provides a number of examples as to how the defence might operate. As a clear example of a successful defence of contextual truth, Hunt J suggests that, if a matter conveyed the imputations that a plaintiff was arrested and charged with a criminal offence and was in fact guilty of the offence, and that if the plaintiff only sued in relation to the allegation of arrest and charge, the defendant could raise a defence of contextual truth. If the defendant is able to prove the substantial truth of the contextual imputation that the plaintiff was in fact guilty of the criminal offence, then weighing the relative reputational harm done by the true and false imputations means that overall there is no damage to reputation by the publication of the defamatory allegation. It is worse to state truly that the plaintiff is in fact guilty of a criminal offence than it is to state falsely that the plaintiff has been arrested and charged with that offence. As a clear example of an unsuccessful defence of contextual truth, Hunt J suggests that, if a matter conveyed the imputations that the plaintiff was a blackmailer and had overstayed his or her visa, and the plaintiff only sued in relation to the former imputation, the defendant could not rely on a defence of contextual truth. In Hunt J’s view, even if the defendant could prove the substantial truth of the contextual imputation that the plaintiff had overstayed his or her visa, the substantial truth of that allegation could not outweigh the damage done to the plaintiff’s reputation by the publication of a false allegation of blackmail. As an intermediate example, in which the success of a defence of contextual truth is finely balanced, Hunt J suggests that the publication of a matter conveying the false imputation that the plaintiff was a share swindler and the true imputation that the plaintiff was a rapist.193 Whether, in truth, this is a sound example of a finely balanced case for the defence of contextual truth is open to question, with respect. Nevertheless, these examples illustrate how the defence of contextual truth might operate in practice.

The practice of “pleading back” [9.170] Under the Defamation Act 1974 (NSW) s 16, a practice developed whereby defendants “pleaded back” the plaintiffs’ imputations as contextual imputations. Under this practice, the defendant could adopt one or more of the plaintiff’s pleaded imputations as his or her own contextual imputations and, by proving the substantial truth of those imputations, could have the effect of those imputations on the plaintiff’s reputation, along with his or her own contextual imputations, weighed against the effect of the plaintiff’s other 192 193

Newnham v Davis (No 2) [2010] VSC 94 at [49] per Kaye J; Fleming v Advertiser-News Weekend Publishing Co Pty Ltd [2012] SASC 58 at [42] per Peek J. Jackson v John Fairfax & Sons Ltd [1981] 1 NSWLR 36 at 39.

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[9.170]

Contextual truth

imputations.194 In Hepburn v TCN Channel Nine Pty Ltd,195 Hunt J described this as “the whole purpose of the defence of contextual truth”.196 It was initially accepted or assumed that the practice of “pleading back” could continue under the national, uniform defamation laws.197 However, in Kermode v John Fairfax Publications,198 Simpson J held that the change in wording between the Defamation Act 1974 (NSW) s 16 (repealed) and the Defamation Act 2005 (NSW) s 26 precluded such a practice continuing under the national, uniform defamation laws. This was because the Defamation Act 2005 (NSW) s 26 required the defendant’s contextual imputation to be “in addition to the imputations of which the plaintiff complains”.199 They could not then be the plaintiff’s imputations. Her Honour accepted that the intention of the New South Wales Parliament was to re-enact the statutory defence of contextual truth, but the language failed to give effect to the legislative intention. Such a legislative intention could not be imputed to the other State and Territory legislatures, as those jurisdictions had no precise analogue to the statutory defence of contextual truth in their respective defamation laws prior to the introduction of the national, uniform defamation laws. Simpson J held that to construe the language of the statutory defence of contextual truth so as to allow the practice of “pleading back” would involve an impermissible rewriting of the statutory provision. Her Honour concluded her judgment with a strong recommendation for the legislative reform of this provision. No such reform has occurred or even been proposed. On appeal, the New South Wales Court of Appeal upheld Simpson J’s judgment. Giving the leading judgment on appeal, McColl JA noted that the jurisprudence under the Defamation Act 1974 (NSW) s 16 was of limited assistance in construing the statutory defence of contextual truth under the national, uniform defamation laws because the imputation was the cause of action under the former legislation, whereas the matter was the cause of action under the latter legislation – a decisive shift of focus which necessarily had a significant effect on the proper construction of the defence.200 There are some consequential issues raised by Besser v Kermode.201 For instance, it is not clear whether an imputation pleaded as an alternative or as a “fallback” imputation by the plaintiff will be precluded from being relied upon by the defendant as a contextual imputation.202 It is also not settled whether the plaintiff’s true imputations can be taken into account on the plaintiff’s side 194 195 196 197 198 199

200

201 202

Allen v John Fairfax & Sons Ltd (unreported, NSW SC, Hunt J, 2 December 1988) at p 14. [1984] 1 NSWLR 386. Hepburn v TCN Channel Nine Pty Ltd [1984] 1 NSWLR 386 at 397. However, see Waterhouse v Hickie (1995) Aust Torts Reports 81-347 at 62,495 per Priestley JA. See, eg, Corby v Channel Seven Sydney Pty Ltd (unreported, NSW SC, 20 February 2008) at [19]-[21]. [2010] NSWSC 852. Civil Law (Wrongs) Act 2002 (ACT) s 136(a); Defamation Act 2006 (NT) s 23(a); Defamation Act 2005 (NSW) s 26(a); Defamation Act 2005 (Qld) s 26(a); Defamation Act 2005 (SA) s 26(a); Defamation Act 2005 (Tas) s 26(a); Defamation Act 2005 (Vic) s 26(a); Defamation Act 2005 (WA) s 26(a). Besser v Kermode (sub nom Fairfax Media Publications Pty Ltd v Kermode) (2011) 81 NSWLR 157; [2011] NSWCA 174 at 177-8 (NSWLR); see also Mizikovsky v Queensland Television Ltd [2014] 1 Qd R 197; [2013] QCA 68 at 203 (Qd R) per Fraser JA. (2011) 81 NSWLR 157; [2011] NSWCA 174. Kelly v Fairfax Media Publications Pty Ltd (No 2) [2014] NSWSC 166 at [15], [17]-[18] per McCallum J; Zeccola v Fairfax Media Publications Pty Ltd [2014] NSWSC 227 at [29]-[33]

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199

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when determining whether “further harm” was done to the plaintiff’s reputation.203 This is because it is not entirely clear whether the true import of Besser v Kermode is limited to a pleading point or whether it dealt with a matter of substance204 – to the extent that, in defamation law, issues of pleading and substance can be completely dissociated. For the purposes of augmenting damages, the plaintiff cannot rely upon the contextual imputations the defendant fails to justify, as these are not imputations about which the plaintiff had complained.205 However, a plaintiff may apply to adopt the defendant’s contextual imputations as his or her own imputations, thereby depriving the defendant of his or her defence of contextual truth.206 The consequence of Besser v Kermode has been that, in proceedings on foot, defendants will have to amend their existing defences or will be precluded from pleading contextual imputations they otherwise might have raised.207 Plaintiffs may identify a forensic advantage in pleading imputations they otherwise might not have, so as to prevent defendants pleading them as contextual imputations, or they may seek leave to adopt defendants’ contextual imputations as their own. The construction given to the statutory defence of contextual truth under the national, uniform defamation laws in Besser v Kermode tends to undermine the efficacy of the defence. It may not be the only one available. For instance, in Born Brands Pty Ltd v Nine Network Australia Pty Ltd,208 Basten JA observed that: [t]he reasoning in Kermode and Mizikovsky (which may not be entirely consistent with each other) appears to assume that the defences in ss 25 and 26 are to be applied sequentially and (at least in the case of Besser) in the order in which they appear in the Act. However, there is an alternative reading of the legislation, namely that the tribunal of fact must consider holistically the effect of the defamatory matter on the reputation of the plaintiff, deciding at the end of the day whether, by reference to the imputations pleaded by both plaintiff and defendant, any imputations which have not been shown to be substantially true cause of any further harm to the reputation of the plaintiff once the effect of the substantially accurate imputations has been assessed.

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It may be, then, that the problems raised by the application of the statutory defence of contextual truth under the national, uniform defamation laws can be

203

204 205 206

207

208

per McCallum J; cf Besser v Kermode (sub nom Fairfax Media Publications Pty Ltd v Kermode) (2011) 81 NSWLR 157; [2011] NSWCA 174 at 180 (NSWLR) per McColl JA; see also Hall v TCN Channel Nine Pty Ltd [2014] NSWSC 1604 at [23]-[29] per McCallum J. McMahon v John Fairfax Publications Pty Ltd (No 6) [2012] NSWSC 224 at [74]-[75] per McCallum J; Mizikovsky v Queensland Television Ltd [2014] 1 Qd R 197; [2013] QCA 68 at 203 (Qd R) per Fraser JA; Born Brands Pty Ltd v Nine Network Australia Pty Ltd [2014] NSWCA 369 at [82] per Basten JA; Fisher v Channel Seven Sydney Pty Ltd (No 3) [2014] NSWSC 1619 at [10]-[14] per Rothman J. Born Brands Pty Ltd v Nine Network Australia Pty Ltd [2014] NSWCA 369 at [82] per Basten JA. Holt v TCN Channel Nine Pty Ltd (2014) 86 NSWLR 96; [2014] NSWCA 90 at 102 (NSWLR) per Macfarlan JA. See, eg, Besser v Kermode (sub nom Fairfax Media Publications Pty Ltd v Kermode) (2011) 81 NSWLR 157; [2011] NSWCA 174 at 179-80 (NSWLR) per McColl JA; Waterhouse v Age Co Ltd [2012] NSWSC 9 at [23] per Nicholas J; Holt v TCN Channel Nine Pty Ltd (2014) 86 NSWLR 96; [2014] NSWCA 90 at 102 (NSWLR) per Macfarlan JA; Hall v TCN Channel Nine Pty Ltd [2014] NSWSC 1604 at [35]-[37] per McCallum J. See, eg, McGrane v BTQ Channel 7 [2011] QSC 290 at [22] per Martin J; Waterhouse v Age Co Ltd [2012] NSWSC 9 at [13] per Nicholas J; Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264 at [123], [157] per McColl JA. [2014] NSWCA 369 at [86].

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-23 21:44:58.

[9.180]

Contextual truth

solved by adopting a different construction of the legislative provision. Perhaps a clearer and more certain path is that suggested by Simpson J at first instance in Besser v Kermode, namely legislative redrafting of the defence in order for it to achieve its purpose and intention.209 The interpretive issues presented by the statutory defence of contextual truth prove again, if proof were needed, the exquisite technicality of defamation law, the interdependence of substance and procedure, and the remoteness of defamation law from the lived experience of reputation.

The relationship between the Polly Peck and Hore-Lacy defences and the defence of contextual truth [9.180] There has been a range of views expressed as to the proper interaction

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between the Polly Peck defence210 and its derivatives and the statutory defence of qualified privilege. In Woodger v Federal Capital Press of Australia Pty Ltd,211 Miles CJ suggested that the Polly Peck defence and the statutory defence of contextual truth were, in operation, virtually indistinguishable.212 In Caccavo v Daft,213 Holt AsJ suggested that the debate about the availability of the Polly Peck defence was “sterile” because that defence had been overtaken and subsumed by the statutory defence of contextual truth. The best view is that the Polly Peck and Hore-Lacy214 defences and the defence of contextual truth are separate and distinct. They have different sources of power, the former defences arising at common law, the latter defence being a creature of statute. Most recently, in Setka v Abbott,215 Warren CJ and Ashley JA reasoned that the Hore-Lacy defence and the statutory defence of contextual truth were, in operation, mutually exclusive because the former proceeds on the basis of a denial of the plaintiff’s pleaded meanings and the assertion and justification of alternative meanings by the defendant, whereas the defence of contextual truth proceeds on the basis that the plaintiff’s pleaded meanings are conveyed and are defamatory, but that any reputational harm done by them is outweighed by the substantial truth of the contextual imputations pleaded by the defendant. Whether, in application, the legal differences identified by their Honours lead to substantively different outcomes and to mutual exclusivity is open to question.

209 210 211 212 213 214 215

See also Fisher v Channel Seven Sydney Pty Ltd (No 3) [2014] NSWSC 1619 at [13] per Rothman J. See Polly Peck plc v Trelford [1986] QB 1000. (1992) 107 ACTR 1. Woodger v Federal Capital Press of Australia Pty Ltd (1992) 107 ACTR 1 at 23. However, see the criticisms of Mildren J in Hart v Wrenn (1995) 5 NTLR 17. [2006] TASSC 36 at [3]. See David Syme & Co Ltd v Hore-Lacy (2000) 1 VR 667; [2000] VSCA 24. [2014] VSCA 287.

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201

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10

Absolute Privilege [10.10]

Introduction..............................................................................................203

[10.10]

Privilege generally......................................................................... 203

[10.20]

General principles of absolute privilege.................................................204

[10.30]

Judicial proceedings................................................................................ 205

[10.30] [10.40]

The common law position............................................................. 205

Parliamentary proceedings...................................................................... 209

[10.40]

The common law position............................................................. 209

[10.50]

The statutory defence of absolute privilege..................................211

[10.60] Statutory basis for absolute privilege in respect of parliamentary proceedings........................................................................213 [10.70] Other statutory provisions conferring defence of absolute privilege.................................................................................................... 214 [10.80]

Communications between high officers of state.....................................214

Introduction

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Privilege generally [10.10] There are occasions when a plaintiff’s right to protect his or her reputation must be subordinated to a superior, countervailing interest. Such occasions are said to be privileged. There are broadly two types of privilege: absolute and qualified. The adjectives do their work: absolute privilege confers a complete immunity in relation to matter published on the privileged occasion, irrespective of the motive of the publisher, whereas qualified privilege confers an immunity which is able to be displaced by reference to the publisher’s motive.1 Qualified privilege may be lost if the privileged occasion is exceeded or abused. It is worth emphasising at the outset that defences in the nature of privilege do not attach to the identity of the speaker, writer or publisher, or to the place of speaking, writing or publication. It is the occasion which is privileged and which should form the focus of the defences.2 Whether an occasion is privileged is for the judge, not the jury, to decide.3 This chapter will examine absolute privilege and the next one will examine qualified privilege. 1 2

3

Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57 at 26 (CLR) per Gaudron, McHugh and Gummow JJ; Buchanan v Jennings [2005] 1 AC 115; [2004] UKPC 36 at 122 (AC). Dawkins v Lord Rokeby (1873) LR 8 QB 255 at 268; Munster v Lamb (1883) 11 QBD 588 at 600 per Brett MR; Hercules v Phease [1994] 2 VR 411 at 417 per Marks J; Makudi v Baron Triesman of Tottenham [2014] QB 839; [2014] EWCA Civ 179 at 849 (QB) per Laws LJ. However, see Royal Aquarium and Summer and Winter Garden Society Ltd v Parkinson [1892] 1 QB 431 at 451 per Lopes LJ. Pullman v Hill [1891] 1 QB 524 at 529; Minter v Priest [1930] AC 558 at 572 per Viscount Dunedin.

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204

10: Absolute Privilege

[10.10]

General principles of absolute privilege [10.20] In limited circumstances, the common law recognises that a plaintiff’s right to protect his or her reputation must be completely subordinated to greater public interests. In those limited circumstances, a defendant has a defence of absolute privilege. It is a complete immunity which cannot be lost, irrespective of the conduct of the defendant. As Gillard J observed in Bretherton v Kaye:4 It matters not that on such occasions the words were patently false, were published with malice and with knowledge of their falsity and caused the victim of such publication grave hardship, great mental turmoil and irreparable loss of reputation. The inconvenience and injury to the victim, however grave, is sacrificed to the overriding demands of public convenience and public benefit.

As absolute privilege confers a complete immunity on a publisher, the circumstances in which it is recognised are few and narrowly circumscribed.5 However, the categories of cases in which absolute privilege can be claimed are not closed.6 Indeed, the extent of absolute privilege is somewhat unclear.7 In relation to absolute privilege, there are two principal occasions which attract such a privilege: publications in the course of parliamentary proceedings and publications in the course of judicial proceedings.8 As the Court in Dawkins v Lord Rokeby9 stated: [W]hatever is said, however false or injurious to the character or interests of a complainant, by judges upon the bench, whether in the superior courts of law or equity or in county courts, or sessions of the peace, by counsel at the bar in pleading causes, or by witnesses in giving evidence, or by members of the legislature in either House of Parliament, or by ministers of the Crown in advising the sovereign, is absolutely privileged, and cannot be inquired into in an action at law for defamation.

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The basis of absolute privilege is founded upon necessity,10 although, in certain cases, the defence may be founded upon the broader basis of public policy.11 Often, however, in many cases, notions of necessity and public policy are conflated unproblematically. However, it is important to emphasise that, following the High Court of Australia’s decision in Mann v O’Neill,12 necessity, 4 5

6 7

8 9 10 11

12

[1971] VR 111 at 116. More v Weaver [1928] 2 KB 520 at 521 per Scrutton LJ; Gibbons v Duffell (1932) 47 CLR 520 at 525 per Gavan Duffy CJ, Rich and Dixon JJ; Jackson v Magrath (1947) 75 CLR 293 at 305 per Latham CJ; Bretherton v Kaye [1971] VR 111 at 116 per Gillard J. Merricks v Nott-Bower [1965] 1 QB 57 at 73 per Salmon LJ. See, eg, Richards v Naum [1967] 1 QB 620 at 625 per Lord Denning MR (unclear whether absolute privilege extends to communications by middle and lower ranks of armed services, to secret service or to visiting forces of friendly foreign power). Gibbons v Duffell (1932) 47 CLR 520 at 529 per Starke J; Buchanan v Jennings [2005] 1 AC 115; [2004] UKPC 36 at 123 (AC). (1873) LR 8 QB 255 at 268. Mann v O’Neill (1997) 191 CLR 204 at 213 per Brennan CJ, Dawson, Toohey and Gaudron JJ. Royal Aquarium and Summer and Winter Garden Society Ltd v Parkinson [1892] 1 QB 431 at 422 per Lord Esher MR; Gibbons v Duffell (1932) 47 CLR 520 at 528 per Gavan Duffy CJ, Rich and Dixon JJ, at 529 per Starke J; Lincoln v Daniels [1962] 1 QB 237 at 255 per Devlin LJ; Bretherton v Kaye [1971] VR 111 at 116 per Gillard J; Trapp v Mackie [1979] 1 WLR 377 at 378-9 per Lord Diplock; Hercules v Phease [1994] 2 VR 411 at 422 per Marks J, at 424, 431-3 per Ormiston J. See also Cabassi v Vila (1940) 64 CLR 130 at 144 per McTiernan J; Szalatanay-Stacho v Fink [1947] 1 KB 1 at 11. Mann v O’Neill (1997) 191 CLR 204.

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[10.30]

Judicial proceedings

rather than broader notions of public policy, should be identified as the true basis of absolute privilege. Australian law on this point may be seen to have diverged from English law, with the effect that some recent English decisions on absolute privilege adopt a more liberal approach and reach a result unlikely to be arrived at by the application of a strict test of necessity.13 A defence of absolute privilege is not conferred for the purpose of protecting individual participants.14 As absolute privilege is not directed at the protection of private interests, any extension of absolute privilege will need to identify the public interest warranting such an immunity. As with other defences under Australian defamation law, absolute privilege arises at common law and under statute. This chapter will examine each of these sources of law in turn.

Judicial proceedings The common law position [10.30] At common law, absolute privilege has been held to attach to

statements made by participants in the course of judicial proceedings.15 This includes judges,16 barristers and solicitors,17 parties,18 witnesses19 and jurors.20 It attaches to both oral and written statements made in the course of 13 14

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15

16

17 18

19

20

See [10.30]. Bottomley v Brougham [1908] 1 KB 584 at 587; Bretherton v Kaye [1971] VR 111 at 125 per Gillard J. R v Skinner (1772) Lofft 54; 98 ER 529 at 56 (Lofft), at 530 (ER) per Lord Mansfield; Dawkins v Lord Rokeby (1873) LR 8 QB 255 at 263; Royal Aquarium and Summer and Winter Garden Society Ltd v Parkinson [1892] 1 QB 431 at 442 per Lord Esher MR, at 451 per Lopes LJ; Copartnership Farms v Harvey-Smith [1918] 2 KB 405 at 408 per Sankey J; More v Weaver [1928] 2 KB 520 at 522-3 per Scrutton LJ; Gibbons v Duffell (1932) 47 CLR 520 at 525-6 per Gavan Duffy CJ, Rich and Dixon JJ; Cabassi v Vila (1940) 64 CLR 130 at 140 per Starke J; Addis v Crocker [1961] 1 QB 11 at 28 per Pearce LJ; Burnett & Hallamshire Fuel Ltd v Sheffield Telegraph & Star Ltd [1960] 1 WLR 502 at 504 per Pearson J; Hercules v Phease [1994] 2 VR 411 at 429 per Ormiston J; Mann v O’Neill (1997) 191 CLR 204 at 211 per Brennan CJ, Dawson, Toohey and Gaudron JJ. See also Marrinan v Vibart [1963] 1 QB 528 at 533 per Sellers LJ, at 537-8 per Diplock LJ; D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 at 36 (CLR) per McHugh J. R v Skinner (1772) Lofft 54; 98 ER 529; Scott v Stansfield (1868) LR 3 Ex 220; Law v Llewellyn [1906] 1 KB 487 at 491 per Romer LJ; see also Anderson v Gorrie [1895] 1 QB 668 at 670 per Lord Esher MR. Munster v Lamb (1883) 11 QBD 588 at 603-4 per Brett MR. Astley v Younge (1759) 2 Burr 807; 97 ER 572 at 809 (Burr) per Lord Mansfield; Johnson v Evans (1799) 3 Esp 32; 170 ER 528 at 33 (Esp), at 528 (ER) per Lord Eldon; Trotman v Dunn (1815) 4 Camp 211; 171 ER 67 at 212 (Camp), at 68 (ER) per Lord Ellenborough. Harding v Bodman (1617) Hutton 11; 123 ER 1064; Eyres v Sedgewicke (1620) Cro Jac 601; 79 ER 513 at 601-2 (Cro Jac), at 514 (ER) per Doderidge J; Revis v Smith (1856) 18 CB 126; (1856) 139 ER 1314 at 140-1 (CB) per Jervis CJ, at 143-4 per Willes J; Seaman v Netherclift (1876) 2 CPD 53 at 56-8 per Cockburn CJ; Watson v M’Ewan [1905] AC 480 at 486 per Earl of Halsbury LC; Cabassi v Vila (1940) 64 CLR 130 at 144 per McTiernan J; Hargreaves v Bretherton [1959] 1 QB 45 at 51 per Lord Goddard CJ; Marrinan v Vibart [1963] 1 QB 528 at 535 per Sellers LJ. The consequence for a witness who gives or procures false evidence in a judicial proceeding is not exposure to a civil action but punishment under the criminal law for perjury or contempt of court: Cabassi v Vila (1940) 64 CLR 130 at 141 per Starke J; see also Watson v M’Ewan [1905] AC 480 at 486 per Earl of Halsbury LC. Bushell’s Case (1670) 1 Freeman 2; 89 ER 2.

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205

206

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[10.30]

judicial proceedings.21 It also extends to written statements in the originating process, the pleadings or other documents produced or filed in evidence,22 such as affidavits.23 In Taylor v Director of the Serious Fraud Office,24 the House of Lords suggested that absolute privilege could even attach to statements made outside of court as part of the prosecution of investigating a crime with a view to prosecution. For the purposes of defamation law, communications between solicitor and client are arguably protected by absolute privilege.25 The purpose of absolute privilege is not to protect the individuals themselves, but to protect the administration of justice.26 In Bretherton v Kaye,27 Gillard J described the rationale for this position in the following terms: It is in the public interest that a person who is taking part in or filling a role in litigation should be independent and encouraged to speak freely, so that the true facts may be ascertained so that the credibility of witnesses may be accurately assessed, and so that the evidence and law may be frankly and candidly discussed to ensure that a correct and just result is obtained in the litigation.

In Cunliffe v Woods,28 Beach J found that a letter from a solicitor to a witness was protected by absolute privilege.29 Absolute privilege is not limited to judicial proceedings but has been extended to quasi-judicial proceedings30 or proceedings before a “tribunal recognized by law”.31 A distinction has been drawn between a tribunal acting judicially and a tribunal acting administratively.32 The proceedings of a tribunal acting judicially, which is able to be characterised as closer to a court than to an administrative decision-making body, is more likely to attract absolute privilege.33 The characterisation of the particular decision-making body and its proceedings is therefore critical to whether a claim for absolute privilege can be maintained in respect of publications made in the course of its 21

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22 23

24 25 26

27 28 29 30

31

32 33

Henderson v Broomhead (1859) 4 H & N 569 at 579 per Crompton J; Watson v M’Ewan [1905] AC 480 at 487 per Earl of Halsbury LC. Lincoln v Daniels [1962] 1 QB 237 at 257-8 per Devlin LJ. Revis v Smith (1856) 18 CB 126; 139 ER 1314; Henderson v Broomhead (1859) 157 ER 964; 4 H & N 569; McJannett v Daley [No 2] [2012] WASC 386 at [17] per Le Miere J; see also Dawkins v Prince Edward of Saxe-Weimar (1876) 1 QBD 499. [1999] 2 AC 177 at 214-5 per Lord Hoffmann, at 219 per Lord Hope of Craighead, at 221-2 per Lord Hutton. More v Weaver [1928] 2 KB 520 at 525 per Scrutton LJ. Seaman v Netherclift (1876) 2 CPD 53 at 62 per Amphlett JA (specifically referring to witnesses); Munster v Lamb (1883) 11 QBD 588 at 603 per Brett MR; Cabassi v Vila (1940) 64 CLR 130 at 141 per Starke J; Hercules v Phease [1994] 2 VR 411 at 431-3 per Ormiston J; Buchanan v Jennings [2005] 1 AC 115; [2004] UKPC 36 at 123 (AC). [1971] VR 111 at 116. [2012] VSC 254. Cunliffe v Woods [2012] VSC 254 at [55]-[56] (at common law and under the Defamation Act 2005 (Vic) s 27(1)). As to the statutory defence of absolute privilege, see [10.50]. Royal Aquarium and Summer and Winter Garden Society Ltd v Parkinson [1892] 1 QB 431 at 442 per Lord Esher MR; Trapp v Mackie [1979] 1 WLR 377 at 379 per Lord Diplock; Hercules v Phease [1994] 2 VR 411 at 429 per Ormiston J; Lucire v Parmegiani [2012] NSWCA 86 at [30] per Nicholas J. Dawkins v Lord Rokeby (1873) LR 8 QB 255 at 263; O’Connor v Waldron [1935] AC 76 at 81 per Lord Atkin; Mann v O’Neill (1997) 191 CLR 204 at 212 per Brennan CJ, Dawson, Toohey and Gaudron JJ. The corollary is that “absolute privilege does not attach to purely domestic tribunals”: Trapp v Mackie [1979] 1 WLR 377 at 379 per Lord Diplock. Copartnership Farms v Harvey-Smith [1918] 2 KB 405 at 409 per Sankey J; Addis v Crocker [1961] 1 QB 11 at 26 per Hodson LJ, at 28 per Pearce LJ. O’Connor v Waldron [1935] AC 76 at 81 per Lord Atkin.

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[10.30]

Judicial proceedings

proceedings.34 Merely because a body conducts its proceedings in private will not be determinative of whether it is exercising judicial power, particularly if the body publicly pronounces its orders or findings.35 Whether a body conducts its proceedings in public is one factor to be considered when assessing whether its proceedings should attract absolute privilege. It is not essential that the body is constituted under statute in order for its proceedings to attract absolute privilege.36 There have also been cases where the proceedings of the body in question have attracted absolute privilege even though the body does not have the power to determine the issue but only to report to a decision-maker.37 Other relevant factors include the source of the law, if any, establishing the body; whether witnesses give evidence on oath; whether witnesses are compellable; whether the body can compel the production of documents; and whether the decisions of the body determine rights or affect the status of persons or entities, or are otherwise in the public interest or for the public benefit.38 It is not possible or desirable to state which factor will be decisive,39 although the joint judgment of Brennan CJ, Dawson, Toohey and Gaudron JJ in Mann v O’Neill40 posits a rather open-textured test, whereby “the overriding consideration is ‘whether there will emerge from the proceedings a determination the truth and justice of which is a matter of public concern’”.41 By way of illustration, absolute privilege has been held to attach to proceedings before a military court of inquiry;42 proceedings for the detention of a lunatic;43 proceedings before an ecclesiastical commission established by a bishop;44 the report of an official receiver to creditors of a company in liquidation;45 proceedings before a local military service tribunal granting or refusing exemptions from conscription;46 proceedings of a solicitors’ 34 35

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36

37 38

Hodson v Pare [1899] 1 QB 455 at 457-8 per AL Smith LJ; Addis v Crocker [1961] 1 QB 11 at 22 per Hodson LJ; Bretherton v Kaye [1971] VR 111 at 121 per Gillard J. Hodson v Pare [1899] 1 QB 455 at 457 per AL Smith LJ; Addis v Crocker [1961] 1 QB 11 at 26 per Hodson LJ, at 29 per Pearce LJ. Lincoln v Daniels [1962] 1 QB 237 at 253-4 per Devlin LJ, at 269 per Danckwerts LJ; Trapp v Mackie [1979] 1 WLR 377 at 379-80 per Lord Diplock. However, tribunals “recognised by law” include all tribunals constituted or recognised under statute: Trapp v Mackie [1979] 1 WLR 377 at 379-80 per Lord Diplock. Trapp v Mackie [1979] 1 WLR 377 at 388 per Lord Fraser of Tullybelton. Barratt v Kearns [1905] 1 KB 505 at 510 per Collins MR; Addis v Crocker [1961] 1 QB 11 at 26 per Hodson LJ, at 28-9 per Pearce LJ; Lincoln v Daniels [1962] 1 QB 237 at 255 per Devlin LJ; Bretherton v Kaye [1971] VR 111 at 122-3 per Gillard J; Trapp v Mackie [1979] 1 WLR 377 at 388 per Lord Fraser of Tullybelton. See especially, Trapp v Mackie [1979] 1 WLR 377 at 379 per Lord Diplock: So, to decide whether a tribunal acts in a manner similar to courts of justice and is thus of such a kind as will attract absolute, as distinct from qualified, privilege for witnesses when they give testimony before it, one must consider first, under what authority the tribunal acts, secondly the nature of the question into which it is its duty to inquire; thirdly the procedure adopted by it in carrying out the inquiry; and fourthly the legal consequences of the conclusion reached by the tribunal as a result of the inquiry.

39 40 41 42 43 44 45 46

Trapp v Mackie [1979] 1 WLR 377 at 383-4 per Lord Diplock, at 388 per Lord Fraser of Tullybelton. (1997) 191 CLR 204. Mann v O’Neill (1997) 191 CLR 204 at 212, citing Lincoln v Daniels [1962] 1 QB 237 at 255-6 per Devlin LJ. Dawkins v Prince of Edward Saxe Weimar (1876) 1 QBD 499. Hodson v Pare [1899] 1 QB 455 at 458 per AL Smith LJ. Barratt v Kearns [1905] 1 KB 505 at 510 per Collins MR, at 511 per Cozens-Hardy LJ. Burr v Smith [1909] 2 KB 306 at 311 per Fletcher Moulton LJ, at 313-5 per Farwell LJ. Copartnership Farms v Harvey-Smith [1918] 2 KB 405 at 414 per Sankey J.

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[10.30]

disciplinary committee;47 proceedings before an inquiry by the Masters of the Bench of the Inner Temple into the conduct of a barrister;48 proceedings of a board of inquiry into police misconduct;49 proceedings before an inquiry into the dismissal of a school headmaster;50 a letter of complaint by a client against a solicitor to the law society;51 and proceedings before a financial services regulatory body.52 By contrast, absolute privilege has been held not to attach to proceedings before licensing justices dealing with renewal applications;53 proceedings before the Court of Referees constituted under the Unemployment Insurance Act 1920 (UK);54 and proceedings before a commissioner appointed under the Combines Investigation Act 1927 (Can).55 In all of these cases, the body in question was found to be exercising administrative, not judicial, functions. A more difficult issue is the extent to which the mere making of a complaint, which may or may not lead to an investigation and subsequent judicial or quasi-judicial proceedings, is protected as an occasion of absolute privilege. Some of the cases dealing with absolute privilege before quasi-judicial proceedings or “tribunals recognized by law” have extended the defence to the initial complaint. The statutory defence of absolute privilege has, in some respects, clarified this issue for certain publications and provided a legal basis for this defence.56 The common law position is less clear and is an example of the divergence between Australian and English defamation law. In Gibbons v Duffell,57 the High Court of Australia refused to find that the publication by one police officer to a superior about the suitability of a subordinate for a transfer attracted absolute privilege.58 However, in Mahon v Rahn (No 2),59 the English Court of Appeal held that a letter of complaint to a financial regulatory body inquiring into the fitness of a person to conduct an investment business was covered by absolute privilege. In a subsequent decision, Westcott v Westcott,60 the English Court of Appeal held that the making of a complaint to the police was covered by absolute privilege, even 47

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48 49 50 51 52 53 54 55 56 57 58

59 60

Addis v Crocker [1961] 1 QB 11 at 28 per Hodson LJ, at 28 per Pearce LJ, at 31 per Upjohn LJ. Lincoln v Daniels [1962] 1 QB 237 at 250 per Sellers LJ, at 254-5 per Devlin LJ, at 269 per Danckwerts LJ. Bretherton v Kaye [1971] VR 111 at 126 per Gillard J. Trapp v Mackie [1979] 1 WLR 377 at 383-4 per Lord Diplock, at 389 per Lord Fraser of Tullybelton. Hercules v Phease [1994] 2 VR 411 at 414 per Marks J, at 422-3 per Marks J, at 447-51 per Ormiston J. Mahon v Rahn (No 2) [2000] 1 WLR 2150 at 2185 per Brooke LJ. Attwood v Chapman [1914] 3 KB 275 at 285 per Avory J. Collins v Henry Whiteway & Co Ltd [1927] 2 KB 378 at 383 per Horridge J. O’Connor v Waldron [1935] AC 76 at 81-2 per Lord Atkin. As to the statutory defence of absolute privilege, see [10.50]. (1932) 47 CLR 520. Gibbons v Duffell (1932) 47 CLR 520 at 528 per Gavan Duffy CJ, Rich and Dixon JJ, at 532 per Starke J, at 534-5 per Evatt J, at 535 per McTiernan J. As to the facts of the case, see at 524 per Gavan Duffy CJ, Rich and Dixon JJ, at 528 per Starke J, at 532 per Evatt J. The High Court of Australia rejected the analogy between the publication here and an act of a State official or a member of the armed services, which latter publications attract absolute privilege. The facts here are clearly more analogous to cases involving the giving of a reference, which have always been held out as an archetypal category of qualified privilege: see (1932) 47 CLR 520 at 532 per Evatt J. See also [10.80]. [2000] 1 WLR 2150. [2009] QB 407; [2008] EWCA Civ 818.

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[10.40]

Parliamentary proceedings

though the complaint did not result in a prosecution. Given the strict test of necessity has been accepted as the basis for absolute privilege in Australia, it is difficult to see a similarly broad approach being adopted as part of the common law of Australia.

Parliamentary proceedings The common law position [10.40] At common law, absolute privilege has been held to attach to

statements made by participants in parliamentary proceedings.61 If a participant is sued for such a statement, he or she can rely upon a defence of absolute privilege. The origin of this defence can be traced back to the Bill of Rights 1689 Art 9, which provides “[t]hat the freedom of speech and debates or proceedings of in Parliament ought not to be impeached or questioned in any court or place out of Parliament.”62 The defence of absolute privilege arising from parliamentary proceedings, then, is a manifestation of a broader, fundamental constitutional principle, affirmatively established by the Glorious Revolution and sanctioned by practice ever since. Just as absolute privilege as a defence to defamation arising from judicial proceedings is one expression of a broader, underlying judicial immunity, so too is absolute privilege as a defence to defamation arising from parliamentary proceedings the expression of a broader, underlying parliamentary immunity. As Cockburn CJ in Ex parte Wason63 stated:

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It is clear that statements made by the members of either House of Parliament in their places in the House, though they might be untrue to their knowledge, could not be made the foundation of civil or criminal proceedings, however injurious they might be to the interest of a third person.

The public policy underlying this immunity is necessity64 – the need to ensure the effective working of parliament, which body is central to representative democracy, unimpeded by the threat of defamation actions.65 Absolute privilege is conferred on parliamentarians, not for the benefit of individual members, but to ensure the integrity of the democratic process.66 Where a parliamentarian repeats defamatory statements made in the course of parliamentary proceedings outside of those proceedings, he or she does not have the protection of absolute privilege.67 The privilege attaches to the occasion, not the person. He or she will have to have recourse to some other defence or be exposed to liability for defamation. A more difficult issue of 61

62 63 64 65 66 67

Gibbons v Duffell (1932) 47 CLR 520 at 525 per Gavan Duffy, Rich and Dixon JJ; Chenard & Co v Arisol [1949] AC 127 at 134 (PC); Australian Broadcasting Corporation v Chatterton (1986) 46 SASR 1 at 18 per Zelling ACJ. This is enacted as part of Australian law by virtue of the Parliamentary Privileges Act 1987 (Cth) s 16(1). (1869) LR 4 QB 573 at 576. Gipps v McElhone (1881) 2 LR(NSW) 18 at 21 per Martin CJ, at 25 per Windeyer J. Gipps v McElhone (1881) 2 LR(NSW) 18 at 24 per Manning J, at 25-6 per Windeyer J. Makudi v Baron Triesman of Tottenham [2014] QB 839; [2014] EWCA Civ 179 at 850 (QB) per Laws LJ. R v Abingdon (1794) 1 Esp 226; 170 ER 337 at 338 (ER) per Lord Kenyon CJ; R v Creevey (1813) 1 M & S 273; 105 ER 102 at 104 (ER) per Lord Ellenborough CJ, at 104-5 per Bayley J, at 105 per Le Blanc J; Buchanan v Jennings [2005] 1 AC 115; [2004] UKPC 36; Makudi v Triesman [2014] QB 839; [2014] EWCA Civ 179 at 850 (QB) per Laws LJ. In

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principle has arisen where a politician makes a defamatory statement during the course of the proceedings and subsequently, outside of parliament, affirms without repeating that statement. The affirmation of defamatory statements outside of parliamentary proceedings has been held not to be protected by absolute privilege.68 As the Privy Council reasoned in Buchanan v Jennings:69 The rights of Members of Parliament to speak their minds in Parliament without any risk of incurring liability as a result is absolute, and must be fully respected. But that right is not infringed if a member, having spoken his mind and in so doing defamed another person, thereafter chooses to repeat his statement outside Parliament. It may very well be that in such circumstances the member may have the protection of qualified privilege, but the paramount need to protect freedom of speech in Parliament does not require the extension of absolute privilege to protect such statements.

A different view was taken in relation to the repetition of evidence given initially to a parliamentary committee in the form of a witness statement and oral evidence to a review of the allegations made to the committee in Makudi v Baron Triesman of Tottenham.70 The Court of Appeal held that the repetition of the evidence outside of the parliamentary committee in that way attracted absolute privilege.71 Dealing with the issue of whether there were circumstances in which the repetition of defamatory statements made in the course of parliamentary proceedings outside of those proceedings could attract a defence of absolute privilege, his Lordship observed that:

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not all such repetitions are the gratuitous choice of the speaker. There will be occasions when it will be in the public interest that he should repeat or refer to his earlier utterance in Parliament; and it may be a public interest which he ought reasonably to serve because of his knowledge or expertise as a parliamentarian, or an expectation or promise (arising from what he said in Parliament) that he would do so. In those circumstances it is by no means obvious that his later speech should lack the protection of article 9.72

Laws LJ suggested that there may be circumstances in which the defence of absolute privilege extends to extra-parliamentary speech. The hallmarks of the circumstances in which such extra-parliamentary speech might be absolutely privileged is where there is a public interest in the repetition and where there is so close a nexus between the occasions of speaking, inside and outside, Makudi v Triesman [2014] QB 839; [2014] EWCA Civ 179 at 851 (QB), Laws LJ suggested that the protection under Art 9 of the Bill of Rights 1689 should extend to extraparliamentary speech where it possesses the following characteristics: (1) a public interest in repetition of the Parliamentary utterance which the speaker ought reasonably to serve, and (2) so close a nexus between the occasions of his speaking, in and then out of Parliament, that the prospect of his obligation to speak on the second occasion (or the expectation or promise that he would do so) is reasonably foreseeable at the time of the first and his purpose in speaking on both occasions is the same or very closely related.

68

69 70 71 72

Beitzel v Crabb [1992] 2 VR 121 at 127 per Hampel J; Laurance v Katter [2000] 1 Qd R 147 at 201 per Pincus JA, at 204-5 per Davies JA; Rann v Olsen (2000) 76 SASR 450 at 482 per Doyle CJ; Buchanan v Jennings [2005] 1 AC 115; [2004] UKPC 36 at 132 (AC). [2005] 1 AC 115; [2004] UKPC 36 at 132 (AC). [2014] QB 839; [2014] EWCA Civ 179 at 844-5 (QB) per Laws LJ. Makudi v Baron Triesman of Tottenham [2014] QB 839; [2014] EWCA Civ 179 at 852 (QB) per Laws LJ. Makudi v Baron Triesman of Tottenham [2014] QB 839; [2014] EWCA Civ 179 at 850 (QB) per Laws LJ.

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[10.50]

Parliamentary proceedings

including where there is an expectation or promise of repetition, that it is reasonably foreseeable on the first occasion and the purposes in speaking on both occasions are closely related.73

The statutory defence of absolute privilege [10.50] Under the national, uniform defamation laws, there is now a statutory

defence of absolute privilege across Australia.74 This operates in addition to the common law defence,75 although it is clear from its terms that it includes substantially the same matter but extends beyond it as well. A matter is published on an occasion of absolute privilege if it is published in the course of the proceedings of a parliamentary body. This extends to the publication of a document by order, or under the authority of, the parliamentary body; the publication of the debates and proceedings of the parliamentary body by or under the authority of that body or any law; and the publication of matter while giving evidence before the parliamentary body or while presenting or submitting a document to that body.76 The list of privileged occasions in relation to parliamentary bodies is not exhaustive, as the introductory words of the paragraph make clear. Importantly, a parliamentary body is defined under the national, uniform defamation laws broadly to mean a parliament or legislature of any country, or any house or committee of a parliament or legislature of any country, or a committee or a House or Houses of Parliament or legislature of any country.77 A matter is also published on an occasion of absolute privilege if it is published in the course of proceedings of an Australian court or tribunal. This extends to the publication of matter in any document filed or lodged with, or otherwise submitted to, the court or tribunal, including originating process; the publication of matter while giving evidence before the court or tribunal; and the publication of matter in any judgment, order or determination of the court or tribunal.78 As with parliamentary bodies, this list of privileged occasions is not exhaustive, again as the introductory words of the paragraph make clear. Under the national, uniform defamation laws, an Australian court is defined to mean Copyright © 2015. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

73 74

75

76

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78

Makudi v Baron Triesman of Tottenham [2014] QB 839; [2014] EWCA Civ 179 at 851 (QB) per Laws LJ. Civil Law (Wrongs) Act 2002 (ACT) s 137; Defamation Act 2006 (NT) s 24; Defamation Act 2005 (NSW) s 27; Defamation Act 2005 (Qld) s 27; Defamation Act 2005 (SA) s 25; Defamation Act 2005 (Tas) s 27; Defamation Act 2005 (Vic) s 27; Defamation Act 2005 (WA) s 27. Civil Law (Wrongs) Act 2002 (ACT) s 134(1); Defamation Act 2006 (NT) s 21(1); Defamation Act 2005 (NSW) s 24(1); Defamation Act 2005 (Qld) s 24(1); Defamation Act 2005 (SA) s 22(1); Defamation Act 2005 (Tas) s 24(1); Defamation Act 2005 (Vic) s 24(1); Defamation Act 2005 (WA) s 24(1). Civil Law (Wrongs) Act 2002 (ACT) s 137(2)(a); Defamation Act 2006 (NT) s 24(2)(a); Defamation Act 2005 (NSW) s 27(2)(a); Defamation Act 2005 (Qld) s 27(2)(a); Defamation Act 2005 (SA) s 25(2)(a); Defamation Act 2005 (Tas) s 27(2)(a); Defamation Act 2005 (Vic) s 27(2)(a); Defamation Act 2005 (WA) s 27(2)(a). Civil Law (Wrongs) Act 2002 (ACT) s 116; Defamation Act 2006 (NT) s 3; Defamation Act 2005 (NSW) s 4; Defamation Act 2005 (Qld) s 4; Defamation Act 2005 (SA) s 4; Defamation Act 2005 (Tas) s 4; Defamation Act 2005 (Vic) s 4; Defamation Act 2005 (WA) s 4. Civil Law (Wrongs) Act 2002 (ACT) s 137(2)(b); Defamation Act 2006 (NT) s 24(2)(b); Defamation Act 2005 (NSW) s 27(2)(b); Defamation Act 2005 (Qld) s 27(2)(b); Defamation Act 2005 (SA) s 25(2)(b); Defamation Act 2005 (Tas) s 27(2)(b); Defamation Act 2005 (Vic) s 27(2)(b); Defamation Act 2005 (WA) s 27(2)(b).

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any court established by or under a law of an Australian jurisdiction, and specifically includes a court conducting committal proceedings for an indictable offence. An Australian tribunal is defined so as to exclude courts. Its defining characteristics are that it has been established by or under a law of an Australian jurisdiction and that it has the power to take evidence from witnesses under oath or affirmation. It specifically includes royal commissions and other special commissions of inquiry.79 A matter is also published on an occasion of absolute privilege if it were published in another Australian jurisdiction and would be published on an occasion of absolute privilege under an equivalent provision in that jurisdiction.80 Finally, it is open to each State and Territory to stipulate additional matters to which the statutory defence of absolute privilege attaches.81 Thus far, only New South Wales and South Australia have nominated additional matters in a Schedule to their respective defamation legislation.82

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Although the statutory defence of absolute privilege is broad in its scope, it has its limits. In every case, it is necessary to have regard to the statutory language to determine whether the matter published is covered by the terms of the legislative provision. Thus, in Lucire v Parmegiani,83 the New South Wales Court of Appeal found that the making of a complaint to the New South Wales Medical Board was not an occasion covered by absolute privilege because the Defamation Act 2005 (NSW) Sch 1 cl 15 protected only matter which was published “for the purpose of the assessment or referral of a complaint”. As a matter of statutory construction, in particular in light of the way in which complaints to other entities under the Defamation Act 2005 (NSW) Sch 1 were treated, the making of a complaint was distinct from the assessment or referral of a complaint, and thus should be treated accordingly for the purposes of the availability of a statutory defence of absolute privilege.84 79

Civil Law (Wrongs) Act 2002 (ACT) s 116; Defamation Act 2006 (NT) s 3; Defamation Act 2005 (NSW) s 4; Defamation Act 2005 (Qld) s 4; Defamation Act 2005 (SA) s 4; Defamation Act 2005 (Tas) s 4; Defamation Act 2005 (Vic) s 4; Defamation Act 2005 (WA) s 4.

80

Civil Law (Wrongs) Act 2002 (ACT) s 137(2)(c); Defamation Act 2006 (NT) s 24(2)(c); Defamation Act 2005 (NSW) s 27(2)(c); Defamation Act 2005 (Qld) s 27(2)(c); Defamation Act 2005 (SA) s 25(2)(c); Defamation Act 2005 (Tas) s 27(2)(c); Defamation Act 2005 (Vic) s 27(2)(c); Defamation Act 2005 (WA) s 27(2)(c).

81

Civil Law (Wrongs) Act 2002 (ACT) s 137(2)(d); Defamation Act 2006 (NT) s 24(2)(d); Defamation Act 2005 (NSW) s 27(2)(d); Defamation Act 2005 (Qld) s 27(2)(d); Defamation Act 2005 (SA) s 25(2)(d); Defamation Act 2005 (Tas) s 27(2)(d); Defamation Act 2005 (Vic) s 27(2)(d); Defamation Act 2005 (WA) s 27(2)(d).

82

In relation to South Australia, see Defamation Act 2005 (SA) Sch 1 (matters arising out of proceedings of Parole Board). The list under the New South Wales legislation is more detailed and includes matters relating to the Ombudsman, the Privacy Commissioner, the Information Commissioner, the New South Wales Law Reform Commission and the Inspector of Custodial Services, decisions of public health organisations, matters arising out of proceedings of the State Parole Authority, the Serious Offenders Review Council and the Serious Offenders Management Committee, as well as matters arising under workers’ compensation, motor accidents and anti-discrimination legislation. For the full list, see Defamation Act 2005 (NSW) Sch 1. [2012] NSWCA 86. Lucire v Parmegiani [2012] NSWCA 86 at [35], [38]-[39] per Nicholas J, at [59]-[61] per McCallum J.

83 84

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[10.60]

Parliamentary proceedings

Statutory basis for absolute privilege in respect of parliamentary proceedings [10.60] In addition to the protection of parliamentary proceedings under the

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national, uniform defamation laws, there are also provisions in Commonwealth legislation governing the conduct of parliamentary proceedings which confer absolute privilege. The Parliamentary Privileges Act 1987 (Cth) extends absolute privilege to the giving of evidence before a House of Parliament or one of its committees; the evidence so given;85 the presentation or submission of a document to a House of Parliament or one of its committees;86 the preparation of a document for the purpose of, or incidental to, transacting the business of a House of Parliament or one of its committees;87 and the formulation, making or publication of a document or report by, or made pursuant to, an order of a House of Parliament or one of its committees and the document or report itself.88 In addition, a court or tribunal cannot receive evidence, nor can evidence be tendered, of questions asked or statements, submissions or comments made concerning parliamentary proceedings for the purpose of questioning or relying on the truth, motive, intention or good faith of anything forming part of those parliamentary proceedings;89 otherwise questioning or establishing the credibility, motive, intention or good faith of any person;90 or drawing, or inviting the drawing, of any inference or conclusion wholly or partly from anything forming part of those parliamentary proceedings.91 Parliamentary papers are absolutely privileged by virtue of the Parliamentary Papers Act 1908 (Cth).92 This includes documents laid before a House of Parliament,93 documents laid before parliamentary committees, evidence given to parliamentary committees94 and reports of debates and proceedings of a House of Parliament.95 Broadcasting and re-broadcasting parliamentary proceedings are also absolutely privileged by virtue of the Parliamentary Proceedings Broadcasting Act 1946 (Cth).96

85 86 87 88

Parliamentary Privileges Act 1987 (Cth) s 16(2)(a). This legislation was passed in response to the decision of Hunt J in R v Murphy (1986) 5 NSWLR 18. Parliamentary Privileges Act 1987 (Cth) s 16(2)(b). Parliamentary Privileges Act 1987 (Cth) s 16(2)(c). Parliamentary Privileges Act 1987 (Cth) s 16(2)(d).

89 90 91 92

Parliamentary Privileges Act 1987 (Cth) s 16(3)(a). Parliamentary Privileges Act 1987 (Cth) s 16(3)(b). Parliamentary Privileges Act 1987 (Cth) s 16(3)(c). Parliamentary Papers Act 1908 (Cth) s 4(1).

93 94 95 96

Parliamentary Papers Act 1908 (Cth) s 2(1). Parliamentary Papers Act 1908 (Cth) s 2(2). Parliamentary Papers Act 1908 (Cth) s 3(2). Parliamentary Proceedings Broadcasting Act 1946 (Cth) s 15.

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Other statutory provisions conferring defence of absolute privilege [10.70] It is always open to the legislature to create new occasions of absolute privilege. In addition to the national, uniform defamation laws, there are a number of provisions under State and Territory legislation which create defences of absolute privilege in specific contexts.97

Communications between high officers of state

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[10.80] At common law, there is an additional category of absolute privilege,

attaching to communications between “high officers of state”.98 The ambit of this form of absolute privilege, and who qualifies as a “high officer of state”, have not been, and cannot be, precisely defined. It is clear that this form of absolute privilege is not so broadly applied as to confer an immunity upon publications by all public servants.99 The parameters of this form of absolute privilege are best illustrated by reference to the decided cases. In Chatterton v Secretary of State for India,100 the Court of Appeal held that a communication by the Secretary of State for India to the Parliamentary Under-Secretary for India about the plaintiff’s removal as an officer in the Indian Staff Corps was absolutely privileged and could not be sued upon as a defamation because the communication was made by a high official of the state in the course of his public duties. It would be contrary to the public interest and would compromise the independence of such a high official of state to allow the matter to be justiciable.101 In M Isaacs & Sons Ltd v Cook,102 Roche J found that a report by the High Commissioner of Australia to the United Kingdom to the Prime Minister of Australia, which allegedly conveyed defamatory imputations about the plaintiff fruit brokers, was absolutely privileged. The report was made by a high officer of state acting in an official capacity. The fact that it related to a commercial matter did not preclude the defence of absolute privilege applying to it.103 By contrast, in Gibbons v Duffell,104 the High Court of Australia held that a report by a police inspector to his superintendent about the plaintiff police constable’s transfer was not protected by absolute privilege. 97

See, eg, Legal Practitioners Act 1981 (SA) s 84B; Mining Act 1971 (SA) s 14F(2); Petroleum and Geothermal Energy Act 2000 (SA) s 123(2); Gas Pipelines Act 2000 (Tas) s 77(2); Protected Disclosure Act 2012 (Vic) s 41; Safe Drinking Act 2003 (Vic) s 26F. There are a surprisingly large number of specific defences of absolute privilege in Queensland legislation, suggesting that an aggregation of these provisions in the Defamation Act 2005 (Qld) Sch 1 might be apposite: see, eg, Child Protection (Offender Prohibition Order) Act 2008 (Qld) s 48(3); Family Responsibilities Commission Act 2008 (Qld) s 95(4); Health Ombudsman Act 2013 (Qld) s 275(4); Hospital and Health Boards Act 2013 (Qld) ss 88(2), 89(4), 116(2), 117(4); Public Guardian Act 2014 (Qld) ss 24(5), 92(4); Public Interest Disclosure Act 2010 (Qld) s 38; Public Service Act 2008 (Qld) s 88L(3); Transport (Rail Safety) Act 2010 (Qld) ss 267B(2), 273(3).

98 99 100 101

Jackson v Magrath (1947) 75 CLR 293 at 305 per Latham CJ. Jackson v Magrath (1947) 75 CLR 293 at 305 per Latham CJ. [1895] 2 QB 189 at 190-1 per Lord Esher MR. Chatterton v Secretary of State for India [1895] 2 QB 189 at 190-1 per Lord Esher MR, at 194 per Kay LJ (act of state). [1925] 2 KB 391 at 395-99. M Isaacs & Sons Ltd v Cook [1925] 2 KB 391 at 399 per Roche J. (1932) 47 CLR 520 at 528 per Gavan Duffy CJ, Rich and Dixon JJ.

102 103 104

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[10.80]

Communications between high officers of state

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A principle of uncertain ambit is likely to create difficulties. Thus, in Jackson v Magrath,105 the plaintiff sued for defamation arising out of a report of the Federal Commissioner of Taxation to the Commonwealth Treasurer. Latham CJ held that the Commissioner of Taxation was not a high officer of state, and so the report could only be protected by qualified, not absolute, privilege.106 Starke J found that the Commissoner of Taxation’s report to the Treasurer “stands on a higher plane” than the publication in suit in M Isaacs & Sons Ltd v Cook.107 Williams J also stated that the report was absolutely privileged because it was made by a high officer of state.108 By way of dicta, Dixon J observed that “there is much to be said for the view that the privilege is absolute and not qualified”.109 Rich J, by contrast, indicated that he did not accept that the Commissioner of Taxation was a high officer of state.110 McTiernan J agreed with Dixon J.111 Absolute privilege also protects communications between senior military or naval officers to their superiors. It is unlikely that it attaches to communications by middle and lower military and naval ranks. It is unclear whether absolute privilege attaches to communications involving the secret service and whether such communications should be treated by analogy with either the army or the navy, on the one hand, or the police, on the other hand. Further complexity is introduced when dealing with communications by foreign military, naval or secret service personnel.112

105 106 107 108 109 110 111 112

(1947) 75 CLR 293 at 302 per Latham CJ, at 307-8 per Rich J, at 309 per Starke J. Jackson v Magrath (1947) 75 CLR 293 at 307. Jackson v Magrath (1947) 75 CLR 293 at 310. Jackson v Magrath (1947) 75 CLR 293 at 317. Jackson v Magrath (1947) 75 CLR 293 at 314. Jackson v Magrath (1947) 75 CLR 293 at 309. Jackson v Magrath (1947) 75 CLR 293 at 316. Richards v Naum [1967] 1 QB 620 at 625 per Lord Denning MR.

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215

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11

Qualified Privilege [11.10] Introduction..............................................................................................217 [11.20] Common law qualified privilege.............................................................218 [11.20] Introduction.................................................................................... 218 [11.30] The privileged occasion.................................................................221 [11.40] The publisher’s duty or interest.................................................... 223 [11.50] Reciprocity or community of interest........................................... 225 [11.60] Reply to an attack.......................................................................... 226 [11.70] Volunteering information............................................................... 229 [11.80] Malice...................................................................................................... 230 [11.110] Lange qualified privilege.......................................................................237 [11.130] Statutory defence of qualified privilege................................................241 [11.130] Introduction.................................................................................. 241 [11.140] Elements of the statutory defence of qualified privilege............242 [11.150] The respective roles of judge and jury....................................... 244 [11.160] Interest or apparent interest......................................................... 245 [11.170] The course of giving information................................................245 [11.180] Reasonableness of publisher’s conduct in circumstances of publication.................................................................................................246

Introduction Copyright © 2015. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

[11.10] The defence of qualified privilege is arguably the most complex one in Australian defamation law. Given the complexity of defamation law, this is a significant claim but there are a number of reasons to justify it. Part of the complexity of qualified privilege is historical. The defences of fair comment and fair and accurate report of court proceedings derived from common law qualified privilege, but are now sufficiently developed and distinct from their origins.1 Part of the complexity derives from the differing sources of law creating and developing qualified privilege. There are common law and statutory defences of qualified privilege. In addition, there is the implied freedom of political communication, arising from the text and structure of the Commonwealth Constitution, which has had the greatest impact on Australian defamation law in relation to the defence of qualified privilege. It has necessitated the extension and adaptation of the common law defence of qualified privilege to accommodate its requirements. This has produced what is 1

As to the common law defence of fair comment, see [13.20]-[13.90]. As to the common law defence of fair and accurate report of court proceedings, see [12.20]-[12.40]. As to the historical development of the common law defence of qualified privilege, the common law defence of fair comment, and the common law defence of fair and accurate report of court proceedings, see P Mitchell, The Making of the Modern Law of Defamation (Hart Publishing, Oxford, 2005) Chs 7, 8 and 10.

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218

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[11.10]

often called Lange qualified privilege, owing to its origins in the High Court of Australia’s unanimous judgment in Lange v Australian Broadcasting Corporation.2 The Australian extension and adaptation of common law qualified privilege is limited to government or political matters, in order to conform to the constitutional requirements of the implied freedom of political communication. This development of qualified privilege, then, diverges from the extension and adaptation of common law qualified privilege to accommodate “responsible journalism” or publication of matters of public interest, not limited to government or political matters, which has occurred in other Commonwealth jurisdictions, such as England, Wales and Canada. The final reason for the complexity of the defences of qualified privilege is the recent level of high appellate consideration. Over the last decade, the common law defence of qualified privilege has been the defamation defence most frequently litigated before the High Court of Australia. This is unusual, given that previously the common law defence of qualified privilege had not received such detailed and consistent attention from the High Court, having been considered, with reason, a relatively stable and uncontroversial defence, little used in cases involving media outlets. Lord Finlay LC’s claim in Adam v Ward3 that “[t]he law of privilege is well settled” may not be an accurate assessment of the current position under Australian law. This chapter analyses the common law defence of qualified privilege, its Lange variant and the statutory defence of qualified privilege in all of their complexity.

Common law qualified privilege Introduction

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[11.20] The common law recognises that, in certain circumstances, a plaintiff’s right to protect his or her reputation must be subordinated to other, greater public interests or social goods. If a defendant can point to such a public interest or social good to support publication of defamatory matter, he or she may have a complete defence to defamation.4 The common law defence of qualified privilege is therefore grounded in considerations of public policy5 or the common convenience and welfare of society.6 The concept of the “welfare of society” may be closely allied to the public interest7 but the terms should not be viewed as interchangeable. There is no requirement that the communication be of interest to the public at large.8 It is sufficient that there is a corresponding 2 3 4 5

6

7

8

(1997) 189 CLR 520. [1917] AC 309 at 318. Justin v Associated Newspapers Ltd [1967] 1 NSWR 61 at 75 per Walsh JA; Horrocks v Lowe [1975] AC 135 at 149 per Lord Diplock. London Association for Protection of Trade v Greenlands Ltd [1916] 2 AC 15 at 28 per Earl Loreburn; Andreyevich v Kosovich (1947) 47 SR(NSW) 357 at 362 per Jordan CJ; Justin v Associated Newspapers Ltd [1967] 1 NSWR 61 at 75 per Walsh JA; Horrcoks v Lowe [1975] AC 135 at 149 per Lord Diplock; Cush v Dillon (2011) 243 CLR 298; [2011] HCA 30 at 305 (CLR) [12] per French CJ, Crennan, Kiefel and Bell JJ. Stuart v Bell [1891] 2 QB 341 at 346 per Lindley LJ; Macintosh v Dun [1908] AC 390 at 399 (PC); see also Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57 at 26 (CLR) per Gaudron, McHugh and Gummow JJ. Bennette v Cohen (2009) Aust Torts Reports 82-002; [2009] NSWCA 60 at 62,818 (Aust Torts Reports) per Ipp JA; see also Lindholdt v Hyer (2008) 251 ALR 514; [2008] NSWCA 264 at 530 (ALR) per McColl JA. Andreyevich v Kosovich (1947) 47 SR(NSW) 357 at 362 per Jordan CJ.

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[11.20]

Common law qualified privilege

duty and interest, or a community of interest, between the publisher and the audience.9 Indeed, Australian defamation law has not developed so as to recognise a general common law defence of qualified privilege to publish to the world at large on matters of public interest.10 The development of privilege as a defence to defamation occurred comparatively late in the history of defamation law, emerging and coalescing in a distinct and recognisable form in the 19th century.11 Its development cannot be described as systematic.12 In its current form, the common law defence of qualified privilege is commonly acknowledged to derive from the dicta of Parke B in Toogood v Spyring,13 wherein his Lordship stated: In general, an action lies for the malicious publication of statements which are false in fact, and injurious to the character of another … and the law considers such publication as malicious, unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. In such cases, the occasion prevents the inference of malice, which the law draws from unauthorized communications, and affords a qualified defence depending upon the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits.14

The development of the common law defence of qualified privilege, following on from Parke B’s dicta in Toogood v Spyring, was recognised at the time as effecting a significant liberalisation of defamation law.15 Parke B’s dicta in Toogood v Spyring was subsequently refined but it remains the locus classicus.16 However, the High Court of Australia has cautioned against giving controlling effect to Parke B’s dicta in Toogood v Spyring, as if they were legislation.17 The High Court’s stated view is that these dicta identify the policy underlying the common law defence of qualified privilege but do not constitute a complete statement of the law relating to this defence.18

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9 10

11

12 13 14 15

As to the publisher’s duty or interest, see [11.40]. As to the reciprocity or community of interest, see [11.50]. Wake v John Fairfax & Sons Ltd [1973] 1 NSWLR 43 at 48 per curiam; Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR at 782 per curiam; Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211 at 250 per Brennan J. Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; [2004] HCA 5 at 411 (CLR) per Gummow J, citing Holdsworth, “Defamation in the Sixteenth and Seventeenth Centuries” (1925) 41 LQR 13 at 28-30. Harbour Radio Pty Ltd v Trad (2012) 247 CLR 31; [2012] HCA 44 at 47 (CLR) per Gummow, Hayne and Bell JJ. (1834) 1 C M & R 181; 149 ER 1044. (1834) 1 C M & R 181; 149 ER 1044 at 1044-5 (ER). See, eg, Whiteley v Adams (1863) 15 CB (NS) 392; 143 ER 838 at 848 (ER) per Erle CJ: The privilege of criticizing and discussing the words and acts of public man has in modern times been very widely extended; and so also has the rule as to giving information concerning private individuals, when given bona fide, and to a person having an interest in making the inquiry, and, in my judgment, with very good reason.

16

17 18

Stuart v Bell [1891] 2 QB 341 at 346 per Lindley LJ; Macintosh v Dun [1908] AC 390 at 399 (PC); London Association for Protection of Trade v Greenlands Ltd [1916] 2 AC 15 at 22 per Lord Buckmaster LC. Papaconstuntinos v Holmes A Court (2012) 249 CLR 534; [2012] HCA 53 at 548 (CLR) per French CJ, Crennan, Kiefel and Bell JJ. Papaconstuntinos v Holmes A Court (2012) 249 CLR 534; [2012] HCA 53 at 548 (CLR) per French CJ, Crennan, Kiefel and Bell JJ.

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[11.20]

The common law defence of qualified privilege is founded upon a reciprocity of duty and interest between the publisher and its audience,19 which gives rise to a privileged occasion. Broadly speaking, publication on a privileged occasion will be protected by this defence if the publisher has a duty or an interest in publishing and the recipient has a corresponding interest in receiving the matter. The privilege is qualified in the sense that it can be lost due to the motive of the defendant.20 There are two principal ways in which a defendant can be deprived of a common law defence of qualified privilege: either by exceeding the privileged occasion, “by going beyond the limits of the duty or interest”, or by abusing the occasion, by publishing when actuated by malice or improper motive.21 Although, historically, the foundation of defamation generally was malice,22 “the modern emphasis in the formulation of the defence is upon the existence of relevant duties and interests rather than immediately upon the state of mind of the defendant”.23 The principles relating to common law qualified privilege can be stated relatively simply in abstract or general terms.24 The difficulty arises when these principles are to be applied in a given case.25 In order to apply these principles, close attention must be given to the particular circumstances of the case.26 An infinite variety of circumstances can give rise to an occasion of qualified privilege.27 For instance, the giving of a reference has long been recognised as an archetypal instance of common law qualified privilege.28 Indeed, Parke B himself identified this as such in the seminal case of Toogood v Spyring.29 It is not possible to catalogue comprehensively all the circumstances which would

19 20

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21 22 23 24 25 26

27

28

29

Cush v Dillon (2011) 243 CLR 298; [2011] HCA 30 at 305 (CLR) per French CJ, Crennan and Kiefel JJ. Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57 at 26 (CLR) per Gaudron, McHugh and Gummow JJ. Watt v Longsdon [1930] 1 KB 130 at 142 per Scrutton LJ. As to malice, see [11.80][11.100]. Wason v Walter (1868) LR 4 QB 73 at 87 per Cockburn CJ. Harbour Radio Pty Ltd v Trad (2012) 247 CLR 31; [2012] HCA 44 at 47 (CLR) per Gummow, Hayne and Bell JJ. Bennette v Cohen (2009) Aust Torts Reports 82-002; [2009] NSWCA 60 at 62,817 (Aust Torts Reports) per Ipp JA. Whiteley v Adams (1863) 15 CB(NS) 392; 143 ER 838 at 848 (ER) per Byles J; Macintosh v Dun [1908] AC 390 at 398 (PC). London Association for Protection of Trade v Greenlands Ltd [1916] 2 AC 15 at 23 per Lord Buckmaster LC; Guise v Kouvelis (1947) 74 CLR 102 at 116 per Dixon J; Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; [2004] HCA 5 at 373 (CLR) per Gleeson CJ, Hayne and Heydon JJ; Bennette v Cohen (2009) Aust Torts Reports 82-002; [2009] NSWCA 60 at 62, 817 (Aust Torts Reports) per Ipp JA. Whiteley v Adams (1863) 15 CB(NS) 392; 143 ER 843 at 848 (ER) per Byles J; Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; [2004] HCA 5 at 411-12 (CLR) per Gummow J. Coxhead v Richards (1846) 2 CB 569; 135 ER 1069 at 1083 (ER) per Cresswell J, at 1085 per Erle J; Pullman v Walter Hill & Co Ltd [1891] 1 QB 524 at 528 per Lord Esher MR; Bennette v Cohen (2009) Aust Torts Reports 82-002; [2009] NSWCA 60 at 62,852 (Aust Torts Reports) per Campbell JA. For the successful application of this defence in the context of the giving of a reference, see Whiteley v Adams (1863) 15 CB (NS) 392; 143 ER 838. (1834) 1 C M & R 181; 149 ER 1044 at 1045 (ER): “The business of life could not be well carried on if such restraints were imposed upon this and similar communications”.

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[11.30]

Common law qualified privilege

support a finding that an occasion was privileged.30 The categories of common law qualified privilege are most definitely not closed.31

The privileged occasion [11.30] The focus of the common law defence of qualified privilege is the privileged occasion.32 An occasion is privileged if the publisher communicates matter pursuant to a duty to publish or if the publisher and the recipients have a common interest in the matter.33 The defendant bears the onus of proof in relation to the existence of the privileged occasion.34 Whether the occasion is privileged is a question of law for the judge to determine.35 This includes the issue of whether the privileged occasion has been exceeded and the related issue of what, if any, matter has been published which is extraneous to the privileged occasion.36 However, if there are disputed facts upon which the privileged occasion depends, the existence of those facts is a matter for the jury.37 The judge will have to identify the right, duty or interest the publisher purportedly has in publishing the matter and assess whether what was in fact published was relevant to it.38 The privilege only extends to matter published which is relevant to the occasion. It does not extend to extraneous matter published at the same time.39 If the judge determines that the publication occurred on a privileged occasion and that there is no evidence of malice, the judge must enter judgment

30

Stuart v Bell [1891] 2 QB 341 at 346 per Lindley LJ; Boxsius v Goblet Freres [1894] 1 AC 842 at 846 per Lopes LJ; Howe & McColough v Lees (1910) 11 CLR 361 at 369 per Griffith CJ, at 377 per O’Connor J; London Association for Protection of Trade v Greenlands Ltd [1916] 2 AC 15 at 22-3 per Lord Buckmaster LC: New arrangements of business, even new habits of life, may create unexpected combinations of circumstances which, though they differ from well-known instances of privileged occasion, may not the less fall within the plain yet flexible language of the definition to which I have referred.

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31 32 33 34 35

36 37

38 39

Howe & McColough v Lees (1910) 11 CLR 361 at 369 per Griffith CJ; Watts v Times Newspapers Ltd [1997] QB 650 at 660 per Hirst LJ. See Adam v Ward [1917] AC 309 at 348 per Lord Shaw of Dunfermline (focus on privileged communication, rather than privileged occasion, apt to mislead). Adam v Ward [1917] AC 309 at 318 per Lord Finlay LC. Hebditch v MacIlwaine [1894] 2 QB 54 at 58 per Lord Esher MR. Hebditch v MacIlwaine [1894] 2 QB 54 at 58 per Lord Esher MR; Adam v Ward [1917] AC 309 at 318 per Lord Finlay LC, at 320 per Earl Loreburn, at 334,340 per Lord Atkinson; Watt v Longsdon [1930] 1 KB 130 at 143 per Scrutton LJ; Loveday v Sun Newspapers Ltd (1938) 59 CLR 503 at 510 per Latham CJ, at 515 per Starke J; Guise v Kouvelis (1947) 74 CLR 102 at 109 per Latham CJ, at 113 per Starke J; Penton v Calwell (1945) 70 CLR 219 at 242 per Latham CJ and Williams J; Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; [2004] HCA 5 at 377 (CLR) per Gleeson CJ, Hayne and Heydon JJ; Harbour Radio Pty Ltd v Trad (2012) 247 CLR 31; [2012] HCA 44 at 41 (CLR) per Gummow, Hayne and Bell JJ. See also Adam v Ward [1917] AC 309 at 349-50 per Lord Shaw of Dumferline. Adam v Ward [1917] AC 309 at 340 per Lord Atkinson. Hebditch v MacIlwaine [1894] 2 QB 54 at 58 per Lord Esher MR; Adam v Ward [1917] AC 309 at 318 per Lord Finlay LC, at 334 per Lord Atkinson; Penton v Calwell (1945) 70 CLR 219 at 242 per Latham CJ and Williams J; Guise v Kouvelis (1947) 74 CLR 102 at 109 per Latham CJ. Adam v Ward [1917] AC 309 at 321 per Lord Finlay LC. Adam v Ward [1917] AC 309 at 318 per Lord Finlay LC, at 320-1 per Earl Loreburn, at 327 per Lord Dunedin.

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[11.30]

for the defendant.40 If, however, the judge determines that the occasion is not privileged or if there is any evidence of malice, the judge must leave the matter to the jury.41 Whether an occasion is privileged needs to be determined in the particular circumstances of the given case.42 Relevant considerations the court will examine in reaching its conclusion include: by whom it was published, to whom it was published, when, why, and in what circumstances it was published, and [it] will see whether these things establish a relation between the parties which give a social or moral right or duty; and the consideration of these things may involve the consideration of questions of public policy.43

Whether an occasion is privileged does not depend upon the defendant’s subjective belief, although that may be relevant to the issue of malice.44 Whether an occasion is privileged depends upon the nature of the subject matter and the nature of the audience’s interest in that subject matter, rather than the defendant’s subjective belief.45 A privileged occasion cannot arise merely because the defendant assumes, in good faith, the facts or relationships he or she asserts support it.46 The reciprocal duty and interest will not arise merely because the defendant wishes to publish matter that recipients will be interested in; there needs to be a particular interest that the law will recognise.47 The fact that the defendant published for profit does not itself preclude a privileged occasion being recognised.48 However, it may be a relevant factor.49 The defendant is not limited to expressing himself or herself in temperate terms on a privileged occasion.50 He or she can still rely upon the privilege even where he or she expresses himself or herself in strong or even violent terms.51 However, although great latitude is given to the defendant as to the mode of expression, questions of degree are involved. There may be circumstances in which the

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40 41 42 43

44 45 46 47 48

49 50 51

Spill v Maule (1869) LR 4 Ex 232 at 237 per Cockburn CJ; Stuart v Bell [1891] 2 QB 341 at 345 per Lindley LJ. Stuart v Bell [1891] 2 QB 341 at 345 per Lindley LJ. Guise v Kouvelis (1947) 74 CLR 102 at 110 per Latham CJ. Baird v Wallace-James (1916) 85 LJPC 193 at 198 per Earl Loreburn; see also Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; [2004] HCA 5 at 386 (CLR) per McHugh J. Stuart v Bell [1891] 2 QB 341 at 349 per Lindley LJ; see also Hebditch v MacIlwaine [1894] 2 QB 54 at 59 per Lord Esher MR. Australian Broadcasting Corporation v Comalco Ltd (1986) 12 FCR 510 at 533 per Smithers J. Baird v Wallace-James (1916) 85 LJPC 193 at 197 per Lord Buckmaster LC. Australian Broadcasting Corporation v Comalco Ltd (1986) 12 FCR 510 at 541 per Smithers J. Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; [2004] HCA 5 at 375 (CLR) per Gleeson CJ, Hayne and Heydon JJ; see also at 433-4 per Kirby J. Contra Macintosh v Dun [1908] AC 390 at 400 (PC); see also London Association for Protection of Trade v Greenlands Ltd [1916] 2 AC 15 at 27 per Lord Buckmaster LC; Watt v Longsdon [1930] 1 KB 130 at 148 per Scrutton LJ. Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; [2004] HCA 5 at 375 (CLR) per Gleeson CJ, Hayne and Heydon JJ. Adam v Ward [1917] AC 309 at 334 per Lord Atkinson. Adam v Ward [1917] AC 309 at 334-5, 339 per Lord Atkinson.

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[11.40]

Common law qualified privilege

language used by the defendant is so excessive or extreme that the finding of a privileged occasion is precluded or, if found, is exceeded.52 There needs to be a connection between the privileged occasion and what was published on that occasion. The nature of connection has been described in a number of ways. Historically, it has most often been described as one of relevance,53 but it has also been described as pertinence or germaneness.54 In Adam v Ward,55 Earl Loreburn stated that what was published needed to be “germane and reasonably appropriate” to the occasion in order to be privileged. Noting the variety of formulations of the proper test to be applied, all in slightly different terms, Kirby J pointed out in Bashford v Information Australia (Newsletters) Pty Ltd56 that: [a]ll of these formulae are attempts to define the boundaries of discussion that is truly within the scope of the matter of public interest, so as to exclude the introduction of extraneous, irrelevant or marginal and gratuitous imputations that unacceptably do harm to the reputation and honour of the individual.

However the test is expressed, it is clear that the connection needs to be a real and direct one, rather than remote or tenuous.57 One of the principal ways in which the common law defence of qualified privilege can be lost is where the matter published by the defendant exceeds the privileged occasion. Where a privileged occasion is exceeded, the matter published on the privileged occasion is still protected, but the extraneous matter is not. The publication of extraneous matter can also furnish evidence of malice.58

The publisher’s duty or interest [11.40] In order for a defendant to be able to establish that he or she was

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acting on a privileged occasion, he or she needs to prove that he or she published the defamatory matter pursuant to a duty.59 The duty need not be a legal one but may instead be a moral or a social one. In relation to a moral duty, Griffith CJ observed in Howe & McColough v Lees60 that: [t]he term “moral duty” is not used in a sense implying that a man who failed to make the communication under the circumstances would necessarily be regarded by his fellows as open to censure, but in the sense implying that it was made on an 52

53 54 55 56 57

58 59

60

See, eg, Goyan v Motyka (2008) Aust Torts Reports 81-939; [2008] NSWCA 28 at 61, 394 (Aust Torts Reports) per Tobias JA. As to whether the language of the publication can furnish evidence of malice, see [11.100]. Penton v Calwell (1945) 70 CLR 219 at 242 per Latham CJ and Williams J; Fraser v Holmes (2009) 253 ALR 538; [2009] NSWCA 36 at 546 (ALR) per Tobias JA. Adam v Ward [1917] AC 309 at 321 per Earl Loreburn. [1917] AC 309 at 321 per Earl Loreburn, at 326 per Lord Dunedin (“reasonably appropriate”), at 348 per Lord Shaw of Dunfermline (“in a reasonable sense germane”). (2004) 218 CLR 366; [2004] HCA 5 at 435 (CLR). Telegraph Newspaper Co Ltd v Bedford (1934) 50 CLR 632 at 662 per Evatt J; Bennette v Cohen (2009) Aust Torts Reports 82-002; [2009] NSWCA 60 at 62,820 (Aust Torts Reports) per Ipp JA. Adam v Ward [1917] AC 309 at 340 per Lord Atkinson, at 348 per Lord Shaw of Dunfermline. As to malice, see [11.80]. Toogood v Spyring (1834) 1 C M & R 181; 149 ER 1044 at 1044-5 (ER) per Parke B: “some public or private duty, whether legal or moral”; Whiteley v Adams (1863) 15 CB (NS) 415; 143 ER 838 at 847 (ER) per Erle CJ: “some social or moral duty”. (1910) 11 CLR 361.

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[11.40]

occasion on which a man who desired to do his duty to his neighbour would reasonably believe that he ought to make it.61

Moral and social duties are often described as being duties of “imperfect obligation”, to contrast them with legal duties.62 The distinction between a moral or social duty and mere “idle curiosity in the concerns of others” may be difficult to draw in certain circumstances63 but, nevertheless, must be drawn. It is not possible to define exhaustively the range of legal, moral and social duties which may support the finding of a privileged occasion.64 Whether there is the requisite duty on the part of the publisher is a question of law for the judge to determine.65 Determining whether the requisite duty arises may present difficulties for a judge.66 Whilst deciding whether a defendant is acting pursuant to a legal duty is an issue a judge is pre-eminently placed to rule upon, moral and social duties involve questions of community standards, in relation to which the judge has no evidence.67 In Stuart v Bell,68 Lindley LJ stated that a judge must do the best he or she can to decide whether there is a moral or social duty. In determining that question, his Lordship suggested that a moral or social duty meant “a duty recognised by English people of ordinary intelligence and moral principle, but at the same time not a duty enforceable by legal proceedings, whether civil or criminal”.69 In Watt v Longsdon,70 Scrutton LJ was less confident of a judge’s ability, in all cases, to deal adequately with this issue. However, the concept of moral or social duties has not been narrowly defined.71

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Alternatively, the defendant may establish that he or she was publishing to protect an interest. The requisite interest has not been limited to the publisher’s own self-interest but also extends to the protection of the interests of others.72 Where a publisher purports to publish on a privileged occasion in order to protect the interests of others, the publisher will need to prove that it was necessary for him so to act, that he or she was under a legal, moral or social duty so to act.73

61

Howe & McColough v Lees (1910) 11 CLR 361 at 369; see also Lindholdt v Hyer (2008) 251 ALR 514; [2008] NSWCA 264 at 553 (ALR) per Basten JA: To identify a duty as “moral” is to indicate that it is not legally enforceable. The scope of the term may be contestable, but it seems to envisage a degree of cultural or social adherence to a set of values, and not merely an idiosyncratic belief held by the maker of the statement as to what conduct is required or appropriate.

62 63 64 65 66 67 68 69 70 71 72 73

Watt v Longsdon [1930] 1 KB 130 at 144 per Scrutton LJ. Mowlds v Fergusson (1940) 64 CLR 206 at 212 per Starke J. Whiteley v Adams (1863) 15 CB(NS) 392; 143 ER 838 at 848 (ER) per Erle CJ. Whiteley v Adams (1863) 15 CB (NS) 392; 143 ER 838 at 848 (ER) per Erle CJ; Stuart v Bell [1891] 2 QB 341 at 349 per Lindley LJ. Whiteley v Adams (1863) 15 CB(NS) 392; 143 ER 838 at 848 (ER) per Erle CJ. Watt v Longsdon [1930] 1 KB 130 at 144 per Scrutton LJ. [1891] 2 QB 341. Stuart v Bell [1891] 2 QB 341 at 350 per Lindley LJ; see also Guise v Kouvelis (1947) 74 CLR 102 at 113 per Starke J. [1930] 1 KB 130 at 144. Coxhead v Richards (1846) 2 CB 569; 135 ER 1069 at 1080 (ER) per Tindal CJ. Cockayne v Hodgkisson (1833) 5 Car & P 543; 172 ER 1091 at 1093 (ER) per Parke J; Watt v Longsdon [1930] 1 KB 130 at 143 per Scrutton LJ. Cockayne v Hodgkisson (1833) 5 Car & P 543; 172 ER 1091 at 1093 (ER) per Parke J; Watt v Longsdon [1930] 1 KB 130 at 143 per Scrutton LJ.

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[11.50]

Common law qualified privilege

The duty or interest must in fact exist. The defendant’s belief as to the existence of the duty or interest is insufficient.74

Reciprocity or community of interest [11.50] In order for an occasion to be privileged, there needs to be reciprocity of duty and interest between the publisher and the recipient.75 Questions of duty and interest often overlap in practice.76 If there is a common interest between the publisher and the recipient, this requirement will be readily satisfied. In Watt v Longsdon,77 Scrutton LJ analysed the issue, suggesting the following categories: either (1) a duty to communicate information believed to be true to a person who has a material interest in receiving the information, or (2) an interest in the speaker to be protected by communicating information, if true, relevant to that interest, to a person honestly believed to have a duty to protect that interest, or (3) a common interest in and reciprocal duty in respect of the subject matter of the communication between speaker and recipient.78

There has traditionally been an emphasis on the need for complete reciprocity of duty and interest in order to give rise to a privileged occasion. In Adam v Ward,79 Lord Atkinson famously observed that: a privileged occasion is, in reference to qualified privilege, an occasion when the person who makes a communication has an interest or duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential.

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The need for complete reciprocity of duty and interest has been subsequently emphasised.80 The focus upon the requirement of the complete reciprocity of duty and interest has had the effect that the common law defence of qualified privilege is not ordinarily available in relation to widely disseminated publications. This is because the essential requirement of reciprocity is usually absent in such publications.81 Publications to persons without the requisite interest in receiving the matter exceeds, and therefore destroys, the privileged occasion.

74

75

76 77 78 79 80 81

Moit v Bristow [2005] NSWCA 322 at [75] per McColl JA, citing Adam v Ward [1917] AC 309 at 334; Bonette v Woolworths Ltd (1937) 37 SR(NSW) 142 at 148 per Jordan CJ; Beach v Fresson [1972] 1 QB 14 at 25 per Lane J. For criticisms of the “somewhat opaque” language of duty and interest, see Lindholdt v Hyer (2008) 251 ALR 514; [2008] NSWCA 264 at 553 (ALR) per Basten JA. Harrison v Bush (1855) 5 E & B 344; 119 ER 509 per Lord Campbell CJ; Pullman v Walter Hill & Co Ltd [1891] 1 QB 524 at 528 per Lord Esher MR; Watt v Longsdon [1930] 1 KB 130 at 146 per Scrutton LJ. Howe & McColough v Lees (1910) 11 CLR 361 at 368 per Griffith CJ. [1930] 1 KB 130. Watt v Longsdon [1930] 1 KB 130 at 147-8. [1917] AC 309 at 334 per Lord Atkinson. See, eg, Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; [2004] HCA 5 at 373 (CLR) per Gleeson CJ, Hayne and Heydon JJ. Aktas v Westpac Banking Corporation (2010) 241 CLR 79; [2010] HCA 25 at 87 (CLR) per French CJ, Gummow and Hayne JJ.

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At common law, there is therefore no general privilege attaching to a statement on a matter of public interest.82 There would need to be a duty supporting the publication of the statement. There is no general duty to publish matters of public interest. Whether such a duty may arise in a given case will depend upon the nature and source of the matter published and the position and status of the publisher.83 In certain circumstances, there may be a duty to publish matter to the general public, such as a suspected terrorist attack or the distribution of contaminated food. However, these are likely to be exceptional circumstances.84 Ordinarily, the common law defence of qualified privilege is ill-equipped to protect widely circulated publications. More recently, however, the High Court of Australia has expressed its preference for treating the foundation of the defence as a “community of interest” between the publisher and its audience, so as not to “suggest as necessary a perfect correspondence of interest”.85 Whether this effects a liberalisation of the test for determining whether a privileged occasion should be recognised remains to be seen. The concept of interest, and therefore reciprocity or community of interest, is not narrowly defined. In Howe & McColough v Lees,86 Griffith CJ observed that: “interest” does not mean an interest in the particular subject matter to which the communication is made, but an interest in knowing the fact communication, in other words, an interest in the subject matter to which the communication is relevant.

The nature of the interest must be definite and capable of being identified and articulated by the judge. As O’Connor J stated in Howe & McColough v Lees, the interest “may be direct or indirect, but it must not be vague or insubstantial”.87

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[11.60] The common law defence of qualified privilege is ordinarily ill-suited and unavailable in relation to widely disseminated publications because of the requirement of reciprocity of duty and interest.88 There is a category of case in which the common law defence of qualified privilege is available for widely disseminated publications, namely where a defendant is exercising his or her right of reply to an attack. A person who is publicly attacked is entitled to reply in public and the reply will be treated as a privileged occasion.89 Where the 82 83 84 85

86 87 88 89

Blackshaw v Lord [1984] 1 QB 1 at 26 per Stephenson LJ, at 33 per Dunn LJ; cf Webb v Times Publishing Co [1960] 2 QB 535 at 565 per Pearson J. Blackshaw v Lord [1984] 1 QB 1 at 26 per Stephenson LJ, at 35 per Dunn LJ. Blackshaw v Lord [1984] 1 QB 1 at 27 per Stephenson LJ. Papaconstuntinos v Holmes A Court (2012) 249 CLR 334; [2012] HCA 53 at 541 (CLR) per French CJ, Crennan, Kiefel and Bell JJ. For an earlier endorsement of this position, see Howe & McColough v Lees (1910) 11 CLR 361 at 369 per Griffith CJ. (1910) 11 CLR 361 at 369. Howe & McColough v Lees (1910) 11 CLR 361 at 377. As to the requirement of reciprocity of duty and interest, see [11.50]. Loveday v Sun Newspapers Ltd (1938) 59 CLR 503 at 515 per Starke J; Bass v TCN Channel Nine Pty Ltd (2003) 60 NSWLR 251; [2003] NSWCA 118 at 260 (NSWLR) per Handley JA.

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[11.60]

Common law qualified privilege

initial attack was given wide publicity, it is permissible to give equally wide publicity to the reply.90 Thus, “if the attack is through the press, then again the press may be used in answer”.91 The attack will usually be defamatory, assailing the defendant’s reputation but the right of reply has been considered not to be limited to defamatory attacks. A defendant may exercise a right of reply when his rights or interests are attacked, including proprietary interests.92 The reply to the attack does not need to be undertaken by the person so attacked in order for the occasion to qualify as privileged. It is possible for the person attacked to authorise another person to exercise the right of reply on his or her behalf, or for a person with a relevant interest in protecting the person attacked to intervene on that person’s behalf.93 Different views may be taken about the role of reciprocity of duty and interest in the context of an exercise of a right of reply to an attack. On one view, reciprocity or community of interest has no role to play in the application of qualified privilege to the exercise of a right of reply to an attack.94 Another view is that the approach to reciprocity of duty and interest needs to be broadly interpreted in the context of the exercise of a right of reply to an attack. As Dixon J stated in Mowlds v Fergusson:95

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Where the defamatory matter is published in self-defence or in defence of protection of an interest or by way of vindication against an imputation or attack, the conception of a corresponding duty or interest in the recipient must be very widely interpreted.96

The initial public attack creates an equally broad, corresponding interest in the reply.97 The conferral of qualified privilege on a defendant’s exercise of a right of reply to an attack has been treated as analogous to self-defence or defence of property.98 Such defences can operate in relation to a claim for battery or assault – for example, where the defendant has taken action which is reasonably necessary to protect his or her own life, person or property.99 As qualified privilege in this context operates as a form of self-defence, some latitude is granted to the defendant as to the terms in which he or she expresses 90 91

92

93 94 95 96

97 98

99

Adam v Ward [1917] AC 309 at 318 per Lord Finlay LC, at 324 per Lord Dunedin. Norton v Hoare [No 1] (1913) 17 CLR 310 at 317 per Barton ACJ; see also Loveday v Sun Newspapers Ltd (1938) 59 CLR 503 at 512 per Latham CJ: “The plaintiff himself had chosen the public press for the purpose of giving publicity to his complaint and he cannot complain if the defendant uses the same medium for reply.” Norton v Hoare [No 1] (1913) 17 CLR 310 at 320 per Isaacs, Gavan Duffy and Rich JJ; Loveday v Sun Newspapers Ltd (1938) 59 CLR 503 at 512 per Latham CJ; Penton v Calwell (1945) 70 CLR 219 at 242-3 per Latham CJ and Williams J. Adam v Ward [1917] AC 309 at 320 per Lord Finlay LC. Norton v Hoare [No 1] (1913) 17 CLR 310 at 318 per Barton ACJ. (1940) 64 CLR 206. Mowlds v Fergusson (1940) 64 CLR 206 at 214-5 per Dixon J. This view was endorsed by the High Court of Australia in Harbour Radio Pty Ltd v Trad (2012) 247 CLR 31; [2012] HCA 44 at 44-5 (CLR) per Gummow, Hayne and Bell JJ. Adam v Ward [1917] AC 309 at 345 per Lord Atkinson (every person in the British Empire had an interest in the British Army and the proceedings of the House of Commons). Norton v Hoare [No 1] (1913) 17 CLR 310 at 318 per Barton ACJ, at 322 per Isaacs, Gavan Duffy and Rich JJ; Turner v Metro-Goldwyn-Mayer Pictures Ltd [1950] 1 All ER 449 at 470 per Lord Oaksey. Norton v Hoare [No 1] (1913) 17 CLR 310 at 321-2 per Isaacs, Gavan Duffy and Rich JJ.

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his or her reply to the defamatory attack.100 However, although latitude is granted to the person replying to an attack, there are nevertheless limits beyond which a person so replying exposes himself or herself to liability for defamation. As Latham CJ and Williams J observed in Penton v Calwell:101 When a person has been attacked seriously and abusively, the terms of his reply are not measured in very nice scales, but excess in reply may so exceed a reasonable view of the necessities of the occasion as to provide evidence from which malice may be inferred.102

Where a person replying to an attack does so through a media outlet, that outlet enjoys a derivative qualified privilege.103 There is no requirement that the reply is in relation to a pre-existing attack. It is open to a media outlet to publish the initial defamatory attack as well as the reply and to rely upon a derivative qualified privilege in relation to the latter publication.104 The issue is not who instigated the publication, but rather whether the attacker authorised or consented to the publication by the media outlet.105 If the attacker authorised or consented to the publication by the media outlet, then the media outlet is entitled to rely upon a derivative qualified privilege.106 Who instigated the publication is irrelevant to the existence of the privileged occasion.107 The power of a media outlet to manipulate or distort both the attack and the reply does not preclude a privileged occasion arising but may furnish evidence of malice which destroys the media outlet’s derivative qualified privilege.108 A media outlet may also be deprived of its derivative qualified privilege where it knows that the attacker was actuated by malice.109 The right of reply to an attack does not give the defendant licence to defame with impunity. As with other privileged occasions, the exercise of a right of reply must be commensurate with the occasion.110 The test to be applied has been variously expressed in the authorities. It has been articulated in terms of the relevance of the defamatory matter to the privileged occasion.111 It has also been expressed in terms of sufficient connection between the defamatory matter and the privileged occasion. In determining whether there is such a sufficient

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100 101 102 103

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105 106 107 108 109 110 111

Adam v Ward [1917] AC 309 at 321 per Earl Loreburn; Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; [2004] HCA 5 at 390 (CLR) per McHugh J. (1945) 70 CLR 219. Penton v Calwell (1945) 70 CLR 219 at 243 per Latham CJ and Williams J; see also Turner v Metro-Goldwyn-Mayer Pictures Ltd [1950] 1 All ER 449 at 471 per Lord Oaksey. Loveday v Sun Newspapers Ltd (1938) 59 CLR 503 at 514 per Latham CJ; Bass v TCN Channel Nine Pty Ltd (2003) 60 NSWLR 251; [2003] NSWCA 118 at 260 (NSWLR) per Handley JA. See, eg, Loveday v Sun Newspapers Ltd (1938) 59 CLR 503 at 515 per Starke J; Bass v TCN Channel Nine Pty Ltd (2003) 60 NSWLR 251; [2003] NSWCA 118 at 260 (CLR) per Handley JA. Bass v TCN Channel Nine Pty Ltd (2003) 60 NSWLR 251; [2003] NSWCA 118 at 253 (CLR) per Spigelman CJ. Bass v TCN Channel Nine Pty Ltd (2003) 60 NSWLR 251; [2003] NSWCA 118 at 253 (CLR) per Spigelman CJ, at 260 per Handley JA. Bass v TCN Channel Nine Pty Ltd (2003) 60 NSWLR 251; [2003] NSWCA 118 at 253 (CLR) per Spigelman CJ. Bass v TCN Channel Nine Pty Ltd (2003) 60 NSWLR 251; [2003] NSWCA 118 at 262 (CLR) per Handley JA. Bass v TCN Channel Nine Pty Ltd (2003) 60 NSWLR 251; [2003] NSWCA 118 at 268 (CLR) per Handley JA. Penton v Calwell (1945) 70 CLR 219 at 233 per Dixon J; Harbour Radio Pty Ltd v Trad (2012) 247 CLR 31; [2012] HCA 44 at 46 (CLR) per Gummow, Hayne and Bell JJ. See, eg, Loveday v Sun Newspapers Ltd (1938) 59 CLR 503 at 516 per Starke J.

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[11.70]

Common law qualified privilege

connection, Gummow, Hayne and Bell JJ, in Harbour Radio Pty Ltd v Trad,112 indicated that it may be necessary to consider the content of the attack, or whether the matter is directed towards the credibility of the attack or the attacker. Their Honours observed that “[q]uestions of degree inevitably will be presented.”113 They applied a test of whether there was “a relevant and reasonable response”.114 In separate reasons for judgment, Kiefel J expressed the view that a test of relevance alone was sufficiently objective and all that was required for a defendant to establish a defence.115 It should be noted that both judgments reached the same outcome by the application of slightly differently worded tests.116 With respect, the approach of Kiefel J should be preferred. Freedom of speech, as protected by the common law defence of qualified privilege, particularly in its application to the right of reply with its attendant latitude, should not be whittled down by the imposition of a requirement of reasonableness.

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There is a limit on the extent to which engagements with attack and counter-attack can be protected as privileged. The initial reply to an attack may be privileged but a riposte or a retort to that reply is not. Dealing with this issue in Kennett v Farmer,117 Nathan J found that protecting such ripostes or retorts would be contrary to the policy underpinning the defence of qualified privilege. Such an approach would inhibit the exercise of the right of reply in the first instance, as a person electing to exercise such a right would do so knowing that he or she would be exposing himself or herself to an equally privileged response. Viewed another way, a person exercising a right of reply could be taken to have impliedly consented to further defamatory attacks. If a subsequent engagement were privileged, there would be no logical or principled end to the number of subsequent privileged occasions. The law should limit the conferral of privilege to the initial reply to the attack. To allow a defamer a privileged occasion for his or her riposte or retort would be to allow him or her to benefit from his or her own wrong, which would be contrary to fundamental principles of tort law. For these reasons, Nathan J held that only the initial reply to an attack should be privileged.118 The right of reply, then, as a privileged occasion, is closely circumscribed.

Volunteering information [11.70] A privileged occasion can arise where a defendant volunteers information. It can arise where a defendant is legitimately defending his or her own interest or where he or she is publishing pursuant to a duty to do so. Although, as a matter of principle, there is no bar to a privileged occasion being recognised in circumstances where information is volunteered, the voluntary nature of the publication can be a relevant factor in cases where it is unclear or contentious as to whether a privileged occasion arises.119 112 113 114 115 116 117 118 119

(2012) 247 CLR 31; [2012] HCA 44. Harbour Radio Pty Ltd v Trad (2012) 247 CLR 31; [2012] HCA 44 at 49 (CLR). Harbour Radio Pty Ltd v Trad (2012) 247 CLR 31; [2012] HCA 44 at 49 (CLR). Harbour Radio Pty Ltd v Trad (2012) 247 CLR 31; [2012] HCA 44 at 76-7 (CLR). Harbour Radio Pty Ltd v Trad (2012) 247 CLR 31; [2012] HCA 44 at 149-50 (CLR) per Gummow, Hayne and Bell JJ, at 80-1 per Kiefel J. [1998] VR 991. Kennett v Farmer [1998] VR 991 at 1003-4. Macintosh v Dun [1908] AC 390 at 399 (PC).

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In his dissenting judgment in Bashford v Information Australia (Newsletters) Pty Ltd,120 McHugh J expressed the view that, where a defendant volunteered defamatory information, a privileged occasion would only arise ordinarily if there was a “pressing need” for the defendant to publish, either to protect his or her own interests or those of a third party, or where the defendant was under a duty to publish.121 The rationale for this position was that the common convenience and welfare of society was not served by the voluntary provision of defamatory information, so the right of the plaintiff to protect his or her reputation was to be preferred.122 McHugh J’s dissenting judgment in Bashford v Information Australia (Newsletters) Pty Ltd received some support in New South Wales, which was a significant reason for the resurgence of interest in the common law defence of qualified privilege. However, in Papaconstuntinos v Holmes a Court,123 the High Court of Australia held that, where a defendant published defamatory matter to protect his or her own interests, there was no requirement that the defendant demonstrate a pressing need to support that course of conduct.

Malice [11.80] In addition to exceeding the privileged occasion,124 the other principal way in which a defendant can be deprived of a common law defence of qualified privilege is by publishing defamatory matter when actuated by malice. Because the privilege conferred is qualified, the defendant’s motive in publishing the defamatory matter is crucial.125 Malice is a complex concept for definitional and historical reasons. As Wolff CJ observed generally about the concept of malice in law in Luetich v Walton:126 Malice is an ambiguous term. In its general colloquial significance it means spite or ill-will; in law it may have that meaning as well as several others, one of which is a wrongful act done intentionally.

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Historically, malice was considered the foundation of the tort of defamation.127 The function of the common law defence of qualified privilege was to rebut the defendant’s malice, which was presumed.128 As the common 120 121

122 123 124 125

126 127 128

(2004) 218 CLR 366; [2004] HCA 5. Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; [2004] HCA 5 at 393 (CLR), citing Wyatt v Gore (1816) Holt NP 299; 171 ER 250; Brooks v Blanshard (1833) 1 C & M 779; 149 ER 613; Wenman v Ash (1853) 13 CB 836; 138 ER 1432; Dickeson v Hilliard (1874) LR 9 Exch 79; Thomas v Moore [1918] 1 KB 555; Guise v Kouvelis (1947) 74 CLR 102; Andreyevich v Kosovich (1947) 47 SR(NSW) 357. Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; [2004] HCA 5 at 393 (CLR) per McHugh J. (2012) 249 CLR 534; [2012] HCA 53. As to exceeding the privileged occasion, see [11.30]. Horrocks v Lowe [1975] AC 135 at 149 per Lord Diplock; see also Royal Aquarium and Summer and Winter Garden Society v Parkinson [1892] 1 QB 431 at 443-4 per Lord Esher MR. [1960] WAR 109 at 112. Whiteley v Adams (1863) 15 CB(NSW) 392; 143 ER 838 at 846 (ER) per Erle CJ. See Toogood v Spyring (1834) 1 C M & R 181; 149 ER 1044 (ER) at 1044-5 per Parke B; Wright v Woodgate (1835) 2 C M & R 577; 150 ER 244 at 246 (ER) per Parke B; Coxhead v Richards (1846) 2 CB 569; 135 ER 1069 at 1079 (ER) per Tindal CJ, at 1082-3 per Cresswell J; Clark v Molyneux (1877) LR 3 QBD 237 at 247 per Brett LJ; Forrester v Tyrrell (1893) 9 TLR 257 at 257 per Lord Esher MR; Adam v Ward [1917] AC 309 at 318 per Lord Finlay LC, at 326 per Lord Dunedin; Cush v Dillon (2011) 243 CLR 298; [2011] HCA

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[11.80]

Malice

law defence of qualified privilege developed, malice came to be viewed not as a presumption but as a form of disentitling conduct. Now where the defendant establishes the outlined elements of the defence of qualified privilege, in respect of which it bears the onus of proof, the defence of qualified privilege presumptively arises. In order to deprive the defendant of this defence, the plaintiff will need to establish affirmatively that the defendant’s state of mind was not that which the law requires for publication on an occasion of qualified privilege.129 Therefore, the plaintiff bears the onus of proof in relation to the defendant’s malice.130 As Lord Diplock observed in Horrocks v Lowe,131 rejecting the suggestion that the defendant might be required to disprove malice: [t]he protection might, however be illusory if the onus lay on him to prove that he was actuated solely by a sense of the relevant duty or a desire to protect the relevant interest.

The plaintiff will need to do this by demonstrating that the defendant published the matter for a purpose or motive which was other than the purpose for which the privileged occasion was conferred, or was actuated by an improper motive.132 The propriety or impropriety of the defendant’s motive in publishing the defamatory matter is the decisive issue in relation to malice.133 As Gaudron, McHugh and Gummow JJ stated in their joint judgment in Roberts v Bass:134 A purpose or motive that is foreign to the occasion and actuates the making of the statement is called express malice … Proof of express malice destroys qualified privilege.

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A court should not draw the conclusion that the defendant was actuated too readily, otherwise the defendant would be deprived of a defence which is supported by considerations of public policy.135 A significant difficulty of dealing with the issue of malice is that it is an imprecise concept, used in multiple senses and bearing multiple meanings, not

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53 at 306 (CLR) per French CJ, Crennan, Kiefel and Bell JJ; Harbour Radio Pty Ltd v Trad (2012) 247 CLR 31; [2012] HCA 44 at 46 (CLR) per Gummow, Hayne and Bell JJ, citing Wright v Woodgate (1835) 2 Cr M & R 573; 150 ER 244 at 246 per Parke B. See especially, Whiteley v Adams (1863) 15 CB(NSW) 392; 143 ER 838 at 846 per Erle CJ: “I take it to be clear that the foundation of an action for defamation is malice. But defamation pure and simple affords presumptive evidence of malice.” Spill v Maule (1869) LR 4 Ex 232 at 236 per Cockburn CJ; Clark v Molyneux (1877) LR 3 QBD 237 at 247 per Brett LJ, at 251 per Cotton LJ; Horrocks v Lowe [1975] AC 135 at 149 per Lord Diplock; Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 at 50-1 per Hunt J; Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57 at 38-9 (CLR) per Gaudron, McHugh and Gummow JJ; Cush v Dillon (2011) 243 CLR 298; [2011] HCA 53 at 306 (CLR) per French CJ, Crennan, Kiefel and Bell JJ. Spill v Maule (1869) LR 4 Ex 232 at 236 per Cockburn CJ; Clark v Molyneux (1877) LR 3 QBD 237 at 247 per Brett LJ, at 251 per Cotton LJ; Hebditch v MacIlwaine [1894] 2 QB 54 at 58 per Lord Esher MR; Howe & McColough v Lees (1910) 11 CLR 361 at 373 per O’Connor J; Loveday v Sun Newspapers Ltd (1938) 59 CLR 503 at 516 per Starke J; Horrocks v Lowe [1975] AC 135 at 149 per Lord Diplock. [1975] AC 135 at 149. Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 at 50-1 per Hunt J; Lindholdt v Hyer (2008) 251 ALR 514; [2008] NSWCA 264 at 543 (ALR) per McColl JA; Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57 at 30 (CLR) per Gaudron, McHugh and Gummow JJ. Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57 at 32-3 (CLR) per Gaudron, McHugh and Gummow JJ. (2002) 212 CLR 1; [2002] HCA 57 at 31 (CLR). Calwell v Ipec Australia Ltd (1975) 135 CLR 321 at 332-3 per Mason J.

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all of which are readily reconcilable.136 It is possible to talk in terms of actual malice (meaning the defendant’s actual knowledge that the defamatory matter was false or his or her reckless disregard for its truth or falsity); common law malice (which includes spite, ill-will and improper motive);137 and express malice (the customary term of art used to describe what a plaintiff must provide to defeat a common law defence of qualified privilege).138 It may therefore be preferable to talk in terms of improper motive, rather than malice.139 In order to destroy the privileged occasion, it is not sufficient that one of the defendant’s motives in publishing the defamatory matter was an improper one. It is necessary for the plaintiff to prove that the defendant’s dominant motive was improper in order to establish malice.140 The task of determining the defendant’s dominant motive is rendered difficult by the fact that “[t]he motives with which human beings act are mixed.”141 It is important to distinguish between matters relevant to malice and matters relevant to whether the privileged occasion was exceeded.142 Whether the matter was published on a privileged occasion is a logically anterior inquiry to the issue of malice. Whether the defendant was actuated by an improper motive cannot be determined in isolation from whether the occasion upon which the defendant published the matter was a privileged one, because the issue of malice turns upon the propriety or impropriety of the defendant’s motive in furthering the duty or interest underlying the privileged occasion. Therefore, “[t]he nature and the extent of the duty or interest must be considered before the question of malice is addressed.”143 It is for the judge to determine whether there is any evidence upon which a jury could reasonably find that the publisher was actuated by malice.144 However, the issue of whether the publisher was in fact actuated by malice is a matter of fact for the jury to determine.145 [11.90] Malice must be proven by evidence, not by mere conjecture.146 It is not possible to state comprehensively what does and does not constitute evidence of 136

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137 138

139 140 141 142 143 144 145

146

Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 136 per Mason CJ, Toohey and Gaudron JJ, citing Luetich v Walton [1960] WAR 109 at 112. Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 136 per Mason CJ, Toohey and Gaudron JJ, citing Luetich v Walton [1960] WAR 109 at 112. Horrocks v Lowe [1975] AC 135 at 149 per Lord Diplock; Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 at 51 per Hunt J; Cush v Dillon (2011) 243 CLR 298; [2011] HCA 53 at 306 (CLR) per French CJ, Crennan, Kiefel and Bell JJ. See also Clark v Molyneux (1877) LR 3 QBD 237 at 247 per Brett LJ: “malice then means a wrong feeling in a man’s mind”. Aktas v Westpac Banking Corporation (2010) 241 CLR 79; [2010] HCA 25 at 88 (CLR) per French CJ, Gummow and Hayne JJ. Horrocks v Lowe [1975] AC 135 at 149 per Lord Diplock; Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57 at 41 (CLR) per Gaudron, McHugh and Gummow JJ. Horrocks v Lowe [1975] AC 135 at 150 per Lord Diplock. London Association for Protection of Trade v Greenlands Ltd [1916] 2 AC 15 at 23 per Lord Buckmaster LC. Cush v Dillon (2011) 243 CLR 298; [2011] HCA 53 at 306 (CLR) per French CJ, Crennan, Kiefel and Bell JJ. Adam v Ward [1917] AC 309 at 318 per Lord Finlay LC. Jenoure v Delmege [1891] AC 73 at 77 (PC); Adam v Ward [1917] AC 309 at 321 per Earl Loreburn, at 329 per Lord Dunedin, at 350 per Lord Shaw of Dunfermline, Andreyevich v Kosovich (1947) 47 SR(NSW) 357 at 362 per Jordan CJ; Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; [2004] HCA 5 at 377 (CLR) per Gleeson CJ, Hayne and Heydon JJ; Harbour Radio Pty Ltd v Trad (2012) 247 CLR 31; [2012] HCA 44 at 41 (CLR) per Gummow, Hayne and Bell JJ. Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 at 51 per Hunt J.

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[11.90]

Malice

malice or improper motive.147 Whether evidence will support a finding of malice or improper motive, or not, will depend upon the circumstances of the particular case. The case law does, however, disclose types of evidence which tend to support or not to support a finding of malice or improper motive. Whether the defendant’s motive was improper will ordinarily have to be inferred from his or her conduct, what he or she did or said, or knew.148 A defendant’s lack of an honest belief in the truth of what he or she published will usually be cogent evidence of malice.149 However, this will not invariably be the case.150 There may be circumstances in which a defendant is under a duty to pass on defamatory matter. A lack of an honest belief in the truth of what was published, in such circumstances, would not amount to evidence of malice or improper motive.151 Nor should a lack of honest belief in the truth of the matter published be equated with knowledge of the falsity of the matter.152 A defendant does not need to prove that he or she had a positive belief in the truth of what he or she published.153 The inquiry as to the defendant’s lack of honest belief is not directed to the meanings found by the judge or jury to have been conveyed by the matter,154 but to the matter itself. A finding of malice will not be drawn against a defendant merely because he or she did not honestly believe the plaintiff’s pleaded imputations.155 Knowledge of the falsity of the defamatory matter can amount to strong evidence of malice.156 Similarly, reckless indifference as to the truth or falsity of the defamatory matter can also amount to evidence of malice.157 It is important not to equate the defendant’s lack of honest belief in the truth of the defamatory matter with malice.158

147

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150 151

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Stuart v Bell [1891] 2 QB 341 at 351 per Lindley LJ: “Malice, in fact, is not confined to personal spite and ill-will, but includes every unjustifiable intention to inflict injury on the person defamed”. Horrocks v Lowe [1975] AC 135 at 149 per Lord Diplock. Webb v Bloch (1928) 41 CLR 331 at 368 per Isaacs J; Horrocks v Lowe [1975] AC 135 at 149 per Lord Diplock; Australian Broadcasting Corporation v Comalco Ltd (1986) 12 FCR 510 at 534-5 per Smithers J; Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57 at 31-2 (CLR) per Gaudron, Gummow and McHugh JJ; Lindholdt v Hyer (2008) 251 ALR 514; [2008] NSWCA 264 at 544 (ALR) per McColl JA. Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57 at 14 (CLR) per Gleeson CJ. Clark v Molyneux (1877) LR 3 QBD 237 at 244 per Bramwell LJ; Webb v Bloch (1928) 41 CLR 331 at 368 per Isaacs J; Horrocks v Lowe [1975] AC 135 at 150 per Lord Diplock; Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57 at 31 (CLR) per Gaudron, McHugh and Gummow JJ. Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57 at 35 (CLR) per Gaudron, McHugh and Gummow JJ. Jenoure v Delmege [1891] AC 73 at 79 (PC): “The privilege would be worth very little if a person making a communication on a privileged occasion were to be required, in the first place, and as a condition of immunity, to prove affirmatively that he had honestly believed the statement to be true.” See also Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57 at 35 (CLR) per Gaudron, McHugh and Gummow JJ. Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57 at 34 (CLR) per Gaudron, McHugh and Gummow JJ. Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57 at 36 (CLR) per Gaudron, McHugh and Gummow JJ. Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57 at 39 (CLR) per (Gaudron, McHugh and Gummow JJ. Horrocks v Lowe [1975] AC 135 at 150 per Lord Diplock; Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57 at 13 (CLR) per Gleeson CJ, at 34, 39 per Gaudron, McHugh and Gummow JJ. In order to constitute malice, recklessness amounting to wilful blindness has sometimes been identified as the relevant test: see, eg, Lindholdt v Hyer (2008) 251 ALR

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Evidence of the defendant’s spite or ill-will towards, or bias or prejudice against, the plaintiff is not to be equated with malice but furnishes evidence for inferring that the defendant was actuated by an improper motive.159 In addition to proof of the defendant’s spite or ill-will towards the plaintiff, if the plaintiff could prove that the defendant published the defamatory matter in order to pursue a private advantage, which was foreign to the purpose for which the privileged occasion was conferred, that would also furnish evidence of malice.160 The inclusion of irrelevant or extraneous matter when publishing on a privileged occasion can furnish evidence of malice.161 Failure to inquire as to the truth of what was published may be used as evidence in drawing the inference of malice.162 To slant material to support a conclusion the defendant knows to be unsupported by fact may constitute malice. Refraining from publishing available material which would explain, correct or contradict defamatory statements may also constitute malice.163

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By contrast, a defendant’s honest belief in the truth of what he or she published will ordinarily make it difficult for a plaintiff to establish that the defendant was actuated by malice or an improper motive.164 It is important to emphasise that the test for the defendant’s belief is honesty, rather than reasonableness.165 It would further erode the public policy underpinning the common law defence of qualified privilege if the defendant were required to have a reasonable belief in the truth of what he or she published. The common law defence of qualified privilege imposes a duty on a defendant to act honestly, not reasonably.166 Carelessness, impulsiveness, negligence or irrationality, short

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514; [2008] NSWCA 264 at 545 (ALR) per McColl JA. As Gaudron, McHugh and Gummow JJ noted in Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57 at 43 (CLR), cases where recklessness destroys a common law defence of qualified privilege are likely to be rare. Adam v Ward [1917] AC 309 at 334 per Lord Atkinson; Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57 at 14 (CLR) per Gleeson CJ, at 32, 39 per Gaudron, McHugh and Gummow JJ. Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57 at 31 (CLR) per Gaudron, McHugh and Gummow JJ. Clark v Molyneux (1877) LR 3 QBD 237 at 246 per Brett LJ: “some indirect or wrong motive”; Horrocks v Lowe [1975] AC 135 at 149 per Lord Diplock. Adam v Ward [1917] AC 309 at 326-7 per Lord Dunedin, at 340 per Lord Atkinson, at 348 per Lord Shaw of Dunfermline; Horrocks v Lowe [1975] AC 135 at 151 per Lord Diplock. Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 125 per McTiernan J. Australian Broadcasting Corportion v Comalco Ltd (1986) 12 FCR 510 at 544 per Smithers J. Webb v Bloch (1928) 41 CLR 331 at 368 per Isaacs J; Horrocks v Lowe [1975] AC 135 at 150 per Lord Diplock. Webb v Bloch (1928) 41 CLR 331 at 369 per Isaacs J. Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57 at 41 (CLR) per Gaudron, McHugh and Gummow JJ.

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[11.100]

Malice

of reckless indifference to the truth or falsity of the defamatory matter, will not usually constitute evidence of malice.167 As Lord Diplock observed in Horrocks v Lowe:168 In ordinary life it is rare indeed for people to form their beliefs by a process of logical deduction from facts ascertained by a rigorous search for all available evidence and a judicious assessment of its probative value. In greater or in less degree according to their temperaments, their training, their intelligence, they are swayed by prejudice, rely on intuition instead of reasoning, leap to conclusions on inadequate evidence and fail to recognise the cogency of material which might cast doubt on the validity of the conclusions they reach. But despite the imperfection of the mental process by which the belief is arrived at it may still be “honest”, that is, a positive belief that the conclusions they have reached are true. The law demands no more.

However, whilst a defendant’s honest belief in the truth of what he or she published will often be cogent evidence against an inference of malice, this is not invariably the case. There may be circumstances in which the defendant was actuated by an improper motive, notwithstanding his or her honest belief in the truth of what he or she published. For instance, if the defendant’s dominant motive in publishing the defamatory matter was the personal spite or ill-will he or she felt towards the plaintiff, the fact that the defendant honestly believed in the truth of what he or she published would not prevent an inference of malice being drawn.169 It is important not to equate the defendant’s honest belief in the truth of the defamatory matter with an absence of malice.

[11.100] A defendant’s refusal to apologise for, or to retract, defamatory

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matter is not necessarily evidence of malice. Similarly, a defendant’s mere failure to apologise for, or to retract, defamatory matter is not necessarily evidence of malice.170 “Exuberance in reporting” is also not evidence of malice.171 The fact that media companies publish for profit has been shown to be insufficient, in and of itself, to furnish evidence of malice.172 Where the matter is published for purpose of giving information to recipients on a subject of interest or apparent interest, mere sensationalism in reporting will be insufficient evidence of malice. In order to defeat a defence of qualified 167

168 169 170

171

172

Clark v Molyneux (1877) LR 3 QBD 237 at 249 per Cotton LJ (“want of reasoning power” or stupidity not evidence of malice); Horrocks v Lowe [1975] AC 135 at 150 per Lord Diplock; Australian Broadcasting Corportion v Comalco Ltd (1986) 12 FCR 510 at 544 per Smithers J; Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57 at 13 (CLR) per Gleeson CJ, at 41 per Gaudron, McHugh and Gummow JJ; Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; [2004] HCA 5 at 382 (CLR) per McHugh J (“[i]gnorance, carelessness and stupidity” not evidence of malice); Aktas v Westpac Banking Corporation (2010) 241 CLR 79; [2010] HCA 25 at 89 (CLR) per French CJ, Gummow and Hayne JJ. [1975] AC 135 at 150. Horrocks v Lowe [1975] AC 135 at 149, 151 per Lord Diplock; Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57 at 31 (CLR) per Gaudron, McHugh and Gummow JJ. Loveday v Sun Newspapers Ltd (1938) 59 CLR 503 at 513 per Latham CJ; Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 70 per Hunt J; Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57 at 41 (CLR) per Gaudron, McHugh and Gummow JJ. Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 at 52 per Hunt J, citing Pinniger v John Fairfax & Sons Ltd (1979) 26 ALR 55 at 59, 61-62; see also Calwell v Ipec Australia Ltd (1975) 135 CLR 321 at 333. Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 at 53 per Hunt J, citing Broadway Approvals Ltd v Odhams Press Ltd [1965] 1 WLR 805 at 819; Dougherty v Nationwide News Pty Ltd (1967) 86 WN (Pt 1) (NSW) 181 at 186-7 per Moffitt J.

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privilege, the plaintiff would need to establish that such sensationalism in reporting was the dominant motive of the defendant.173 In certain circumstances, the language used in the matter may support an inference of malice on the part of the defendant. However, considerable caution needs to be taken in relying upon this factor when inferring malice.174 In some cases, the language of the matter itself has been allowed to be relied upon when considering whether the defendant was actuated by malice,175 whereas, in other cases, it has not.176 To the extent that it is possible to articulate a general principle on this issue, it may be that excessively intemperate or violent language, not warranted by, or wholly disproportionate to, the occasion, may furnish evidence of malice.177 Merely because the defendant expresses himself or herself in strong or intemperate language is insufficient to constitute evidence of malice.178 Great latitude should be afforded to the defendant as to his or her choice of words when publishing on an occasion of common law qualified privilege. As the Privy Council stated in Laughton v Bishop of Sodor and Man:179

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To submit the language of privileged communication to a strict scrutiny, and to hold all excess beyond the absolute exigency of the occasion to be evidence of malice would in effect greatly limit, if not altogether defeat, that protection which the law throws over privileged communications.

More generally, in Horrocks v Lowe,180 Lord Diplock cautioned judges and juries against readily drawing the inference that the defendant was actuated by an improper motive because the public interest would not be served by depriving defendants of a common law defence of qualified privilege too lightly.181 Where multiple defendants are sued for defamation and they are able to establish a defence of qualified privilege, the plaintiff will need to establish malice against each and every defendant in order to succeed. The fact that one defendant was actuated by malice will not assist the plaintiff to establish that other defendants sued were also actuated by malice.182 Unless the defendant is vicariously liable for the conduct of another person, he or she can only be held liable for his or her own malice. There is no doctrine of transferred malice for the purposes of qualified privilege.183 173 174 175 176 177

178 179 180 181 182 183

Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 at 52-3 per Hunt J. Clark v Molyneux (1877) LR 3 QBD 237 at 245 per Bramwell LJ. See, eg, Gilpin v Fowler (1854) 9 Ex 625; 156 ER 263 at 267 (ER) per Maule J. See, eg, Spill v Maule (1869) LR 4 Ex 232 at 236-7 per Cockburn CJ; Laughton v Bishop of Sodor and Man (1872) LR 4 PC 495 at 508. Spill v Maule (1869) LR 4 Ex 232 at 235-6 per Cockburn CJ; Edmondson v Birch & Co Ltd [1907] 1 KB 371 at 381 per Collins MR; Calwell v Ipec Australia Ltd (1975) 135 CLR 321 at 332-3 per Mason J. Edmondson v Birch & Co Ltd [1907] 1 KB 371 at 381 per Collins MR; Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57 at 30 (CLR) per Gaudron, McHugh and Gummow JJ. (1872) LR 4 PC 495 at 508. [1975] AC 135. Horrocks v Lowe [1975] AC 135 at 150. Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 at 50 per Hunt J, citing Eggers v Chelmsford [1965] 1 QB 248 at 265, 266, 272. Egger v Viscount Chelmsford [1965] 1 QB 248 at 258, 264-5 per Lord Denning MR, at 268-9 per Davies LJ; Bass v TCN Channel Nine Pty Ltd (2003) 60 NSWLR 251; [2003] NSWCA 113 at 262 (NSWLR) per Handley JA, citing Dougherty v Chandler (1946) 46 SR(NSW) 370.

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-23 21:45:22.

[11.110]

Lange qualified privilege

Lange qualified privilege

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[11.110] The discernment of the implied freedom of political communication, arising from the text and structure of the Commonwealth Constitution, in a series of landmark cases, was the impetus for a reconsideration of the extent to which, and how, Australian law regulated or otherwise impinged upon freedom of speech in relation to government or political matters. Given the centrality of defamation law in regulating or impinging upon free speech, it was unsurprising that shortly after the implied freedom of political communication was identified, its impact upon defamation law arose for determination. Two years after its decisions in Australian Capital Television Pty Ltd v Commonwealth184 and Nationwide News Pty Ltd v Wills,185 the High Court of Australia handed down its decisions in Theophanous v Herald & Weekly Times Ltd186 and Stephens v West Australian Newspapers Ltd.187 Rather than clarifying the impact of the implied freedom of political communication on defamation law, the division of judicial opinion in the latter cases created uncertainty. In less than three years, the High Court of Australia revisited this issue in Lange v Australian Broadcasting Corporation.188 In a rare, unanimous decision, the High Court of Australia held that, as the defamation law of New South Wales did not adequately protect speech on government or political matters, there needed to be an extension and adaptation of the common law defence of qualified privilege to accommodate the requirements of the implied freedom of political communication.189 This is often referred to by the shorthand expression, “Lange qualified privilege”. Properly understood, however, “Lange qualified privilege” is not a separate or freestanding defence but is rather an extension and adaptation of the common law defence of qualified privilege. All members of the Australian community have an interest in receiving publications on government or political matters.190 A publisher disseminating a publication on government or political matters, then, is acting pursuant to a duty or interest. The implied freedom of political communication, integral to representative democracy, provides the requisite reciprocity or community of interest for this form of common law qualified privilege. Therefore, the Lange qualified privilege defence is another way in which the common law defence of qualified privilege can be used to protect widely disseminated publications. Merely because a publication concerns government or political matters is not sufficient to establish a defence of Lange qualified privilege. If the publication relates to government or political matters, the defence of Lange qualified privilege can be engaged. However, merely because a publication concerns government or political matters does not confer on publishers a licence to defame. In the Lange case the High Court required that, in order to be protected, the defendant would need to prove that he or she acted reasonably. In introducing this requirement, the High Court made specific reference to the Defamation Act 1974 (NSW) s 22,191 the predecessor provision to the current 184 185 186 187 188 189 190 191

(1992) 177 CLR 106. (1992) 177 CLR 1. (1994) 182 CLR 104. (1994) 182 CLR 211. (1997) 189 CLR 520. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 572 per curiam. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 570-1 per curiam. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 572-3 per curiam.

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statutory defence of qualified privilege.192 The High Court itself identified several factors which were relevant to the inquiry as to whether the defendant acted reasonably in the circumstances of publication. It stated that a defendant must have had reasonable grounds for believing that the imputation was true and that they took such proper steps as were reasonably available to verify the accuracy of the matter. The defendant could not believe that the imputation was untrue. He or she also needed to seek and publish a response from the plaintiff unless seeking and publishing a response was unnecessary or impracticable.193 It has been held that the inquiry as to reasonableness for the purposes of Lange qualified privilege conforms to the approach to reasonableness for the purposes of the statutory defence of qualified privilege.194 As Lange qualified privilege is a variant of the common law defence of qualified privilege, it can be defeated if the plaintiff proves that the defendant was actuated by malice or improper motive. Causing political damage to an opponent or his or her party will not be sufficient to demonstrate an improper motive.195 Given the forensic difficulty defendants have experienced in proving the reasonableness of their conduct, it is unsurprising that the issue of malice has not arisen as a significant issue in the subsequent case law applying the Lange qualified privilege defence. Subsequently, the Lange qualified privilege defence has been frequently pleaded but rarely successful.196 For instance, an attempt was made to apply Lange qualified privilege to publications concerning judges. In Herald & Weekly Times Ltd v Popovic,197 a range of views were expressed on this issue. Warren AJA (as her Honour then was) held that a publication about a judicial officer could not be related to a government or political matter for the purposes of the implied freedom of political communication because the judiciary is, and should be, separate from the legislative and executive branches of government.198 Reaching the opposite conclusion, Gillard AJA held that the conduct of judicial officers and their fitness for office were all matters in which every member of the community had a legitimate interest, as judicial officers were repositories of public power. His Honour would therefore have defined a government or political matter for the purposes of the implied freedom of political communication broadly to encompass the judicial branch of government, as well as the legislature and the executive.199 Taking an intermediate position, Winneke ACJ held that the conduct of a judicial officer could constitute the subject of a discussion of a government or political matter 192

As to the statutory defence of qualified privilege, see [11.130]. Reference was also made to the Defamation Act 1889 (Qld) s 16 (repealed) and the Defamation Act 1957 (Tas) s 16.

193 194

Lange v Australian Broadcasting Corporation (1997) 189 CLR 574 per curiam. Obeid v John Fairfax Publications Pty Ltd (2006) 68 NSWLR 150; [2006] NSWSC 1059 at 164 (NSWLR) per Hoeben J. As to the requirement of reasonableness under the statutory defence of qualified privilege, see [11.180]. Lange v Australian Broadcasting Corporation (1997) 189 CLR 574 per curiam; see also Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57 (dealing with common law defence of qualified privilege). See, eg, Brander v Ryan (2000) 78 SASR 234; [2000] SASC 446 at 247-50 (SASR) per Lander J; Cornwall v Rowan (2004) 90 SASR 269; [2004] SASC 384; Lamont v Dwyer [2008] ACTSC 125; see also Featherston v Tully (No 2) (2002) 83 SASR 347; [2002] SASC 328 at 391-2 (SASR) per Bleby J. (2003) 9 VR 1; [2003] VSCA 161. Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1; [2003] VSCA 161 at 103-5 (VR). Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1; [2003] VSCA 161 at 52-3 (VR).

195

196

197 198 199

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[11.120]

Lange qualified privilege

in certain, narrow circumstances. His Honour suggested that, in order for a publication concerning a judicial officer to constitute a government or political matter, it would need to touch upon, directly or indirectly, the legislative or executive branches of government. The examples Winneke ACJ gave included the appointment of, the removal of, or the failure to remove, a judge from office.200 In the absence of any such connection to the legislative or executive branches of government, a discussion of a judicial office was outside of the scope of the Lange qualified privilege defence. Subsequently, in John Fairfax Publications Pty Ltd v O’Shane,201 the New South Wales Court of Appeal adopted the view that, as judicial officers were not integral to representative government, which was the foundation of the implied freedom of political communication, publications concerning judges could not be treated as government or political matters and were therefore not defensible on the basis of Lange qualified privilege.

[11.120] The High Court of Australia’s extension and adaptation of qualified

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privilege in Lange was considered but not followed by the House of Lords in Reynolds v Times Newspapers Ltd.202 Lord Nicholls of Birkenhead found that it was not desirable to create a new form of qualified privilege specifically for government or political matters because it was unsound in principle to distinguish between government or political matters, on the one hand, and other matters of serious public concern on the other hand.203 His Lordship identified a non-exhaustive list of 10 factors relevant to determining whether a matter was published on an occasion of qualified privilege: 1. The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true. 2. The nature of the information, and the extent to which the subject matter is a matter of public concern. 3. The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories. 4. The steps taken to verify the information. 5. The status of the information. The allegation may have already been the subject of an investigation which commands respect. 6. The urgency of the matter. News is often a perishable commodity. 7. Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary. 8. Whether the article contained the gist of the plaintiff’s side of the story. 9. The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact. 10. The circumstances of the publication, including the timing.204

In the same case, Lord Steyn similarly held that the common law defence of qualified privilege should not be expanded to provide greater protection for political matters only because what constituted political matter was too imprecise. By contrast, the concept of public interest was “well-known and 200 201 202 203 204

Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1; [2003] VSCA 161 at 10-11 (VR). (2005) Aust Torts Reports 81-789; [2005] NSWCA 164 at 67,468-9 (Aust Torts Reports) per Giles JA. See, eg, Reynolds v Times Newspapers Ltd [2001] 2 AC 127 at 221 per Lord Cooke of Thorndon. Reynolds v Times Newspapers Ltd [2001] 2 AC 127 at 204. Reynolds v Times Newspapers Ltd [2001] 2 AC 127 at 205. The similarity to the list of factors relevant to the assessment of the reasonableness of the publisher’s conduct under the statutory defence of qualified privilege should be noted, as to which see [11.180].

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serviceable”.205 The intention was that a corpus of case law would develop over time, which would provide guidance for publishers.206 In subsequent cases, English courts confirmed that a defence should be available where the publication related to a matter of public interest and where the publisher satisfied the test of “responsible journalism”.207 The defence was not one of qualified privilege, properly understood, although it had its origins in it. This was because malice would not defeat the Reynolds defence, the propriety of the defendant’s conduct being incorporated into the defence.208 It was “a different jurisprudential creature from the traditional form of privilege from which it sprang”.209 In Jameel v Wall Street Journal Europe,210 Lord Hoffmann suggested that it should be called the “Reynolds public interest defence”.211 In the same case, Baroness Hale of Richmond suggested that it was “a defence of publication in the public interest”.212 In determining whether the test of responsible journalism had been satisfied, “[w]eight should ordinarily be given to the professional judgment of an editor or journalist in the absence of some indication that it was made in a casual, cavalier, slipshod or careless manner.”213 The standard was an objective one.214 The disposition of the judge applying the Reynolds defence could influence outcomes. In Jameel, Lord Hoffmann emphasised that the 10 factors Lord Nicholls of Birkenhead identified in Reynolds were not tests to be passed or hurdles to be overcome and that the defence should be applied beneficially, not strictly.215 The test must be applied flexibly, having regard to practical realities.216

205

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206

207

208 209 210 211 212 213 214

215 216

Reynolds v Times Newspapers Ltd [2001] 2 AC 127 at 214. As to the concept of public interest, see [9.50]-[9.60]. Reynolds v Times Newspapers Ltd [2001] 2 AC 127 at 205 per Lord Nicholls of Birkenhead; see also Jameel v Wall Street Journal Europe Sprl [2007] 1 AC 359; [2006] UKHL 44 at 383 (AC) per Lord Hoffmann. Jameel v Wall Street Journal Europe Sprl [2007] 1 AC 359; [2006] UKHL 44 at 377 (AC) per Lord Bingham of Cornhill; Flood v Times Newspapers Ltd [2012] 2 AC 273; [2012] UKSC 11 at 279 (AC) per Lord Phillips of Worth Matravers PSC. Jameel v Wall Street Journal Europe Sprl [2007] 1 AC 359; [2006] UKHL 44 at 380-1 (AC) per Lord Hoffmann. Loutchansky v Times Newspapers Ltd (Nos 2-5) [2002] QB 783; [2001] EWCA Civ 1805 at 806 (QB) per curiam. [2007] 1 AC 359; [2006] UKHL 44. Jameel v Wall Street Journal Europe Sprl [2007] 1 AC 359; [2006] UKHL 44 at 381 (AC). Jameel v Wall Street Journal Europe Sprl [2007] 1 AC 359; [2006] UKHL 44 at 408 (AC). Jameel v Wall Street Journal Europe Sprl [2007] 1 AC 359; [2006] UKHL 44 at 377 (AC) per Lord Bingham of Cornhill. Bonnick v Morris [2003] 1 AC 300; [2002] UKPC 31 at 309 (AC); Jameel v Wall Street Journal Europe Sprl [2007] 1 AC 359; [2006] UKHL 44 at 383 (AC) per Lord Hoffmann (rejecting criticisms of subjectivity and uncertainty). Jameel v Wall Street Journal Europe Sprl [2007] 1 AC 359; [2006] UKHL 44 at 384 (AC); see also Seaga v Harper [2009] 1 AC 1; [2008] UKPC 9 at 9 (AC). Bonnick v Morris [2003] 1 AC 300; [2002] UKPC 31 at 309 (AC); Jameel v Wall Street Journal Europe Sprl [2007] 1 AC 359; [2006] UKHL 44 at 384 (AC) per Lord Hoffmann; Seaga v Harper [2009] 1 AC 1; [2008] UKPC 9 at 9 (AC); Flood v Times Newspapers Ltd [2012] 2 AC 273; [2012] UKSC 11 at 312 (AC) per Lord Mance JSC.

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[11.130]

Statutory defence of qualified privilege

The defence was not limited to the media but media outlets217 could take advantage of it and were intended as principal beneficiaries of it.218 It has enlarged the scope of protection for what may be published to the world at large.219 The defence was intended to have a regulatory effect on the quality of journalism, distinguishing between responsible and irresponsible journalism, protecting and promoting the former, exposing the latter to liability for defamation. As Baroness Hale of Richmond stated in Jameel, “[w]e need more such serious journalism in this country and our defamation law should encourage rather than discourage it.”220 In its short period of existence, the Reynolds defence succeeded on a number of occasions.221 However, Australian courts have refused to recognise the Reynolds defence as part of Australian defamation law.222 Although it may bear some striking similarities in principle to the statutory defence of qualified privilege, it has been noticeably more successful than that defence.223

Statutory defence of qualified privilege Introduction [11.130] Under the national, uniform defamation laws, there is now a statutory defence of qualified privilege. Prior to their introduction, some Australian jurisdictions had their own form of statutory defence of qualified privilege.224 The form embodied in the national, uniform defamation laws most closely resembled that under the previous New South Wales legislation.225 That variant of the defence was striking in its lack of success. It was frequently 217

218

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219 220 221

222

223 224 225

Flood v Times Newspapers Ltd [2012] 2 AC 273; [2012] UKSC 11 at 279 (AC) per Lord Phillips of Worth Matravers PSC; Seaga v Harper [2009] 1 AC 1; [2008] UKPC 9 at 9 (AC). Flood v Times Newspapers Ltd [2012] 2 AC 273; [2012] UKSC 11 at 290 (AC) per Lord Phillips of Worth Matravers PSC. Flood v Times Newspapers Ltd [2012] 2 AC 273; [2012] UKSC 11 at 290 (AC) per Lord Phillps of Worth Matravers PSC. Jameel v Wall Street Journal Europe Sprl [2007] 1 AC 359; [2006] UKHL 44 at 409 (AC). See, eg, Bonnick v Morris [2003] 1 AC 300; [2002] UKPC 31 at 310 (AC); Flood v Times Newspapers Ltd [2012] 2 AC 273; [2012] UKSC 11 at 305 (AC) per Lord Phillips of Worth Matravers PSC, at 309-10 per Lord Brown of Eaton-under-Heywood JSC, at 330 per Lord Mance JSC, at 331 per Lord Clarke of Stone-Cum-Ebony JSC, at 336 per Lord Dyson JSC. The Reynolds defence has now been superseded by the statutory defence of publication on a matter of public interest under the Defamation Act 2013 (UK) (c 26) s 4. The Supreme Court of Canada has also recognised a common law defence of publication on matters of public interest: see Grant v Torstar Corporation [2009] 3 SCR 640 at 684-94 per McLachlin CJ, at 700 per Abella J. See, eg, John Fairfax & Sons Ltd v Vilo (2001) 52 NSWLR 373; [2001] NSWCA 290 at 380-1 (NSWLR) per Heydon JA; Skalkos v Assaf (2002) Aust Torts Reports 81-644; [2002] NSWCA 14 at 68,529 (Aust Torts Reports) per Mason P; Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [1165]-[1170] per Beazley, Giles and Santow JJA; John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484; [2007] NSWCA 364 at 499 (NSWLR) per McColl JA. The Reynolds defence has been held not to have any impact upon the interpretation of the statutory defence of qualified privilege: see Daily Examiner Pty Ltd v Mundine [2012] NSWCA 195 at [128] per McColl and Giles JJA and Tobias AJA. As to the difficulty of establishing a statutory defence of qualified privilege, see [11.130]. See, eg, Defamation Act 1889 (Qld) s 16(1); Defamation Act 1957 (Tas) s 16(1). Lower Murray Urban and Rural Water Corporation v Di Masi [2014] VSCA 104 at [85] per curiam.

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pleaded but rarely successful.226 Other variants, such as that under Queensland law, were relatively more successful.227 The statutory defence of qualified privilege was introduced in New South Wales to overcome the limited availability of the common law defence of qualified privilege in respect of widespread publications.228 It has been described as a protection of the public against irresponsible journalism.229 Whether the tort of defamation is an adequate vehicle for the regulation of journalistic standards is open to doubt. Given that the principal purpose of any tort is to provide a wronged individual with a remedy, any regulation of journalistic standards by defamation law can only be effected indirectly. Even accepting that defamation law may be an efficacious means of encouraging responsible journalism, if the statutory defence of qualified privilege is applied so restrictively that media outlets are exposed to liability, whether they use their best endeavours to act reasonably or not, there may be a perverse effect in discouraging responsible journalism. If the bar for reasonable journalistic conduct is in practice set at a level of journalistic excellence or perfection, not only does it not reflect the language of the statutory provision but it also acts as a disincentive for media outlets which wish to act responsibly, for no matter how much effort they exert to act reasonably, they will be found wanting. Given that the test for reasonableness is a multi-factorial and open-textured one, the approach taken in the application of the test to a given case can be highly influential over, if not determinative of, the outcome.

Elements of the statutory defence of qualified privilege

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[11.140] A defendant will be able to establish a statutory defence of qualified privilege if he or she can establish that the defamatory matter was published to a recipient where the recipient has an interest or an apparent interest in receiving information on a subject.230 The recipient will have an apparent interest in having information if, and only if, the defendant believes, at the time of publication, on reasonable grounds, that the recipient has an interest.231 The defamatory matter needs to be published to the recipient in the course of giving information on the subject.232 The defendant, then, will need to establish that his or her conduct in publishing the defamatory matter was reasonable in the 226

227 228 229 230

231

232

For some rare examples of the Defamation Act 1974 (NSW) s 22 succeeding, see Barbaro v Amalgamated Television Services Pty Ltd (1989) 20 NSWLR 493; Seary v Molomby (1999) Aust Torts Reports 81-536. See, eg, Defamation Act 1889 (Qld) s 16(1); Defamation Act 1957 (Tas) s 16(1). Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 797 per curiam. As to the limitations of the common law defence of qualified privilege, see [11.50]. Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354 at 364 (PC). Civil Law (Wrongs) Act 2002 (ACT) s 139A(1)(a); Defamation Act 2006 (NT) s 27(1)(a); Defamation Act 2005 (NSW) s 30(1)(a); Defamation Act 2005 (Qld) s 30(1)(a); Defamation Act 2005 (SA) s 28(1)(a); Defamation Act 2005 (Tas) s 30(1)(a); Defamation Act 2005 (Vic) s 30(1)(a); Defamation Act 2005 (WA) s 30(1)(a). Civil Law (Wrongs) Act 2002 (ACT) s 139A(2); Defamation Act 2006 (NT) s 27(2); Defamation Act 2005 (NSW) s 30(2); Defamation Act 2005 (Qld) s 30(2); Defamation Act 2005 (SA) s 28(2); Defamation Act 2005 (Tas) s 30(2); Defamation Act 2005 (Vic) s 30(2); Defamation Act 2005 (WA) s 30(2). Civil Law (Wrongs) Act 2002 (ACT) s 139A(1)(b); Defamation Act 2006 (NT) s 27(1)(b); Defamation Act 2005 (NSW) s 30(1)(b); Defamation Act 2005 (Qld) s 30(1)(b); Defamation Act 2005 (SA) s 28(1)(b); Defamation Act 2005 (Tas) s 30(1)(b); Defamation Act 2005 (Vic) s 30(1)(b); Defamation Act 2005 (WA) s 30(1)(b).

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-25 03:09:12.

[11.140]

Statutory defence of qualified privilege

circumstances.233 The statutory defence of qualified privilege substitutes reasonableness in the circumstances of publication for reciprocity or community of duty and interest, which is the foundation of the common law defence of qualified privilege.234 In assessing the reasonableness of the defendant’s conduct in the circumstances of publication, the court may take into account a range of factors, including: the extent to which the matter published is of public interest;235 the extent to which the matter published relates to the performance of the public functions or activities of a person;236 the seriousness of any defamatory matter conveyed by the published matter;237 the extent to which the matter distinguishes between suspicions, allegations and proven facts;238 whether it was in the public interest, in the circumstances, for the matter to be published expeditiously;239 the nature of the business environment in which the defendant operates;240 the sources of the information for the matter published and the integrity of those sources;241 whether the matter published contained the person’s side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish the person’s response;242 and any other steps taken by the defendant to verify the

233

Civil Law (Wrongs) Act 2002 (ACT) s 139A(3); Defamation Act 2006 (NT) s 27(3); Defamation Act 2005 (NSW) s 30(3); Defamation Act 2005 (Qld) s 30(3); Defamation Act 2005 (SA) s 28(3); Defamation Act 2005 (Tas) s 30(3); Defamation Act 2005 (Vic) s 30(3); Defamation Act 2005 (WA) s 30(3).

234

Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 797 per curiam. As to reciprocity or community of interest, see [11.50]. Civil Law (Wrongs) Act 2002 (ACT) s 139A(3)(a); Defamation Act 2006 (NT) s 27(3)(a); Defamation Act 2005 (NSW) s 30(3)(a); Defamation Act 2005 (Qld) s 30(3)(a); Defamation Act 2005 (SA) s 28(3)(a); Defamation Act 2005 (Tas) s 30(3)(a); Defamation Act 2005 (Vic) s 30(3)(a); Defamation Act 2005 (WA) s 30(3)(a).

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235

236

Civil Law (Wrongs) Act 2002 (ACT) s 139A(3)(b); Defamation Act 2006 (NT) s 27(3)(b); Defamation Act 2005 (NSW) s 30(3)(b); Defamation Act 2005 (Qld) s 30(3)(b); Defamation Act 2005 (SA) s 28(3)(b); Defamation Act 2005 (Tas) s 30(3)(b); Defamation Act 2005 (Vic) s 30(3)(b); Defamation Act 2005 (WA) s 30(3)(b).

237

Civil Law (Wrongs) Act 2002 (ACT) s 139A(3)(c); Defamation Act 2006 (NT) s 27(3)(c); Defamation Act 2005 (NSW) s 30(3)(c); Defamation Act 2005 (Qld) s 30(3)(c); Defamation Act 2005 (SA) s 28(3)(c); Defamation Act 2005 (Tas) s 30(3)(c); Defamation Act 2005 (Vic) s 30(3)(c); Defamation Act 2005 (WA) s 30(3)(c).

238

Civil Law (Wrongs) Act 2002 (ACT) s 139A(3)(d); Defamation Act 2006 (NT) s 27(3)(d); Defamation Act 2005 (NSW) s 30(3)(d); Defamation Act 2005 (Qld) s 30(3)(d); Defamation Act 2005 (SA) s 28(3)(d); Defamation Act 2005 (Tas) s 30(3)(d); Defamation Act 2005 (Vic) s 30(3)(d); Defamation Act 2005 (WA) s 30(3)(d).

239

Civil Law (Wrongs) Act 2002 (ACT) s 139A(3)(e); Defamation Act 2006 (NT) s 27(3)(e); Defamation Act 2005 (NSW) s 30(3)(e); Defamation Act 2005 (Qld) s 30(3)(e); Defamation Act 2005 (SA) s 28(3)(e); Defamation Act 2005 (Tas) s 30(3)(e); Defamation Act 2005 (Vic) s 30(3)(e); Defamation Act 2005 (WA) s 30(3)(e).

240

Civil Law (Wrongs) Act 2002 (ACT) s 139A(3)(f); Defamation Act 2006 (NT) s 27(3)(f); Defamation Act 2005 (NSW) s 30(3)(f); Defamation Act 2005 (Qld) s 30(3)(f); Defamation Act 2005 (SA) s 28(3)(f); Defamation Act 2005 (Tas) s 30(3)(f); Defamation Act 2005 (Vic) s 30(3)(f); Defamation Act 2005 (WA) s 30(3)(f). Civil Law (Wrongs) Act 2002 (ACT) s 139A(3)(g); Defamation Act 2006 (NT) s 27(3)(g); Defamation Act 2005 (NSW) s 30(3)(g); Defamation Act 2005 (Qld) s 30(3)(g); Defamation Act 2005 (SA) s 28(3)(g); Defamation Act 2005 (Tas) s 30(3)(g); Defamation Act 2005 (Vic) s 30(3)(g); Defamation Act 2005 (WA) s 30(3)(g). Civil Law (Wrongs) Act 2002 (ACT) s 139A(3)(h); Defamation Act 2006 (NT) s 27(3)(h);

241

242

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243

244

11: Qualified Privilege

[11.140]

information published.243 The list of factors is not exhaustive.244 Merely because the matter is published for reward is not sufficient to defeat the statutory defence of qualified privilege.245 Even if the defendant establishes a statutory defence of qualified privilege, it may still be defeated if the plaintiff proves that the defendant’s publication of defamatory matter was actuated by malice.246

The respective roles of judge and jury [11.150] The statutory defence of qualified privilege proceeds on the basis that the plaintiff has been defamed.247 In order to determine whether the statutory defence of qualified privilege should be withdrawn from the jury, the trial judge must assume that the matter published bears the most serious defamatory meaning available.248 Whether the elements of the statutory defence of qualified privilege are capable of being established is arguably a question of law to be determined by the judge.249 Whether those elements are in fact established is a question of fact to be determined by the tribunal of fact. Crucially, though, the judge determines the issue of reasonableness.250

243

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244

Defamation Act 2005 (NSW) s 30(3)(h); Defamation Act 2005 (Qld) s 30(3)(h); Defamation Act 2005 (SA) s 28(3)(h); Defamation Act 2005 (Tas) s 30(3)(h); Defamation Act 2005 (Vic) s 30(3)(h); Defamation Act 2005 (WA) s 30(3)(h). Civil Law (Wrongs) Act 2002 (ACT) s 139A(3)(i); Defamation Act 2006 (NT) s 27(3)(i); Defamation Act 2005 (NSW) s 30(3)(i); Defamation Act 2005 (Qld) s 30(3)(i); Defamation Act 2005 (SA) s 28(3)(i); Defamation Act 2005 (Tas) s 30(3)(i); Defamation Act 2005 (Vic) s 30(3)(i); Defamation Act 2005 (WA) s 30(3)(i). The court may take into account any other circumstances it considers relevant: Civil Law (Wrongs) Act 2002 (ACT) s 139A(3)(j); Defamation Act 2006 (NT) s 27(3)(j); Defamation Act 2005 (NSW) s 30(3)(j); Defamation Act 2005 (Qld) s 30(3)(j); Defamation Act 2005 (SA) s 28(3)(j); Defamation Act 2005 (Tas) s 30(3)(j); Defamation Act 2005 (Vic) s 30(3)(j); Defamation Act 2005 (WA) s 30(3)(j).

245

Civil Law (Wrongs) Act 2002 (ACT) s 139A(5); Defamation Act 2006 (NT) s 27(5); Defamation Act 2005 (NSW) s 30(5); Defamation Act 2005 (Qld) s 30(5); Defamation Act 2005 (SA) s 28(5); Defamation Act 2005 (Tas) s 30(5); Defamation Act 2005 (Vic) s 30(5); Defamation Act 2005 (WA) s 30(5).

246

Civil Law (Wrongs) Act 2002 (ACT) s 139A(4); Defamation Act 2006 (NT) s 27(4); Defamation Act 2005 (NSW) s 30(4); Defamation Act 2005 (Qld) s 30(4); Defamation Act 2005 (SA) s 28(4); Defamation Act 2005 (Tas) s 30(4); Defamation Act 2005 (Vic) s 30(4); Defamation Act 2005 (WA) s 30(4). As to the requirements for malice, see [11.80]-[11.100]. Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697 at 700 per Moffitt P, at 711 per Reynolds JA. Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697 at 700 per Moffitt P. Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697 at 703-4 per Moffitt P (accepting this position but not expressing a concluded view). However, see also Barbaro v Amalgamated Television Services Pty Ltd (1989) 20 NSWLR 493 at 498-9 per Samuels JA (reasonableness of publisher’s conduct in circumstances of publication is question of fact). Davis v Nationwide News Pty Ltd (2008) 71 NSWLR 606; [2008] NSWSC 699 at 608 (NSWLR) per McClellan CJ at CL; see also Daily Examiner Pty Ltd v Mundine [2012] NSWCA 195 at [28] per curiam.

247 248 249

250

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[11.170]

Statutory defence of qualified privilege

Interest or apparent interest [11.160] The intention of the statutory defence of qualified privilege is to broaden the nature of the interest on the part of a recipient from the position which pertains under the common law defence of qualified privilege.251 The recipient must have a legitimate interest in receiving information on the subject of the publication. He or she need not have a pecuniary or proprietary interest in the subject.252 The concept of interest is not to be narrowly or technically construed. It is used in the broader, popular sense of a matter of substance in which the public might legitimately have an interest in knowing, not merely as a matter of curiosity.253 Any matter of genuine interest to the readership of a publication will qualify for the purposes of the statutory defence of qualified privilege.254 The interest or apparent interest may be direct or indirect but it must be definite or tangible, rather than vague or insubstantial.255 Thus, the performance and training of a rugby league football club256 or the giving of information about bushfires257 has been held to be an interest protected by the statutory defence of qualified privilege. Matters of titillation,258 mere curiosity259 or of a salacious nature260 will not qualify as matters of interest for the purposes of the statutory defence of qualified privilege.

The course of giving information [11.170] In order for the statutory defence of qualified privilege to be

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established, the publication of the defamatory matter needs to occur in the course of giving information on a matter of interest or apparent interest.261 This means that there needs to be a nexus between the giving of information on a subject of interest and apparent interest, and the publication of the defamatory matter. The publication of irrelevant defamatory matter may not be protected by the statutory defence of qualified privilege because such a nexus is lacking.262 It is not sufficient that the defamatory matter is conveyed at the same time as the giving of information about the subject of interest or apparent interest. The defamatory matter needs to be conveyed in the course of giving 251 252 253 254 255 256 257 258 259 260 261

262

Green v Schneller (2000) Aust Torts Reports 81-568; [2000] NSWSC 548 at 63,904 (Aust Torts Reports) per Simpson J. Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 at 40 per Hunt J. Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 at 40 per Hunt J, citing Andreyevich v Kosovich (1947) SR(NSW) 357 at 363-4. Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354 at 359 (PC). Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 at 40 per Hunt J. Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354 at 359 (PC). John Fairfax Publications Pty Ltd v Zunter [2006] NSWCA 227 at [11] per Handley JA. Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697 at 711 per Reynolds JA. Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 at 40 per Hunt J. Green v Schneller (2000) Aust Torts Reports 81-568; [2000] NSWSC 548 at 63,904 (Aust Torts Reports) per Simpson J. Civil Law (Wrongs) Act 2002 (ACT) s 139A(1)(b); Defamation Act 2006 (NT) s 27(1)(b); Defamation Act 2005 (NSW) s 30(1)(b); Defamation Act 2005 (Qld) s 30(1)(b); Defamation Act 2005 (SA) s 28(1)(b); Defamation Act 2005 (Tas) s 30(1)(b); Defamation Act 2005 (Vic) s 30(1)(b); Defamation Act 2005 (WA) s 30(1)(b). See, eg, Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697 at 711-12 per Reynolds JA.

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245

246

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[11.170]

such information.263 The concept of information for the purposes of the statutory defence of qualified privilege is not narrowly defined. It is not artificially restricted only to facts but extends to comment as well.264

Reasonableness of publisher’s conduct in circumstances of publication

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[11.180] The statutory defence of qualified privilege often founders upon the issue of whether the defendant acted reasonably in the circumstances of publication. The defendant bears the onus of proof in relation to the reasonableness of his or her conduct in the circumstances of publication.265 The judge, not the jury, determines the issue of reasonableness.266 It is the reasonableness of the publisher’s conduct in the circumstances of publication, not the reasonableness of publishing on a matter of interest or apparent interest, which is the focus of the statutory defence of qualified privilege.267 It is not sufficient that it was reasonable for the defendant to publish on the general topic because it related to a matter of interest or apparent interest. The defendant will need to establish that he or she acted reasonably in publishing the defamatory matter itself, not matter relating more broadly to the general topic.268 As the test is the reasonableness of the publisher’s conduct in the circumstances of publication, it will be a rare case in which the defendant can rely upon the defamatory matter itself to establish the reasonableness of his or her conduct.269 There is no inflexible rule that the defendant must call evidence as to the reasonableness of his or her conduct in the circumstances of publication.270 However, the failure to adduce evidence of matters anterior to publication will tend to lead to the failure of the statutory defence of qualified privilege overall and expose the defendant to liability for defamation.271 Whether a defendant acted reasonably in the circumstances of publication varies according to the facts of the particular case.272 It is not possible to state exhaustively the matters which may be relevant to an assessment of the reasonableness of the defendant’s conduct.273 The case law, however, provides a number of illustrations as to the sorts of considerations that have been held to be relevant to the determination of this issue. If a defendant seeks to rely upon 263 264 265

266 267 268 269 270 271 272

273

Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327; [2003] HCA 52 at 347 (CLR) per Hayne J. Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354 at 359 (PC). Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697 at 700 per Moffitt P; Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 747 at 797 per curiam; Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 at 44 per Hunt J. Davis v Nationwide News Pty Ltd (2008) 71 NSWLR 606; [2008] NSWSC 699 at 608 (NSWLR) per McClellan CJ at CL. Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697 at 704-5 per Moffitt P. Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697 at 705 per Moffitt P. See, eg, Barbaro v Amalgamated Television Services Pty Ltd (1989) 20 NSWLR 493 at 501 per Samuels JA: “In a case such as the present however the publication is its own source.” Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 at 44 per Hunt J. See, eg, Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697 at 700-1 per Moffitt P, at 712 per Reynolds JA. Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354 at 360 (PC); Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327; [2003] HCA 52 at 339 (CLR) per Gleeson CJ and Gummow J. Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354 at 360 (PC).

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[11.180]

Statutory defence of qualified privilege

the statutory defence of qualified privilege, he or she will need ordinarily to explain how the error occurred and why it could not have been reasonably avoided, given the damage to reputation the error was likely to cause.274 The more serious the allegation made about the plaintiff, the greater the care prior to publication that will be expected of the defendant.275 The defendant’s drawing of an illogical or irrational inference, or one which is based on no evidence, is highly likely to be unreasonable.276 Similarly, it will be difficult for a defendant to establish that the publication of speculations, beliefs or rumours was reasonable.277 Evidence of checking with a source may afford evidence of reasonableness but is not conclusive of the inquiry.278 Proof of reasonableness is not dependent upon the defendant’s honest belief in what he or she published. It may be that the defendant’s honest belief in the truth of what he or she published is critical to the issue of whether he or she acted reasonably in the circumstances of publication. Moreover, it may be that the defendant’s lack of honest belief in the truth of what he or she published will readily lead to a conclusion that he or she did not act reasonably in the circumstances of publication. The subjective intention of the publisher is at least relevant to the inquiry as to the reasonableness of his or her conduct in the circumstances of publication.279 Nevertheless, reasonableness and honest belief are not to be equated. It is possible for a defendant to establish the reasonableness of his or her conduct in the circumstances of publication without needing, as part of that inquiry, to establish his or her honest belief in what he or she published.280 The defendant’s honest belief in the truth of what he or she published will be more important in the inquiry as to reasonableness where the defendant intended to convey the imputations found in fact to have been conveyed by the matter.281 Where a defendant has been found to have published defamatory imputations he or she did not intend to convey, the inquiry as to reasonableness needs to consider whether it was reasonably foreseeable that the unintended imputations were conveyed by the matter.282 Ultimately, however, as Gleeson CJ and Gummow J pointed out in Rogers v Nationwide News Pty Ltd,283 “reasonableness is not a concept that can be subjected to inflexible categorisation”. As to the impact of the nature of the business environment in which the defendant operates on the assessment of the reasonableness of the defendant’s conduct, Gleeson CJ and Gummow J in Rogers v Nationwide News Pty Ltd acknowledged that judges were aware that media outlets operated in a 274 275

276 277 278 279 280

281 282 283

Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327; [2003] HCA 52 at 340 (CLR) per Gleeson CJ and Gummow J. Morgan v John Fairfax & Sons Ltd [No 2] (1991) 23 NSWLR 374 at 387 per Hunt AJA; Obeid v John Fairfax Publications Pty Ltd (2006) 68 NSWLR 150; [2006] NSWSC 1059 at 169 (NSWLR) per Hoeben J. Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697 at 706 per Moffitt P. Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 747 at 797 per curiam. Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 747 at 800 per curiam. Lower Murray Urban and Rural Water Corporation v Di Masi [2014] VSCA 104 at [87] per curiam. Barbaro v Amalgamated Television Services Pty Ltd (1989) 20 NSWLR 493 at 500-1 per Samuels JA. Cf Morgan v John Fairfax & Sons Ltd [No 2] (1991) 23 NSWLR 374 at 385-6 per Hunt AJA. Morgan v John Fairfax & Sons Ltd [No 2] (1991) 23 NSWLR 374 at 385-6 per Hunt AJA. Obeid v John Fairfax Publications Pty Ltd (2006) 68 NSWLR 150; [2006] NSWSC 1059 at 169 (NSWLR) per Hoeben J. (2003) 216 CLR 327; [2003] HCA 52 at 339 (CLR).

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247

248

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[11.180]

competitive environment.284 However, their Honours stated that judges needed to be provided with evidence of that environment and how it contributed to the defamatory matter being published.285 Publishers could not merely make assertions about the business environment in which it operated or expect that judges would take judicial notice of the impact of that environment on their conduct. If they wished to rely on this factor in the calculus of reasonableness, Gleeson CJ and Gummow J stated that they would “need to condescend to greater particularity when seeking to persuade a court that their conduct had been reasonable”.286 Their Honours observed that the inquiry as to reasonableness needed to take into account the legitimate interests protected by defamation law, being the protection of reputation and freedom of speech. Their Honours stated that “the legitimate commercial interests of publishers are entitled to due consideration”, implicitly distinguishing those interests from any interest on the part of the publishers in freedom of speech,287 and suggested that the reasonableness of the publishers’ conduct could not be determined “solely, or even mainly by those commercial interests”.288 The honest belief of the defendant in the truth of what he or she published has been held to be relevant to the reasonableness of the defendant’s conduct.289 The fact that the defendant did not honestly believe in the truth of what he or she published, however, does not mean that he or she necessarily acted unreasonably, thereby defeating the statutory defence of qualified privilege. As the Privy Council observed in Austin v Mirror Newspapers Ltd:290

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Words are often capable of more than one meaning, and because the jury may attach to them a defamatory meaning which the writer did not intend, it does not follow that the writer did not honestly believe in the truth of what he wrote and reasonably intended a different meaning to be given to his language.291

Where the defendant is a corporation, it acts through its employees. Therefore, in determining whether the defendant acted reasonably in the circumstances of publication, close attention needs to be given to the conduct of its employed journalists. Where those journalists did not act reasonably, the defendant cannot be taken to have acted reasonably. The position may be different where what was published was submitted by an independent contributor.292 Where a defence of fair comment or honest opinion has failed due to the failure to prove that the factual substratum or the proper material for the comment or opinion was substantially accurate, the defendant will face a 284 285 286 287 288 289 290 291 292

(2003) 216 CLR 327; [2003] HCA 52 at 339 (CLR). Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327; [2003] HCA 52 at 340 (CLR) per Gleeson CJ and Gummow J. Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327; [2003] HCA 52 at 340 (CLR) per Gleeson CJ and Gummow J. As to the overlap and distinction between freedom of speech and freedom of expression, see [2.150]. Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327; [2003] HCA 52 at 340 (CLR) per Gleeson CJ and Gummow JJ. Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354 at 362 (PC). (1985) 3 NSWLR 354. Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354 at 362 (PC); see also Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57 at 33 (CLR) per Gaudron, McHugh and Gummow JJ. Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354 at 363 (PC).

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[11.180]

Statutory defence of qualified privilege

difficult task of establishing that he or she acted reasonably in the circumstances of publication if he or she relies upon a statutory defence of qualified privilege as an alternative defence.293 The test of reasonableness has been interpreted and applied strictly, particularly in New South Wales. For instance, in John Fairfax Publication Pty Ltd v Zunter,294 Handley JA suggested that the proper approach to reasonableness for the purposes of the statutory defence of qualified privilege is thus: The question of reasonableness must be tested as between the publisher and the person defamed, not as between the relevant employees and the publisher. The publisher must prove that it acted reasonably in relation to the person defamed despite publishing false and defamatory matter about him. A publisher who publishes serious allegations as fact without having checked with the person concerned is taking the risk that they cannot be justified. In that event, outside the limits of reasonableness, it is the publisher who bears the risk, not the person defamed.295

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Whether such a restrictive approach is necessary or desirable, or indeed mandated, by the terms of the statutory provision is open to question. There are indications that the statutory defence of qualified privilege under the national, uniform defamation laws is being applied in a way which is slightly more favourable to defendants.296

293 294 295 296

Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354 at 360-1 (PC). [2006] NSWCA 227. John Fairfax Publications Pty Ltd v Zunter [2006] NSWCA 227 at [30] per Handley JA. See, eg, O’Hara v Sims [2009] QCA 186 at [55]-[64] per Keane JA, at [114]-[151] per Muir JA; Field v Nationwide News Pty Ltd [2009] NSWSC 1285 at [341], [399]-[341] per Johnson J; Chetwynd v Armidale Dumaresq Council [2010] NSWSC 690 at [284] per James J; Griffith v Australian Broadcasting Corporation [2010] NSWCA 257 at [124]-[125] per Hodgson JA; Haddon v Forsyth [2011] NSWSC 123 at [334]-[337], [363]-[364] per Simpson J; see also K Gould, “Statutory Qualified Privilege Succeeds, But Too Early for the Media to Go ‘Dancing in the Streets’” (2011) 16 Media and Arts Law Review 241 at 242.

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249

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12

Protected Reports [12.10] Introduction..............................................................................................251 [12.20] Common law defences of fair and accurate reports.............................. 252 [12.20] Fair and accurate report of judicial proceedings.......................... 252 [12.50] Fair and accurate report of quasi-judicial and other proceedings......... 258 [12.60] Fair and accurate report of foreign judicial proceedings.......................259 [12.70] Fair and accurate report of parliamentary proceedings......................... 260 [12.80] Statutory defence of fair report of proceedings of public concern....... 262 [12.100] Statutory defence of publication of public documents........................ 267

Introduction

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[12.10] The defence of absolute privilege protects statements made in the course of judicial and parliamentary proceedings. Members of the public are free to attend court and Parliament but the reality is that very few people do.1 There is a clear public interest in members of the public being informed about what occurs in important public institutions, such as courts and Parliaments. Such reports are also for the benefit of the institutions themselves, ensuring that they remain open, transparent and accountable. Consequently, fair and accurate reports of judicial and parliamentary proceedings are protected. The publishers of such matters have a complete defence to a claim for defamation, notwithstanding the fact that the reports convey defamatory matter. The defence is not an absolute one, such as that enjoyed by the participants in judicial and parliamentary proceedings,2 but a qualified one.3 Indeed, the defences of fair and accurate report of judicial and parliamentary proceedings developed in the 19th century from the common law defence of qualified privilege.4 Reflecting their common historical origins, these defences share an underlying balance of competing interests, namely that there are circumstances where the public interest in publishing the matter should prevail over the right of an individual to protect his or her reputation. Despite these commonalities, the defences of fair and accurate reports of judicial and parliamentary proceedings have diverged from common law qualified privilege, developing their own specific requirements and being recognised as freestanding defences.5 Now, under Australian law, there are both common law defences of 1

2 3

4 5

Andrews v Chapman (1853) 3 Car & K 286; 175 ER 588 at 560 (ER) per Lord Campbell CJ; Burnett & Hallamshire Fuel Ltd v Sheffield Telegraph & Star Ltd [1960] 1 WLR 502 at 504 per Pearson J. As to the defence of absolute privilege, see Ch 10. See, eg, John Fairfax & Sons Ltd v Hook (1983) 47 ALR 477 at 488 per Gallop and Morling JJ: “Reports of the proceedings of legislative bodies and public and private tribunals are privileged if they are fair and accurate, but not otherwise. In such cases fairness and accuracy are pre-requisites to privilege.” Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 585 per Kirby J. Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 216 per Dawson, McHugh and Gummow JJ; Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; [2004] HCA 5 at 379-80 (CLR) per Gleeson CJ, Hayne and Heydon JJ.

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252

12: Protected Reports

[12.10]

fair and accurate reports and statutory defences of fair reports of proceedings of public concern. The latter defences are broader in application than the former but incorporate many of the same elements. In addition to these defences, there is also a statutory defence for the publication of public documents.

Common law defences of fair and accurate reports Fair and accurate report of judicial proceedings [12.20] At common law, a fair and accurate report of judicial proceedings,

published without malice, is protected.6 The basis for this defence is public policy.7 The defence is based in particular on the common law’s longstanding commitment to the principle of open justice.8 The defence of fair and accurate report of judicial proceedings is a corollary of the principle of open justice. A significant purpose of the principle of open justice is to enhance public confidence in the judicial system.9 Court proceedings are open to the public and consequently reports of them should be freely allowed.10 What occurs in courts, as public institutions, should be a matter of interest to the public at large.11 Fair and accurate reports of judicial proceedings serve to inform and educate the public as to what occurs in courts.12 They prevent the spread of misinformation and rumour.13 Therefore, it is in the public interest that reports of judicial proceedings should be fairly reported,14 so that members of the public can have

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6

Curry v Walter (1796) 1 Bos & Pul 525; 126 ER 1046; Andrews v Chapman (1853) 3 Car & K 286; 175 ER 588 at 559 (ER) per Lord Campbell CJ; Davison v Duncan (1857) 7 El & Bl 229; 119 ER 1233 per Lord Campbell CJ; Lewis v Levy (1858) EB & E 537; 120 ER 610 at 615 (ER) per Lord Campbell CJ; Woodgate v Ridout (1865) 4 F & F 201; 176 ER 531 at 537 (ER) per Cockburn CJ; Usain v Hales (1878) 3 CPD 319 at 324 per Lord Coleridge CJ, at 329 per Lopes J; Macdougall v Knight (1890) 25 QBD 1 at 7 per Lord Esher MR, at 11 per Fry LJ; Kimber v Press Association Ltd [1893] 1 QB 65 at 68 per Lord Esher MR, at 73 per Lopes LJ; Allen v John Fairfax & Sons Ltd [1971] 1 NSWLR 773 at 779 per curiam. See also Risk Allah Bey v Whitehurst (1868) 18 LT 615 at 618 per Cockburn CJ: Whatever may have been thought in past times, now-a-days we are agreed on this, that fair and impartial reports of the proceedings in courts of justice, although incidentally those proceedings may prejudice individuals, are of so great public interest and public advantage, that the publishing of them to the world predominates so much over the inconvenience to individuals as to render these reports highly conducive to the public good; but the conditions on which the privilege can be maintained are, that the report shall be fair, truthful, honest, and impartial.

7

8

9 10 11 12

13 14

Macdougall v Knight (1886) 17 QBD 636 at 639 per Lord Esher MR; Kimber v Press Association Ltd [1893] 1 QB 65 at 69 per Lord Esher MR, at 73 per Lopes LJ. As to the requirement of malice, see [11.80]. Macdougall v Knight (1889) 14 App Cas 194 at 206-7 per Lord FitzGerald; Kimber v Press Association Ltd [1893] 1 QB 65 at 69 per Lord Esher MR; Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327; [2003] HCA 52 at 335-6 (CLR) per Gleeson CJ and Gummow J. Burnett & Hallamshire Fuel Ltd v Sheffield Telegraph & Star Ltd [1960] 1 WLR 502 at 504 per Pearson J; Smith v Harris [1996] 2 VR 335 at 341 per Byrne J. Burnett & Hallamshire Fuel Ltd v Sheffield Telegraph & Star Ltd [1960] 1 WLR 502 at 504 per Pearson J; Webb v Times Publishing Co Ltd [1960] 2 QB 535 at 559 per Pearson J. Woodgate v Ridout (1865) 4 F & F 201; 176 ER 531 at 538 (ER) per Cockburn CJ; Webb v Times Publishing Co Ltd [1960] 2 QB 535 at 560 per Pearson J. R v Wright (1799) 8 TR 293; 101 ER 1396 at 1399 (ER) per Lawrence J; Andrews v Chapman (1853) 3 Car & K 286; 175 ER 588 at 560 (ER) per Lord Campbell CJ; Macdougall v Knight (1889) 14 App Cas 194 at 200 per Lord Halsbury LC; Webb v Times Publishing Co Ltd [1960] 2 QB 535 at 561 per Pearson J. Webb v Times Publishing Co Ltd [1960] 2 QB 535 at 562 per Pearson J. Perera v Peiris [1949] AC 1 at 20 (PC); Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 557 per Gaudron and Gummow JJ, at 587 per Kirby J.

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-25 03:09:12.

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[12.20]

Common law defences of fair and accurate reports

access to a substantially accurate record of what was said and done in court.15 As Gleeson CJ and Gummow J observed in Rogers v Nationwide News Pty Ltd,16 “[i]t is the public interest in the openness of the administration of justice that sustains the privilege or protection.” The common law is not unaware that individual reputations can be harmed by protecting fair and accurate reports of judicial proceedings. Although the publication of a fair and accurate report of judicial proceedings may expose a plaintiff to reputational harm by allowing the ventilation of unfounded allegations or untested evidence, the common law prefers the open administration of justice, to avoid the risks associated with justice dispensed in secret.17 The right to publish a fair and accurate report of judicial proceedings is not limited to media outlets. Media outlets do not enjoy any special legal privilege in this regard. Any person who wishes to publish a fair and accurate report of judicial proceedings is entitled to do so, as long as he or she fulfils the requirements of the defence.18 In order to be protected, the judicial proceedings must have been conducted in open court.19 Given that the basis and justification of this defence is the principle of open justice, the report must relate to a proceeding conducted in open court in order to be protected. It is difficult to envisage a situation in which there could be a fair and accurate report of a proceeding conducted in closed court or of a part of a proceeding subject to a suppression or non-publication order. Such a report, by definition, could not be fair. The defence is not limited to reports of trials.20 It extends to ex parte applications.21 The common law defence is not limited to proceedings before superior courts of record. In Ryalls v Leader,22 Pollock CB stated that the defence should be applied in such a way “as to make as wide as possible the right of the public to know what takes place in any court of justice, and to protect a fair bona fide statement of proceedings there”. Thus, in that case, a report of an examination of a debtor before a Registrar in Bankruptcy was held to be protected. The defence of fair and accurate report of judicial proceedings is not limited to evidence given on oath but may extend to statements made in open court during the course of the judicial proceedings.23 In some cases, an issue will arise 15 16 17

18 19 20 21 22 23

Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327; [2003] HCA 52 at 335 (CLR) per Gleeson CJ and Gummow J. (2003) 216 CLR 327; [2003] HCA 52 at 335 (CLR); see also Macdougall v Knight (1889) 14 App Cas 194 at 206 per Lord FitzGerald. Kimber v Press Association Ltd [1893] 1 QB 65 at 69 per Lord Esher MR, at 75-6 per Kay LJ; see also Lewis v Levy (1858) EB & E 537; 120 ER 610 at 618 (ER) per Lord Campbell CJ; Ryalls v Leader (1866) LR 1 Ex 296 at 300 per Bramwell B; Wason v Walter (1868) LR 4 QB 73 at 88 per Cockburn CJ; Hutchison v Robinson (1900) 21 NSWR 130 at 140 per GB Simpson J. Perera v Peiris [1949] AC 1 at 21 (PC); see also Macdougall v Knight (1889) 14 App Cas 194 at 203 per Lord Bramwell. Kimber v Press Association Ltd [1893] 1 QB 65 at 68 per Lord Esher MR, at 73 per Lopes LJ, at 75 per Kay LJ. Macdougall v Knight (1886) 17 QBD 636 at 639 per Lord Esher MR. Kimber v Press Association Ltd [1893] 1 QB 65 at 73 per Lopes LJ. (1866) LR 1 Ex 296 at 299. Hutchison v Robinson (1900) 21 NSWR(L) 130 at 142-3 per GB Simpson J, at 144 per Cohen J; Hope v Sir WC Leng & Co (Sheffield Telegraph) Ltd (1907) 23 TLR 243 at 244-5 per Collins MR.

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as to whether what is reported forms part of the proceedings, such that it can be properly protected by the defence. For instance, in Farmer v Hyde,24 the English Court of Appeal held that an application to be heard made by a rector, who was in court and who was the subject of adverse evidence but was not a party to the proceedings, formed part of the proceedings and therefore could be covered by the defence. In Hughes v West Australian Newspapers,25 Dwyer J held that a report of a defamatory statement made by a debtor as he was leaving his public examination before the Registrar in Bankruptcy following adjournment, was not protected by the defence. In Leslie v Mirror Newspapers Ltd,26 the High Court of Australia held that an exchange between a magistrate and a party after the delivery of reasons formed part of the judicial proceedings and therefore could be covered by the defence. The defence of fair and accurate report of judicial proceedings attaches to the occasion of the proceedings, not to the place in which they occur. Merely because a defamatory statement is made in a courtroom whilst judicial proceedings are in session does not mean that they can be the subject of this defence.27 The defence of fair and accurate report of judicial proceedings does not extend to defamatory statements which have no connection with the judicial proceedings or to defamatory statements made by mere bystanders or strangers to the proceedings.28 Whether a statement forms part of judicial proceedings and can therefore be the subject of such a defence is, in many instances, a question of fact and degree. [12.30] At common law, the application of the defence of fair and accurate report of judicial proceedings extended to those proceedings conducted in open court. Consequently, a report of a document prepared for, filed or served as part of a judicial proceeding but not yet relied upon in open court, was not covered by the defence.29 An affidavit filed in court but never read or tendered could also not be the subject of a fair and accurate report of judicial proceedings.30 However, in Searles v Scarlett,31 the English Court of Appeal held that a publication of an extract from the publicly available Register of County Court Judgments was protected at common law. The register in question was established under statute. It was also a statutory requirement that it was open for public inspection.32 It may be that the statutory foundation of this requirement distinguished this case from others in which reports of court documents were not protected.33 If a legal entitlement to inspect court documents is properly the basis for whether a report of a court document not 24 25 26 27 28

29 30 31 32

33

[1937] 1 KB 728 at 743-4 per Slesser LJ. (1940) 43 WALR 12 at 14. (1971) 125 CLR 333 at 338 per Barwick CJ, at 339 per McTiernan J, at 339 per Owen J. Hughes v West Australian Newspapers (1940) 43 WALR 12 at 13 per Dwyer J. Delegal v Highley (1837) 3 Bing NC 950; 132 ER 677 at 681 (ER) per Tindal CJ; Hutchison v Robinson (1900) NSWR(L) 130 at 144 per Cohen J; Hughes v West Australian Newspapers (1940) 43 WALR 12 at 13-14 per Dwyer J. Smith v Harris [1996] 2 VR 335 at 348 per Byrne J. Gobbart v West Australian Newspapers [1968] WAR 113 at 119-20 per Jackson J; Smith v Harris [1996] 2 VR 335 at 341 per Byrne J. [1892] 2 QB 56. Searles v Scarlett [1892] 2 QB 56; see also Cox v Feeney (1863) 4 F & F 13; 176 ER 445 at 448-50 (ER) (report of an Inspector of Charities under Charitable Trusts Act); Abbott v Coombs (1887) 13 VLR 917 at 920 per Holroyd J; John Jones & Sons Ltd v Financial Times Ltd (1909) 25 TLR 677 at 678 per Fletcher Moulton LJ. However, see also Reis v Perry (1895) 64 LJQB 566 at 567 per Day J, at 568 per Wright J. Gobbart v West Australian Newspapers [1968] WAR 113 at 120 per Jackson J.

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[12.30]

Common law defences of fair and accurate reports

relied upon in open court is defensible, then the increasing conferral of rights on non-parties to inspect court files, sometimes by legislatures and often by courts themselves, should mean that, at common law, more of such reports are protected. Whatever uncertainty there may have been about the position at common law, the protection afforded to the publication of public documents has now been placed on a clearer statutory basis under the national, uniform defamation laws.34 There is no requirement that a report has to be a complete account of the proceedings in question in order to be protected.35 There is no requirement that a fair and accurate report can only be published after the proceedings have been concluded.36 Publishers are not required to delay publishing any matter until that time. As Lord Esher MR pointed out in Kimber v Press Association Ltd,37 the foundational case on this common law defence: If it were not, the ridiculous result would follow that, where the trial of a case of the greatest public interest lasted fifty days, no report could be published until the case was ended.

Thus, contemporaneous reporting of ongoing trials can be protected by this defence. So long as the report fairly and accurately reflects what occurred in open court during the period being covered, it can be protected.38 Were the position otherwise, it would not only be impractical for publishers, but also contrary to the public policy underpinning the defence. Thus, if a statement is made by a witness in a proceeding and it is fairly and accurately reported and attributed to the witness who made it, then the report can be protected, even if the statement is later proven to be false.39 However, there is no obligation that a report is contemporaneous in order for it to be protected.40 There is also no obligation on a publisher to give equal prominence to every report which it publishes about the proceedings.41

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The report needs to be identifiable as such. A report is “a factual recounting of an event or situation”.42 Therefore, a report is essentially descriptive. It does not include comment or opinion or, to the extent that the defence applies to the matter, extend to so much of it as constitutes comment or opinion.43 The report 34 35 36 37 38 39 40

41

42 43

As to the position under the national, uniform defamation laws, see [12.100]. Risk Allah Bey v Whitehurst (1868) 18 LT 615 at 618 per Cockburn CJ; Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 540 per Gaudron and Gummow JJ. Kimber v Press Association Ltd [1893] 1 QB 65 at 70-1 per Lord Esher MR, at 73-4 per Lopes LJ. [1893] 1 QB 65 at 71; see also Kimber v Press Association Ltd [1893] 1 QB 65 at 64 per Lopes LJ. Macdougall v Knight (1886) 17 QBD 636 at 639-40 per Lord Esher MR. Grech v Odhams Press Ltd [1958] 2 QB 275 at 285 per Jenkins LJ; Burnett & Hallamshire Fuel Ltd v Sheffield Telegraph & Star Ltd [1960] 1 WLR 502 at 504-5 per Pearson J. Allen v John Fairfax & Sons Ltd [1971] 1 NSWLR 773 at 779 per curiam. The New South Wales Court of Appeal pointed out that a report’s lack of timeliness may be a factor relevant to the issue of whether there is malice on the part of the defendant. Expressed another way, this factor may detract from the fairness of the report. Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 72 per Hunt J. His Honour suggested that the only requirement was that the publisher give reasonable prominence to those reports which were favourable to the plaintiff. Burchett v Kane [1980] 2 NSWLR 266n at 273 per Samuels JA. Stiles v Noke (1806) 7 East 493; 103 ER 191 at 195 (ER) per Lord Ellenborough CJ; Andrews v Chapman (1853) 3 Car & K 286; 175 ER 588 at 559 (ER) per Lord Campbell CJ; Risk Allah Bey v Whitehurst (1868) 18 LT 615 at 618 per Cockburn CJ; Burchett v Kane

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-25 03:09:12.

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does not need to be verbatim.44 By necessity, it will ordinarily be a summary of what occurred during the judicial proceedings which form its subject.45 There is no requirement that the report is extensive.46 Mere repetition of information obtained from judicial proceedings will not be sufficient to treat a matter as a report of those proceedings. It is not sufficient that the judicial proceedings serve as the source of information or the subject of an expression of opinion in the putative report. The context of the matter, the indicia that the matter under consideration purports to be a report, and the attribution of statements to the persons who made them in the judicial proceedings are all important factors.47 There is no requirement that there should be a direct quotation of the speaker but, as part of the report, he or she must be identified.48 The defendant bears the onus of proof as to the fairness and accuracy of the report.49 At common law, the judge had to determine whether there was evidence upon which a jury could find that the matter was in fact a report. If there were such evidence, it was for the jury to determine whether the matter was in fact a report and whether it was in fact fair and accurate.50 If there is any evidence of unfairness, the matter should be left to the jury.51 Except in the clearest cases where a report is fair, the prudent course is for the judge to leave the matter to the jury to determine the fairness of the report.52 The issue of fact for the jury is whether the matter, read as a whole, would be construed by the ordinary, reasonable reader as a report of so much of what occurred in judicial proceedings as the report purported to report.53

[12.40] The focus of the defence of fair and accurate report of court

proceedings is on the quality of the report.54 In order to be protected, the report must be fair. There is no public interest in having unfair reports of judicial

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44

45 46 47

48 49

50 51 52 53 54

[1980] 2 NSWLR 266n at 273 per Samuels JA; Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 587 per Kirby J. In Risk Allah Bey v Whitehurst (1868) 18 LT 615 at 618, Cockburn CJ stated that the report should also not contain facts not referable to the proceedings. Thom v Associated Newspapers Ltd [1964-5] NSWR 396 at 398 per Herron CJ and Ferguson J; Anderson v Nationwide News Pty Ltd [1970] 1 NSWR 317 at 320-1 per Asprey JA; Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 587 per Kirby J. Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 587 per Kirby J. Risk Allah Bey v Whitehurst (1868) 18 LT 615 at 618 per Cockburn CJ; Hutchison v Robinson (1900) 21 NSWR(L) 130 at 142 per GB Simpson J. As to the importance of attribution of statements in judicial proceedings to the persons who made them, see Grech v Odhams Press Ltd [1958] 2 QB 275 at 285 per Jenkins LJ; Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327; [2003] HCA 52 at 336 (CLR) per Gleeson CJ and Gummow J. Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327; [2003] HCA 52 at 336 (CLR) per Gleeson CJ and Gummow J. Kimber v Press Association Ltd [1893] 1 QB 65 at 71 per Lord Esher MR, at 76 per Kay LJ; Anderson v Nationwide News Pty Ltd [1970] 1 NSWR 317 at 321 per Asprey JA; Leslie v Mirror Newspapers Ltd (1971) 125 CLR 332 at 341 per Gibbs J. Hutchison v Robinson (1900) 21 NSWR(L) 130 at 142 per GB Simpson J. Kimber v Press Association Ltd [1893] 1 QB 65 at 74 per Lopes LJ; Leslie v Mirror Newspapers Ltd (1971) 125 CLR 332 at 337 per Barwick CJ. Leslie v Mirror Newspapers Ltd (1971) 125 CLR 332 at 341 per Gibbs J. Leslie v Mirror Newspapers Ltd (1971) 125 CLR 332 at 337 per Barwick CJ. Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; [2004] HCA 5 at 380 (CLR) per Gleeson CJ, Hayne and Heydon JJ.

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-25 03:09:12.

[12.40]

Common law defences of fair and accurate reports

proceedings published.55 The fairness of a report is to be determined objectively, by assessing what was reported against what in fact occurred, not subjectively by reference to the intention of the author or publisher.56 The test may be expressed by asking whether the report substantially alters the impression a person would have gained, had he or she attended the proceedings.57 Fairness is not assessed by reference to whether a particular person would think the report fair or whether a lawyer would think it fair.58 A report may be unfair if it omits material facts.59 Whether an omission is material should be assessed by reference to whether the reasonable person would consider it material.60 However, merely to select a certain part of the trial to be the subject of the report will not necessarily be unfair.61 The inclusion of commentary or misleading headlines can detract from the fairness of a report and may deprive the matter of its protection.62 Some latitude may be given to publishers when dealing with complex trials. Some latitude may also be given to reflect the fact that reports are often written and published under “conditions of urgency”.63 The report needs to be substantially accurate as well as fair.64 An inaccurate report is unlikely to be found to be a fair report.65 The report needs accurately to reflect what in fact occurred during the judicial proceedings.66 However, the report does not need to be strictly or completely accurate. Substantial accuracy is sufficient to establish the defence.67 The inaccuracy needs to be a material one. A material inaccuracy will be one which leads to the publication of a defamatory imputation.68 Minor or irrelevant inaccuracies will not deprive a 55 56

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57 58 59

60

61 62

63 64 65 66 67

68

Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 557 per Gaudron and Gummow JJ. Anderson v Nationwide News Pty Ltd [1970] 1 NSWR 317 at 325 per Mason JA; Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 588 per Kirby J. Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 588 per Kirby J. Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 588 per Kirby J. Kimber v Press Association Ltd [1893] 1 QB 65 at 72 per Lord Esher MR, at 74 per Lopes LJ; Thompson v Truth and Sportsman Ltd (No 4) (1932) 34 SR(NSW) 21 at 23 (PC); Bowler v Pognoski (No 2) [1967] 1 NSWR 249 at 252-3 per Isaacs J; Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 587 per Kirby J. Kimber v Press Association Ltd [1893] 1 QB 65 at 72 per Lord Esher MR (omission of the applicant’s and the bankrupt’s names in a report were not considered to be material, so as to render the report unfair): [1893] 1 QB 65 at 72 per Lord Esher MR, at 74 per Lopes LJ, at 76-7 per Kay LJ. Bainton v John Fairfax & Sons Ltd (1991) Aust Torts Reports 81-143 at 69,373 per Higgins J. Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 587-8 per Kirby J; see also Bowler v Pognoski (No 2) [1967] 1 NSWR 249 at 253 per Isaacs J; Anderson v Nationwide News Pty Ltd [1970] 1 NSWR 317 at 325 per Mason JA. Thom v Associated Newspapers Ltd [1964-5] NSWR 396 at 403 per Sugerman J; Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 587-8 per Kirby J. Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 587 per Kirby J. Anderson v Nationwide News Pty Ltd [1970] 1 NSWR 317 at 321 per Asprey JA, at 325 per Mason JA; Allen v John Fairfax & Sons Ltd [1971] 1 NSWLR 773 at 780 per curiam. Thom v Associated Newspapers Ltd [1964-5] NSWR 396 at 398 per Herron CJ and Ferguson J. Anderson v Nationwide News Pty Ltd [1970] 1 NSWR 317 at 321 per Asprey JA; Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 540 per Gaudron and Gummow JJ, at 588 per Kirby J. Bainton v John Fairfax & Sons Ltd (1991) Aust Torts Reports 81-143 at 69,370 per Higgins J; see also Thom v Associated Newspapers Ltd [1964-5] NSWR 396 at 398 per Herron CJ and Ferguson J; Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 588 per Kirby J.

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-25 03:09:12.

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defendant of a defence.69 Accuracy needs to be assessed by reference to the ordinary, reasonable reader, not by reference to what a lawyer would consider accurate.70 There is no obligation on the part of a defendant independently to establish the truth of what was said in court before reporting it. A defendant is entitled to report whatever statements were made in open court without being subject to an additional burden of verification prior to publication.71 A report of proceedings which is not protected because it is either unfair or inaccurate, or both, may nevertheless furnish the basis for an occasion of common law qualified privilege.72 These defences are not mutually exclusive.73 Whether the common law defence of qualified privilege is established on the basis of such matter will depend upon whether the elements of the defence of qualified privilege are established in the circumstances of the case.

Fair and accurate report of quasi-judicial and other proceedings [12.50] The common law defence of fair and accurate report applies to judicial

proceedings but is not limited to them.74 It can also apply to quasi-judicial proceedings if the public interest supports allowing such reports to be protected.75 Whether such a public interest exists is a matter for the judge to determine.76 Factors relevant to whether the public interest supports a fair and accurate proceeding in a given case being protected include the nature of the body before which the proceedings were conducted; the character of the report; the public interest in the proceedings; and the duties of the body in question to the public.77 In Allbutt v General Council of Medical Education and Registration,78 the English Court of Appeal held that a fair and accurate report of disciplinary proceedings before the council was defensible against a

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71 72 73 74

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76 77 78

Burnett & Hallamshire Fuel Ltd v Sheffield Telegraph & Star Ltd [1960] 1 WLR 502 at 505 per Pearson J; Thom v Associated Newspapers Ltd [1964-5] NSWR 396 at 398 per Herron CJ and Ferguson J. Hope v Sir WC Leng & Co (Sheffield Telegraph) Ltd (1907) 23 TLR 243 at 244 per Collins MR; Bainton v John Fairfax & Sons Ltd (1991) Aust Torts Reports 81-143 at 69,370 per Higgins J; Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 588 per Kirby J. Burnett & Hallamshire Fuel Ltd v Sheffield Telegraph & Star Ltd [1960] 1 WLR 502 at 506 per Pearson J. Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; [2004] HCA 57 at 380 (CLR) per Gleeson CJ, Hayne and Heydon JJ. Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; [2004] HCA 57 at 412 (CLR) per Gummow J, at 433 per Kirby J. Allbutt v General Council of Medical Education and Registration (1889) 23 QBD 400 at 410 per Lopes LJ. The defence is not limited to reports of proceedings before superior courts of record: Lewis v Levy (1858) EB & E 537; 120 ER 610 at 616 (ER) per Lord Campbell CJ. However, in the preceding year, Lord Campbell CJ expressed the view that a fair and accurate report of a public meeting was not protected: see Davison v Duncan (1857) 7 El & Bl 229; 119 ER 1233 at 1233 (ER). Perera v Peiris [1949] AC 17 at 21 (PC) (report of Bribery Commission’s findings in relation to conduct of members of State Council of Ceylon). See also John Fairfax & Sons Ltd v Hook (1983) 47 ALR 477 at 488 per Gallop and Morling JJ (applies to “private tribunals”). Wake v John Fairfax & Sons Ltd [1973] 1 NSWLR 43 at 47 per curiam. Allbutt v General Council for Medical Education and Registration (1889) 23 QBD 400 at 410 per Lopes LJ. (1889) 23 QBD 400.

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-25 03:09:12.

[12.60]

Fair and accurate report of foreign judicial proceedings

defamation claim. Lopes LJ reasoned that the professional body in question had exclusive jurisdiction over disciplinary matters involving medical practitioners; it was a public corporation; it had important public duties, not only to the medical profession but also to the general public; it was authorised to conduct quasi-judicial proceedings affecting the status and rights of individuals; and public confidence in the proper conduct of these proceedings would be enhanced by publicity through the provision of fair and accurate reports.79 In Wake v John Fairfax & Sons Ltd,80 the New South Wales Court of Appeal held that a hearing before a chief stipendiary steward about whether a bookmaker should be excluded from greyhound race meetings could be the subject of a fair and accurate report because “the industry of greyhound racing … provides spectacle and opportunities for gambling for so many people”. The court observed that: [t]he proceedings of tribunals established or contemplated by this legislation [Gaming and Betting Act 1912 (NSW)] and their findings particularly when related to matters of malpractice, misconduct or corruption are, in our view, matters in respect of which the public has a legitimate interest to be informed or hear opinions otherwise based on proper material.81

Fair and accurate report of foreign judicial proceedings

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[12.60] At common law, the position in relation to reports of foreign judicial

proceedings was less clear than reports of domestic legal proceedings.82 Many of the justifications supporting a report of a local court proceeding being protected may be absent in respect of a report of a foreign court proceeding. Other legal systems may not be underpinned by a commitment to the principle of open justice, which characterises the common law.83 If the purposes of a fair and accurate report of court proceedings being protected against a claim for defamation are that what occurs in courts should be a matter of interest to the public at large, and it is for the public benefit that the public at large should be educated and informed about what occurs in courts as public institutions, those purposes may not be served by protecting reports of foreign judicial proceedings.84 Differences in rules of evidence and procedure and concerns that courts in foreign jurisdictions may not be as independent and impartial as common law courts underpinned the common law’s refusal to allow a defence of fair and accurate report in relation to judicial proceedings wherever they occurred.85 At common law, then, there is no general defence of fair and accurate report of judicial proceedings applicable to courts in each and every foreign country.86 79 80 81 82 83

84 85 86

Allbutt v General Council for Medical Education and Registration (1889) 23 QBD 400 at 408-9. [1973] 1 NSWLR 43. Wake v John Fairfax & Sons Ltd [1973] 1 NSWLR 43 at 47 per curiam. Risk Allah Bey v Whitehurst (1868) 18 LT 615 at 618 per Cockburn CJ. See, eg, Webb v Times Publishing Co Ltd [1960] 2 QB 535 at 559 per Pearson J: “I do not know whether, for instance, an English tourist on holiday in Switzerland would be allowed to enter a Swiss court and listen to the proceedings, but I assume that he would be. Owing to his unfamiliarity with the language and the law and the procedure he would probably understand very little of what was going on.” Webb v Times Publishing Co Ltd [1960] 2 QB 535 at 560-1 per Pearson J. Webb v Times Publishing Co Ltd [1960] 2 QB 535 at 562 per Pearson J. Webb v Times Publishing Co Ltd [1960] 2 QB 535 at 563 per Pearson J.

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-25 03:09:12.

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However, there may be a defence available if the publisher can point to a public interest in the local jurisdiction having a report on a foreign judicial proceeding.87 It has to be a legitimate and proper interest on the part of the public, rather than mere idle curiosity or a desire for gossip.88 In Webb v Times Publishing Co Ltd,89 Pearson J (as his Lordship then was) acknowledged that some judicial proceedings will have worldwide interest or importance. Equally, his Lordship accepted that some foreign judicial proceedings will hold particular importance or interest for local readers. The difficulties posed by the common law position were not overcome by some earlier statutory attempts to provide protection for fair and accurate reports of foreign judicial proceedings. For instance, in Thompson v Australian Consolidated Press Ltd,90 Taylor J construed the Defamation Act 1958 (NSW) s 14(1)(d), which created a defence of “fair report of public proceedings of any court of justice”, to refer only to courts sitting in New South Wales. However, any difficulties presented by either the common law or earlier statutory formulations of the defence as to the availability of a defence of fair and accurate report of foreign judicial proceedings have been overcome by the clear words of the defence under the national, uniform defamation laws.91

Fair and accurate report of parliamentary proceedings

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[12.70] At common law, a fair and accurate report of parliamentary proceedings is also protected against a claim for defamation.92 The common law’s recognition of this defence involved an extension and application of the rationale for the protection of fair and accurate reports of judicial proceedings to reports of parliamentary proceedings.93 Just as the public interest supports the protection of fair and accurate reports of judicial proceedings, so too does it support the protection of fair and accurate reports of parliamentary proceedings.94 The public interest served by protecting such reports is not only that the public is kept informed about what occurs in public institutions. Such reports are also of benefit for the legislature, ensuring that it is open, transparent and accountable to the electors.95 The public interest in, and the public benefit derived from, allowing the publication of fair and accurate reports of parliamentary proceedings, particularly by informing and educating the public about what occurs in parliamentary proceedings, outweighs the

87 88

89 90 91 92 93 94 95

Webb v Times Publishing Co Ltd [1960] 2 QB 535 at 565, 568 per Pearson J. Webb v Times Publishing Co Ltd [1960] 2 QB 535 at 569 per Pearson J. See also, eg, Thompson v Australian Consolidated Press Ltd [1968] 3 NSWR 642 at 644-5 per Taylor J (requisite public interest in publishing story in New South Wales about Australian citizen indicted in United States District Court for the Southern District of New York with conspiracy to smuggle heroin into United States from Hong Kong via Sydney and London). [1960] 2 QB 535 at 570. [1968] 3 NSWR 642 at 644. As to the position under the national, uniform defamation laws, see [12.80]. Wason v Walter (1868) LR 4 QB 73 at 82-3, 87 per Cockburn CJ. Wason v Walter (1868) LR 4 QB 73; Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 586 per Kirby J. Perera v Peiris [1949] AC 1 at 20 (PC). R v Wright (1799) 8 TR 293; 101 ER 1396 at 1399 (ER) per Lawrence J.

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-25 03:09:12.

[12.70]

Fair and accurate report of parliamentary proceedings

potential damage which may be caused to individuals’ reputations.96 As Cockburn CJ stated in Wason v Walter:97

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[I]t is of paramount public and national importance that the proceedings of the houses of parliament shall be communicated to the public, who have the deepest interest in knowing what passes within their walls, seeing that on what is there said and done, the welfare of the community depends. Where would be our confidence in the government of the country or in the legislature by which our laws are framed, and to whose charge the great interests of the country are committed, – where would be our attachment to the constitution under which we live, – if the proceedings of the great council of the realm were shrouded in secresy (sic) and concealed from the knowledge of the nation? How could the communications between the representatives of the people and their constituents, which are so essential to the working of the representative system, be usefully carried on, if the constituencies were kept in ignorance of what their representatives are doing?

A report of parliamentary proceedings is necessarily a summary of what was said or done in the course of those proceedings.98 Given the length and complexity of many parliamentary debates, the publisher has some latitude as to the form the matter takes.99 The publisher is free to select and report those aspects of the parliamentary proceedings in respect of which he or she thinks there is a genuine public interest, rather than merely matters about which the public might be interested.100 There is no requirement that the matter reports verbatim what was said in parliamentary proceedings.101 The forms of reporting on parliamentary proceedings change over time, thus the application of the defence of fair and accurate report of parliamentary proceedings can likewise adapt.102 So long as the report is fair and accurate and the publisher is not actuated by an improper motive, the report is protected and the publisher has a complete defence to defamation.103 This may be tested by asking what impression the ordinary, reasonable observer would have obtained of the parliamentary proceedings in regard to what had been said or done during the course of those proceedings.104 If a statement is made by a parliamentarian in the course of proceedings and it is fairly and accurately reported, then the report can be protected, even if the statement is later proven to be false.105 The fairness of the report is to be assessed not by asking whether the report was fair 96

97 98 99 100 101 102

103 104 105

R v Wright (1799) 8 TR 293; 101 ER 1396 at 1399 (ER) per Lawrence J; Wason v Walter (1868) LR 4 QB 73 at 89 per Cockburn CJ; Cook v Alexander [1974] QB 279 at 288 per Lord Denning MR. (1868) LR 4 QB 73 at 89. Cook v Alexander [1974] QB 279 at 287 per Lord Denning MR; see also at 289-90 per Buckley LJ. Cook v Alexander [1974] QB 279 at 288 per Lord Denning MR; at 290 per Buckley LJ, at 291 per Lawton LJ. Cook v Alexander [1974] QB 279 at 290 per Buckley LJ. Cook v Alexander [1974] QB 279 at 288 per Lord Denning MR. Cook v Alexander [1974] QB 279 at 290 per Lawton LJ: “For over two centuries the public in these islands have been interested in what goes on in Parliament and during that long period the press has done what it could to keep them informed. The methods of doing so have changed from time to time. There are fashions in journalism just as there are fashions in other activities of life.” Cook v Alexander [1974] QB 279 at 288 per Lord Denning MR. Cook v Alexander [1974] QB 279 at 288 per Lord Denning MR, at 291 per Lawton LJ. Cook v Alexander [1974] QB 279 at 288 per Lord Denning MR.

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to any particular person, but rather whether the report fairly represented what occurred during the parliamentary proceedings which were the subject of the report.106

Statutory defence of fair report of proceedings of public concern [12.80] In addition to the common law defence of fair report of judicial and parliamentary proceedings,107 there are statutory defences of fair report of proceedings of public concern.108 The statutory defences under the national, uniform defamation laws are not the first legislative variants of the common law defences of fair and accurate reports in Australian law. In many Australian jurisdictions, there is a long history of statutory defences of protected reports.109 The statutory defences have been treated, on occasion, as coextensive with the common law defences of fair and accurate reports110 and, indeed, have many similarities. Of course, when applying a statutory defence of a fair report of proceedings of public concern, particular attention must be given to the wording of the legislative provision itself. The statutory defences under the national, uniform defamation laws arguably provide a clearer and broader basis for the protection of reports of proceedings of public concern than the common law.

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A defendant may establish a defence if he or she can prove that the matter was, or was contained in, a fair report of any proceedings of public concern.111 A defendant may also establish a defence if he or she can prove that the matter was, or was contained in, an earlier published report of any proceedings of public concern that was, or was contained in, a fair copy or summary of, or a fair extract from, the earlier published report, and the defendant had no knowledge that would reasonably make the defendant aware

106 107

108

109

110 111

Cook v Alexander [1974] QB 279 at 289 per Lord Denning MR. Civil Law (Wrongs) Act 2002 (ACT) s 134(1); Defamation Act 2006 (NT) s 21(1); Defamation Act 2005 (NSW) s 24(1); Defamation Act 2005 (Qld) s 24(1); Defamation Act 2005 (SA) s 22(1); Defamation Act 2005 (Tas) s 24(1); Defamation Act 2005 (Vic) s 24(1); Defamation Act 2005 (WA) s 24(1). Civil Law (Wrongs) Act 2002 (ACT) s 139(1), (2); Defamation Act 2006 (NT) s 26(1), (2); Defamation Act 2005 (NSW) s 29(1), (2); Defamation Act 2005 (Qld) s 29(1), (2); Defamation Act 2005 (SA) s 27(1), (2); Defamation Act 2005 (Tas) s 29(1), (2); Defamation Act 2005 (Vic) s 29(1), (2); Defamation Act 2005 (WA) s 29(1), (2). For earlier statutory defences of fair and accurate reports, see, eg, Defamation Act 1958 (NSW) s 14(1)(d). Some earlier statutory defences conferred an absolute, rather than a qualified, privilege: see, eg, Newspaper Libel and Registration Act 1888 (WA) s 6. See further, Gobbart v West Australian Newspapers [1968] WAR 113 at 118 per Jackson J. See also Law of Libel Amendment Act 1888 (UK) s 3; Defamation Act 1952 (UK) s 8; Defamation Act 1996 (UK) s 14; Defamation Act 2013 (UK) (c 26) s 7. See, eg, Bainton v John Fairfax & Sons Ltd (1991) Aust Torts Reports 81-143 at 69,369 per Higgins J. Civil Law (Wrongs) Act 2002 (ACT) s 139(1); Defamation Act 2006 (NT) s 26(1); Defamation Act 2005 (NSW) s 29(1); Defamation Act 2005 (Qld) s 29(1); Defamation Act 2005 (SA) s 27(1); Defamation Act 2005 (Tas) s 29(1); Defamation Act 2005 (Vic) s 29(1); Defamation Act 2005 (WA) s 29(1).

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[12.80]

Statutory defence of fair report of proceedings of public concern

that the earlier published report was not fair.112 The latter defence has been described as a derivative one, in the sense that it is premised upon another person publishing what purports to be a report before the defendant publishes the matter about which the plaintiff complains.113 Viewed another way, it protects secondary reports, rather than primary ones.114 The legislative purpose of the latter defence was described by Gleeson CJ and Gummow J in Rogers v Nationwide News Pty Ltd,115 referring to any earlier analogous provision under the Defamation Act 1974 (NSW) s 24(3), as being: to provide a defence to a person who publishes matter in reliance upon a protected report previously published by someone else, where that person does not have grounds for knowing the report to be unfair.116

The term, “proceedings of public concern”, is defined very broadly. It includes any proceedings in public of a parliamentary body.117 In turn, a parliamentary body is defined as a Parliament or legislature of any country; a House of a Parliament or legislature of any country; or a committee of a Parliament or legislature of any country, or any House or Houses of such a Parliament or legislature.118 Any proceedings in public of any international organisation of any countries or the government of any countries,119 or any proceedings in public of an international conference at which governments of any countries are represented,120 also constitute proceedings of public concern. The term also extends to any proceedings in public of the International Court of Justice or any 112

Civil Law (Wrongs) Act 2002 (ACT) s 139(2); Defamation Act 2006 (NT) s 26(2); Defamation Act 2005 (NSW) s 29(2); Defamation Act 2005 (Qld) s 29(2); Defamation Act 2005 (SA) s 27(2); Defamation Act 2005 (Tas) s 29(2); Defamation Act 2005 (Vic) s 29(2); Defamation Act 2005 (WA) s 29(2).

113

Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327; [2003] HCA 52 at 345 (CLR) per Hayne J (dealing with the Defamation Act 1974 (NSW) s 24(3) (repealed), which is in similar, but not identical, terms to the relevant subsection under the national, uniform defamation laws). Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327; [2003] HCA 52 at 345 (CLR) per Hayne J. (2003) 216 CLR 327; [2003] HCA 52. Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327; [2003] HCA 52 at 337 (CLR). Thus, as Gleeson CJ and Gummow J emphasised, where a court officer hands a copy of the judgment to a party or a member of the public, he or she is not publishing the judgment. The reasons for judgment do not constitute a report of the proceedings; they are part of the proceedings themselves: see also at 347 per Hayne J. Civil Law (Wrongs) Act 2002 (ACT) s 139(4)(a); Defamation Act 2006 (NT) s 26(4)(a); Defamation Act 2005 (NSW) s 29(4)(a); Defamation Act 2005 (Qld) s 29(4)(a); Defamation Act 2005 (SA) s 27(4)(a); Defamation Act 2005 (Tas) s 29(4)(a); Defamation Act 2005 (Vic) s 29(4)(a); Defamation Act 2005 (WA) s 29(4)(a). Civil Law (Wrongs) Act 2002 (ACT) s 116; Defamation Act 2006 (NT) s 3; Defamation Act 2005 (NSW) s 4; Defamation Act 2005 (Qld) Sch 5; Defamation Act 2005 (SA) s 4; Defamation Act 2005 (Tas) s 4; Defamation Act 2005 (Vic) s 4; Defamation Act 2005 (WA) s 4. Civil Law (Wrongs) Act 2002 (ACT) s 139(4)(b); Defamation Act 2006 (NT) s 26(4)(b); Defamation Act 2005 (NSW) s 29(4)(b); Defamation Act 2005 (Qld) s 29(4)(b); Defamation Act 2005 (SA) s 27(4)(b); Defamation Act 2005 (Tas) s 29(4)(b); Defamation Act 2005 (Vic) s 29(4)(b); Defamation Act 2005 (WA) s 29(4)(b).

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114 115 116

117

118

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120

Civil Law (Wrongs) Act 2002 (ACT) s 139(4)(c); Defamation Act 2006 (NT) s 26(4)(c); Defamation Act 2005 (NSW) s 29(4)(c); Defamation Act 2005 (Qld) s 29(4)(c); Defamation Act 2005 (SA) s 27(4)(c); Defamation Act 2005 (Tas) s 29(4)(c); Defamation Act 2005 (Vic) s 29(4)(c); Defamation Act 2005 (WA) s 29(4)(c).

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-25 03:09:12.

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other judicial or arbitral tribunal dealing with disputes between nations,121 or any other international judicial or arbitral tribunal.122 It covers any proceedings in public of a court or arbitral tribunal of any country.123 Any proceedings in public of an inquiry held under the law of any country or under the authority of the government of any country also constitute proceedings of public concern.124 The national, uniform defamation laws, then, are clearer than previous statutory defences in their application to reports of foreign judicial proceedings.125 Any proceedings in public of a local government body of any Australian jurisdiction also qualify as proceedings of public concern.126

[12.90] The national, uniform defamation laws extend protection of reports to other bodies, such as learned societies, sport or recreation associations or trade associations. They protect reports of proceedings of those bodies, or of committees or governing bodies of those bodies, dealing with decisions or adjudications made in Australia about members or persons subject by contract or otherwise by law to control by the bodies in question.127 Learned societies are those bodies which include in their objects the advancement of any art, science or religion, or the advancement of learning in any field.128 Sport and recreation associations mean those bodies which include in their objects the promotion of any game, sport or pastime to which members of the public are admitted as spectators, and the promotion or protection of the interests of 121

122

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123

124

125

126

127

128

Civil Law (Wrongs) Act 2002 (ACT) s 139(4)(d)(i); Defamation Act 2006 (NT) s 26(4)(d)(i); Defamation Act 2005 (NSW) s 29(4)(d)(i); Defamation Act 2005 (Qld) s 29(4)(d)(i); Defamation Act 2005 (SA) s 27(4)(d)(i); Defamation Act 2005 (Tas) s 29(4)(d)(i); Defamation Act 2005 (Vic) s 29(4)(d)(i); Defamation Act 2005 (WA) s 29(4)(d)(i). Civil Law (Wrongs) Act 2002 (ACT) s 139(4)(d)(ii); Defamation Act 2006 (NT) s 26(4)(d)(ii); Defamation Act 2005 (NSW) s 29(4)(d)(ii); Defamation Act 2005 (Qld) s 29(4)(d)(ii); Defamation Act 2005 (SA) s 27(4)(d)(ii); Defamation Act 2005 (Tas) s 29(4)(d)(ii); Defamation Act 2005 (Vic) s 29(4)(d)(ii); Defamation Act 2005 (WA) s 29(4)(d)(ii). Civil Law (Wrongs) Act 2002 (ACT) s 139(4)(e); Defamation Act 2006 (NT) s 26(4)(e); Defamation Act 2005 (NSW) s 29(4)(e); Defamation Act 2005 (Qld) s 29(4)(e); Defamation Act 2005 (SA) s 27(4)(e); Defamation Act 2005 (Tas) s 29(4)(e); Defamation Act 2005 (Vic) s 29(4)(e); Defamation Act 2005 (WA) s 29(4)(e). Civil Law (Wrongs) Act 2002 (ACT) s 139(4)(f); Defamation Act 2006 (NT) s 26(4)(f); Defamation Act 2005 (NSW) s 29(4)(f); Defamation Act 2005 (Qld) s 29(4)(f); Defamation Act 2005 (SA) s 27(4)(f); Defamation Act 2005 (Tas) s 29(4)(f); Defamation Act 2005 (Vic) s 29(4)(f); Defamation Act 2005 (WA) s 29(4)(f). See, eg, Thompson v Australian Consolidated Press Ltd [1968] 3 NSWR 642 at 644 per Taylor J (defence of “fair report of public proceedings of any court of justice” under Defamation Act 1958 (NSW) s 14(1)(d) construed to refer only to courts sitting in New South Wales). Civil Law (Wrongs) Act 2002 (ACT) s 139(4)(g); Defamation Act 2006 (NT) s 26(4)(g); Defamation Act 2005 (NSW) s 29(4)(g); Defamation Act 2005 (Qld) s 29(4)(g); Defamation Act 2005 (SA) s 27(4)(g); Defamation Act 2005 (Tas) s 29(4)(g); Defamation Act 2005 (Vic) s 29(4)(g); Defamation Act 2005 (WA) s 29(4)(g). Civil Law (Wrongs) Act 2002 (ACT) s 139(4)(h) – (j); Defamation Act 2006 (NT) s 26(4)(h) – (j); Defamation Act 2005 (NSW) s 29(4)(h) – (j); Defamation Act 2005 (Qld) s 29(4)(h) – (j); Defamation Act 2005 (SA) s 27(4)(h) – (j); Defamation Act 2005 (Tas) s 29(4)(h) – (j); Defamation Act 2005 (Vic) s 29(4)(h) – (j); Defamation Act 2005 (WA) s 29(4)(h) – (j). Civil Law (Wrongs) Act 2002 (ACT) s 139(5); Defamation Act 2006 (NT) s 26(5); Defamation Act 2005 (NSW) s 29(5); Defamation Act 2005 (Qld) s 29(5); Defamation Act 2005 (SA) s 27(4); Defamation Act 2005 (Tas) s 29(5); Defamation Act 2005 (Vic) s 29(5); Defamation Act 2005 (WA) s 29(5).

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[12.90]

Statutory defence of fair report of proceedings of public concern

people connected with the game, sport or pastime.129 Trade associations mean those bodies which include in their objects the promotion of, or the protection of the interests of people engaged in, any trade, business, industry or profession.130 In order for reports of such bodies to qualify for the defence, the constitutions of such bodies must authorise them to exercise control over, or adjudicate on, matters related to those objects and to make findings or decisions having effect, by law or custom, within Australia.131 The national, uniform defamation laws also extend protection to reports of proceedings of public meetings of shareholders of public companies under the Corporations Act 2001 (Cth) held within Australia.132 They also treat proceedings of any public meeting held within Australia on any matter of public interest as proceedings of public concern. This includes, but is not limited to, the advocacy or candidature of a person for public office.133 In relation to both company meetings and meetings on matters of public interest, the fact that there may be restrictions on persons able to attend the meetings does not bar them from qualifying as proceedings of public concern.134 The national, uniform defamation laws also treat proceedings of an ombudsman135 or a law reform body136 of any country as proceedings of public concern. 129

130

131

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132

133

134

135

136

Civil Law (Wrongs) Act 2002 (ACT) s 139(5); Defamation Act 2006 (NT) s 26(5); Defamation Act 2005 (NSW) s 29(5); Defamation Act 2005 (Qld) s 29(5); Defamation Act 2005 (SA) s 27(4); Defamation Act 2005 (Tas) s 29(5); Defamation Act 2005 (Vic) s 29(5); Defamation Act 2005 (WA) s 29(5). Civil Law (Wrongs) Act 2002 (ACT) s 139(5); Defamation Act 2006 (NT) s 26(5); Defamation Act 2005 (NSW) s 29(5); Defamation Act 2005 (Qld) s 29(5); Defamation Act 2005 (SA) s 27(4); Defamation Act 2005 (Tas) s 29(5); Defamation Act 2005 (Vic) s 29(5); Defamation Act 2005 (WA) s 29(5). Civil Law (Wrongs) Act 2002 (ACT) s 139(5); Defamation Act 2006 (NT) s 26(5); Defamation Act 2005 (NSW) s 29(5); Defamation Act 2005 (Qld) s 29(5); Defamation Act 2005 (SA) s 27(4); Defamation Act 2005 (Tas) s 29(5); Defamation Act 2005 (Vic) s 29(5); Defamation Act 2005 (WA) s 29(5). Civil Law (Wrongs) Act 2002 (ACT) s 139(4)(k); Defamation Act 2006 (NT) s 26(4)(k); Defamation Act 2005 (NSW) s 29(4)(k); Defamation Act 2005 (Qld) s 29(4)(k); Defamation Act 2005 (SA) s 27(4)(k); Defamation Act 2005 (Tas) s 29(4)(k); Defamation Act 2005 (Vic) s 29(4)(k); Defamation Act 2005 (WA) s 29(4)(k). Civil Law (Wrongs) Act 2002 (ACT) s 139(4)(l); Defamation Act 2006 (NT) s 26(4)(l); Defamation Act 2005 (NSW) s 29(4)(l); Defamation Act 2005 (Qld) s 29(4)(l); Defamation Act 2005 (SA) s 27(4)(l); Defamation Act 2005 (Tas) s 29(4)(l); Defamation Act 2005 (Vic) s 29(4)(l); Defamation Act 2005 (WA) s 29(4)(l). Civil Law (Wrongs) Act 2002 (ACT) s 139(4)(k), (l); Defamation Act 2006 (NT) s 26(4)(k), (l); Defamation Act 2005 (NSW) s 29(4)(k), (l); Defamation Act 2005 (Qld) s 29(4)(k), (l); Defamation Act 2005 (SA) s 27(4)(k), (l); Defamation Act 2005 (Tas) s 29(4)(k), (l); Defamation Act 2005 (Vic) s 29(4)(k), (l); Defamation Act 2005 (WA) s 29(4)(k), (l). Civil Law (Wrongs) Act 2002 (ACT) s 139(4)(m); Defamation Act 2006 (NT) s 26(4)(m); Defamation Act 2005 (NSW) s 29(4)(m); Defamation Act 2005 (Qld) s 29(4)(m); Defamation Act 2005 (SA) s 27(4)(m); Defamation Act 2005 (Tas) s 29(4)(m); Defamation Act 2005 (Vic) s 29(4)(m); Defamation Act 2005 (WA) s 29(4)(m). The proceedings of the ombudsman must relate to his or her report. As to the definition of the term, “ombudsman”, see Civil Law (Wrongs) Act 2002 (ACT) s 139(5); Defamation Act 2006 (NT) s 26(5); Defamation Act 2005 (NSW) s 29(5); Defamation Act 2005 (Qld) s 29(5); Defamation Act 2005 (SA) s 27(4); Defamation Act 2005 (Tas) s 29(5); Defamation Act 2005 (Vic) s 29(5); Defamation Act 2005 (WA) s 29(5). Civil Law (Wrongs) Act 2002 (ACT) s 139(4)(n); Defamation Act 2006 (NT) s 26(4)(n); Defamation Act 2005 (NSW) s 29(4)(n); Defamation Act 2005 (Qld) s 29(4)(n); Defamation

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-25 03:09:20.

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Finally, the national, uniform defamation laws permit each jurisdiction to specify other proceedings of public concern.137 Thus far, only New South Wales has specified any such proceedings for the purposes of this defence.138 In addition, to facilitate the object of promoting uniformity,139 the national, uniform defamation laws provide that any proceedings of public concern recognised in any other Australian jurisdiction should be recognised as such in the local jurisdiction.140

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The statutory defence can be defeated in two ways. First, the defendant may not have published the matter for one of the stated purposes. Secondly, the defendant may not have honestly published the matter.141 Dealing with previous statutory provisions in similar terms, judges have emphasised the distinction between purpose and motive. It should be borne in mind that the plaintiff has to prove the defendant’s state of mind at the time of publication. Where the defendant is a corporation, it will act through its servants and agents. Therefore, the conduct of the defendant’s servants and agents will be highly relevant as to the inquiry as to the defendant’s state of mind at the time of publication.142 The tone of voice used in a radio or television broadcast or the prominence given to a report can be factors relevant to whether the report was published honestly.143 The fact that a defendant publishes information for profit will not mean that it has not acted honestly. The common law defence of fair and accurate report of judicial proceedings was developed in full knowledge that newspapers were commercial enterprises. The common law and statutory variants are premised upon the understanding that media outlets are often commercial entities, established to make a profit by conveying information to the public.144 Act 2005 (SA) s 27(4)(n); Defamation Act 2005 (Tas) s 29(4)(n); Defamation Act 2005 (Vic) s 29(4)(n); Defamation Act 2005 (WA) s 29(4)(n). The proceedings of the law reform body must be conducted in public to be protected. As to the definition of the term, “law reform body”, see Civil Law (Wrongs) Act 2002 (ACT) s 139(5); Defamation Act 2006 (NT) s 26(5); Defamation Act 2005 (NSW) s 29(5); Defamation Act 2005 (Qld) s 29(5); Defamation Act 2005 (SA) s 27(4); Defamation Act 2005 (Tas) s 29(5); Defamation Act 2005 (Vic) s 29(5); Defamation Act 2005 (WA) s 29(5). 137

138

Defamation Act 2006 (NT) s 26(4)(p); Defamation Act 2005 (NSW) s 29(4)(p); Defamation Act 2005 (Qld) s 29(4)(p); Defamation Act 2005 (Tas) s 29(4)(p); Defamation Act 2005 (Vic) s 29(4)(p); Defamation Act 2005 (WA) s 29(4)(p). There is no equivalent provision in the Australian Capital Territory and South Australia. Defamation Act 2005 (NSW) Sch 3.

139

Civil Law (Wrongs) Act 2002 (ACT) s 115(a); Defamation Act 2006 (NT) s 2(a); Defamation Act 2005 (NSW) s 3(a); Defamation Act 2005 (Qld) s 3(a); Defamation Act 2005 (SA) s 3(a); Defamation Act 2005 (Tas) s 3(a); Defamation Act 2005 (Vic) s 3(a); Defamation Act 2005 (WA) s 3(a).

140

Civil Law (Wrongs) Act 2002 (ACT) s 139(4)(o); Defamation Act 2006 (NT) s 26(4)(o); Defamation Act 2005 (NSW) s 29(4)(o); Defamation Act 2005 (Qld) s 29(4)(o); Defamation Act 2005 (SA) s 27(4)(o); Defamation Act 2005 (Tas) s 29(4)(o); Defamation Act 2005 (Vic) s 29(4)(o); Defamation Act 2005 (WA) s 29(4)(o).

141

Civil Law (Wrongs) Act 2002 (ACT) s 139(3); Defamation Act 2006 (NT) s 26(3); Defamation Act 2005 (NSW) s 29(3); Defamation Act 2005 (Qld) s 29(3); Defamation Act 2005 (SA) s 27(3); Defamation Act 2005 (Tas) s 29(3); Defamation Act 2005 (Vic) s 29(3); Defamation Act 2005 (WA) s 29(3).

142 143 144

Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 72 per Hunt J. Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 69 per Hunt J. Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 70 per Hunt J.

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[12.100]

Statutory defence of publication of public documents

Statutory defence of publication of public documents [12.100] The national, uniform defamation laws also introduce a defence for the publication of public documents,145 which overcomes the uncertainty about the protection of such publications at common law.146 Although the defence is in addition to common law defences,147 it should not be given a wide or beneficial interpretation but instead should be construed according to the statutory text, having regard to its underlying purpose and object.148 The defendant can establish a defence if he or she proves that the defamatory matter was contained in a public document or a fair copy of a public document149 or a fair summary of, or a fair extract from, a public document.150 The defence then contemplates circumstances where the defendant originally publishes the public document, as well as circumstances where the defendant republishes public documents.151

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A public document is defined expansively but exhaustively. It applies to any report or paper published by a parliamentary body, or a record of votes, debates or other proceedings relating to a parliamentary body published by or under the authority of that body or any law.152 (The term, “parliamentary body”, is defined to mean a Parliament or legislature of any country; a House of Parliament or legislature of a country; a committee of a Parliament or a legislature of any country; or a committee of a House or Houses of a Parliament or legislature of any country.153 In turn, a “country” is defined to include a federation, as well as a State, Territory, province or other part of a federation, 145

Civil Law (Wrongs) Act 2002 (ACT) s 138; Defamation Act 2006 (NT) s 25; Defamation Act 2005 (NSW) s 28; Defamation Act 2005 (Qld) s 28; Defamation Act 2005 (SA) s 26; Defamation Act 2005 (Tas) s 28; Defamation Act 2005 (Vic) s 28; Defamation Act 2005 (WA) s 28.

146 147 148

As to the position at common law, see [12.30]. Defamation Act 2005 (NSW) s 24(1). Lower Murray Urban and Rural Water Corporation v Di Masi [2014] VSCA 104 at [64] per curiam. The underlying purpose and object can still be viewed as being that identified by Street J (as his Honour then was) in Campbell v Associated Newspapers Ltd (1948) 48 SR(NSW) 301 at 305 in relation to earlier New South Wales legislation: “What is protected is the text of the notice or report itself, and not some paraphrase composed for publication in what is regarded as a more attractive form.” Civil Law (Wrongs) Act 2002 (ACT) s 138(1)(a); Defamation Act 2006 (NT) s 25(1)(a); Defamation Act 2005 (NSW) s 28(1)(a); Defamation Act 2005 (Qld) s 28(1)(a); Defamation Act 2005 (SA) s 26(1)(a); Defamation Act 2005 (Tas) s 28(1)(a); Defamation Act 2005 (Vic) s 28(1)(a); Defamation Act 2005 (WA) s 28(1)(a).

149

150

Civil Law (Wrongs) Act 2002 (ACT) s 138(1)(b); Defamation Act 2006 (NT) s 25(1)(b); Defamation Act 2005 (NSW) s 28(1)(b); Defamation Act 2005 (Qld) s 28(1)(b); Defamation Act 2005 (SA) s 26(1)(b); Defamation Act 2005 (Tas) s 28(1)(b); Defamation Act 2005 (Vic) s 28(1)(b); Defamation Act 2005 (WA) s 28(1)(b).

151

Lower Murray Urban and Rural Water Corporation v Di Masi [2014] VSCA 104 at [62] per curiam. Civil Law (Wrongs) Act 2002 (ACT) s 138(4)(a); Defamation Act 2006 (NT) s 25(4)(a); Defamation Act 2005 (NSW) s 28(4)(a); Defamation Act 2005 (Qld) s 28(4)(a); Defamation Act 2005 (SA) s 26(4)(a); Defamation Act 2005 (Tas) s 28(4)(a); Defamation Act 2005 (Vic) s 28(4)(a); Defamation Act 2005 (WA) s 28(4)(a).

152

153

Civil Law (Wrongs) Act 2002 (ACT) s 116; Defamation Act 2006 (NT) s 3; Defamation Act 2005 (NSW) s 4; Defamation Act 2005 (Qld) s 4(1), Sch 5; Defamation Act 2005 (SA) s 4; Defamation Act 2005 (Tas) s 4; Defamation Act 2005 (Vic) s 4; Defamation Act 2005 (WA) s 4.

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267

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[12.100]

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and specifically extends to any Australian jurisdiction.)154 A public document also extends to any judgment, order or other determination of a court or arbitral tribunal of any country in civil proceedings.155 (This includes any record of the court or tribunal relating to its judgment, order or determination or to its enforcement or satisfaction,156 as well as to any report, or reasons for judgment of the court or tribunal about its judgment, order or determination.)157 A public document is further defined to include any report or other document that, under the law of any country, is authorised to be published or is required to be presented or submitted to, tabled in or laid before, a parliamentary body.158 It includes any document issued by the government (including the local government) of a country, or by an officer, employee or agency of the government, for the information of the public.159 In determining whether a document has been issued for the information of the public, the subjective purpose for which the government or its officer, employee or agency issuing the document released it is a relevant consideration.160 The issues of whether the document was issued, whether it was for the information, and whether it was to the public, are all interrelated and cannot be discretely parsed.161 Whether a document is issued for the information of the public will depend upon whether the recipients received the document because they were

154

Civil Law (Wrongs) Act 2002 (ACT) s 116; Defamation Act 2006 (NT) s 3; Defamation Act 2005 (NSW) s 4; Defamation Act 2005 (Qld) s 4(1), Sch 5; Defamation Act 2005 (SA) s 4; Defamation Act 2005 (Tas) s 4; Defamation Act 2005 (Vic) s 4; Defamation Act 2005 (WA) s 4.

155

Civil Law (Wrongs) Act 2002 (ACT) s 138(4)(b); Defamation Act 2006 (NT) s 25(4)(b); Defamation Act 2005 (NSW) s 28(4)(b); Defamation Act 2005 (Qld) s 28(4)(b); Defamation Act 2005 (SA) s 26(4)(b); Defamation Act 2005 (Tas) s 28(4)(b); Defamation Act 2005 (Vic) s 28(4)(b); Defamation Act 2005 (WA) s 28(4)(b).

156

Civil Law (Wrongs) Act 2002 (ACT) s 138(4)(b)(i); Defamation Act 2006 (NT) s 25(4)(b)(i); Defamation Act 2005 (NSW) s 28(4)(b)(i); Defamation Act 2005 (Qld) s 28(4)(b)(i); Defamation Act 2005 (SA) s 26(4)(b)(i); Defamation Act 2005 (Tas) s 28(4)(b)(i); Defamation Act 2005 (Vic) s 28(4)(b)(i); Defamation Act 2005 (WA) s 28(4)(b)(i).

157

Civil Law (Wrongs) Act 2002 (ACT) s 138(4)(b)(ii); Defamation Act 2006 (NT) s 25(4)(b)(ii); Defamation Act 2005 (NSW) s 28(4)(b)(ii); Defamation Act 2005 (Qld) s 28(4)(b)(ii); Defamation Act 2005 (SA) s 26(4)(b)(ii); Defamation Act 2005 (Tas) s 28(4)(b)(ii); Defamation Act 2005 (Vic) s 28(4)(b)(ii); Defamation Act 2005 (WA) s 28(4)(b)(ii). Civil Law (Wrongs) Act 2002 (ACT) s 138(4)(c); Defamation Act 2006 (NT) s 25(4)(c); Defamation Act 2005 (NSW) s 28(4)(c); Defamation Act 2005 (Qld) s 28(4)(c); Defamation Act 2005 (SA) s 26(4)(c); Defamation Act 2005 (Tas) s 28(4)(c); Defamation Act 2005 (Vic) s 28(4)(c); Defamation Act 2005 (WA) s 28(4)(c). Civil Law (Wrongs) Act 2002 (ACT) s 138(4)(d); Defamation Act 2006 (NT) s 25(4)(d); Defamation Act 2005 (NSW) s 28(4)(d); Defamation Act 2005 (Qld) s 28(4)(d); Defamation Act 2005 (SA) s 26(4)(d); Defamation Act 2005 (Tas) s 28(4)(d); Defamation Act 2005 (Vic) s 28(4)(d); Defamation Act 2005 (WA) s 28(4)(d). Lower Murray Urban and Rural Water Corporation v Di Masi [2014] VSCA 104 at [62] per curiam. If the subjective purpose of the person or entity issuing the document is not for the information of the public, the defendant does not satisfy the definition of “public document” and the conduct defeating the defence under the Defamation Act 2005 (Vic) s 28(3) (and the equivalent provision in the other States and Territories arguably has no work to do): Lower Murray Urban and Rural Water Corporation v Di Masi [2014] VSCA 104 at [65] per curiam. Lower Murray Urban and Rural Water Corporation v Di Masi [2014] VSCA 104 at [68], [75] per curiam.

158

159

160

161

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[12.100]

Statutory defence of publication of public documents

members of an identified group with a defined characteristic or connection.162 It applies to any record or document open for public inspection that is kept: by an Australian jurisdiction;163 by a statutory authority in an Australian jurisdiction;164 by an Australian court;165 or under legislation of an Australian jurisdiction.166 It also applies to any other document issued, kept or published by a person, body or organisation of another Australian jurisdiction that is treated as a public document in another jurisdiction by virtue of this statutory defence.167 Finally, the statutory provision for each Australian jurisdiction allows that jurisdiction to specify other documents which qualify as public documents for the purposes of the defence.168 Thus far, only New South Wales has specified any such documents. A document which would otherwise qualify as a public document, but for its non-compliance with formal requirements as to the content or layout of the report or document,169 or with the time within which the report or document is prepared, presented, submitted, tabled or laid to or before a person or body,170 is nevertheless a public document for the purposes of the defence. The only basis upon which the defence can be defeated

162

163

164

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165

166

167

168

169

170

Lower Murray Urban and Rural Water Corporation v Di Masi [2014] VSCA 104 at [74]-[75] per curiam (letter issued by Minister for Water to former customers of First Mildura Irrigation Trust not for information of public). Civil Law (Wrongs) Act 2002 (ACT) s 138(4)(e)(i); Defamation Act 2006 (NT) s 25(4)(e)(i); Defamation Act 2005 (NSW) s 28(4)(e)(i); Defamation Act 2005 (Qld) s 28(4)(e)(i); Defamation Act 2005 (SA) s 26(4)(e)(i); Defamation Act 2005 (Tas) s 28(4)(e)(i); Defamation Act 2005 (Vic) s 28(4)(e)(i); Defamation Act 2005 (WA) s 28(4)(e)(i). Civil Law (Wrongs) Act 2002 (ACT) s 138(4)(e)(ii); Defamation Act 2006 (NT) s 25(4)(e)(ii); Defamation Act 2005 (NSW) s 28(4)(e)(ii); Defamation Act 2005 (Qld) s 28(4)(e)(ii); Defamation Act 2005 (SA) s 26(4)(e)(ii); Defamation Act 2005 (Tas) s 28(4)(e)(ii); Defamation Act 2005 (Vic) s 28(4)(e)(ii); Defamation Act 2005 (WA) s 28(4)(e)(ii). Civil Law (Wrongs) Act 2002 (ACT) s 138(4)(e)(iii); Defamation Act 2006 (NT) s 25(4)(e)(iii); Defamation Act 2005 (NSW) s 28(4)(e)(iii); Defamation Act 2005 (Qld) s 28(4)(e)(iii); Defamation Act 2005 (SA) s 26(4)(e)(iii); Defamation Act 2005 (Tas) s 28(4)(e)(iii); Defamation Act 2005 (Vic) s 28(4)(e)(iii); Defamation Act 2005 (WA) s 28(4)(e)(iii). Civil Law (Wrongs) Act 2002 (ACT) s 138(4)(e)(iv); Defamation Act 2006 (NT) s 25(4)(e)(iv); Defamation Act 2005 (NSW) s 28(4)(e)(iv); Defamation Act 2005 (Qld) s 28(4)(e)(iv); Defamation Act 2005 (SA) s 26(4)(e)(iv); Defamation Act 2005 (Tas) s 28(4)(e)(iv); Defamation Act 2005 (Vic) s 28(4)(e)(iv); Defamation Act 2005 (WA) s 28(4)(e)(iv). Civil Law (Wrongs) Act 2002 (ACT) s 138(4)(f); Defamation Act 2006 (NT) s 25(4)(f); Defamation Act 2005 (NSW) s 28(4)(f); Defamation Act 2005 (Qld) s 28(4)(f); Defamation Act 2005 (SA) s 26(4)(f); Defamation Act 2005 (Tas) s 28(4)(f); Defamation Act 2005 (Vic) s 28(4)(f); Defamation Act 2005 (WA) s 28(4)(f). Defamation Act 2006 (NT) s 25(4)(g), Sch 2; Defamation Act 2005 (NSW) s 28(4)(g), Sch 2; Defamation Act 2005 (Qld) s 28(4)(g); Defamation Act 2005 (Tas) s 28(4)(g), Sch 2; Defamation Act 2005 (Vic) s 28(4)(g), Sch 2; Defamation Act 2005 (WA) s 28(4)(g), Sch 2. There is no equivalent provision in South Australia. Civil Law (Wrongs) Act 2002 (ACT) s 138(2)(a); Defamation Act 2006 (NT) s 25(2)(a); Defamation Act 2005 (NSW) s 28(2)(a); Defamation Act 2005 (Qld) s 28(2)(a); Defamation Act 2005 (SA) s 26(2)(a); Defamation Act 2005 (Tas) s 28(2)(a); Defamation Act 2005 (Vic) s 28(2)(a); Defamation Act 2005 (WA) s 28(2)(a). Civil Law (Wrongs) Act 2002 (ACT) s 138(2)(b); Defamation Act 2006 (NT) s 25(2)(b); Defamation Act 2005 (NSW) s 28(2)(b); Defamation Act 2005 (Qld) s 28(2)(b); Defamation Act 2005 (SA) s 26(2)(b); Defamation Act 2005 (Tas) s 28(2)(b); Defamation Act 2005 (Vic) s 28(2)(b); Defamation Act 2005 (WA) s 28(2)(b).

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269

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[12.100]

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is if the plaintiff proves that the defamatory matter was not published honestly for the information of the public or the advancement of education.171

171

Civil Law (Wrongs) Act 2002 (ACT) s 138(3); Defamation Act 2006 (NT) s 25(3); Defamation Act 2005 (NSW) s 28(3); Defamation Act 2005 (Qld) s 28(3); Defamation Act 2005 (SA) s 26(3); Defamation Act 2005 (Tas) s 28(3); Defamation Act 2005 (Vic) s 28(3); Defamation Act 2005 (WA) s 28(3).

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-25 03:09:20.

13

Fair Comment and Honest Opinion [13.10] Introduction..............................................................................................271 [13.20] The common law defence of fair comment........................................... 273 [13.20] Introduction.................................................................................... 273 [13.30] Onus of proof.................................................................................273 [13.40] Statement of comment................................................................... 274 [13.50] Factual basis for the comment...................................................... 275 [13.60] The matter or the imputation?.......................................................277 [13.70] Matter of public interest................................................................ 278 [13.80] Criticism and review......................................................................281 [13.90] Fairness...........................................................................................282 [13.100] Malice...........................................................................................285 [13.110] The statutory defences of honest opinion.............................................287 [13.110] Statutory defences of honest opinion.......................................... 287

Introduction

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[13.10] More than any other defence to defamation, the defence of fair

comment is intended to protect freedom of speech.1 At the level of principle, it is intended to provide defendants with great scope to comment upon matters of public interest. In theory, the defence of fair comment seeks to allow for “the latitude of fair discussion” and “the diversity of opinion”.2 It is intended to allow for the expression of comments, even if they are prejudiced or biased.3 It is irrelevant whether the tribunal of fact agrees with the comment expressed.4 As Lord Denning MR stated in Slim v Daily Telegraph Ltd:5 1

2

3 4 5

Carr v Hood (1808) 1 Camp 355n; 170 ER 983, at 984 (ER) per Lord Ellenborough: “Where is the liberty of the press, if an action can be maintained on such principles? … Nothing can be conceived more threatening to the liberty of the press than the species of action before the Court. We ought to resist an attempt against free and liberal criticism at the threshold”; Orr v Isles [1965] NSWR 677 at 696-7 per Taylor J; Pryke v Advertiser Newspapers Ltd (1984) 37 SASR 175 at 191 per King CJ: “The defence of fair comment is the means by which the law protects from actions for defamation, the free expression of opinion as to public matters”; Cheng v Tse Wai Chun (2000) 3 HKLRD 418 at 429-30 per Lord Nicholls of Birkenhead NPJ; Channel Seven Adelaide Pty Ltd v Manock (2007) 252 CLR 245; [2007] HCA 60 at 252 (CLR) per Gleeson CJ. As to freedom of expression generally, see [2.90]–[2.150]. South Hetton Coal Co Ltd v North-Eastern News Association Ltd [1894] 1 QB 133 at 144 per Lopes LJ; see also Pryke v Advertiser Newspapers Ltd (1984) 37 SASR 175 at 191 per King CJ. Pryke v Advertiser Newspapers Ltd (1984) 37 SASR 175 at 191 per King CJ. McQuire v Western Morning News Co [1903] 2 KB 100 at 109 per Collins MR; Branson v Bower [2002] QB 737 at 741 per Eady J. [1968] 2 QB 157.

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272

13: Fair Comment and Honest Opinion

[13.10]

[T]he right of fair comment is one of the essential elements which go to make up our freedom of speech. We must ever maintain this right intact. It must not be whittled down by legal refinements.6

The right to comment on matters of public interest is not limited to the media.7 At the level of principle, the defence of fair comment is claimed to give priority to the public interest in freedom of speech (as well as the particular defendant’s interest in the same) over the particular plaintiff’s protection of his or her reputation.8 As Giles JA, in John Fairfax Publications Pty Ltd v O’Shane,9 observed: In the balance between freedom of speech and protection of the individual’s reputation, the defence of comment gives controlled priority to the former by enabling free expression of opinions on matters of public interest.

Just how controlled that priority of freedom of speech is emerges in practice. The elements of the common law defence of fair comment are easy to state but often difficult for a defendant to establish in practice.10 The complexity and technicality of the defence of fair comment has long been recognised11 and recently has been described as “one of the most difficult areas of the law of defamation”.12 Such complexity and technicality tend to work against the protection of freedom of speech. The disparity between the principle and the practical application of the common law defence of fair comment should be a concern to those who are particularly concerned about freedom of speech and suggests that this defence in particular should be the focus of future defamation law reform processes. Again, part of the complexity and technicality of the common law defence of fair comment may be explicable on the basis of its historical origins. Initially, the defence of fair comment was viewed as a branch of qualified

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6

Slim v Daily Telegraph Ltd [1968] 2 QB 157 at 170; see also Digby v Financial News Ltd [1907] 1 KB 502 at 508 per Collins MR: and it is important that in libel actions the Courts should take no steps which would impair the right of bona fide free comment of the admitted acts of individuals; for that reason, if for no other, we ought not to be sedulous in assisting the plaintiff to find a cause of action.

7

8 9 10

11 12

Davis & Sons v Shepstone (1886) 11 App Cas 187 at 190 (PC); Silkin v Beaverbrook Newspapers Ltd [1958] 2 All ER 516; 1 WLR 743 at 746 (WLR) per Diplock J; Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 224 per Dawson, McHugh and Gummow JJ. Orr v Isles [1965] NSWR 677 at 692 per Ferguson J, at 698 per Taylor J. (2005) Aust Torts Reports 81-879; [2005] NSWCA 164 at 67,453 (Aust Torts Reports) per Giles JA. Adams v Sunday Pictorial Newspapers (1920) Ltd [1951] 1 KB 354 at 359-60 per Denning LJ. As to a recent example of the defence of fair comment or honest opinion succeeding, see Williams v Katis [2014] VSC 405 at [180], [216], [243], [246] per J Forrest J. For older examples, see Silkin v Beaverbrook Newspapers Ltd [1958] 2 All ER 516; 1 WLR 743 at 750 (WLR) per Diplock J; Harry Seidler & Associates Pty Ltd v John Fairfax & Sons Ltd (1986) Aust Torts Reports 80-002 at 67,476 per Glass JA, at 67,477 per Mahoney JA. As to recent examples of the defence of fair comment or honest opinion failing, see Forrest v Chlanda [2012] NTSC 14 at [32] per Kelly J; Kunoth-Monks v Healy [2013] NTSC 74 at [105] per Mildren AJ. See also Gacic v John Fairfax Publications Pty Ltd [2011] NSWCA 362. See, eg, Scrutton LJ’s opening sentence in his judgment in Burton v Board [1929] 1 KB 301 at 304: “This is a troublesome case, like all others involving the defence of fair comment.” Joseph v Spiller [2011] 1 AC 852; [2010] UKSC 53 at 857 (AC) per Lord Phillips of Worth Matravers PSC.

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[13.30]

The common law defence of fair comment

privilege.13 During the 19th century, it evolved, coming to be recognised as a separate defence.14 This evolution has not resulted in a straightforward defence. Under the national, uniform defamation laws, there are now statutory defences of honest opinion. These defences have many common features with the common law defence of fair comment. There are, however, some important differences between these defences. The statutory defences of honest opinion do not reduce complexity. Indeed, if anything, having the statutory defences of honest opinion operating alongside the common law defence of fair comment, each with its own technicalities, increases complexity.15

The common law defence of fair comment Introduction [13.20] The elements of the common law defence of fair comment are that the statement is one of comment, not fact; the comment relates to a matter of public interest; and the comment is based on facts truly stated. The comment also needs to be fair and not to have been made maliciously.16

Onus of proof [13.30] Where a defendant raises a defence of fair comment, he or she bears the onus of proof in relation to whether the statement is one of comment, rather than fact; whether the statement relates to a matter of public interest; and whether the factual substratum supporting the comment is substantially accurate. The plaintiff bears the onus of proof in relation to the unfairness of, or malice actuating, the comment.17

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13

14

Peter Walker & Son Ltd v Hodgson [1909] 1 KB 239 at 249 per Vaughan Williams LJ; see also, eg, Campbell v Spottiswoode (1863) 122 ER 288 at 291-2 per Crompton J, at 292 per Blackburn J; Henwood v Harrison (1872) LR 7 CP 606 at 621 per Willes J. Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 215 per Dawson, McHugh and Gummow JJ. See now Cawley v Australian Consolidated Press Ltd [1981] 1 NSWLR 225 at 234 per Hunt J: In principle, it would be quite wrong to consider fair comment as a branch of the law of qualified privilege. The right to comment on matters of public interest is a right which belongs to everyone; it cannot properly be described as a privilege at all.

15

16

17

See also Merivale v Carson (1887) 20 QB 275 at 279-80 per Lord Esher MR, at 282-3 per Bowen LJ; McQuire v Western Morning News Co [1903] 2 KB 100 at 111-2 per Collins MR; Orr v Isles [1965] NSWR 677 at 679-80 per Walsh J. As to the historical development of the defence of fair comment, see P Mitchell, The Making of the Modern Law of Defamation (Hart Publishing, Oxford, 2005) Ch 8. As to the concurrent operation of common law and statutory defences to defamation under the national, uniform defamation laws, see Civil Law (Wrongs) Act 2002 (ACT) s 134(1); Defamation Act 2006 (NT) s 21(1); Defamation Act 2005 (NSW) s 24(1); Defamation Act 2005 (Qld) s 24(1); Defamation Act 2005 (SA) s 22(1); Defamation Act 2005 (Tas) s 24(1); Defamation Act 2005 (Vic) s 24(1); Defamation Act 2005 (WA) s 24(1). Sutherland v Stopes [1925] AC 47 at 62 per Viscount Finlay; Gardiner v John Fairfax & Sons Pty Ltd (1942) 42 SR(NSW) 171 at 173 per Jordan CJ; Orr v Isles [1965] NSWR 677 at 697 per Taylor J; John Fairfax Publications Pty Ltd v O’Shane (2005) Aust Torts Reports 81-789; [2005] NSWCA 164 at 67, 455 (Aust Torts Reports) per Giles JA; Joseph v Spiller [2011] 1 AC 852; [2010] UKSC 53 at 882 (AC) per Lord Phillips of Worth Matraver PSC. McQuire v Western Morning News Co [1903] 2 KB 100 at 111 per Collins MR; Peter

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273

274

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[13.30]

Statement of comment [13.40] For the purposes of the common law defence of fair comment, an important distinction is drawn between a statement of comment and a statement of fact. In Clarke v Norton,18 Cussen J defined a comment as “something which is or can reasonably be inferred to be a deduction, inference, conclusion, criticism, judgment, remark, observation, etc”. His Honour suggested that a comment, properly understood, excluded “a direct statement concerning or description of a subject of public interest”.19 This latter concept was more akin to a statement of fact. A statement of comment may also be made if the defendant makes a value judgment or states a fact and it is clear that the ordinary, reasonable reader would understand that this is a deduction drawn from other statements of fact.20 A comment may be expressed or implied.21 The distinction between a statement of comment and a statement of fact can be difficult to draw in a given case.22 Nevertheless, the common law defence of fair comment requires such a distinction to be drawn. The common law defence of fair comment is directed towards the protection of statements of comment, rather than statements of fact.23 The rationale for this distinction is that a defendant should be permitted to use the latitude afforded to comment on matters of public interest as “a cloak for defamatory misstatements of fact”.24 To be protected by the defence, then, the statement must be recognisable as a statement of comment.25 This is assessed by reference to the ordinary, reasonable reader.26 Thus, whether a statement is one of comment will need to be construed in the whole context and circumstances of the publication of the matter.27 This includes the facts known to readers at the

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18 19 20

21 22

23

24

25 26

27

Walker & Son Ltd v Hodgson [1909] 1 KB 230 at 249 per Vaughan Williams LJ; Gardiner v John Fairfax & Sons Pty Ltd (1942) 42 SR(NSW) 171 at 173 per Jordan CJ. Contra Burton v Board [1929] 1 KB 301 at 306 per Sankey LJ. [1910] VLR 494. Clarke v Norton [1910] VLR 494 at 499. O’Brien v Marquis of Salisbury (1889) 6 TLR 133 at 137 per Field J; Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245; [2007] HCA 60 at 263 (CLR) per Gummow, Hayne and Heydon JJ; Herald & Weekly Times v Buckley (2009) 21 VR 661; [2009] VSCA 75 at 669 (VR) per curiam. Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474 at 485 per Hunt J. London Artists Ltd v Littler [1969] 2 QB 375 at 395 per Edmund Davies LJ; John Fairfax Publications Pty Ltd v O’Shane (2005) Aust Torts Reports 81-789; [2005] NSWCA 164 at 67,455 (Aust Torts Reports) per Giles JA. Gardiner v John Fairfax & Sons Pty Ltd (1942) 42 SR(NSW) 171 at 174 per Jordan CJ; Bjelke-Petersen v Burns [1987] 2 Qd R 129 at 131 per McPherson J; Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309 at 317 per Mason CJ, Brennan, Deane, Dawson, Toohey and Gummow JJ. Pryke v Advertiser Newspapers Ltd (1984) 37 SASR 175 at 191 per King CJ. In Orr v Isles [1965] NSWR 677 at 697, Taylor J identifies this requirement as being founded upon fairness. As to the concept of fairness in the common law defence of fair comment, see [13.90]. Orr v Isles [1965] NSWR 677 at 697 per Taylor J; Cheng v Tse Wai Chun (2000) 3 HKLRD 418 at 424 per Lord Nicholls of Birkenhead NPJ. John Fairfax Publications Pty Ltd v O’Shane (2005) Aust Torts Reports 81-789; [2005] NSWCA 164 at 67,456 (Aust Torts Reports) per Giles JA; Channel Seven Adelaide Pty Ltd v Manock (2007) 252 CLR 245; [2007] HCA 60 at 253 (CLR) per Gleeson CJ. Petritsis v Hellenic Herald Pty Ltd [1978] 2 NSWLR 174 at 182 per Reynolds JA; John Fairfax Publications Pty Ltd v O’Shane (2005) Aust Torts Reports 81-789; [2005] NSWCA 164 at 67,455 (Aust Torts Reports) per Giles JA.

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[13.50]

The common law defence of fair comment

time of publication.28 The use of phrases, such as “in my opinion” or “in my view”, may tend to support the characterisation of the matter as a statement of comment29 but will not be determinative. The “single meaning” rule applies to the defence of fair comment.30 The subjective intention of the commentator is not determinative; the issue is what the matter reasonably means.31 The focus of the defence is on whether the particular meaning is a statement of comment, rather than whether the matter as a whole purports to be an expression of opinion. It is possible for a defendant to make a defamatory assertion of fact in a matter which overall purports to be an expression of opinion.32 If the defendant fails to distinguish between fact and comment, instead mixing them up, he or she runs the risk that what might otherwise be defensible as fair comment will be treated as an assertion of fact. A prudent publisher will then be careful to ensure that what is comment is identifiable as such and is distinguished from fact.33 Whether a statement is one of fact or comment is an issue for the jury to determine, so long as it is reasonably capable of being viewed as a comment. The latter issue is a threshold question of law for the judge to determine.34

Factual basis for the comment [13.50] In order to have a defence of fair comment at common law, the statement must have a factual basis – that is, the comment must be based on facts truly stated.35 Those facts must exist at the time of the publication.36 As Diplock J (as his Lordship then was) directed the jury in Silkin v Beaverbook Newspapers Ltd,37 “[t]hat is common sense and it is the common law”. The rationale for this requirement is that a recipient must be able to assess for himself or herself whether he or she agrees with the defendant’s comment.38 The 28 29 30

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31

32 33

34 35

36 37 38

Rocca v Manhire (1992) 57 SASR 224 at 235 per White J. Turner v Metro-Goldwyn-Mayer Pictures Ltd [1950] 1 All ER 449 at 461 per Lord Porter. Lowe v Associated Newspapers Ltd [2007] QB 580; [2006] EWHC 320 at 587 (QB) per Eady J. As to the “single meaning” rule, see [6.140]. Sims v Wran [1984] 1 NSWLR 317 at 322 per Hunt J; Bjelke-Petersen v Burns [1987] 2 Qd R 129 at 131 per McPherson J; Lowe v Associated Newspapers Ltd [2007] QB 580; [2006] EWHC 320 at 587 (QB) per Eady J. O’Shaughnessy v Mirror Newspapers Ltd (1970) 125 CLR 166 at 174 per Barwick CJ, McTiernan, Menzies and Owen JJ. Hunt v Star Newspaper Co Ltd [1908] 2 KB 309 at 319-20 per Fletcher Moulton LJ; Smith’s Newspapers Ltd v Becker (1932) 47 CLR 279 at 303-4 per Evatt J; Goldsbrough v John Fairfax & Sons Ltd (1934) 34 SR(NSW) 524 at 531 per Jordan CJ; London Artists Ltd v Littler [1969] 2 QB 375 at 395 per Edmund Davies LJ; Bjelke-Petersen v Burns [1987] 2 Qd R 129 at 131 per McPherson J. Petritsis v Hellenic Herald Pty Ltd [1978] 2 NSWLR 174 at 182 per Reynolds JA; see also London Artists Ltd v Littler [1969] 2 QB 375 at 394-5 per Edmund Davies LJ. Joynt v Cycle Trade Publishing Co [1904] 2 KB 292 at 295 per Vaughan Williams LJ; Digby v Financial News Ltd [1906] 1 KB 502 at 507 per Collins MR; Peter Walker & Son Ltd v Hodgson [1909] 1 KB 239 at 249 per Vaughan Williams LJ, at 253 per Buckley LJ; London Artists Ltd v Littler [1969] 2 QB 375 at 391 per Lord Denning MR: “In order to be fair, the commentator must get his basic facts right”; Branson v Bower [2002] QB 737 at 748 per Eady J. Cohen v Daily Telegraph Ltd [1968] 1 WLR 916 at 919-20 per Lord Denning MR. [1958] 2 All ER 516; 1 WLR 743 at 746 (WLR). Orr v Isles [1965] NSWR 677 at 697 per Taylor J; Cheng v Tse Wai Chun (2000) 3 HKLRD 418 at 425 per Lord Nicholls of Birkenhead NPJ; see also Australian Broadcasting Corporation v Comalco Ltd (1986) 12 FCR 510 at 553 per Smithers J. However, see Orr v Isles [1965] NSWR 677 at 681 per Walsh J.

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requirement of a substantially accurate factual substratum should also be viewed as a reciprocal obligation of the defendant being afforded great latitude to express his or her opinion. As Lord Oaksey observed in Kemsley v Foot,39 “[a] comment based on facts untruly stated cannot be fair.” The common law sees no value in comments founded upon false facts. In certain cases, it may be difficult to distinguish between the comment itself and its factual basis.40 There are a number of ways in which the factual basis for a statement of comment can be established. The factual substratum may be expressly stated, referred to or notorious.41 It is not necessary in every case that the matter state the facts upon which the comment is based.42 If the matter expressly states the facts upon which the comment is based, the defendant must prove the substantial accuracy of the facts so stated.43 The defendant may also refer to the factual basis of his or her comment. The most common instance in which this would occur is where the defendant is undertaking criticism or review of a book, a play, a film, a restaurant or the like. It is not possible for the defendant comprehensively to state facts about the subject matter of the criticism or review.44 In most instances, the criticism or review will be the defendant’s reflections upon his or her own experiences reading the book, watching the play or film, or eating at the restaurant. Those experiences are necessarily personal and ephemeral. It is sufficient, though, for the purposes of the defence of fair comment that the defendant refers to the subject matter of the criticism or review, from which the recipient can identify the book or the play or the film, or the restaurant. The recipient is then in a position to read the book, watch the play or film, or eat at the restaurant, and decide for himself or herself whether he or she agrees with the defendant. It is not essential, though, that the recipient actually reads the book, watches the play or film, or eats at the restaurant.45 In such a case, where a work is laid before the public and public criticism is thereby invited, so long as the review presents statements of comment, rather than statements of fact, the defence of fair comment is available and it is not necessary that the reader be placed in a position to form his or her own view.46 Where facts are notorious, in the public domain, well known or “easily ascertainable”, there is no need for the matter itself to state the facts.47 The 39

40 41

42 43 44 45 46 47

[1952] AC 345 at 361; see also Digby v Financial News Ltd [1907] 1 KB 502 at 508 per Collins MR; Goldsbrough v John Fairfax & Sons Ltd (1934) 34 SR(NSW) 524 at 532 per Jordan CJ; Orr v Isles [1965] NSWR 677 at 697 per Taylor J; Bjelke-Petersen v Burns [1987] 2 Qd R 129 at 133 per McPherson J. Channel Seven Adelaide Pty Ltd v Manock (2007) 252 CLR 245; [2007] HCA 60 at 253 (CLR) per Gleeson CJ. Orr v Isles [1965] NSWR 677 at 697-8 per Taylor J; Pryke v Advertiser Newspapers Ltd (1984) 37 SASR 175 at 191 per King CJ; Sims v Wran [1984] 1 NSWLR 317 at 324 per Hunt J; Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245; [2007] HCA 60 at 281-2 (CLR) per Gummow, Hayne and Heydon JJ. Channel Seven Adelaide Pty Ltd v Manock (2007) 252 CLR 245; [2007] HCA 60 at 253 (CLR) per Gleeson CJ. Gardiner v John Fairfax & Sons Pty Ltd (1942) 42 SR(NSW) 171 at 173 per Jordan CJ; Sims v Wran [1984] 1 NSWLR 317 at 324 per Hunt J. Orr v Isles [1965] NSWR 677 at 686 per Walsh J. Channel Seven Adelaide Pty Ltd v Manock (2007) 252 CLR 245; [2007] HCA 60 at 254 (CLR) per Gleeson CJ. Channel Seven Adelaide Pty Ltd v Manock (2007) 252 CLR 245; [2007] HCA 60 at 255 per Gleeson CJ. As to criticism and review generally, see [13.80]. Pryke v Advertiser Newspapers Ltd (1984) 37 SASR 175 at 192 per King CJ; see also Orr v Isles [1965] NSWR 677 at 690 per Ferguson J.

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[13.60]

The common law defence of fair comment

ordinary, reasonable reader, at the time of publication, is taken to be aware of the relevant facts. If the factual basis of the comment is not proven to be substantially accurate, the defence fails.48 The publication of matter on a privileged occasion can form the basis of a defence of fair comment. This requires the matter published on the privileged occasion to meet the elements of that defence.49 Similarly, the publication of a fair and accurate report of court or parliamentary proceedings can form the factual substratum of a defence of fair comment.50 This requires the report in question to satisfy the requirements for protection by that defence.51 The failure to establish that the matter is a fair and accurate report of court proceedings will lead to the failure of the defence of fair comment.52 In terms of the requirement of substantial accuracy of the factual substratum of a comment, it should be noted that a protected report may repeat defamatory statements made as part of the underlying proceedings, in the course of fairly and accurately representing what occurred in those proceedings. Notwithstanding the substantial inaccuracy of the statements contained in it, the report can still furnish the basis for comment.53

The matter or the imputation? [13.60] A vexed issue under the Defamation Act 1974 (NSW), under which the imputation was the cause of action, was whether the defence of fair comment had to address the matter or the pleaded imputation. Although there was judicial support for the former view,54 the latter view prevailed.55 As the Privy Council observed in Lloyd v David Syme & Co Ltd:56 There is no such thing as comment in the air. Comment must have a meaning and ex hypothesi the jury are proceeding on the footing that its meaning is defamatory in the sense of the pleaded imputations which have been found established.

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Whatever the earlier position at common law, the position now pertaining in Australia is that the defence of fair comment must meet the plaintiff’s particularised meaning. This may reflect the increasing obligation on plaintiffs to particularise the meanings upon which they rely.57 In Channel Seven 48

49

50

51 52 53 54

55 56 57

Hunt v Star Newspaper Co Ltd [1908] 2 KB 309 at 320 per Fletcher Moulton LJ; Channel Seven Adelaide Pty Ltd v Manock (2007) 252 CLR 245; [2007] HCA 60 at 253 per Gleeson CJ. See also, eg, John Fairfax Publications Pty Ltd v O’Shane (2005) Aust Torts Reports 81-789; [2005] NSWCA 164 at 67,455 (Aust Torts Reports). Brent Walker Group Plc v Time Out Ltd [1991] 2 QB 33 at 45 per Bingham LJ; Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309 at 320-1 per Mason CJ, Brennan, Deane, Dawson, Toohey and Gummow JJ. Mangena v Wright [1909] 2 KB 958 at 977 per Phillimore J; Thompson v Truth and Sportsman Ltd (No 4) (1932) 34 SR(NSW) 21 at 24-5 (PC); Bailey v Truth and Sportsman Ltd (1938) 60 CLR 700 at 710 per Latham CJ; Grech v Odhams Press Ltd [1958] 2 QB 275; Cook v Alexander [1974] QB 279 at 288 per Lord Denning MR. As to the requirements of the defence of fair and accurate report of court and parliamentary proceedings, see [12.20]–[12.40], [12.70]–[12.90]. Grech v Odhams Press Ltd [1958] 2 QB 275 at 285-6 per Jenkins LJ. Mangena v Wright [1909] 2 KB 958 at 977 per Phillimore J. Petritsis v Hellenic Herald Pty Ltd [1978] 2 NSWLR 178 at 184 per Reynolds JA, at 192 per Samuels JA; Bob Kay Real Estate Pty Ltd v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 505 at 512 per Hunt J. Gacic v John Fairfax Publications Pty Ltd [2011] NSWCA 362 at [64], [67] per McColl JA. (1985) 3 NSWLR 728 at 735-6. See [6.30].

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Adelaide Pty Ltd v Manock,58 Gummow, Hayne and Heydon JJ rejected the submission that the plaintiff’s particularised meaning was irrelevant to whether the defendant had established a defence of fair comment. Their Honours reasoned that by the time the defence of fair comment was to be determined at trial the plaintiff’s case as to defamatory meaning would already have been determined adversely to the defendant. As such, they held that “[t]he meaning found is the comment to be scrutinised for its fairness”.59 The fact that the cause of action under the national, uniform defamation laws is the matter itself, rather than the imputations conveyed by it, has not altered the position reached by the High Court in Channel Seven Adelaide Pty Ltd v Manock.60

Matter of public interest [13.70] In order to be defensible as fair comment, the comment must relate to a matter of public interest.61 Whether the comment relates to a matter of public interest is for the judge to determine.62 The onus of proof in relation to whether the comment relates to a matter of public interest is upon the defendant.63 A useful working definition of what constitutes a “matter of public interest” is provided by Dawson, McHugh and Gummow JJ in Bellino v Australian Broadcasting Corporation,64 wherein their Honours described a matter of public interest as: the actions or omissions of a person or institution engaged in activities that either inherently, expressly or inferentially invited public criticism or discussion.65

The criticism of public persons in the discharge of their public duties or offices, or in the conduct of their public lives has been consistently viewed as an important matter of public interest.66 Indeed, the defence of fair comment

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58 59 60 61

62 63 64 65 66

(2007) 232 CLR 245; [2007] HCA 60. Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245; [2007] HCA 60 at 287 (CLR). See Soultanov v Age Co Ltd (2009) 23 VR 182; [2009] VSC 145 at 199 (VR) per Kaye J. South Hetton Coal Co Ltd v North-Eastern News Association Ltd [1894] 1 QB 133 at 140 per Lord Esher MR; Cheng v Tse Wai Chun (2000) 3 HKLRD 418 at 424 per Lord Nicholls of Birkenhead NPJ. For examples of cases in which the comment did not relate to a matter of public interest, see Cole v Operative Plasterers Federation of Australia (NSW Branch) (1927) 28 SR(NSW) 62 at 68 (whilst the architectural design of a private building on a public street may be a matter of public interest, the quality of plastering inside the rooms of that building is not). South Hetton Coal Co Ltd v North-Eastern News Association Ltd [1894] 1 QB 133 at 141 per Lopes LJ. London Artists Ltd v Littler [1969] 2 QB 375 at 393 per Edmund Davies LJ. (1996) 185 CLR 183. Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 215 per Dawson, McHugh and Gummow JJ. See, eg, Whitford v Clarke [1939] SASR 434 at 439 per Napier J: People who fill public positions must not be too thin-skinned in reference to comments made upon them. It must often happen that observations are made upon public men which they know to be undeserved and unjust. Yet they must bear with them, as a matter of public policy. Freedom to criticise is the best security for the proper discharge of public duties.

See also Parmiter v Coupland (1840) 6 M & W 105; 151 ER 340 at 342 (ER) per Parke B; Broadbent v Small (1876) 2 VLR(L) 121 at 124 per Stawell CJ: “The public acts or conduct of a person in public office, are the legitimate subjects of criticism; but, apart from those acts or conduct, a public officer is no more obnoxious to criticism than a private individual”; Williams v Spowers (1882) 8 VLR(L) 82 at 101-2 per Stawell CJ: “the public sayings and

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[13.70]

The common law defence of fair comment

developed in the 19th century precisely to protect this type of speech.67 Thus, the administration of justice and those who participate in it have been held to be a matter of public interest for the purposes of the defences of fair comment and honest opinion.68 The types of public persons whose conduct can be the subject of fair comment has been broadly defined. The defence of fair comment is not limited to persons occupying government or political office. It also extends to the conduct of businesspeople running large corporations.69 As Bramwell B suggested in Kelly v Sherlock:70 “A clergyman with his flock, an admiral with his fleet, a general with his army, and a judge with his jury – we are all of us the subjects for public discussion.” However, the defence of fair comment, as it has developed, has drawn a distinction between criticism directed towards the plaintiff’s public conduct and the ascription of base or improper motives to the plaintiff. The former is more readily defensible as fair comment than the latter. If a publisher intends to impute base or improper motives to the plaintiff, he or she should ensure that such an imputation can be drawn from the factual substratum.71 Where the plaintiff has publicly exhibited or otherwise laid before the public his or her work, the plaintiff has, by his or her own conduct, made the work a matter of public interest.72 Where the plaintiff has advertised his or her goods or services publicly, he or she has likewise invited public attention, thereby rendering his or her goods or services a matter of public interest about which people may legitimately comment.73 The common law has not taken a narrow view of what constitutes a matter of public interest for the purposes of the defence of fair comment.74 A

67

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68

69 70 71

72

73 74

doings of a public man are public property, upon which every member of the community is entitled to offer fair comments”; Speight v Syme (1894) 20 VLR 393 at 397 per Williams J; Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 218 per Dawson, McHugh and Gummow JJ. For a recognition of this liberalisation, see Whiteley v Adams (1863) 15 CB(NS) 415; 143 ER 838 at 848 (ER) per Erle CJ: “The privilege of criticizing and discussing the words and acts of public man has in modern times been very widely extended.” Hibbins v Lee (1864) 4 F & F 243; 176 ER 549 at 550 (ER) per Cockburn CJ; Woodgate v Ridout (1865) 4 F & F 202; 176 ER 531 at 540 (ER) per Cockburn CJ; Hedley v Barlow (1865) 4 F & F 224; 176 ER 541 at 543 (ER) per Cockburn CJ; Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 217-8 per Dawson, McHugh and Gummow J; Goldsworthy v Radio 2UE Sydney Pty Ltd [1999] NSWSC 547 at [25] per Dunford J. Branson v Bower [2002] QB 737 at 747 per Eady J. (1866) LR 1 QB 686 at 689. Popham v Pickburn (1862) 7 H & N 891; 158 ER 730 at 733 (ER) per Wilde B; Campbell v Spottiswoode (1863) 3 B & S 174; 122 ER 288 at 290 (ER) per Cockburn CJ, at 291 per Crompton J; Davis & Sons Ltd v Shepstone (1886) 11 App Cas 187 at 190 per Lord Herschell LC; Joynt v Cycle Trade Publishing Co [1904] 2 KB 292 at 297-8 per Vaughan Williams LJ; Hunt v Star Newspaper Co Ltd [1908] 2 KB 309 at 320-1 per Fletcher Moulton LJ; Dakhyl v Labouchere [1908] 2 KB 325 at 329 per Lord Atkinson; Peter Walker & Son Ltd v Hodgson [1909] 1 KB 239 at 256 per Kennedy LJ; Rocca v Manhire (1992) 57 SASR 224 at 230 per King CJ. See also Myerson v Smith’s Weekly (1924) 24 SR(NSW) 20 at 26 per Ferguson J: “To say that a man’s conduct was dishonourable is not comment; it is a statement of fact. To say that he did certain specific things and that his conduct was dishonourable is a statement of fact coupled with a comment.” Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 218 per Dawson, McHugh and Gummow JJ. This has a particular application in relation to criticism and review, as to which, see [13.80]. Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 218 per Dawson, McHugh and Gummow JJ. Cheng v Tse Wai Chun (2000) 3 HKLRD 418 at 424 per Lord Nicholls of Birkenhead NPJ.

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frequently cited discussion of what constitutes the public interest for the purposes of the defence of fair comment is taken from Lord Denning MR’s judgment in London Artists Ltd v Littler,75 wherein his Lordship stated that: There is no definition in the books as to what is a matter of public interest … I would not myself confine it within narrow limits. Whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on; or what may happen to them or to others; then it is a matter of public interest on which everyone is entitled to make fair comment.76

According to Taylor J in the later case of Orr v Isles:77 Matters of public interest, in respect of which the right of comment is given, range over an enormous field … [T]he range commences with affairs of State and finishes with the performance of an amateur theatrical society in the village hall.

His Honour went on to suggest that the defence of fair comment should be used to protect defendants who seek to call attention to wrongs, injustice or corruption, or to express disagreement with the suitability of persons for office or with the policies of governmental or quasi-governmental bodies. The case law demonstrates the breadth of issues which have been found to be matters of public interest for the purposes of the defence of fair comment, such as the sanitary conditions of housing provided by a colliery for its workers and their families;78 the conduct of newspapers;79 and the backstage machinations of a West End play.80 There is no particular form which the comment must take in order for the defence of fair comment to be established, so long as the comment relates to a matter of public interest.81 The subject of the comment does not need to be a matter of public interest prior to the defendant’s publication. As Dawson, McHugh and Gummow JJ observed in Bellino v Australian Broadcasting Corporation:82

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A citizen does not have to wait until the public discussion of a subject of public interest commences before he or she can make a lawful comment on the conduct of a person or institution whose activities are a subject of public interest.

It is open to a defendant to initiate a discussion of a new matter of public interest and to comment upon it, and still to avail himself or herself of the defence of fair comment.83 Although the principal interest protected by defamation law is reputation,84 the requirement that a comment relate to a matter of public interest is a small but telling way in which defamation law indirectly protects privacy.85 As McColl JA observed in John Fairfax Publications Pty Ltd v 75 76 77 78 79 80 81

82 83 84 85

[1969] 2 QB 375. London Artists Ltd v Littler [1969] 2 QB 375 at 391. [1965] NSWR 677 at 698. South Hetton Coal Co Ltd v North-Eastern News Association Ltd [1894] 1 QB 133 at 140 per Lord Esher MR, at 143 per Lopes LJ, at 144-5 per Kay LJ. Kemsley v Foot [1952] AC 345 at 354 per Lord Porter. London Artists Ltd v Littler [1969] 2 QB 375 at 387 per Lord Denning MR. For instance, in Harry Seidler & Associates Pty Ltd v John Fairfax & Sons Ltd (1986) Aust Torts Reports 80-002 at 67,476 per Glass JA, a cartoon relating to a matter of public interest was the subject of a successful defence of fair comment. (1996) 185 CLR 183 at 224. Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 224 per Dawson, McHugh and Gummow JJ. As to reputation, see [2.20]–[2.80]. As to the indirect protection of privacy through defamation law, see [18.200]–[18.220].

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[13.80]

The common law defence of fair comment

Hitchcock:86 “The concept of ‘public interest’ is a critical mechanism for the purposes of the law of defamation by which the law seeks to resolve the tension between privacy and freedom of speech.”

Criticism and review [13.80] An important aspect of the defence of fair comment is its application to criticism and review. Reviews of books,87 plays,88 films, restaurants89 and the like are archetypal cases involving the exercise of the right to comment. The availability of a defence of fair comment to a critic to protect himself or herself against a defamation claim is well established. In the early 19th century, Lord Ellenborough expounded on the important role of the critic, stating that: [t]he critic does a great service to the public, who writes down any vapid or useless publication such as ought never to have appeared. He checks the dissemination of bad taste, and prevents people from wasting both their time and money upon trash. I speak of fair and candid criticism; and this everyone has a right to publish, although the author may suffer a loss from it. Such a loss the law does not consider as an injury; because it is a loss which the party ought to sustain. It is in short the loss of fame and profits to which he was never entitled.90

A critic or a reviewer is not limited to the terms of the matter. The subject-matter and style of a work may be criticised.91 The social or political themes emerging from the work may also be criticised. The reputation of the person responsible for the work more generally may be criticised.92 Criticism itself may be criticised.93 Furthermore, the right to criticise extends to amateur, as well as professional, critics.94

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Where the matter relates to criticism or review of a published work or a public performance, the matter will be taken to be prima facie a statement of comment, unless it is clear or can be proven that it contains allegations of fact.95 The element of public interest, for the purposes of the defence of fair comment, is satisfied in a case involving criticism or review because the plaintiff submits his or her work to the public and invites public attention.96 By his or her own conduct, the plaintiff has made his or her work a matter of public 86 87 88 89 90 91 92 93 94 95

96

(2007) 70 NSWLR 484; [2007] NSWCA 364 at 516 (NSWLR). Carr v Hood (1808) 1 Camp 355n; 170 ER 983; Gardiner v John Fairfax & Sons Pty Ltd (1942) 42 SR(NSW) 171. See, eg, O’Shaughnessy v Mirror Newspapers Ltd (1970) 125 CLR 166 at 172 per Barwick CJ, McTiernan, Menzies and Owen JJ. See, eg, Gacic v John Fairfax Publications Pty Ltd [2011] NSWCA 362. Carr v Hood (1808) 1 Camp 355n; 170 ER 983 at 985 (ER). Turner v Metro-Goldwyn-Mayer Pictures Ltd [1950] 1 All ER 449 at 463 per Lord Greene. Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474 at 487 per Hunt J. Turner v Metro-Goldwyn-Mayer Pictures Ltd [1950] 1 All ER 449 at 463-4 per Lord Greene. This case involves a defamation proceeding brought by a film critic. Turner v Metro-Goldwyn-Mayer Pictures Ltd [1950] 1 All ER 449 at 464 per Lord Greene. Gardiner v John Fairfax & Sons Pty Ltd (1942) 42 SR(NSW) 171 at 174 per Jordan CJ; Orr v Isles [1965] NSWR 677 at 686 per Walsh J. As to the treatment of reviews as a special category of case, see Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245; [2007] HCA 60 at 279-80 (CLR) per Gummow, Hayne and Heydon JJ. Carr v Hood (1808) 1 Camp 355n; 170 ER 983 at 985 (ER) per Lord Ellenborough; Gardiner v John Fairfax & Sons Pty Ltd (1942) 42 SR(NSW) 171 at 173-4 per Jordan CJ; Kemsley v Foot [1952] AC 345 at 355 per Lord Porter; Orr v Isles [1965] NSWR 677 at 690 per Ferguson J; Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474 at 487 per Hunt J.

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interest and cannot complain if he or she is the subject of adverse criticism.97 As Jordan CJ noted in Gardiner v John Fairfax & Sons Pty Ltd,98 the public act of criticism has the consequence that “[t]he critic himself is as much exposed to comment for his criticism as is the author criticised.” The right to criticise should not be unduly restricted, given its importance as an exercise of freedom of speech. Criticism or review of a plaintiff’s works can be robust. It may even expose the plaintiff to ridicule. As Lord Ellenborough observed in Carr v Hood,99 “[r]idicule is often the fittest weapon that can be employed for such a purpose … If the reputation or pecuniary interests of the person ridiculed suffer, it is damnum absque injuria.”100 There is no requirement that the criticism or review should be politely expressed. As Jordan CJ noted in Gardiner v John Fairfax & Sons Pty Ltd: “A critic is entitled to dip his pen in gall for the purpose of legitimate criticism; and no one need be mealy-mouthed in denouncing what he regards as twaddle, daub or discord.”101 However, a distinction has been drawn between legitimate criticism of the plaintiff’s work and attacks on the private character of the plaintiff or the attribution of “base and sordid motives”. The former is fair, whereas the latter is not.102 In McQuire v Western Morning News Co,103 Collins MR suggested that a literary critic should only be exposed to liability for defamation if what he or she publishes is “something that passes out of the domain of criticism itself”.104 His Lordship went on to state that “[c]riticism cannot be used as a cloak for mere invective, nor for personal imputations not arising out of the subject-matter or not based in fact.”105

Fairness

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[13.90] Fairness is crucial to the defence of fair comment. A defence of fair comment will fail if the comment exceeds the bounds of fairness.106 For the purposes of the defence of fair comment, the element of fairness is to be determined by reference to the honesty of the person purporting to express the comment.107 It is not directed to the fairness of the comment towards the plaintiff.108 The essential issue is whether the comment honestly reflects the view of the person who expressed it.109 Honesty, then, is the cardinal test for

97 98 99 100 101 102 103 104 105 106 107 108 109

Gardiner v John Fairfax & Sons Pty Ltd (1942) 42 SR(NSW) 171 at 174 per Jordan CJ. (1942) 42 SR(NSW) 171 at 174. (1808) 1 Camp 355n; 170 ER 983. As to ridicule, see [6.260] Carr v Hood (1808) 1 Camp 355n; 170 ER 983 at 984 (ER). (1942) 42 SR(NSW) 171 at 174; see also Branson v Bower [2002] QB 737 at 742 per Eady J. Merivale v Carson (1887) 20 QBD 275 at 280 per Lord Esher MR, at 284 per Bowen LJ; see also Carr v Hood (1808) 1 Camp 355n; 170 ER 983 at 985 (ER) per Lord Ellenborough. [1903] 2 KB 100. McQuire v Western Morning News Co [1903] 2 KB 100 at 109. McQuire v Western Morning News Co [1903] 2 KB 100 at 109 per Collins MR. Sutherland v Stopes [1925] AC 47 at 62 per Viscount Finlay. Turner v Metro-Goldwyn-Mayer Pictures Ltd [1950] 1 All ER 449 at 463 per Lord Porter. Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474 at 487 per Hunt J. Cherneskey v Armadale Publishers Ltd [1979] 1 SCR 1067 at 1081 per Ritchie J, at 1072-3 per Mortland J.

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[13.90]

The common law defence of fair comment

the fairness of a comment.110 When determining the question of fairness, the state of mind of the person making the comment is in issue.111 Fairness is not to be equated with reasonableness.112 The test is one of honesty, not reasonableness.113 As Hunt J noted in Sims v Wran,114 “[t]he difference between an opinion which might be honestly held upon certain material and that which might reasonably be held upon more circumscribed material may be substantial indeed.” As Collins MR observed in McQuire v Western Morning News Co:115 “Fair”, therefore, in this collocation, does not mean that which the ordinary reasonable man, “the man on the Clapham omnibus”, as Lord Bowen phrased it, the juryman common or special, would think a correct appreciation of the work; and it is of the highest importance to the community that the critic should be saved from any such possibility.

There would be adverse consequences for the protection of freedom of speech if a test of reasonableness, rather than a test of fairness were to be imposed upon a defendant. As Hunt J noted in Sims v Wran:116 The introduction of the concept of reasonableness in lieu of that of honesty as the test to determine whether a particular statement is a comment places a far greater burden upon the defendant in establishing a defence.

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The test, then, is not whether the reasonable person would agree with the comment but whether the comment was one which no honest person could reasonably have expressed.117 Thus, it is an objective, not a subjective, test, cast in those terms.118 As Diplock J (as his Lordship then was) famously expressed it in Silkin v Beaverbrook Newspapers Ltd:119 “The basis of our public is that the crank, the enthusiast, may say what he honestly thinks just as much as the reasonable man or woman who sits on a jury.” A person commenting on a matter of public interest is given a great deal of latitude,120 given the importance of this defence to the protection of freedom of speech. He or she will be able to rely upon a defence of fair comment even if his or her comment is obstinate, foolish, misguided, erroneous, prejudiced or biased.121 The comment may be rudely or offensively expressed.122 The 110

111 112 113 114 115 116 117

118

119 120 121

Silkin v Beaverbrook Newspapers Ltd [1958] 2 All ER 516; 1 WLR 743 at 747 (WLR) per Diplock J; Slim v Daily Telegraph Ltd [1968] 2 QB 157 at 170 per Lord Denning MR; see also Falcke v Herald & Weekly Times Ltd [1925] VLR 56 at 71 per McArthur J. Cherneskey v Armadale Publishers Ltd [1979] 1 SCR 1067 at 1082 per Ritchie J. Channel Seven Adelaide Pty Ltd v Manock (2007) 252 CLR 245; [2007] HCA 60 at 252 (CLR) per Gleeson CJ. Turner v Metro-Goldwyn-Mayer Pictures Ltd [1950] 1 All ER 449 at 463 per Lord Porter; Sims v Wran [1984] 1 NSWLR 317 at 325 per Hunt J. [1984] 1 NSWLR 317 at 325. [1903] 2 KB 100 at 109. [1984] 1 NSWLR 317 at 325. Gardiner v John Fairfax & Sons Pty Ltd (1942) 42 SR(NSW) 171 at 174 per Jordan CJ; Silkin v Beaverbrook Newspapers Ltd [1958] 2 All ER 516; 1 WLR 743 at 748 (WLR) per Diplock J; Branson v Bower [2002] QB 737 at 741 per Eady J. Rocca v Manhire (1992) 57 SASR 224 at 230 per King CJ; Branson v Bower [2002] QB 737 at 741 per Eady J. This may be contrasted with the inquiry as to malice, which is subjective: see Cheng v Tse Wai Chun (2000) 3 HKLRD 418 at 424-5 per Lord Nicholls of Birkenhead NPJ. [1958] 2 All ER 516; 1 WLR 743 at 746 (WLR). Merivale v Carson (1880) 20 QBD 275 at 280 per Lord Esher MR. Merivale v Carson (1887) 20 QB 275 at 280 per Lord Esher MR, at 284 per Bowen LJ;

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comment may also be exaggerated.123 There is no requirement that a person commenting on a matter of public interest should do so moderately or temperately.124 However, there are limits: “invective is not criticism”.125 A comment does not need to be “objectively correct” in order to be defensible.126 Nevertheless, a person commenting on a matter of public interest has the legal protection of a defence of fair comment so long as the comment he or she expresses is honestly held and one which an honest person could express based upon the relevant facts.127 Like the common law defence of qualified privilege, there is also a requirement of relevance128 – that is, that the comment expressed bear a relevant relationship to the facts upon which it purports to be based. The test of fairness, then, should be understood as marking the outer limits of what an honest person could express upon the basis of the relevant facts.129 What is or is not fair will depend upon the circumstances of the case.130 What constitutes fairness cannot be stated exhaustively.131 The trial judge has to determine, as a matter of law, whether there is any evidence of unfairness. If there is no such evidence, the question cannot be placed before the jury.132 Whether the matter is in fact fair is a question for the jury, provided that there is evidence upon which it could reasonably so find.133

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Silkin v Beaverbrook Newspapers Ltd [1958] 2 All ER 516; 1 WLR 743 at 746 (WLR) per Diplock J; John Fairfax Publications Pty Ltd v O’Shane (2005) Aust Torts Reports 81-879; [2005] NSWCA 164 at 67,453 (Aust Torts Reports) per Giles JA; Branson v Bower [2002] QB 737 at 741 per Eady J; Channel Seven Adelaide Pty Ltd v Manock (2007) 252 CLR 245; [2007] HCA 60 at 252 (CLR) per Gleeson CJ. John Fairfax Publications Pty Ltd v O’Shane (2005) Aust Torts Reports 81-879; [2005] NSWCA 164 at 67,453 (Aust Torts Reports) per Giles JA; Branson v Bower [2002] QB 737 at 741-2 per Eady J; Channel Seven Adelaide Pty Ltd v Manock (2007) 252 CLR 245; [2007] HCA 60 at 252(CLR) per Gleeson CJ. Merivale v Carson (1887) 20 QB 275 at 281 per Lord Esher MR; Silkin v Beaverbrook Newspapers Ltd [1958] 2 All ER 516; 1 WLR 743 at 746 (WLR) per Diplock J. McQuire v Western Morning News Co [1903] 2 KB 100 at 110 per Collins MR. See also Merivale v Carson (1887) 20 QBD 275 at 283 per Bowen LJ (suggesting that the mode of expression, not the content of expression, is most relevant to the question of fairness of comment). However, see also South Hetton Coal Co Ltd v North-Eastern News Association Ltd [1894] 1 QB 133 at 140 per Lord Esher MR. McQuire v Western Morning News Co [1903] 2 KB 100 at 110 per Collins MR. Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474 at 487 per Hunt J. Merivale v Carson (1887) 20 QBD 275 at 281 per Lord Esher MR; Channel Seven Adelaide Pty Ltd v Manock (2007) 252 CLR 245; [2007] HCA 60 at 252 (CLR) per Gleeson CJ. McQuire v Western Morning News Co [1903] 2 KB 100 at 110 per Lord Esher MR; Gardiner v John Fairfax & Sons Pty Ltd (1942) 42 SR(NSW) 171 at 174 per Jordan CJ; Cheng v Tse Wai Chun (2000) 3 HKLRD 418 at 425 per Lord Nicholls of Birkenhead NPJ. This requirement of relevance or “pertinence” has been criticised as “bizarre and elusive” by Lord Phillips of Worth Matravers PSC in Joseph v Spiller [2011] 1 AC 852; [2010] UKSC 53 at 859 (AC). Merivale v Carson (1887) 20 QBD 275 at 284 per Bowen LJ: “the reasonable limits of criticism”; Channel Seven Adelaide Pty Ltd v Manock (2007) 252 CLR 245; [2007] HCA 60 at 252 (CLR) per Gleeson CJ. Merivale v Carson (1887) 20 QBD 275 at 281 per Lord Esher MR. Merivale v Carson (1887) 20 QBD 275 at 283 per Bowen LJ. McQuire v Western Morning News Co [1903] 2 KB 100 at 111 per Collins MR; Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474 at 487 per Hunt J. Merivale v Carson (1887) 20 QBD 275 at 283 per Bowen LJ; South Hetton Coal Co Ltd v North-Eastern News Association Ltd [1894] 1 QB 133 at 143 per Lopes LJ, at 145 per Kay LJ; Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474 at 487 per Hunt J; Branson v Bower [2002] QB 737 at 741 per Eady J.

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[13.100]

The common law defence of fair comment

Malice [13.100] As with the common law defences of qualified privilege and fair reports of judicial and parliamentary proceedings, the common law defence of fair comment can be defeated by proof of malice.134 If the comment was motivated by malice, it cannot be fair.135 As Collins MR observed in Thomas v Bradbury, Agnew & Co Ltd,136 “[c]omment distorted by malice cannot in my opinion be fair on the part of the person who makes it.” The defence of fair comment is important to facilitate freedom of expression on matters of public interest but there is no public interest in protecting comment actuated by malice.137 However, the term “malice” is a highly problematic word, in defamation law generally and in the context of fair context in particular.138 What is meant by “malice” for the purposes of fair comment is contentious and, like many areas of the defence of fair comment, has not been thoroughly explored in the case law. This is particularly noticeable when contrasted with the more extensive consideration of malice as defeating conduct for the purposes of the defences of qualified privilege.139 It is questionable whether the test for “malice” for the purposes of defeating a defence of fair comment is the same as the test applied for the purposes of defeating the defences of qualified privilege.140 The difficulties of principle presented in this area were noted by Blackburn J in Renouf v Federal Capital Press of Australia Pty Ltd.141 His Honour observed that:

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[t]he broad rule that malice is a reply to the defence of fair comment seems to me to conceal a serious difficulty, one which does not exist in the case of malice as a reply to the defence of qualified privilege. In the latter case, malice can be readily characterized as an abuse, by the introduction of personal animus, of a special legal relationship which exists for a non-personal purpose. But malice in the context of fair comment cannot be characterized as an abuse of a special legal relationship, since ex hypothesi the defence of fair comment is open to all.142

Blackburn J went on to hold that malice for the purposes of defeating a defence of fair comment should follow malice for the purposes of defeating a defence of qualified privilege, with the consequence that, if a plaintiff can prove that the defendant’s dominant motive was an improper one, that is sufficient to defeat the defence of fair comment, even if the opinion expressed by the defendant is not demonstrated to be other than his or her honestly held view.143 134

135 136 137 138 139 140 141 142 143

Sutherland v Stopes [1925] AC 47 at 62 per Viscount Finlay; Joseph v Spiller [2011] 1 AC 852; [2010] UKSC 53 at 859 (AC) per Lord Phillips of Worth Matravers PSC. As to malice as disentitling conduct for the common law defence of fair comment, see [13.100]. As to malice as disentitling conduct for the defence of fair report of judicial and parliamentary proceedings, see [12.30]–[12.40], [12.70]. Thomas v Bradbury, Agnew & Co Ltd [1906] 2 KB 627 at 638 per Collins MR; Sutherland v Stopes [1925] AC 47 at 62 per Viscount Finlay. [1906] 2 KB 627 at 643. Falcke v Herald & Weekly Times Ltd [1925] VLR 56 at 72 per McArthur J. Cheng v Tse Wai Chun (2000) 3 HKLRD 418 at 425 per Lord Nicholls of Birkenhead. Cheng v Tse Wai Chun (2000) 3 HKLRD 418 at 426 per Lord Nicholls of Birkenhead. As to malice in the context of qualified privilege, see [11.80]–[11.100]. (1977) 17 ACTR 35. Renouf v Federal Capital Press of Australia Pty Ltd (1977) 17 ACTR 35 at 53. Renouf v Federal Capital Press of Australia Pty Ltd (1977) 17 ACTR 35 at 54.

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-25 03:09:20.

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A different view was taken by Lord Nicholls of Birkenhead, sitting in the Hong Kong Court of Final Appeal, in Cheng v Tse Wai Chun.144 In this case, his Lordship reasoned that the defence of fair comment can be defeated if the purpose for which legal protection is conferred is abused. He identified the purpose for which the defence of fair comment exists as the protection of the exercise of freedom of expression by individuals in publishing their honestly held views about matters of public interest.145 This purpose would be unduly circumscribed if comments could only be made pursuant to certain motives or if courts were required to determine what constituted a proper or an improper motive for a comment. As a consequence, the fact that a commentator was actuated by an improper motive should not be sufficient to defeat a defence of fair comment.146 Therefore, spite or ill-will on the part of the commentator, whilst it would be sufficient to defeat a defence of qualified privilege,147 should not be sufficient to defeat a defence of fair comment.148 Lord Nicholls of Birkenhead rejected the importation of the test for malice in qualified privilege into the defence of fair comment, noting that qualified privilege and fair comment are founded upon different principled bases. The defence of qualified privilege is based upon a reciprocity of duty and interest between the publisher and the recipient.149 This foundation is absent from the defence of fair comment, as the publisher has a right to communicate to the world at large his or her views about matters of public interest.150 Following a review of the relevant authorities from England, Australia and Canada, Lord Nicholls of Birkenhead concluded that:

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[h]onesty of belief is the touchstone. Actuation by spite, animosity, intent to injure, intent to arouse controversy or other motivation, whatever it may be, even if it is the dominant or sole motive, does not of itself defeat the defence. However, proof of such motivation may be evidence, sometimes compelling evidence, from which lack of genuine belief in the view expressed may be inferred.151

In this way, then, the defence of fair comment may have finally outgrown its historical origins in the defence of fair comment and established fully its own principled existence. Lord Nicholls of Birkenhead’s approach to the issue of malice for the purposes of fair comment has been endorsed by the United Kingdom Supreme Court in Spiller v Joseph.152 It has also found some favour with Australian courts.153 Whatever the proper approach to the issue of malice, it is clear that the test is subjective. It seeks to ascertain the defendant’s state of mind at the time of

144 145 146 147 148 149 150 151 152 153

(2000) 3 HKLRD 418. Cheng v Tse Wai Chun (2000) 3 HKLRD 418 at 429 per Lord Nicholls of Birkenhead NPJ. Cheng v Tse Wai Chun (2000) 3 HKLRD 418 at 430 per Lord Nicholls of Birkenhead NPJ. As to malice defeating the defence of qualified privilege, see [11.80]–[11.100]. Cheng v Tse Wai Chun (2000) 3 HKLRD 418 at 431 per Lord Nicholls of Birkenhead NPJ. As to the reciprocity of duty and interest in the defence of qualified privilege, see [11.50]. Cheng v Tse Wai Chun (2000) 3 HKLRD 418 at 433 per Lord Nicholls of Birkenhead NPJ. Cheng v Tse Wai Chun (2000) 3 HKLRD 418 at 438. [2011] 1 AC 852; [2010] UKSC 53 at 876-7. See, eg, May v TCN Channel Nine Pty Ltd [2007] NSWSC 760 at [31] per Nicholas J; French v Triple M Melbourne Pty Ltd (Ruling No 5) [2008] VSC 553 at [18]-[23] per Forrest J; Cripps v Vakras [2014] VSC 279 at 354 per Kyrou J; Williams v Katis [2014] VSC 405 at [190] per Forrest J.

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[13.110]

The statutory defences of honest opinion

publication.154 The malice or improper motive must be the dominant one actuating the publication of the defamatory matter.155 Thus, it may be possible for a defendant to have subjective spite towards the plaintiff, but nevertheless exercise a dispassionate judgment in commenting upon the plaintiff. Whether the defendant’s comment was actuated by malice is a matter for the jury.156 Malice must be proven by evidence, not mere speculation or suggestion.157 The most cogent evidence of malice or improper motive is the commentator’s lack of an honest belief in the truth of the comment he or she has expressed.158 Whether that is the only test remains to be decided finally in Australia. The malice of each defendant has to be assessed individually.159 A defendant may be vicariously liable for the malice of the author of the defamatory matter if the author is an employee.160 Beyond that, as with the common law defence of qualified privilege, there is no doctrine of transferred malice for the purposes of the common law defence of fair comment.161 The plaintiff bears the onus of proof in relation to malice.162 Once the plaintiff has established that the defendant’s dominant motive was an improper one or that the defendant did not honestly hold the opinion he or she expressed, depending upon the proper test, the publication of the defamatory matter is viewed as unfair and the defendant is deprived of his or her defence.163

The statutory defences of honest opinion Statutory defences of honest opinion [13.110] The statutory defences of honest opinion are an aspect of the

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national, uniform defamation laws which effect a significant change to the pre-existing law. The national, uniform defamation laws are “still in relative infancy”, so issues of statutory interpretation arising from the defences of honest opinion have yet to be fully examined.164

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155 156 157 158 159 160 161 162

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Renouf v Federal Capital Press of Australia Pty Ltd (1977) 17 ACTR 35 at 53 per Blackburn J; Cheng v Tse Wai Chun (2000) 3 HKLRD 418 at 425 per Lord Nicholls of Birkenhead. Williams v Katis [2014] VSC 405 at [191] per Forrest J. Thomas v Bradbury, Agnew & Co Ltd [1906] 2 KB 627 at 643 per Collins MR. Falcke v Herald & Weekly Times Ltd [1925] VLR 56 at 75 per McArthur J. Cheng v Tse Wai Chun (2000) 3 HKLRD 418. Thomas v Bradbury, Agnew & Co Ltd [1906] 2 KB 627 at 638 per Collins MR; Egger v Viscount Chelmsford [1965] 1 QB 248 at 264-5 per Lord Denning MR. Falcke v Herald & Weekly Times Ltd [1925] VLR 56 at 72 per McArthur J; Egger v Viscount Chelmsford [1965] 1 QB 248 at 264-5 per Lord Denning MR. As to the doctrine of transferred malice for the purposes of the common law defence of qualified privilege, see [11.100]. Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309 at 329 per Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ; Joseph v Spiller [2011] 1 AC 852; [2010] UKSC 53 at 859 (AC) per Lord Phillips of Worth Matravers PSC. Adams v Sunday Pictorial Newspapers (1920) Ltd [1951] KB 354 at 360; Slim v Daily Telegraph Ltd [1968] 2 QB 157 at 170; Egger v Viscount Chelmsford [1965] 1 QB 248 at 265; Telnikoff v Matusevitch [1992] 2 AC 343 at 354-5; Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309 at 329. Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676 at [18] per Simpson J.

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Under the national, uniform defamation laws, there are, in addition to the common law defence of fair comment,165 statutory defences of honest opinion.166 There is not a single statutory defence but rather three separate ones, each with slightly different elements and each serving slightly different purposes. The three statutory defences share common elements, some of which are also requirements of the common law defence of fair comment. Each requires the matter to be an expression of opinion, rather than a statement of fact.167 Each also requires the opinion to relate to a matter of public interest168 and that the opinion be based on proper material for comment.169 The national, uniform defamation laws take an expansive approach to the requirement of proper material. “Proper material” is defined as material which is substantially true;170 material which was published on an occasion of absolute or qualified privilege, whether at common law or under statute;171 or material which is published by a statutory defence of publication of public documents or fair report of proceedings of public concern.172 An opinion can still be based on 165

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As to the simultaneous operation of common law and statutory defences, see Civil Law (Wrongs) Act 2002 (ACT) s 134(1); Defamation Act 2006 (NT) s 21(1); Defamation Act 2005 (NSW) s 24(1); Defamation Act 2005 (Qld) s 24(1); Defamation Act 2005 (SA) s 22(1); Defamation Act 2005 (Tas) s 24(1); Defamation Act 2005 (Vic) s 24(1); Defamation Act 2005 (WA) s 24(1). Civil Law (Wrongs) Act 2002 (ACT) s 139B; Defamation Act 2006 (NT) s 28; Defamation Act 2005 (NSW) s 31; Defamation Act 2005 (Qld) s 31; Defamation Act 2005 (SA) s 29; Defamation Act 2005 (Tas) s 31; Defamation Act 2005 (Vic) s 31; Defamation Act 2005 (WA) s 31. Civil Law (Wrongs) Act 2002 (ACT) s 139B(1)(a), (2)(a), (3)(a); Defamation Act 2006 (NT) s 28(1)(a), (2)(a), (3)(a); Defamation Act 2005 (NSW) s 31(1)(a), (2)(a), (3)(a); Defamation Act 2005 (Qld) s 31(1)(a), (2)(a), (3)(a); Defamation Act 2005 (SA) s 29(1)(a), (2)(a), (3)(a); Defamation Act 2005 (Tas) s 31(1)(a), (2)(a), (3)(a); Defamation Act 2005 (Vic) s 31(1)(a), (2)(a), (3)(a); Defamation Act 2005 (WA) s 31(1)(a), (2)(a), (3)(a). As to the common law requirement for a statement of comment, rather than a statement of fact, see [13.40]. Civil Law (Wrongs) Act 2002 (ACT) s 139B(1)(b), (2)(b), (3)(b); Defamation Act 2006 (NT) s 28(1)(b), (2)(b), (3)(b); Defamation Act 2005 (NSW) s 31(1)(b), (2)(b), (3)(b); Defamation Act 2005 (Qld) s 31(1)(b), (2)(b), (3)(b); Defamation Act 2005 (SA) s 29(1)(b), (2)(b), (3)(b); Defamation Act 2005 (Tas) s 31(1)(b), (2)(b), (3)(b); Defamation Act 2005 (Vic) s 31(1)(b), (2)(b), (3)(b); Defamation Act 2005 (WA) s 31(1)(b), (2)(b), (3)(b). As to the common law requirement for a comment on a matter of public interest, see [13.70]. Civil Law (Wrongs) Act 2002 (ACT) s 139B(1)(c), (2)(c), (3)(c); Defamation Act 2006 (NT) s 28(1)(c), (2)(c), (3)(c); Defamation Act 2005 (NSW) s 31(1)(c), (2)(c), (3)(c); Defamation Act 2005 (Qld) s 31(1)(c), (2)(c), (3)(c); Defamation Act 2005 (SA) s 29(1)(c), (2)(c), (3)(c); Defamation Act 2005 (Tas) s 31(1)(c), (2)(c), (3)(c); Defamation Act 2005 (Vic) s 31(1)(c), (2)(c), (3)(c); Defamation Act 2005 (WA) s 31(1)(c), (2)(c), (3)(c). Civil Law (Wrongs) Act 2002 (ACT) s 139B(5)(a); Defamation Act 2006 (NT) s 28(5)(a); Defamation Act 2005 (NSW) s 31(5)(a); Defamation Act 2005 (Qld) s 31(5)(a); Defamation Act 2005 (SA) s 29(5)(a); Defamation Act 2005 (Tas) s 31(5)(a); Defamation Act 2005 (Vic) s 31(5)(a); Defamation Act 2005 (WA) s 31(5)(a). As to the defence of justification generally, see Ch 9. Civil Law (Wrongs) Act 2002 (ACT) s 139B(5)(b); Defamation Act 2006 (NT) s 28(5)(b); Defamation Act 2005 (NSW) s 31(5)(b); Defamation Act 2005 (Qld) s 31(5)(b); Defamation Act 2005 (SA) s 29(5)(b); Defamation Act 2005 (Tas) s 31(5)(b); Defamation Act 2005 (Vic) s 31(5)(b); Defamation Act 2005 (WA) s 31(5)(b). As to the defence of absolute privilege generally, see Ch 10. As to the defence of qualified privilege generally, see Ch 11. Civil Law (Wrongs) Act 2002 (ACT) s 139B(5)(c); Defamation Act 2006 (NT) s 28(5)(c); Defamation Act 2005 (NSW) s 31(5)(c); Defamation Act 2005 (Qld) s 31(5)(c); Defamation

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[13.110]

The statutory defences of honest opinion

proper material even if some of the material on which it is based is not proper material, so long as the opinion might reasonably be based on such material there is that is proper material.173 The major differences between the three statutory defences of honest opinion turn upon the relationship between the person expressing the opinion and the defendant who has been sued in respect of that expression of opinion. The identification of the proper defence is important because each defence has different disentitling conduct. If the defendant is the person who expresses the opinion and satisfies the other elements of the defence, he or she has a statutory defence of honest opinion174 and the only way it can be defeated is if the plaintiff proves that the opinion was not honestly held by the defendant at the time the defamatory matter was published.175 If the person expressing the opinion is an employee or agent of the defendant and the defendant satisfies the other elements of the defence, the defendant has a statutory defence of honest opinion176 and the only way it can be defeated is if the plaintiff proves that the defendant did not believe that the opinion was honestly held by the employee or agent at the time the defamatory matter was published.177 In order for the plaintiff to prove that the defendant did not believe that the employee honestly held the opinion at the time it was published, there is no requirement, that the plaintiff must also sue the employee.178 If the person who expresses the opinion is neither the defendant himself or herself nor an employee or agent of the defendant, the person is described as a “commentator”. If a defendant is sued in respect of an expression of opinion by such a commentator, he or she will have a statutory defence of honest opinion if the other elements of the defence are satisfied.179 The only way in which such a defence can be defeated is if the defendant had reasonable grounds to believe that the opinion was not honestly

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173

Act 2005 (SA) s 29(5)(c); Defamation Act 2005 (Tas) s 31(5)(c); Defamation Act 2005 (Vic) s 31(5)(c); Defamation Act 2005 (WA) s 31(5)(c). As to the statutory defence of publication of public documents, see [12.100]. As to the statutory defence of fair report of proceedings of public concern, see [12.80]–[12.90]. Civil Law (Wrongs) Act 2002 (ACT) s 139B(6); Defamation Act 2006 (NT) s 28(6); Defamation Act 2005 (NSW) s 31(6); Defamation Act 2005 (Qld) s 31(6); Defamation Act 2005 (SA) s 29(6); Defamation Act 2005 (Tas) s 31(6); Defamation Act 2005 (Vic) s 31(6); Defamation Act 2005 (WA) s 31(6).

174

Civil Law (Wrongs) Act 2002 (ACT) s 139B(1)(a); Defamation Act 2006 (NT) s 28(1)(a); Defamation Act 2005 (NSW) s 31(1)(a); Defamation Act 2005 (Qld) s 31(1)(a); Defamation Act 2005 (SA) s 29(1)(a); Defamation Act 2005 (Tas) s 31(1)(a); Defamation Act 2005 (Vic) s 31(1)(a); Defamation Act 2005 (WA) s 31(1)(a).

175

Civil Law (Wrongs) Act 2002 (ACT) s 139B(4)(a); Defamation Act 2006 (NT) s 28(4)(a); Defamation Act 2005 (NSW) s 31(4)(a); Defamation Act 2005 (Qld) s 31(4)(a); Defamation Act 2005 (SA) s 29(4)(a); Defamation Act 2005 (Tas) s 31(4)(a); Defamation Act 2005 (Vic) s 31(4)(a); Defamation Act 2005 (WA) s 31(4)(a).

176

Civil Law (Wrongs) Act 2002 (ACT) s 139B(2)(a); Defamation Act 2006 (NT) s 28(2)(a); Defamation Act 2005 (NSW) s 31(2)(a); Defamation Act 2005 (Qld) s 31(2)(a); Defamation Act 2005 (SA) s 29(2)(a); Defamation Act 2005 (Tas) s 31(2)(a); Defamation Act 2005 (Vic) s 31(2)(a); Defamation Act 2005 (WA) s 31(2)(a).

177

Civil Law (Wrongs) Act 2002 (ACT) s 139B(4)(b); Defamation Act 2006 (NT) s 28(4)(b); Defamation Act 2005 (NSW) s 31(4)(b); Defamation Act 2005 (Qld) s 31(4)(b); Defamation Act 2005 (SA) s 29(4)(b); Defamation Act 2005 (Tas) s 31(4)(b); Defamation Act 2005 (Vic) s 31(4)(b); Defamation Act 2005 (WA) s 31(4)(b).

178 179

Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676 at [19]-[20] per Simpson J. Civil Law (Wrongs) Act 2002 (ACT) s 139B(3)(a); Defamation Act 2006 (NT) s 28(3)(a);

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289

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[13.110]

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held by the commentator at the time the defamatory matter was published.180 By providing the exhaustive grounds for disentitling conduct, the statutory defences of honest opinion exclude malice as a ground for defeating them.181

180

181

Defamation Act 2005 (NSW) s 31(3)(a); Defamation Act 2005 (Qld) s 31(3)(a); Defamation Act 2005 (SA) s 29(3)(a); Defamation Act 2005 (Tas) s 31(3)(a); Defamation Act 2005 (Vic) s 31(3)(a); Defamation Act 2005 (WA) s 31(3)(a). Civil Law (Wrongs) Act 2002 (ACT) s 139B(4)(c); Defamation Act 2006 (NT) s 28(4)(c); Defamation Act 2005 (NSW) s 31(4)(c); Defamation Act 2005 (Qld) s 31(4)(c); Defamation Act 2005 (SA) s 29(4)(c); Defamation Act 2005 (Tas) s 31(4)(c); Defamation Act 2005 (Vic) s 31(4)(c); Defamation Act 2005 (WA) s 31(4)(c). As to malice defeating the common law defence of fair comment, see [13.100].

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14

Miscellaneous Defences [14.10] Introduction..............................................................................................291 [14.20] The defence of innocent dissemination.................................................. 291 [14.20] Introduction.................................................................................... 291 [14.30] Elements of the common law defence of innocent dissemination............................................................................................ 292 [14.40] Innocent dissemination and new technologies..............................293 [14.50] The statutory defence of innocent dissemination......................... 294 [14.60] Statutory protection for internet service providers and internet content hosts....................................................................................................296 [14.60] The Broadcasting Services Act 1992 (Cth) Sch 5 cl 91.............. 296 [14.70] The defence of triviality..........................................................................297 [14.70] Introduction.................................................................................... 297 [14.80] The circumstances of publication..................................................298 [14.90] Likelihood of any harm................................................................. 299 [14.100] What constitutes harm for the purposes of the defence of triviality?................................................................................................... 300 [14.110] The defence of consent......................................................................... 301

Introduction

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[14.10] The defences of justification and its variants, the forms of privilege and fair comment and honest opinion are the most significant defences to defamation and the most frequently litigated. Other defences to defamation are also important: some are based on statute; some arise at common law; and some occur both at common law and under statute. This chapter canvasses the common law and statutory defences of innocent dissemination. It also examines the broad protection specifically provided for internet content hosts and internet service providers under the Broadcasting Services Act 1992 (Cth) Sch 5 cl 91. It analyses the unique Australian defence to defamation, the defence of triviality. It also deals with the less frequently litigated common law defences of consent and illegality.

The defence of innocent dissemination Introduction [14.20] Liability for publication in defamation law is broad.1 In this context,

Romer LJ in Vizetelly v Mudie’s Select Library Ltd2 observed that “[t]he law of libel is in some respects a very hard one”. Prima facie, any person who 1 2

As to publication, see Ch 8. [1900] 2 QB 170 at 178.

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[14.20]

voluntarily participates in the dissemination of defamatory matter can be held liable as a publisher.3 As liability for publication is strict, the intention or negligence of the publisher is irrelevant.4 Attributing liability in such a broad way allows not only persons who are primarily responsible for the dissemination of defamatory matter to be held liable, but also persons who are more marginally involved. Fixing the latter category of persons with liability for defamation can be unreasonable and unjust. To ameliorate the potential harshness of such a broad approach to publication, the English courts, in the late 19th century, recognised the doctrine of innocent dissemination. The common law defence of innocent dissemination has been described as having “somewhat muddled origins”.5 When innocent dissemination developed in English case law, it was treated as a plea of “no publication”,6 meaning that the plaintiff had failed to establish an element of his or her cause of action. The prevailing view now under Australian defamation law is that innocent dissemination is properly viewed as a freestanding defence.7 The principled basis of innocent dissemination, to the extent that it is discernible or indeed exists, has shifted. Another noteworthy aspect of the defence of innocent dissemination is that it developed as a policy-based exclusion of liability for defamation, specifically designed to avoid what would otherwise be an unfair or unreasonable result.8 Innocent dissemination, then, is more readily understood in terms of policy considerations and pragmatism rather than strict principle.

Elements of the common law defence of innocent dissemination

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[14.30] At common law, a defendant may rely upon a defence of innocent dissemination if he or she can establish that he or she did not know that the matter published was defamatory; that there was nothing in the matter or the circumstances which ought to have led him or her to suspect that the matter published was defamatory; and that the lack of knowledge was not due to the defendant’s negligence.9 The test has been reformulated and more succinctly expressed to be whether the distributor knew or ought to have known that the matter disseminated was defamatory.10 The onus is on the distributor claiming 3 4 5

6

7 8 9 10

Emmens v Pottle (1885) 16 QBD 354 at 356 per Lord Esher MR; Vizetelly v Mudie’s Select Library Ltd [1900] 2 QB 170 at 175 per AL Smith LJ. Vizetelly v Mudie’s Select Library Ltd [1900] 2 QB 170 at 179 per Romer LJ. Emmens v Pottle (1885) 16 QBD 354 at 357 per Lord Esher MR; Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 at 586 per Brennan CJ, Dawson and Toohey JJ. Emmens v Pottle (1885) 16 QBD 354 at 357 per Lord Esher MR; Vizetelly v Mudie’s Select Library Ltd [1900] 2 QB 170 at 179 per Romer LJ; see also McPhersons Ltd v Hickie (1995) Aust Torts Reports 81-348 at 62,499 per Powell JA; Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 at 586 per Brennan CJ, Dawson and Toohey JJ. Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 at 586 per Brennan CJ, Dawson and Toohey JJ. Emmens v Pottle (1885) 16 QBD 354 at 357-8 per Lord Esher MR; Vizetelly v Mudie’s Select Library Ltd [1900] 2 QB 170 at 179-80 per Romer LJ. Emmens v Pottle (1885) 16 QBD 354 at 357 per Lord Esher MR; Vizetelly v Mudie’s Select Library Ltd [1900] 2 QB 170 at 175-6 per AL Smith LJ, at 179-80 per Romer LJ. Sun Life Assurance Co of Canada v WH Smith & Son Ltd (1933) 150 LT 211 at 212 per Scrutton LJ; Goldsmith v Sperrings Ltd [1977] 1 WLR 478 at 487 per Lord Denning MR; Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 at 592-3 per Gaudron J.

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[14.40]

The defence of innocent dissemination

the benefit of the defence to prove that he or she did not know, and ought not to have known, that the matter disseminated was defamatory.11 The defence of innocent dissemination cannot be relied upon by those persons responsible for its initial publication.12 Thus, in Emmens v Pottle,13 Lord Esher MR stated that the proprietor of a newspaper, as well as the printer and the journalist responsible for writing a defamatory article, could not rely upon a defence of innocent dissemination if sued. However, the position of those who distribute and sell the newspaper is different. As Bowen LJ famously observed in the same case: [a] newspaper is not like a fire; a man may carry it about without being bound to suppose that it is likely to do an injury. It seems to me that the defendants are no more liable than any other innocent carrier of an article which he has no reason to suppose is dangerous.14

The defence of innocent dissemination can only be relied upon by subordinate distributors of defamatory matter.15 Examples of persons or entities who may qualify as subordinate distributors include newsagents,16 libraries17 and retailers.18 Merely because a defendant is a subordinate distributor is not sufficient to establish a defence of innocent dissemination. It will depend upon the circumstances of the particular case as to whether a given subordinate distributor will be able to rely upon a defence of innocent dissemination.19

Innocent dissemination and new technologies [14.40] The application of the defence of innocent dissemination evolves as technologies develop. The treatment of printers demonstrates this. In the late 19th century, when the doctrine of innocent dissemination was recognised, printers were treated as primary, not subordinate, distributors.20 There was no real suggestion that printers could avail themselves of this plea because the printing technology at the time was such that printers had knowledge of the

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11

12 13 14 15 16

17 18 19

20

Emmens v Pottle (1885) 16 QBD 354 at 357 per Lord Esher MR; Vizetelly v Mudie’s Select Library Ltd [1900] 2 QB 170 at 180 per Romer LJ; Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 at 593 per Gaudron J. Emmens v Pottle (1885) 16 QBD 354 at 357 per Lord Esher MR; Vizetelly v Mudie’s Select Library Ltd [1900] 2 QB 170 at 180 per Romer LJ. (1885) 16 QBD 354 at 357 per Lord Esher MR; see also Vizetelly v Mudie’s Select Library Ltd [1900] 2 QB 170 at 180 per Romer LJ. Emmens v Pottle (1885) 16 QBD 354 at 358. Vizetelly v Mudie’s Select Library Ltd [1900] 2 QB 170 at 180 per Romer LJ. See, eg, Emmens v Pottle (1885) 16 QBD 354; Ridgway v Smith & Son (1890) 6 TLR 275; Mallon v WH Smith & Son (1893) 9 TLR 621; Sun Life Assurance Co of Canada v WH Smith & Son Ltd (1933) 150 LT 211. See, eg, Martin v Trustees of the British Museum (1894) 10 TLR 338; Vizetelly v Mudie’s Select Library Ltd [1900] 2 QB 170; Weldon v Times Book Ltd (1912) 28 TLR 143. See, eg, Bottomley v FW Woolworth & Co Ltd (1932) 48 TLR 521; Lambert v Roberts Drug Stores Ltd [1933] 4 DLR 193. As to cases in which a subordinate distributor was able to establish a defence of innocent dissemination, see, eg, Emmens v Pottle (1885) 16 QBD 354; Mallon v WH Smith & Son (1893) 9 TLR 621; Martin v Trustees of the British Museum (1894) 10 TLR 338; Weldon v Times Book Ltd (1912) 28 TLR 143; Bottomley v FW Woolworth & Co Ltd (1932) 48 TLR 521. As to cases in which a subordinate distributor was not able to establish a defence of innocent dissemination, see, eg, Vizetelly v Mudie’s Select Library Ltd [1900] 2 QB 170; Sun Life Assurance Co of Canada v WH Smith & Son Ltd (1933) 150 LT 211; Jensen v Clark [1982] 2 NZLR 268. Emmens v Pottle (1885) 16 QBD 354 at 357 per Lord Esher MR; Vizetelly v Mudie’s Select Library Ltd [1900] 2 QB 170 at 180 per Romer LJ.

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[14.40]

contents of what they printed.21 This view was not decisively challenged in Australia until the mid-1990s. The decisive changes in printing technologies now mean that printers can be treated as subordinate distributors and therefore seek to rely on the defence of innocent dissemination.22 However, the doctrine of innocent dissemination is not technology-specific. For example, as Brennan CJ, Dawson and Toohey JJ stated in Thompson v Australian Capital Television,23 “[t]here is no reason in principle why a mere distributor of electronic material should not be able to rely upon the defence of innocent dissemination”. However, in that case, a regional television network, which, pursuant to a licence, relayed a live television program containing defamatory material to its audience, was held not to be able to rely upon a defence of innocent dissemination. Although the respondent television network did not produce or first publish the program, it had the capacity to control and supervise the program prior to its own broadcast, but made its own decision to relay it instantaneously, with the consequence that it could not claim to be a subordinate distributor.24 The reasoning in Thompson v Australian Capital Television suggests that, had the development of the defence of innocent dissemination been left to the courts, the recognition of certain types of electronic media as subordinate distributors might have taken a long time. Whether the same result in this case would have been reached if the statutory defence of innocent dissemination were applied to the facts is an open question.25

The statutory defence of innocent dissemination [14.50] In

addition to the common law defence of innocent dissemination,26 there is, under the national, uniform defamation laws, a statutory variant.27 In many respects, it closely reflects the common law defence. In order to establish the statutory defence of innocent dissemination, the defendant needs to prove that it published the matter in its capacity as, or as an employee or agent of, a subordinate distributor;28 that it neither knew, nor

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21 22

23 24 25 26

27

28

Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 at 587 per Brennan CJ, Dawson and Toohey JJ. McPhersons Ltd v Hickie (1995) Aust Torts Reports 81-348 at 62,499 per Powell JA; Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 at 586 per Brennan CJ, Dawson and Toohey JJ, at 593-4, 596 per Gaudron J; see also Jensen v Clark [1982] 2 NZLR 268 at 274-6 per Prichard J. (1996) 186 CLR 574 at 589; see also at 589 per Gaudron J. Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 at 589-90 per Brennan CJ, Dawson and Toohey JJ. As to the statutory defence of innocent dissemination, see [14.50]. In particular, see Defamation Act 2005 (NSW) s 32(3)(a). Civil Law (Wrongs) Act 2002 (ACT) s 134(1); Defamation Act 2006 (NT) s 21(1); Defamation Act 2005 (NSW) s 24(1); Defamation Act 2005 (Qld) s 24(1); Defamation Act 2005 (SA) s 22(1); Defamation Act 2005 (Tas) s 24(1); Defamation Act 2005 (Vic) s 24(1); Defamation Act 2005 (WA) s 24(1). Civil Law (Wrongs) Act 2002 (ACT) s 139C; Defamation Act 2006 (NT) s 29; Defamation Act 2005 (NSW) s 32; Defamation Act 2005 (Qld) s 32; Defamation Act 2005 (SA) s 30; Defamation Act 2005 (Tas) s 32; Defamation Act 2005 (Vic) s 32; Defamation Act 2005 (WA) s 32. Civil Law (Wrongs) Act 2002 (ACT) s 139C(1)(a); Defamation Act 2006 (NT) s 29(1)(a); Defamation Act 2005 (NSW) s 32(1)(a); Defamation Act 2005 (Qld) s 32(1)(a); Defamation Act 2005 (SA) s 30(1)(a); Defamation Act 2005 (Tas) s 32(1)(a); Defamation Act 2005 (Vic) s 32(1)(a); Defamation Act 2005 (WA) s 32(1)(a).

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[14.50]

The defence of innocent dissemination

ought reasonably to have known, that the matter was defamatory;29 and that the defendant’s lack of knowledge was not due to any negligence on its part.30 A subordinate distributor is defined negatively, such that a person is not a subordinate distributor if it was not the first or primary distributor of the matter;31 was not the author or originator of the matter;32 and did not have capacity to exercise editorial control over the content of the matter, or over the publication of the matter, before it was first published.33 In turn, who qualifies as the first or primary distributor of matter is also defined negatively. A person is not a first or primary distributor because he or she is involved in the publication of defamatory matter as a bookseller, newsagent, newsvendor,34 librarian,35 wholesaler, retailer36 or provider of postal or similar services.37 Such a person will not be a first or primary distributor merely because he or she is the broadcaster of a live program (on radio, television or by some other medium) containing the matter in circumstances in which the broadcaster has no effective control over the person who makes the statements comprising the matter.38 Such a person will not be a first or primary distributor merely because 29

30

31

32

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33

34

35

36

37

38

Civil Law (Wrongs) Act 2002 (ACT) s 139C(1)(b); Defamation Act 2006 (NT) s 29(1)(b); Defamation Act 2005 (NSW) s 32(1)(b); Defamation Act 2005 (Qld) s 32(1)(b); Defamation Act 2005 (SA) s 30(1)(b); Defamation Act 2005 (Tas) s 32(1)(b); Defamation Act 2005 (Vic) s 32(1)(b); Defamation Act 2005 (WA) s 32(1)(b). Civil Law (Wrongs) Act 2002 (ACT) s 139C(1)(c); Defamation Act 2006 (NT) s 29(1)(c); Defamation Act 2005 (NSW) s 32(1)(c); Defamation Act 2005 (Qld) s 32(1)(c); Defamation Act 2005 (SA) s 30(1)(c); Defamation Act 2005 (Tas) s 32(1)(c); Defamation Act 2005 (Vic) s 32(1)(c); Defamation Act 2005 (WA) s 32(1)(c). Civil Law (Wrongs) Act 2002 (ACT) s 139C(2)(a); Defamation Act 2006 (NT) s 29(2)(a); Defamation Act 2005 (NSW) s 32(2)(a); Defamation Act 2005 (Qld) s 32(2)(a); Defamation Act 2005 (SA) s 30(2)(a); Defamation Act 2005 (Tas) s 32(2)(a); Defamation Act 2005 (Vic) s 32(2)(a); Defamation Act 2005 (WA) s 32(2)(a). Civil Law (Wrongs) Act 2002 (ACT) s 139C(2)(b); Defamation Act 2006 (NT) s 29(2)(b); Defamation Act 2005 (NSW) s 32(2)(b); Defamation Act 2005 (Qld) s 32(2)(b); Defamation Act 2005 (SA) s 30(2)(b); Defamation Act 2005 (Tas) s 32(2)(b); Defamation Act 2005 (Vic) s 32(2)(b); Defamation Act 2005 (WA) s 32(2)(b). Civil Law (Wrongs) Act 2002 (ACT) s 139C(2)(c); Defamation Act 2006 (NT) s 29(2)(c); Defamation Act 2005 (NSW) s 32(2)(c); Defamation Act 2005 (Qld) s 32(2)(c); Defamation Act 2005 (SA) s 30(2)(c); Defamation Act 2005 (Tas) s 32(2)(c); Defamation Act 2005 (Vic) s 32(2)(c); Defamation Act 2005 (WA) s 32(2)(c). Civil Law (Wrongs) Act 2002 (ACT) s 139C(3)(a); Defamation Act 2006 (NT) s 29(3)(a); Defamation Act 2005 (NSW) s 32(3)(a); Defamation Act 2005 (Qld) s 32(3)(a); Defamation Act 2005 (SA) s 30(3)(a); Defamation Act 2005 (Tas) s 32(3)(a); Defamation Act 2005 (Vic) s 32(3)(a); Defamation Act 2005 (WA) s 32(3)(a). Civil Law (Wrongs) Act 2002 (ACT) s 139C(3)(b); Defamation Act 2006 (NT) s 29(3)(b); Defamation Act 2005 (NSW) s 32(3)(b); Defamation Act 2005 (Qld) s 32(3)(b); Defamation Act 2005 (SA) s 30(3)(b); Defamation Act 2005 (Tas) s 32(3)(b); Defamation Act 2005 (Vic) s 32(3)(b); Defamation Act 2005 (WA) s 32(3)(b). Civil Law (Wrongs) Act 2002 (ACT) s 139C(3)(c); Defamation Act 2006 (NT) s 29(3)(c); Defamation Act 2005 (NSW) s 32(3)(c); Defamation Act 2005 (Qld) s 32(3)(c); Defamation Act 2005 (SA) s 30(3)(c); Defamation Act 2005 (Tas) s 32(3)(c); Defamation Act 2005 (Vic) s 32(3)(c); Defamation Act 2005 (WA) s 32(3)(c). Civil Law (Wrongs) Act 2002 (ACT) s 139C(3)(d); Defamation Act 2006 (NT) s 29(3)(d); Defamation Act 2005 (NSW) s 32(3)(d); Defamation Act 2005 (Qld) s 32(3)(d); Defamation Act 2005 (SA) s 30(3)(d); Defamation Act 2005 (Tas) s 32(3)(d); Defamation Act 2005 (Vic) s 32(3)(d); Defamation Act 2005 (WA) s 32(3)(d). Civil Law (Wrongs) Act 2002 (ACT) s 139C(3)(e); Defamation Act 2006 (NT) s 29(3)(e); Defamation Act 2005 (NSW) s 32(3)(e); Defamation Act 2005 (Qld) s 32(3)(e); Defamation

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[14.50]

he or she prints, produces, reprints, reproduces or distributes matter on the instruction of, or at the direction of, another person.39 Finally, such a person will not be a first or primary distributor merely because he or she is a provider of services consisting of the processing, copying, distributing or selling of any electronic medium in or on which the matter is recorded;40 a provider of services consisting of the operation of, or the provision of any equipment, system or service, by means of which the matter is retrieved, copied, distributed or made available in electronic form;41 or any operator of, or a provider of access to, a communications system by means of which the matter is transmitted, or made available, by another person over whom the operator or provider has no effective control.42

Statutory protection for internet service providers and internet content hosts The Broadcasting Services Act 1992 (Cth) Sch 5 cl 91 [14.60] Under Commonwealth law, there is specific protection for internet service providers (ISPs) and internet content hosts (ICHs). This is in addition to any argument that might be raised that an ISP in particular does not qualify as a publisher for the purposes of defamation law.43 An “ISP” is defined as a person who supplies or proposes to supply an internet carriage service to the public.44 An “internet carriage service” is defined as a listed carriage service that enables end-users to access the internet.45 Under the Broadcasting Services Act 1992 (Cth) Sch 5 cl 91, a law of a State or Territory or a rule of common law or equity has no effect to the extent to which it requires, or would have the direct or indirect effect of requiring, an ICH or an ISP to monitor, make

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39

40

41

42

43 44 45

Act 2005 (SA) s 30(3)(e); Defamation Act 2005 (Tas) s 32(3)(e); Defamation Act 2005 (Vic) s 32(3)(e); Defamation Act 2005 (WA) s 32(3)(e). This would appear to overcome the effect of the High Court of Australia’s decision in Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574, as to which see [14.40]. Civil Law (Wrongs) Act 2002 (ACT) s 139C(3)(h); Defamation Act 2006 (NT) s 29(3)(h); Defamation Act 2005 (NSW) s 32(3)(h); Defamation Act 2005 (Qld) s 32(3)(h); Defamation Act 2005 (SA) s 30(3)(h); Defamation Act 2005 (Tas) s 32(3)(h); Defamation Act 2005 (Vic) s 32(3)(h); Defamation Act 2005 (WA) s 32(3)(h). Civil Law (Wrongs) Act 2002 (ACT) s 139C(3)(f)(i); Defamation Act 2006 (NT) s 29(3)(f)(i); Defamation Act 2005 (NSW) s 32(3)(f)(i); Defamation Act 2005 (Qld) s 32(3)(f)(i); Defamation Act 2005 (SA) s 30(3)(f)(i); Defamation Act 2005 (Tas) s 32(3)(f)(i); Defamation Act 2005 (Vic) s 32(3)(f)(i); Defamation Act 2005 (WA) s 32(3)(f)(i). Civil Law (Wrongs) Act 2002 (ACT) s 139C(3)(f)(ii); Defamation Act 2006 (NT) s 29(3)(f)(ii); Defamation Act 2005 (NSW) s 32(3)(f)(ii); Defamation Act 2005 (Qld) s 32(3)(f)(ii); Defamation Act 2005 (SA) s 30(3)(f)(ii); Defamation Act 2005 (Tas) s 32(3)(f)(ii); Defamation Act 2005 (Vic) s 32(3)(f)(ii); Defamation Act 2005 (WA) s 32(3)(f)(ii). Civil Law (Wrongs) Act 2002 (ACT) s 139C(3)(g); Defamation Act 2006 (NT) s 29(3)(g); Defamation Act 2005 (NSW) s 32(3)(g); Defamation Act 2005 (Qld) s 32(3)(g); Defamation Act 2005 (SA) s 30(3)(g); Defamation Act 2005 (Tas) s 32(3)(g); Defamation Act 2005 (Vic) s 32(3)(g); Defamation Act 2005 (WA) s 32(3)(g). As to whether an internet service provider qualifies as a publisher for the purposes of defamation law, see [8.190]. Broadcasting Services Act 1992 (Cth) Sch 5 cl 8(1). Broadcasting Services Act 1992 (Cth) Sch 5 cl 3. As to the definition of the term, “listed carriage service”, see Telecommunications Act 1997 (Cth) s 16.

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[14.70]

The defence of triviality

inquiries about, or keep records of, internet content hosted or carried by it.46 A law of a State or Territory or a rule of common law or equity also has no effect to the extent that it subjects, or has the direct or indirect effect of subjecting, an ICH or an ISP to liability in respect of internet content it hosts or carries of which it was not aware.47 The term, “internet content”, is defined as information that is kept on a data storage device, or is accessed or accessible using an internet carriage service, but does not include ordinary email or information transmitted in the form of a broadcasting service.48 In turn, the term, “ordinary email”, is defined so as to exclude a posting to a newsgroup.49 There are a number of observations to be made about this protection. First, the protection is not directed to liability in defamation but its terms make it clear that it applies to liability for defamation arising at common law and under the national, uniform defamation laws. Secondly, although the protection is broad, it is not an absolute immunity. As with the defence of innocent dissemination,50 the Broadcasting Services Act 1992 (Cth) Sch 5 cl 91 turns upon the defendant’s state of knowledge. The benefit of the protection can be lost once the ICH or the ISP is made aware of the defamatory content that it hosts or carries. A prospective plaintiff, then, can expose an ICH or an ISP to liability for defamation by notifying it of the defamatory content. If the ICH or the ISP fails to remove the content within a reasonable period of time, it will be deprived of its statutory protection and will arguably be liable as a publisher of the defamatory matter.51

The defence of triviality Introduction

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[14.70] A defendant can avoid liability for defamation if he or she establishes a statutory defence of triviality.52 This defence was introduced across Australia under the national, uniform defamation laws. It is similar in terms to the defence of unlikelihood of harm, which was in force under the Defamation Act 1974 (NSW) s 13, making it likely that authorities relating to that provision will be relevant to the application of the defence of triviality.53 A statutory defence of unlikelihood of harm has a long, continuous history in New South 46 47 48

Broadcasting Services Act 1992 (Cth) Sch 5 cl 91(1)(b), (d). Broadcasting Services Act 1992 (Cth) Sch 5 cl 91(1)(a), (c). Broadcasting Services Act 1992 (Cth) Sch 5 cl 3.

49 50 51 52

Broadcasting Services Act 1992 (Cth) Sch 5 cl 3. As to the defence of innocent dissemination, see [14.20]–[14.50]. As to acts or omissions constituting publication, see [8.50]. Civil Law (Wrongs) Act 2002 (ACT) s 139D; Defamation Act 2006 (NT) s 30; Defamation Act 2005 (NSW) s 33; Defamation Act 2005 (Qld) s 33; Defamation Act 2005 (SA) s 31; Defamation Act 2005 (Tas) s 33; Defamation Act 2005 (Vic) s 33; Defamation Act 2005 (WA) s 33. However, some caution may be required before applying an authority decided under predecessor legislation, given differences of wording between provisions: see, eg, Szanto v Melville [2011] VSC 574 at [163]-[164] per Kaye J; Enders v Erbas & Associates Pty Ltd [2014] NSWCA 70 at [107] per Tobias JA.

53

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-25 03:09:26.

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[14.70]

Wales defamation legislation, dating back to 1847, and “was required to meet the hard conditions of pioneer days”.54 The statutory defence of triviality is unique to Australian defamation law.55 A defendant will have a defence of triviality if he or she proves that, in the circumstances of publication, the plaintiff was unlikely to sustain any harm.56 Given the terms of the statutory provisions and the way in which they have been applied, this defence is not of great utility to media defendants. The defence of triviality is more likely to be established where there has been limited publication.57 It is also more likely to be established where the defamation is oral, rather than written.58 The archetypal scenario in which this defence might be available is where “a slightly defamatory statement is made in jocular circumstances to a few people in a private home”.59 The purpose of the defence of triviality is, unsurprisingly, to discourage trivial actions for defamation.60 Whether the defence of triviality in fact achieves that purpose is open to question. As a defence, it arises after liability has been established. Given the protracted interlocutory skirmishes characteristic of defamation litigation, liability may take a long time to establish, so it will take even longer to reach the issue of whether a defence of triviality is available. The prospect of a defence of triviality being raised against a plaintiff may be, in some instances, sufficient to deter that plaintiff from commencing proceedings in the first place, although the incidence of that is difficult to quantify. The efficacy of the defence of triviality in deterring or dismissing trivial defamation claims will need to be reassessed if Australian defamation law embraces the principle of proportionality.61 As a test applied at the outset of the proceedings, the principle of proportionality is better placed than the defence of triviality to deal effectively and appropriately with trivial defamation claims.

The “circumstances of publication”

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[14.80] The concept of the “circumstances of publication” for the purpose of the defence of triviality has been the subject of some judicial consideration. The relevant circumstances are those as at the time of publication. As a consequence, subsequent acts, which might show that a plaintiff did not in fact suffer harm as a result of publication, are unlikely to be relevant to the inquiry to be undertaken for the purposes of determining whether the defence of triviality has been established.62 54 55 56

57 58 59 60 61 62

Lang v Willis (1934) 52 CLR 637 at 650 per Rich J. Enders v Erbas & Associates Pty Ltd (No 2) [2013] NSWDC 44 at [173] per Gibson DCJ. Civil Law (Wrongs) Act 2002 (ACT) s 139D; Defamation Act 2006 (NT) s 30; Defamation Act 2005 (NSW) s 33; Defamation Act 2005 (Qld) s 33; Defamation Act 2005 (SA) s 31; Defamation Act 2005 (Tas) s 33; Defamation Act 2005 (Vic) s 33; Defamation Act 2005 (WA) s 33. Chappell v Mirror Newspapers Ltd (1984) Aust Torts Reports 80-691 at 68,947 per Moffitt P. Chappell v Mirror Newspapers Ltd (1984) Aust Torts Reports 80-691 at 68,947 per Moffitt P. Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 800 per curiam. Chappell v Mirror Newspapers Ltd (1984) Aust Torts Reports 80-691 at 68,947 per Moffitt P. As to the principle of proportionality, see [8.210]. Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 799 per curiam.

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[14.90]

The defence of triviality

The circumstances of publication include “the nature of the defamatory matter, the manner in which it is published, the persons to whom it is published and the place where it is published”.63 No one factor is decisive: the circumstances of publication constitute a multi-factorial inquiry. The more serious or significant the defamatory imputations, the less likely it is that a matter will be found to be unlikely to cause any harm to the plaintiff’s reputation, irrespective of the size of the audience.64 In relation to the place of publication, for example, the tribunal of fact: might take one view of words spoken at a vestry meeting or a meeting of directors, and another of words uttered in the heat of a family or of a quarrel in a shearing shed or a taproom or bar.65

Whether the plaintiff’s bad reputation constitutes a relevant circumstance of publication for the purposes of the defence of triviality is a more complex issue. Ordinarily, the plaintiff’s bad reputation is not a relevant circumstance of publication for the purposes of the defence of triviality.66 A plaintiff’s reputation can still be likely to suffer harm, even if it is a poor one.67 As Moffitt P opined in Chappell v Mirror Newspapers Ltd,68 “[a]ll regardless of prior reputation have a right not to be defamed”. If defamatory matter were published to a small audience who knew the plaintiff, the plaintiff’s bad reputation may be relevant to an assessment of whether the plaintiff was likely to suffer any harm.69 In other cases, particularly where defamatory matter was published to a large audience through a media outlet, it would be difficult to treat the plaintiff’s bad reputation as a relevant circumstance of publication because it would not be possible to ascertain the audience’s knowledge of the plaintiff’s reputation and the likely effect of the publication of defamatory matter on the audience’s perception of the plaintiff’s reputation.70 Even if a plaintiff’s bad reputation were a relevant circumstance of publication for the purposes of the defence of triviality, it would have to be in the relevant sector of the plaintiff’s reputation at issue in the proceeding.71

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[14.90] Whether a plaintiff was likely to suffer any harm needs to be assessed prospectively, as at the time of publication and in light of the circumstances of publication.72 The fact that a plaintiff did not in fact suffer any harm as a result of the publication of defamatory matter is not determinative of the availability 63 64 65 66

67 68 69 70 71

72

Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 800 per curiam. Cunliffe v Woods [2012] VSC 254 at [64]-[66] per Beach J. Lang v Willis (1934) 52 CLR 637 at 651 per Rich J. Chappell v Mirror Newspapers Ltd (1984) Aust Torts Reports 80-691 at 68,948 per Moffitt P; King and Mergen Holdings Pty Ltd v McKenzie (1991) 24 NSWLR 305 at 310-11 per Mahoney JA. However, see Singleton v John Fairfax & Sons Ltd [No 1] [1983] 2 NSWLR 722 at 724-5 per Hunt J (but must comply with rules relating to pleading of bad reputation, as to which see [15.170]). Chappell v Mirror Newspapers Ltd (1984) Aust Torts Reports 80-691 at 68,946 per Moffitt P. (1984) Aust Torts Reports 80-691 at 68,946. Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 800 per curiam; Jones v Sutton (2004) 61 NSWLR 614; [2004] NSWCA 439 at 621 (NSWLR) per Beazley JA. Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 800 per curiam. Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 801 per curiam (plaintiff had a bad reputation for dishonesty but sued in relation to imputations of promiscuity, in respect of which no bad reputation had been established). Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 799 per curiam.

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of the defence because the defence turns upon the likelihood or proneness of the matter to cause any harm.73 Because, under the national, uniform defamation laws, the defendant has to negative the likelihood that the plaintiff would suffer “any harm”, the onus of proof on the defendant is difficult to discharge.74 The terms of the provision require that the defendant negative not merely that the plaintiff would be unlikely to suffer great or substantial harm but that he or she would be unlikely to suffer any harm at all.75 Under the predecessor provision in New South Wales, the statutory language, “not likely to cause harm”, was construed to mean “the absence of a real chance” or “the absence of a real possibility”.76 It is arguable that this approach can be adapted to apply to the slightly different wording of the defence under the national, uniform defamation laws, with the result that the defendant has to negative any real chance or possibility of harm.

What constitutes “harm” for the purposes of the defence of triviality? [14.100] One issue that has arisen in relation to the defence of triviality is whether it is confined to harm to reputation or whether it extends to injury to feelings. The statutory provision deals only with “harm”. There are sound reasons of principle and policy to support the argument that the harm in question must include harm to reputation but necessarily mere injury to feelings.77 The tort of defamation in Anglo-Australian law has always treated damage to reputation, not mere insult, as the gist of the action.78 If the legislature had intended to allow the concept of harm in the context of the defence of triviality to encompass mere injury to feelings, that would entail a significant change to the settled understanding of defamation. The textual indications in the national, uniform defamation laws do not evince a legislative intention to alter this settled understanding.79 If the concept of harm were extended to include injury to feelings alone, that would further reduce the

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73

74

75 76 77 78

79

Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 799 per curiam; Chappell v Mirror Newspapers Ltd (1984) Aust Torts Reports 80-691 at 68,947 per Moffitt P: “The defence depends entirely upon the causative potency of the circumstances ‘of the publication’ to produce immunity from harm”; Jones v Sutton (2004) 61 NSWLR 614; [2004] NSWCA 439 at 622 (NSWLR) per Beazley JA. See also Parker v Falkiner (1889) 10 LR (NSW) 7 at 10. Szanto v Melville [2011] VSC 574 at [157] per Kaye J. Under the predecessor provision in New South Wales, the Defamation Act 1974 (NSW) s 13, the defendant had to negative the likelihood of “harm”. However, certain authorities interpreted this provision strictly, in a manner consistent with the approach now required by the wording of the current provision: see, eg, Chappell v Mirror Newspapers Ltd (1984) Aust Torts Reports 80-691 at 68,947 per Moffitt P; King and Mergen Holdings Pty Ltd v McKenzie (1991) 24 NSWLR 305 at 309 per Mahoney JA; Skalkos v Assaf (2002) Aust Torts Reports 81-644; [2002] NSWCA 14 at 68,536 (Aust Torts Reports) per Mason P; Jones v Sutton (2004) 61 NSWLR 614; [2004] NSWCA 439 at 620 (NSWLR) per Beazley JA. King and Mergen Holdings Pty Ltd v McKenzie (1991) 24 NSWLR 305 at 309 per Mahoney JA. Jones v Sutton (2004) 61 NSWLR 614; [2004] NSWCA 439 at 624-5 (NSWLR) per Beazley JA. For a discussion of this issue, see also Enders v Erbas & Associates Pty Ltd [2014] NSWCA 70 at [96]-[104] per Tobias JA. See [2.20]. See also Jones v Sutton (2004) 61 NSWLR 614; [2004] NSWCA 439 at [38] (injury to feelings matter going to damages, whereas “harm” confined to damage to reputation); Szanto v Melville [2011] VSC 574 at [162] per Kaye J. See, eg, Szanto v Melville [2011] VSC 574 at [161] per Kaye J.

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[14.110]

The defence of consent

efficacy of an already narrow defence.80 Finally, given the interconnection between damage to reputation and injury to feelings and the relative ease with which damage to reputation can be established, based, as it is, on tendency, rather than actual damage, it is difficult to identify a need, as a matter of policy, to adopt an expansive approach to the concept of harm.

The defence of consent [14.110] The national, uniform defamation laws specifically preserve common

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law defences.81 At common law, it is a complete defence to defamation if the defendant establishes that the plaintiff consented to the publication of defamatory matter.82 The consent may be express or implied.83 Whether or not consent has been granted is a question of fact.84 Given that a plaintiff is unlikely to sue for defamation in circumstances where he or she is likely to be met with a defence of consent, it is unsurprising that the case law on this defence is limited. The leading Australian authority on this issue is Ettingshausen v Australian Consolidated Press Ltd.85 The plaintiff was a prominent rugby league footballer who was a member of the Australian national rugby league team, the Kangaroos. On the 1990 Kangaroos tour of Great Britain, the team was accompanied by a freelance photographer, who was given unrestricted access to the players. The photographer was taking photographs for use in a coffee table book, the proceeds of sale of which would be given to a children’s hospital charity. The photographer took a series of photographs of the players in the showers. In order to promote the book, an article was published in a magazine, which was published by the defendant. A photograph was selected for the magazine which was not included in the book.86 The photograph contained the plaintiff’s exposed penis.87 The plaintiff sued for defamation. One of the defences raised by the defendant was the defence of consent. Hunt CJ at CL held that there was no evidence to support the defence of consent and therefore refused to allow the jury to consider it.88 Although there might be evidence to establish that the plaintiff consented to having his photograph taken in the 80 81

82

83 84 85

86 87 88

Szanto v Melville [2011] VSC 574 at [162] per Kaye J. Civil Law (Wrongs) Act 2002 (ACT) s 134(1); Defamation Act 2006 (NT) s 21(1); Defamation Act 2005 (NSW) s 24(1); Defamation Act 2005 (Qld) s 24(1); Defamation Act 2005 (SA) s 22(1); Defamation Act 2005 (Tas) s 24(1); Defamation Act 2005 (Vic) s 24(1); Defamation Act 2005 (WA) s 24(1). Ettingshausen v Australian Consolidated Press Ltd (1993) A Def R 51-065; (unreported, NSW CA, Hunt CJ at CL, 11 March 1993) at p 16. As to the availability of the defence, see also Monson v Tussauds Ltd [1894] 1 QB 671 at 691 per Lord Halsbury, at 696 per Lopes LJ, at 697 per Davey LJ; Moore v News of the World [1972] 1 QB 441 at 448 per Lord Denning MR. Monson v Tussauds Ltd [1894] 1 QB 671 at 691 per Lord Halsbury; Moore v News of the World [1972] 1 QB 441 at 448 per Lord Denning MR. Frew v John Fairfax Publications Pty Ltd [2004] VSC 311 at [10] per Bongiorno J. (1993) A Def R 51-065; (unreported, NSW CA, Hunt CJ at CL, 11 March 1993). For a detailed analysis of this case, see D Rolph, Reputation, Celebrity and Defamation Law (Ashgate, Aldershot, 2008) Ch 5. Ettingshausen v Australian Consolidated Press Ltd (1993) A Def R 51-065; (unreported, NSW CA, Hunt CJ at CL, 11 March 1993) at p 21. As to the facts of this case, see Ettingshausen v Australian Consolidated Press Ltd (1993) A Def R 51-065; (unreported, NSW CA, Hunt CJ at CL, 11 March 1993) at p 13. Ettingshausen v Australian Consolidated Press Ltd (1993) A Def R 51-065; (unreported, NSW CA, Hunt CJ at CL, 11 March 1993) at p 21.

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[14.110]

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shower,89 the essence of the tort was the publication of the defamatory imputation in the magazine and the defendant was unable to establish that the plaintiff had consented to that.90 It was insufficient for the defendant to prove that the plaintiff consented to the taking of the photograph and thereby voluntarily assumed the risk that the defendant would publish the offending photograph in the magazine.91 Although Ettingshausen v Australian Consolidated Press was decided under the Defamation Act 1974 (NSW), under which the imputation was the cause of action,92 the reasoning can be applied, mutatis mutandis, to proceedings under the national, uniform defamation laws, under which the matter is the cause of action.93 A difficult issue of principle arises out of the defence of consent in a defamation claim, namely the distinction between a defence of “leave and licence”, consent and volenti non fit injuria. This distinction is not drawn as sharply in defamation cases as it is in claims arising from other torts, as a consequence of consent and volenti non fit injuria being less frequently litigated in defamation cases. In Chapman v Lord Ellesmere,94 Slesser LJ dealt with the plaintiff’s assent to the publication of a report in a racing calendar in terms of the principle of volenti non fit injuria. His Lordship held that this principle was not confined to cases of negligence but was of general application. Whether this view represents the current position under Australian law is open to doubt. In Rogers v Whitaker,95 Mason CJ, Brennan, Dawson, Toohey and McHugh JJ, in their joint judgment, drew a distinction between the defence of consent, which applied to claims in trespass, and the defence of volenti non fit injuria, which applied to claims in negligence. The context of this case was a claim for medical negligence arising out of a medical specialist’s failure to warn of a material risk inherent in a surgical procedure, which risk materialised. Their Honours found that consent to medical treatment, as a defence to what would otherwise constitute a battery, only required the patient to be “advised in broad terms of the nature of the procedure to be performed”.96 By contrast, volenti non fit injuria, as a defence to negligence, required the patient voluntarily to assume the precise risk of injury. Bongiorno J considered this distinction in Frew v John Fairfax Publications Pty Ltd.97 His Honour stated that, in relation to defamation, it was preferable to refer to the defence of consent, rather than the defence of volenti non fit injuria, because defamation is an intentional

89 90 91

92 93 94 95 96 97

Ettingshausen v Australian Consolidated Press Ltd (1993) A Def R 51-065; (unreported, NSW CA, Hunt CJ at CL, 11 March 1993) at p 13. Ettingshausen v Australian Consolidated Press Ltd (1993) A Def R 51-065; (unreported, NSW CA, Hunt CJ at CL, 11 March 1993) at p 19. Ettingshausen v Australian Consolidated Press Ltd (1993) A Def R 51-065; (unreported, NSW CA, Hunt CJ at CL, 11 March 1993) at pp 18-19. A further example is Frew v John Fairfax Publications Pty Ltd [2004] VSC 311 (plaintiff’s supply of autobiography to defendant constitutes consent by plaintiff to defendant’s publication of material derived from autobiography only, but not to additional defamatory matter published by defendant not so derived). Defamation Act 1974 (NSW) s 9 (repealed). As to the differences between the matter and the imputation as the cause of action in defamation, see [6.20]-[6.30]. [1932] 2 KB 431 at 463. (1992) 175 CLR 479. Rogers v Whitaker (1992) 175 CLR 479 at 490. [2004] VSC 311.

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[14.110]

The defence of consent

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tort.98 Moreover, he suggested that what the plaintiff consented to was not merely the risk of being defamed but the act of publication.99 The characterisation of defamation as an intentional tort is questionable, given repeated statements of high authority that defamation is a tort of strict liability. Treating defamation as a tort of strict liability leaves the issue of whether the defence of consent or volenti non fit injuria should apply. As a matter of principle, whether one styles it as consent or volenti non fit injuria, the test should be whether the plaintiff agreed to the publication of the defamatory matter that the defendant in fact published.

98 99

Frew v John Fairfax Publications Pty Ltd [2004] VSC 311 at [16] per Bongiorno J: “the intentional tort of libel”. See generally, [2004] VSC 311 at [15]-[17]. Frew v John Fairfax Publications Pty Ltd [2004] VSC 311 at [16] per Bongiorno J.

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15

Damages [15.10]

Introduction..............................................................................................306

[15.20]

Who determines damages for defamation?............................................ 307

[15.30]

Presumption of damage...........................................................................309

[15.40]

Available heads of damages....................................................................310

[15.40]

Compensatory damages – non-economic loss.............................. 310

[15.50] The purposes of an award of compensatory damages for defamation.................................................................................................311 [15.60]

Grapevine effect............................................................................. 313

[15.70]

Injury to feelings............................................................................314

[15.80]

General loss of business................................................................ 315

[15.90]

Injury to health...............................................................................315

[15.100] Relevant matters...........................................................................316 [15.110] The relationship between damages for defamation and damages for personal injury..................................................................... 317 [15.120] Statutory limits on compensatory damages for non-economic loss............................................................................................................ 319

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[15.130] Proper approach to assessment of compensatory damages under national, uniform defamation laws................................................ 320 [15.140] Effect of statutory cap on multiple publications and multiple proceedings............................................................................................... 321 [15.150] Damages for economic loss.........................................................322 [15.160] The plaintiff’s reputation............................................................. 323 [15.170] Evidence of bad reputation..........................................................323 [15.180] Plaintiff’s prior convictions......................................................... 326 [15.190] Evidence of good reputation....................................................... 326 [15.200] Relevant sector.............................................................................327 [15.210] Mitigation of damages................................................................. 328 [15.220] Effect of plaintiff’s post-publication conduct on assessment of damages.....................................................................................................329 [15.230] Aggravated damages....................................................................330 [15.240] Exemplary damages..................................................................... 333 [15.250] Distinction between aggravated and exemplary damages..........335 [15.260] Appeals against awards of damages........................................... 335

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[15.10]

Introduction [15.10] Notwithstanding attempts by law reformers to de-emphasise monetary

remedies and to promote alternative remedies,1 the principal remedy for defamation is and remains an award of damages. As defamation is a tort – a common law cause of action – if the plaintiff establishes his or her case to liability and the defendant fails to establish any defence, the plaintiff is entitled to an award of damages as of right. The plaintiff must be awarded an amount of damages, even if it is derisory, contemptuous or nominal, as has occurred in a number of cases.2 In most cases where the plaintiff succeeds, however, he or she receives an award of substantial damages. It has been recognised that damages are an imperfect remedy for defamation.3 In part, this is because, like other torts, damages for defamation are assessed on a “once and for all” basis, comprising all past and future losses.4 They are awarded on a lump sum basis.5 Thus, like awards of damages for other torts, most notably personal injuries, they inevitably overcompensate or undercompensate; they rarely, if ever, precisely compensate.6 Even though an award of damages can leave a successful plaintiff better off financially, the non-financial effect of a defamatory publication can never be eradicated.7 Also, an unmeritorious plaintiff might be able to recover damages, having negotiated around the rules relating to the pleading of bad reputation.8 Damages are an imperfect remedy, given the nature of the interest protected by defamation. As Windeyer J pithily observed in Uren v John Fairfax & Sons Pty Ltd,9 “money and reputation are not commensurables”. Reputation and the harm done to it cannot be measured in the same way as damage to property can be.10 There is no market for reputations.11 Reputation is, in most respects,

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1 2

3

4 5 6 7 8 9 10 11

As to offers of amends and other non-monetary remedies, see Ch 17. For example, Villers v Monsley (1769) 2 Wils 403; 95 ER 886 (sixpence); Cooke v Hughes (1824) Ry & M 112; 171 ER 961 at 963 (ER) (one farthing); Harrison v Bevington (1838) 7 Car & P 708; 173 ER 683 at 686 (ER) (one farthing); Lewis v Levy (1858) EB & E 537; 120 ER 610 at 619 (ER) per Lord Campbell CJ (one shilling); Forsdike v Stone (1868) LR 3 CP 607 (one shilling); Lemaire v Smith’s Newspaper Ltd (1927) 28 SR(NSW) 161 at 164 per Ferguson J (one farthing); Sunkissed Bananas (Tweed) Ltd v Banana Growers’ Federation Co-operative Ltd (1935) 35 SR(NSW) 526 at 539 per Jordan CJ (one farthing); Bailey v Truth and Sportsman Ltd (1938) 60 CLR 700 at 709 per Latham CJ; Newstead v London Express Newspapers Ltd [1940] 1 KB 377 at 394 (one farthing); Pamplin v Express Newspapers Ltd [1988] 1 WLR 116 at 117-8 (halfpenny). See, eg, Plato Films Ltd v Speidel [1961] AC 1090 at 1125 per Viscount Simonds: “[A] libel action is an imperfect instrument for doing justice in every case. There may, in the result, be cases in which a rogue survives both evidence of general bad reputation and, where he has gone into the witness box, a severe cross-examination nominally directed to credit, and recovers more damages than he should”; Broome v Cassell & Co Ltd [1972] AC 1027 at 1071 per Lord Hailsham of Marylebone LC (damages for defamation may leave plaintiff better off financially, impliedly suggesting that such a remedy does not leave plaintiff better off in a non-financial sense). Todorovic v Waller (1981) 150 CLR 402 at 412 per Gibbs CJ and Wilson J. Todorovic v Waller (1981) 150 CLR 402 at 412 per Gibbs CJ and Wilson J, at 457 per Aickin J. Todorovic v Waller (1981) 150 CLR 402 at 457 per Aickin J. Broome v Cassell & Co Ltd [1972] AC 1027 at 1071 per Lord Hailsham of Marylebone LC. Plato Films Ltd v Speidel [1961] AC 1090 at 1125 per Viscount Simonds. (1966) 117 CLR 118. Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 150; see also Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581 at 586 per Greer LJ. Crampton v Nugawela (1996) 41 NSWLR 176 at 191 per Mahoney ACJ; Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327; [2003] HCA 52 at 349 (CLR) per Hayne J.

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[15.20]

Who determines damages for defamation?

a decidedly non-economic legal interest,12 yet the common law long ago elected to provide legal protection for damaged reputations. When assessing damages, it is permissible to take into account a range of factors, such that the resulting verdict is “the product of a mixture of inextricable considerations”.13 An award of damages for defamation is not susceptible to precise calculation.14 At common law, damages for defamation are “at large”, meaning that they are not limited to provable pecuniary losses.15 It is always open to a successful plaintiff to seek to recover actual pecuniary losses suffered as a result of the publication of defamatory matter. However, in most cases, damages for non-economic losses are the only head of damages claimed.16 At common law, compensatory, aggravated and exemplary damages are available for defamation and there is no limit imposed on the amount that may be awarded. Under the national, uniform defamation laws, however, there are now significant restrictions on the available heads of damages and a cap on the quantum of damages that can be awarded for defamation.

Who determines damages for defamation? [15.20] Traditionally, the role of assessing the plaintiff’s damages was assigned to the jury. Indeed, the jury’s responsibility for this aspect of the trial was viewed as particularly important, as the jury was best placed to reflect the community’s perception of the value of the plaintiff’s reputation and the amount needed to restore it.17 In the late 1980s and early 1990s, the role of the jury in assessing damages for defamation was heavily criticised, following a series of high-profile English and Australian cases in which juries awarded plaintiffs, who were usually public figures and celebrities of varying levels of fame, substantial, sometimes excessive, verdicts.18 Whether these cases were

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12 13 14 15

16 17

18

As to the concept of reputation in defamation law, see [2.20]-[2.40]. Uren v John Fairfax & Sons Pty Ltd (1996) 117 CLR 118 at 150 per Windeyer J; see also Dingle v Associated Newspapers Ltd [1964] AC 371 at 395 per Lord Radcliffe. Broome v Cassell & Co Ltd [1972] AC 1027 at 1071 per Lord Hailsham of Marylebone LC. Rookes v Barnard [1964] AC 1129 at 1221 per Lord Devlin; Lower Murray Urban and Rural Water Corporation v Di Masi [2014] VSCA 104 at [110] per curiam: “In fact, damages are more at large in defamation proceedings than perhaps any other cause of action.” Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327; [2003] HCA 52 at 349 (CLR) per Hayne J. Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581 at 584 per Scrutton LJ; Dingle v Associated Newspapers Ltd [1964] AC 371 at 393 per Lord Radcliffe; Coyne v Citizen Finance Ltd (1991) 172 CLR 211 at 240 per McHugh J; Sutcliffe v Pressdram Ltd [1991] 1 QB 153 at 182 per Nourse LJ; Kiam II v MGN Ltd [2003] QB 281; [2002] EWCA Civ 43 at 299 (QB) [58] per Simon Brown LJ; see also Crampton v Nugawela (1996) 41 NSWLR 176 at 191 per Mahoney ACJ. Civil Law (Wrongs) Act 2002 (ACT) s 134(1); Defamation Act 2006 (NT) s 21(1); Defamation Act 2005 (NSW) s 24(1); Defamation Act 2005 (Qld) s 24(1); Defamation Act 2005 (SA) s 22(1); Defamation Act 2005 (Tas) s 24(1); Defamation Act 2005 (Vic) s 24(1); Defamation Act 2005 (WA) s 24(1). As to Australian cases, in Ettingshausen v Australian Consolidated Press Ltd, the rugby league footballer, Andrew Ettingshausen, was awarded $350,000 damages by a jury for the publication of a naked photograph of him in a magazine. The verdict was set aside on appeal as manifestly excessive. At a retrial, the jury awarded him $100,000 damages. In Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44, the partner of a large commercial law firm, Nicholas Carson, was awarded $600,000 damages by a jury for the publication of two newspaper articles. The High Court of Australia set aside the verdict on the basis that it was manifestly excessive. At a retrial, the jury awarded Carson $1.3 million damages for the two

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-25 03:09:26.

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actually representative of the level of damages ordinarily awarded to successful plaintiffs might be doubted, given the volume of defamation litigation which attracted no adverse comment.19 Nevertheless, the perception formed that juries were not able to be relied upon to assess damages for defamation. This led to the development of common law principles and legislative provisions directed at ensuring a greater level of consistency and predictability in the award of defamation damages, especially ensuring a proper relationship between the level of damages given for non-economic loss in defamation and personal injury cases.20 More immediately in New South Wales, Australia’s largest defamation jurisdiction, this led to the legislative removal of the task of assessing damages from the jury to the judge.21 Before the introduction of the national, uniform defamation laws, in other jurisdictions where they were still used in defamation litigation, juries were able to assess damages, although, in practice, they infrequently performed this function.22 Under the national, uniform defamation laws, in all cases and all jurisdictions, the judge is to assess the damages.23 At the time of writing, the highest award of damages for defamation against a single defendant under the national, uniform defamation laws is $350,000 in Pedavoli v Fairfax Media Publications Pty Ltd.24 This is substantially less than the highest awards made by juries and by judges sitting alone prior to the introduction of a cap on defamation damages,25 as one might expect.

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19

20 21 22

23

24

25

articles. The matter settled before a further appeal. See further, A Kenyon, “Problems with Defamation Damages?” (1998) 24 Mon LR 70 at 70-1. D Rolph, Reputation, Celebrity and Defamation Law (Ashgate, Aldershot, 2008) Chs 6, 7. For other large jury awards in Australian and English defamation cases, see, eg, Makim v John Fairfax & Sons Ltd (1990) 5 BR 196; Sutcliffe v Pressdram Ltd [1991] 1 QB 153; Crampton v Nugawela (1996) 41 NSWLR 176; John v MGN Ltd [1997] QB 586. Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 60 (effect of publicity surrounding high-profile defamation verdicts on jurors in subsequent cases). As McHugh J pointed out in the same case (at 117): “Throughout the history of the common law of defamation, juries have consistently awarded large sums for libels and slanders, and courts of appeal have consistently upheld these awards.” See below, [15.120]. Defamation Act 1974 (NSW) s 7A(4)(b) (repealed) (commenced 1 January 1995). See, eg, Coyne v Citizen Finance Ltd (1991) 172 CLR 211 at 222 per Toohey J; Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 61 per Mason CJ, Deane, Dawson and Gaudron JJ; Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46 at 141-3 (CLR) per Heydon J. Defamation Act 2005 (NSW) s 22(3); Defamation Act 2005 (Qld) s 22(3); Defamation Act 2005 (Tas) s 22(3); Defamation Act 2005 (Vic) s 22(3); Defamation Act 2005 (WA) s 22(3). There are no juries in defamation trials in the Australian Capital Territory, the Northern Territory or South Australia: see [5.150]. [2014] NSWSC 1674 at [156] (including aggravated damages). For other large amounts of defamation damages under the national, uniform defamation laws, see: McMahon v John Fairfax Publications Pty Ltd (No 7) [2013] NSWSC 933 ($300,000); Ahmed v Harbour Radio Pty Ltd [2013] NSWSC 1928 at [71], [80] per Nicholas AJ ($280,000 damages). Equivalent or higher amounts have been awarded, eg, in Petrov v Do [2012] NSWSC 1382 at [15]-[16] per Simpson J ($350,000 against two defendants) and Cripps v Vakras [2014] VSC 279 at [785] per Kyrou J (personal plaintiff awarded $420,000 damages, including aggravated damages, against two defendants), but these have been awarded against multiple defendants. See, eg, McGaw v Channel Seven Sydney Pty Ltd [2006] NSWSC 1147 at [133] per Rothman J ($385,000 damages).

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[15.30]

Presumption of damage

Presumption of damage

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[15.30] If a plaintiff establishes that the defendant’s publication defames him or her and the defendant fails to establish a defence, damage to the plaintiff’s reputation is presumed. It is not necessary for the plaintiff to lead evidence to prove that the defamatory matter was read or seen or heard by a person who knew the plaintiff and that that person’s perception of the plaintiff was in fact changed. The possibility of damage to the plaintiff’s reputation will be inferred from the fact that the defamatory matter was published.26 It is, of course, in the plaintiff’s interest to lead evidence as to the extent of damage to reputation in order to be awarded substantial damages. It will be a rare case indeed where the plaintiff does not give evidence himself or herself or calls no evidence at all.27 Even in the absence of such evidence, the plaintiff is entitled at least to nominal damages for damage to his or her reputation. It is not necessary for the plaintiff to call witnesses to establish actual damage to the plaintiff’s reputation. It is not necessary for any such witnesses called to attest that their view of the plaintiff changed as a result of the defamatory publication.28 In many cases, even in the absence of evidence of actual damage to the plaintiff’s reputation, the presumption of damage will mean that substantial damages will be awarded to a successful plaintiff.29 It is important to note that the presumption of damage operates in relation to damage to reputation. Reputation is the legal interest protected by the tort of defamation and it is the right that is vindicated by an award of damages.30 As a matter of principle, there should be no presumption of injury to feelings.31 Injury to feelings is not protected independently by defamation law but is contingent upon damage to reputation being established. Therefore, a plaintiff cannot be awarded damages for injury to feelings in the absence of any evidence as to the plaintiff’s feelings. An issue has arisen as to whether the presumption of damage is rebuttable. Although it has not been considered in Australia, it was the subject of decision in the English Court of Appeal in Jameel v Dow Jones & Co Inc.32 In that case, the court found that the presumption of damage was irrebuttable. The factual and legal context of the decision is important to note. The claimant brought libel proceedings in England based on five subscribers accessing a United States newspaper online in England. The publisher claimed that the presumption of damage was incompatible with Article 10 of the European Convention on Human Rights, which guaranteed freedom of speech and which was incorporated into domestic law by the Human Rights Act 1998 (UK). The English Court of Appeal found that the presumption of damage would rarely be at issue. In relation to a media publication, given the substantial extent of 26

27

28 29 30 31 32

Wisdom v Brown (1885) 1 TLR 412; Ratcliffe v Evans [1892] 2 QB 524 at 528-30 per Bowen LJ; Berezovsky v Michaels [2000] 2 All ER 986; 1 WLR 1004 at 1012 per Lord Steyn; Bristow v Adams [2012] NSWCA 166 at [23]-[26] per Basten JA; Cerutti v Crestside Pty Ltd [2014] QCA 33 at [29], [31] per Applegarth J; see also Shevill v Presse Alliance SA [1996] AC 959 at 982-3 per Lord Jauncey of Tullichettle Packer v Australian Broadcasting Corporation (1993) 116 FLR 306 (plaintiff did not give evidence himself); Ell v Milne (No 8) [2014] NSWSC 175 at [68] per McCallum J (plaintiff called no evidence at all as to damages). Cerutti v Crestside Pty Ltd [2014] QCA 33 at [29] per Applegarth J. Roberts v Prendergast [2014] 1 Qd R 357; [2013] QCA 47 at 364 (Qd R) per Gotterson JA. As to reputation, see Ch 2. Ell v Milne (No 8) [2014] NSWSC 175 at [77] per McCallum J. [2005] QB 946; [2005] EWCA Civ 75.

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circulation or dissemination, the presumption of damage would be uncontentiously irrebuttable. The presumption of damage would only be contentious where the extent of publication was insubstantial. In most instances of insubstantial publication, the costs and complexity of defamation litigation would act as a sufficient disincentive.33 To address those cases of insubstantial publication which were actually pursued, the English Court of Appeal found that a better means of dealing with the problem was not by abolishing the presumption of damage in defamation but by striking out such claims as an abuse of process on the ground that they did not disclose a “real and substantial tort”.34 It seems unlikely that an Australian court would find that the presumption of damage is rebuttable. The presumption of damage is a longstanding feature of Anglo-Australian defamation law.35 It is always open to a defendant to seek to prove that the actual damage was minimal, but not to defeat the claim by establishing that no damage was done at all.36

Available heads of damages Compensatory damages – non-economic loss

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[15.40] The principal head of damages, and in many defamation cases, the only head of damages awarded, is an award of compensatory damages for non-economic loss. This head of damages in turn comprises two subheads of damages, namely damage to reputation and injury to feelings.37 Ordinarily, compensatory damages for non-economic loss are assessed globally.38 This is appropriate, given that compensatory damages for non-economic loss encompass injury to reputation and injury to feelings and these overlap and are a “mixture of inextricable considerations”.39 Given the nature of the interest involved and the relevant matters to be taken into account, the assessment of compensatory damages for non-economic loss in defamation is necessarily subjective.40 The assessment of damages is ultimately a matter of impression.41 As damages in tort are assessed on a “once and for all” basis,42 an award of damages includes past and future harm caused by the publication.43 However, defamation may differ from other torts in relation to the award of damages for future loss. Because one of the most important functions of an action for defamation is said to be the vindication of the plaintiff’s reputation and the 33 34 35 36 37 38

39 40 41 42 43

Jameel v Dow Jones & Co Inc [2005] QB 946; [2005] EWCA Civ 75 at 962 (QB) [38]-[41]. As to the reception of the principle of proportionality in Australian law, see [8.210]. Jameel v Dow Jones & Co Inc [2005] QB 946; [2005] EWCA Civ 75 at 961 (QB) [37]. See Bristow v Adams [2012] NSWCA 166 at [29] per Basten JA (noting, but not deciding, the issue). McCarey v Associated Newspapers Ltd [1965] 2 QB 86 at 107 per Diplock LJ. For an example where a trial judge separately assessed damages for damage to reputation and injury to feelings, see Costello v Random House Australia Pty Ltd (1999) 137 ACTR 1 at 52 per Higgins J (trial judgment). Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 60-1. Broome v Cassell & Co Ltd [1972] AC 1027 at 1071 per Lord Hailsham of Marylebone LC. Broome v Cassell & Co Ltd [1972] AC 1027 at 1072 per Lord Hailsham of Marylebone LC. Todorovic v Waller (1981) 150 CLR 402 at 412 per Gibbs CJ and Wilson J. Coyne v Citizen Finance Ltd (1991) 172 CLR 211 at 234 per Toohey J.

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[15.50]

Available heads of damages

award of damages should be sufficiently large to achieve this purpose, there need not be, in the assessment of damages, a component reflecting future loss of reputation. The verdict in the plaintiff’s favour prevents such loss from occurring.44 Such an approach arguably overstates the vindicatory effect of an award of damages for defamation. It is also unclear what impact the capping of damages for non-economic loss in defamation claims would have on this approach. Given that the majority of cases decided under the national, uniform defamation laws have not approached the cap on damages, this issue is an interesting theoretical issue, but not yet one of great practical importance.

The purposes of an award of compensatory damages for defamation [15.50] An award of damages in tort seeks to compensate a plaintiff for the

damage he or she has suffered.45 Compensation aims to provide restitutio in integrum – restoration in full.46 An award of damages seeks to place the plaintiff in the position he or she would have been in had the tort not been committed.47 This conception of compensation has obvious limitations in relation to a number of claims in tort. It is particularly problematic in the context of defamation because it is never truly possible to quantify in monetary terms the damage done to a plaintiff’s reputation by the publication of defamatory matter. Thus, compensation, in the context of a defamation case, takes on a particular meaning. Viewed another way, the purposes of an award of damages for defamation move beyond compensation, strictly so called.48 In Australian law, there are two classic statements of the purposes of an award of damages for defamation. In Uren v John Fairfax & Sons Pty Ltd,49 Windeyer J stated that:

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properly speaking, a man defamed does not get compensation for his damaged reputation. He gets damages because he was injured in his reputation, that is simply because he was publicly defamed. For this reason, compensation by damages operates in two ways – as a vindication of the plaintiff to the public and as consolation to him for a wrong done. Compensation is here a solatium rather than a monetary recompense for harm measurable in money.

In Carson v John Fairfax & Sons Ltd,50 Mason CJ, Deane, Dawson and Gaudron JJ stated that: 44

45

46 47

48

49 50

Broome v Cassell & Co Ltd [1972] AC 1027 at 1091 per Lord Hailsham of Marylebone LC; John Fairfax & Sons Ltd v Kelly (1987) 8 NSWLR 131 at 142 per McHugh JA; Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 603 per Kirby J: “The damages must be such as to sustain the law’s assumption that, once they are awarded, there will be no future loss.” However, see Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 69-70 per Brennan J. Rookes v Barnard [1964] AC 1129 at 1221 per Lord Devlin; McCarey v Associated Newspapers Ltd (No 2) [1965] 2 QB 86 at 105 per Pearson LJ, at 106 per Diplock LJ (primary purpose of law of torts compensation of plaintiff, not punishment of defendant); Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 149 per Windeyer J. Broome v Cassell & Co Ltd [1972] AC 1027 at 1071 per Lord Hailsham of Marylebone LC. Butler v Egg and Egg Pulp Marketing Board (1966) 114 CLR 185 at 191 per Taylor and Owen JJ; Broome v Cassell & Co Ltd [1972] AC 1027 at 1071 per Lord Hailsham of Marylebone LC. As to the reasons for this, based on the peculiar historical development of defamation law, see Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 150-1 per Windeyer J. See further Ch 3. (1966) 117 CLR 118 at 150. (1993) 178 CLR 44 at 60-1.

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[s]pecific economic loss and exemplary or punitive damages aside, there are three purposes to be served by damages awarded for defamation. The three purposes no doubt overlap considerably in reality and ensure that “the amount of a verdict is the product of a mixture of inextricable considerations”. The three purposes are consolation for the personal distress and hurt caused to the appellant by the publication, reparation for the harm done to the appellant’s personal and (if relevant) business reputation and vindication of the appellant’s reputation. The first two purposes are frequently considered together and constitute consolation for the wrong done to the appellant. Vindication looks to the attitude of others to the appellant: the sum awarded must be at least the minimum necessary to signal to the public the vindication of the appellant’s reputation.

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Vindication of the plaintiff’s reputation is an important component of an award of damages for defamation.51 The fact of the judgment in favour of the plaintiff is not sufficient to effect the vindication of the plaintiff’s reputation; the quantum of damages is highly relevant to whether the plaintiff’s reputation has been effectively vindicated. The more serious and widespread the defamation, the greater the award of damages necessary to vindicate the plaintiff’s reputation. The award of damages has to be sufficient “to convince a bystander of the baselessness of the charge”.52 When assessing damages so as to secure their vindicatory purpose, Applegarth J in Cerutti v Crestside Pty Ltd53 stated that “[t]he gravity of the libel, the social standing of the parties and the availability of alternative remedies are all relevant.” Where the defamation proceedings have received publicity, due to the principle of open justice, it is legitimate to take into account the need to vindicate the plaintiff’s reputation in the minds of those who only became aware of the plaintiff and the damage done to his or her reputation through media reports.54 Whether an award of damages is efficacious in vindicating damaged reputations is open to question, the more so when damages for non-economic loss in defamation claims are capped.

51

See, eg, Rigby v Associated Newspapers Ltd [1969] 1 NSWR 729 at 743 per Jacobs JA: [A] person defamed should be able to nail the defamatory statement as a lie and should thereby be able to achieve what is the primary purpose of the law of defamation, namely, that a man should be able to vindicate his reputation in the law courts rather than with the horsewhip, the sword or the pistol.

52 53 54

See also Lower Murray Urban and Rural Water Corporation v Di Masi [2014] VSCA 104 at [107] per curiam, describing vindication as “[t]he real point” of an award of damages for defamation. Broome v Cassell & Co Ltd [1972] AC 1027 at 1071 per Lord Hailsham of Marylebone LC. [2014] QCA 33 at [34]. Cerutti v Crestside Pty Ltd [2014] QCA 33 at [35] per Applegarth J.

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[15.60]

Available heads of damages

“Grapevine effect” [15.60] In assessing damages for non-economic loss in a defamation case, the plaintiff can rely on the “grapevine effect”.55 The “grapevine effect” is a metaphor which is used to explain the basis upon which damages for defamation are granted.56 As Lord Atkin famously stated in Ley v Hamilton:57

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 quarter the poison may reach: it is impossible to weight at all closely the compensation which will recompense a man or a woman for the insult offered for the pain of a false accusation.

Similarly, in Broome v Cassell & Co Ltd,58 Lord Hailsham of St Marylebone LC discussed the effect of a defamatory publication, describing how “the libel, driven underground, emerges from its lurking place at some future date”. The “grapevine effect” is not a separate doctrine of law but rather reflects the reality of how people communicate and how damage to reputation may be caused or increased. As Kaye J observed in Belbin v Lower Murray Urban and Rural Water Corporation,59 the “grapevine effect” is:

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no more than the realistic recognition by the law that, by the ordinary function of human nature, the dissemination of defamatory material is rarely confined to those to whom the matter is immediately published … [I]t is recognised and understood that the “poison” of a libel may spread well beyond the confines of the person to whom it was immediately published.

Bearing in mind the limitations involved in relying upon metaphors,60 the “grapevine effect” may not be relevant in every case.61 There needs to be an evidentiary foundation for the application of the “grapevine effect” in a given case.62 The “grapevine effect” is connected with the vindicatory purpose of an award of damages for defamation. It seeks to identify, as far as possible, the true extent of the defamatory publication in order to reflect this in the award of damages. The “grapevine effect” is particularly important in cases involving professional, business, trading or commercial reputation, but it is not limited to such cases.63 It has also been held to have particular application where the 55

56

57 58 59 60

61 62 63

The “grapevine effect” may also be relevant to the extent of liability or the assessment of damages for causes of action other than defamation, such as injurious falsehood: see, eg, Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; [2001] HCA 69 at 416 (CLR) per Gummow J. As to injurious falsehood, see [18.20]-[18.60]. Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; [2001] HCA 69 at 416 (CLR) per Gummow J; Roberts v Prendergast [2014] 1 Qd R 357; [2013] QCA 47 at 362 (Qd R) per Gotterson JA; Lower Murray Rural and Urban Water Corporation v Di Masi [2014] VSCA 104 at [110] per curiam. (1935) 153 LT 384 at 386 per Lord Atkin. [1972] AC 1027 at 1071. [2012] VSC 535 at [217]. As Lord Mansfield is reported to have remarked, “nothing in law is so apt to mislead as a metaphor” (cited by Lord Westbury in Knox v Gye (1872) LR 5 HL 656 at 676). See also Truth About Motorways v Macquarie (2000) 200 CLR 591; [2000] HCA 11 at 625 (CLR) per Gummow J). Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388 at 416 per Gummow J. Roberts v Prendergast [2014] 1 Qd R 357; [2013] QCA 47 at 362-3 (Qd R) per Gotterson JA; Cripps v Vakras [2014] VSC 279 at [567] per Kyrou J. Roberts v Prendergast [2014] 1 Qd R 357; [2013] QCA 47 at 367 (Qd R) per Gotterson JA.

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defamatory matter is published in a relatively small regional area.64 The “grapevine effect” has also been found to have particular application to electronic publications, such as those disseminated via email or social media platforms, which may be publicly available, easily downloaded or readily forwarded.65

Injury to feelings [15.70] As damage to reputation is the gist of the action in defamation, hurt feelings alone are not compensable. However, it has long been recognised that, if the defendant publishes defamatory matter about the plaintiff, the damage to the plaintiff’s reputation will invariably hurt the plaintiff’s feelings.66 Thus, an award of compensatory damages for non-economic loss in defamation contains a component reflecting injury to the plaintiff’s feelings. Indeed, the component of an award of damages for defamation reflecting injury to feelings is often significant. As Lord Diplock observed in Broome v Cassell & Co Ltd:67 The harm caused to the plaintiff by the publication of a libel upon him often lies more in his own feelings, what he thinks other people are thinking of him, than in any actual change made manifest in their attitude towards him. A solatium for injured feelings, however innocent the publication by the defendant may have been, forms a large element in the damages.68

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Just as the quantum of damages in a defamation case needs to be sufficiently high to secure the vindication of the plaintiff’s reputation, so too does the award of damages need to be sufficiently high to assuage the plaintiff’s hurt feelings.69 The presumption of damage does not extend to injury to feelings but is directed to damage to reputation.70 Therefore, the plaintiff has to adduce evidence as to his or her injured feelings. The best evidence is often the plaintiff’s own evidence as to the injury to his or her feelings. The types of evidence particularly relevant to proof of injury to feelings include evidence of the plaintiff’s loss of company of friends or associates; the plaintiff’s exclusion from membership of a club or society; the shunning of the plaintiff at a professional function; or the plaintiff being called names.71 The falsity of the matter has been held to be relevant to the plaintiff’s injury to his or her feelings,

64 65

66 67 68

69 70 71

Jeffrey v Giles [2013] VSC 268 at [27] per Pagone J. See, eg, Higgins v Sinclair [2011] NSWSC 163 at [216]-[218] per Johnson J; Cantwell v Sinclair [2011] NSWSC 1244 at [168]-[169] per Rothman J; Polias v Ryall [2014] NSWSC 1692 at [95]-[97] per Rothman J. Goslin v Corry (1844) 7 Man & G 342; 135 ER 143 at 145 (ER) per Erskine J; McCarey v Associated Newspapers Ltd (No 2) [1965] 2 QB 86 at 104 per Pearson LJ. [1972] AC 1027. Broome v Cassell & Co Ltd [1972] AC 1027 at 1125 per Lord Diplock. See also Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 104-5 per McHugh J: “The damage which a defamation produces is ordinarily psychological rather than material. It affects the feelings, sense of security, sense of esteem and self perceptions of the person defamed.” Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 105 per McHugh J. As to the presumption of damage, see [15.30]. Garbett v Hazell, Watson & Viney Ltd [1943] 2 All ER 359 at 360 per Scott LJ; McCarey v Associated Newspapers Ltd [1965] 2 QB 86 at 105 per Pearson LJ (“social damage”); David Syme & Co Ltd v Mather [1977] VR 516 at 532.

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[15.90]

Available heads of damages

rather than to the damage to his or her reputation.72 The meaning the plaintiff attached to the defamatory matter, whilst irrelevant for the purposes of liability,73 has been held to be relevant to the issue of damages.74 The failure of the defendant to apologise to the plaintiff can also be relevant to the assessment of compensatory damages for injury to feelings.75 Artificial entities, such as corporations, are not entitled to an award of compensatory damages including a component for injury to feelings, as such entities, unlike natural persons, do not have feelings.76

General loss of business [15.80] It is always open to a person or an entity suing for damage to professional or business reputation to plead and prove actual pecuniary losses sustained as a result of the defendant’s publication of the defamatory matter.77 However, where a plaintiff is defamed in relation to his or her professional or business reputation, he or she is also able to recover damages for general loss of business or custom flowing from the publication of defamatory matter.78 Evidence which is admissible to prove damages for economic loss can be relied upon in relation to the assessment of damages for non-economic loss reflecting general loss of business. Equally, evidence of an economic nature can be admitted solely for the purposes of assessing damages for non-economic loss reflecting general loss of business.79

Injury to health [15.90] If, as a consequence of the publication of defamatory matter, the plaintiff suffers injury to his or her health, he or she is able to recover damages in respect of that injury. Cases where such a head of damages is claimed are relatively rare but, as a matter of principle, they should be available.80 As Manning J observed in Rigby v Associated Newspapers Ltd:81

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72

73 74 75

76

77 78

79 80

81

Goldsborough v John Fairfax & Sons Ltd (1934) 34 SR(NSW) 524; Rigby v Associated Newspapers Ltd [1969] 1 NSWR 729 at 738 per Walsh JA; Singleton v Ffrench (1986) 5 NSWLR 425 at 442 per McHugh JA. As to defamatory meaning, see Ch 6. Lewis v Daily Telegraph Ltd [1964] AC 234 at 262 per Lord Reid; Hughes v Mirror Newspapers Ltd (1985) 3 NSWLR 504 at 509-10 per Hunt J. Lemaire v Smith’s Newspapers Ltd (1927) 28 SR(NSW) 161 at 166 per Gordon J; Rantzen v Mirror Group Newspapers Ltd [1994] QB 670 at 683 per Neill LJ; Clark v Ainsworth (1996) 40 NSWLR 463 at 468 per Sheller JA, at 474-5 per Abadee AJA. Lewis v Daily Telegraph Ltd [1964] AC 234 at 262 per Lord Reid; Australian Broadcasting Corporation v Comalco (1986) 68 ALR 259 at 348 per Pincus J; Royal Society for the Prevention of Cruelty to Animals (NSW) v 2KY Broadcasters Pty Ltd (1988) A Def R 50-030. As to damages for economic loss in defamation, see [15.150]. Ingram v Lawson (1840) 6 Bing (NC) 212; 133 ER 84 at 85 (ER) per Bosanquet J, at 86 per Maule J; Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 at 235 per Hutley JA; Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474 at 484 per Hunt J. Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 at 235 per Hutley JA. See, eg, Brook v Flinders University of South Australia (1988) 47 SASR 119 at 130 per von Doussa J; Sattin v Nationwide News Pty Ltd (1996) 39 NSWLR 32 at 45 per Levine J; see also Mirror Newspapers Ltd v Jools (1985) 5 FCR 507 at 510 per Fox J (plaintiff “entitled to damages for injury to his feelings, and related effects on his health”, namely depression caused by publication of defamatory matter). Contra Allsop v Allsop (1860) 5 H & N 534; 157 ER 1292 at 1293-4 (ER) per Pollock CB, at 1294 per Martin B, at 1294 per Bramwell B. (1963) 64 SR(NSW) 34 at 36-7 per Manning J.

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I can find no justification for accepting that the law of causation in defamation differs from that in relation to other torts. I know of no policy of the law which would justify a limitation being placed upon the recovery of damages which in fact flowed as a result of the wrongful act.

One reason claims for this head of damages are relatively rare is that the most likely type of personal injury complained of is mental harm. An award of damages for non-economic loss already includes a component reflecting injury to feelings, which includes the distress the plaintiff experiences as a result of the publication of the defamatory matter. Unless the plaintiff suffers a particular or more serious type of injury to his or her health as a result of the defendant’s conduct, there may be no real incentive for the plaintiff to claim this head of damages.

Relevant matters [15.100] There is a range of factors which may be taken into account when assessing damages for defamation. As Lord Hailsham of St Marylebone LC observed in Broome v Cassell & Co Ltd:82 Quite obviously, the award must include factors for injury to the feelings, the anxiety and uncertainty undergone in the litigation, the absence of apology, or the reaffirmation of the truth of the matters complained of, or the malice of the defendant. The bad conduct of the plaintiff himself may also enter into the matter, where he had provoked the libel, or where he has perhaps libelled the defendant in reply.

In Forsdike v Stone,83 Willes J stated that the tribunal of fact could, when assessing damages for defamation, be invited to consider “not only what the plaintiff should receive, but what the defendant should pay”.84

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In assessing damages for defamation, the tribunal of fact is entitled to consider the conduct of the parties up until the date of judgment.85 This includes what occurs in court during the defamation trial itself.86 As Lord Esher MR famously observed in Praed v Graham:87 [T]he jury in assessing damages are entitled to look at the whole conduct of the defendant from the time the libel was published down to the time they give their verdict. They may consider what his conduct has been before action, after action, and in court during the trial.88

Persistence in a defence of justification can be a factor affecting the assessment of compensatory damages. The early withdrawal of a defence of justification can minimise the harm to reputation and the injury to feelings, thereby tending to reduce the compensatory damages that should be awarded. Conversely, the persistence in a defence of justification can increase the harm, thereby tending 82 83 84

85 86 87 88

[1972] AC 1027 at 1071 per Lord Hailsham of St Marylebone LC; see also at 1073. (1868) LR 3 CP 607. Forsdike v Stone (1868) LR 3 CP 607 at 611. The application of this principle will now be constrained by the statutory capping of damages for non-economic loss under the national, uniform defamation laws, as to which see [15.120]. Lemaire v Smith’s Newspapers Ltd (1927) 28 SR(NSW) 161 at 165 per Gordon J. Lemaire v Smith’s Newspapers Ltd (1927) 28 SR(NSW) 161 at 167 per Gordon J. (1889) 24 QBD 53. Praed v Graham (1889) 24 QBD 53 at 55; see also Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581 at 584 per Scrutton LJ.

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[15.110]

Available heads of damages

to increase the damages that should be awarded.89 As Toohey J observed in Coyne v Citizen Finance Ltd,90 “compensation for continuing harm is a component of normal compensatory damages”.

The relationship between damages for defamation and damages for personal injury [15.110] The relationship between the level of damages awarded for noneconomic loss in defamation and personal injury claims has proven to be problematic for judges, legislators and law reformers for several decades. The concern about overly generous awards of damages for defamation and the contrast with relatively parsimonious awards of damages for non-economic loss in personal injury cases is not new. In the late 1930s, MacKinnon LJ evocatively expressed the problem in Groom v Crocker:91 I have been struck by the contrast between the frequent niggardliness of verdicts in cases of personal injury and the invariable profuseness in claims for defamation. A soiled reputation seems assured of more liberal assuagement than a compound fracture.

The competing arguments about this issue largely resolve themselves in the following way. On the one hand, defamation and negligence protect different interests against different types of harms, such that awards of damages for these causes of action serve different purposes, thereby precluding any ready and meaningful comparison between the levels awarded for each of them.92 On the other hand, the remedy awarded for defamation and negligence is monetary and the level of damages for each cause of action reflects the value the law ascribes to the respective, underlying interests. According to Mason CJ, Deane, Dawson and Gaudron JJ in Carson v John Fairfax & Sons Ltd:93

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the foundation of that relationship must be the scale of awards for general damages in cases of serious physical injuries which, in their severity and disabling consequences, transcend injury to reputation.

As Diplock LJ observed in McCarey v Associated Newspapers Ltd,94 “I do not believe that the law today is more jealous of a man’s reputation than of his life and limb”. The difficulty of maintaining a proper relationship between the level of damages for non-economic loss in defamation and personal injury claims was particularly acute when juries were still able to be involved in the assessment of damages for defamation. Courts in Australia and England sought to articulate principles which would guide trial judges presiding over trials in which juries assessed damages. In Coyne v Citizen Finance Ltd,95 Toohey J (with whom Dawson and McHugh JJ agreed) suggested that juries should be reminded of the purchasing or investment power of money in concrete ways, or could be 89 90 91 92

93 94 95

Herald & Weekly Times Ltd v McGregor (1928) 41 CLR 254 at 263 per Knox CJ, Gavan Duffy and Starke JJ; Coyne v Citizen Finance Ltd (1991) 172 CLR 211 at 238 per Toohey J. (1991) 172 CLR 211 at 238. [1939] 1 KB 194 at 231. See, eg, Broome v Cassell & Co Ltd [1972] AC 1027 at 1071 per Lord Hailsham of St Marylebone LC; Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 73-5 per Brennan J, at 111-13 per McHugh J. (1993) 178 CLR 44 at 58-9. [1965] 2 QB 86 at 109; see also at 108. (1991) 172 CLR 211 at 235.

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provided with suggested brackets within which the award of damages should properly fall, so long as the trial judge reminded the jury that the decision was ultimately theirs. His Honour was critical of the practice of presenting awards of damages in personal injury claims to the jury, as they provided the jury with no real assistance in determining the issue before them and, indeed, could be an unhelpful distraction.96 Subsequently, in Carson v John Fairfax & Sons Ltd,97 Mason CJ, Deane, Dawson and Gaudron JJ agreed with both of Toohey J’s suggestions about the guidance juries should be given but went further, finding that it was legitimate for appellate courts to have regard to the level of damages for non-economic loss in personal injury claims in order to determine the issue of whether the jury’s verdict was manifestly inadequate or, more likely, manifestly excessive and, moreover, that there was “no significant danger” in juries being provided with information about the ordinary level of damages for non-economic loss in personal injury claims. Their Honours concluded that, when reviewing a jury’s assessment of damages for defamation, “an appellate judge must not be indifferent to the need to ensure a rational relationship between the scale of values applied in defamation and personal injury cases”.98 In addition to these common law developments, there have been previous legislative attempts to address the proper relationship between damages for non-economic loss in defamation and personal injuries. In 1994, as part of the amendment that removed the task of assessing damages from the jury, the New South Wales Parliament also inserted s 46A into the Defamation Act 1974 (NSW).99 This section not only required a judge, when assessing damages for defamation, to ensure that there was “an appropriate and rational relationship between the relevant harm and the amount of damages awarded”,100 but also “to take into consideration the general range of damages for non-economic loss in personal injuries awards”.101 It did not, however, prescribe what a judge should do having taken such awards of damages for non-economic loss in personal injury cases into account.102 The lack of guidance provided by the text of the Defamation Act 1974 (NSW) s 46A(2) was regularly noted by trial judges required to apply it to the facts before them.103 This subsection was effectively read down by the High Court of Australia’s decision in Rogers v Nationwide News Pty Ltd.104 The real work of the section was performed by the requirement that there should be an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.105 Subsequently, it became not uncommon for parties to make no 96 97 98 99 100 101 102 103

104 105

Coyne v Citizen Finance Ltd (1991) 172 CLR 211 at 234. (1993) 178 CLR 44 at 59-60. Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 64. Defamation Amendment Act 1994 (NSW). Defamation Act 1974 (NSW) s 46A(1). Defamation Act 1974 (NSW) s 46A(2). Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327; [2003] HCA 52 at 352-4 (CLR) per Hayne J. See, eg, Jackson v TCN Channel 9 Pty Ltd [2002] NSWSC 1229 at [89] per Adams J; see also Lam v Nationwide News Pty Ltd [2000] NSWSC 792 at [47] per Studdert J; Harrigan v Jones [2001] NSWSC 623 at [153] per Mathews AJ; Jarratt v John Fairfax Publications Pty Ltd [2001] NSWSC 739 at [108]-[109] per McClellan J. (2003) 216 CLR 327; [2003] HCA 52. (2003) 216 CLR 327; [2003] HCA 52 at 351-3 per Hayne J, at 381-4 per Heydon J. See also Markovic v White [2004] NSWSC 37 at [35] per Levine J; Zaia v Chibo [2005] NSWSC 917 at [34] per Nicholas J.

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[15.120]

Available heads of damages

submissions as to the level of damages for non-economic loss awarded in personal injury cases when seeking to have a judge assess damages for defamation.106

Statutory limits on compensatory damages for non-economic loss [15.120] The national, uniform defamation laws seek to resolve the ongoing tension between the level of damages for non-economic loss in defamation and personal injury claims by imposing a cap on damages for defamation.107 This follows the restrictions on damages for non-economic loss in personal injury claims in most Australian jurisdictions as part of the tort law reforms of the early 2000s.108 Indeed, the statutory provision for the capping of damages in defamation cases is modelled on the statutory provision for the capping of damages for non-economic loss in personal injury claims in New South Wales.109 To reflect the relative worth of the interests protected by personal injury and defamation claims, the initial statutory cap was set at a lower level for defamation claims.110 Under the national, uniform defamation laws, compensatory damages for non-economic loss are initially capped at $250,000.111 However, this is subject to a statutory indexation mechanism.112 The cap can be exceeded if the court is satisfied that the circumstances justify an award of aggravated damages.113 However, the cap does not apply to damages for economic loss.114 Although historically damages for non-economic loss were often the sole head of damages awarded, the 106 107

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108

109 110 111

112

113

114

See, eg, Jamoo v Nationwide News Pty Ltd [2004] NSWSC 126 at [56] per Nicholas J; Zaia v Chibo [2005] NSWSC 917 at [34] per Nicholas J. Civil Law (Wrongs) Act 2002 (ACT) s 139F(1); Defamation Act 2006 (NT) s 32(1); Defamation Act 2005 (NSW) s 35(1); Defamation Act 2005 (Qld) s 35(1); Defamation Act 2005 (SA) s 33(1); Defamation Act 2005 (Tas) s 35(1); Defamation Act 2005 (Vic) s 35(1); Defamation Act 2005 (WA) s 35(1). See, eg, Personal Injuries (Liabilities and Damages) Act 2003 (NT) ss 27, 28; Civil Liability Act 2002 (NSW) ss 16, 17; Civil Liability Act 2003 (Qld) ss 61, 63; Civil Liability Act 1936 (SA) s 52; Civil Liability Act 2002 (Tas) s 27; Wrongs Act 1958 (Vic) ss 28G, 28H; Civil Liability Act 2002 (WA) ss 9, 10. Civil Liability Act 2002 (NSW) ss 16, 17. Under the Civil Liability Act 2002 (NSW) s 16(2), the initial statutory cap for damages for non-economic loss in personal injury claims was set at $350,000. Civil Law (Wrongs) Act 2002 (ACT) s 139F(1); Defamation Act 2006 (NT) s 32(1); Defamation Act 2005 (NSW) s 35(1); Defamation Act 2005 (Qld) s 35(1); Defamation Act 2005 (SA) s 33(1); Defamation Act 2005 (Tas) s 35(1); Defamation Act 2005 (Vic) s 35(1); Defamation Act 2005 (WA) s 35(1). Civil Law (Wrongs) Act 2002 (ACT) s 139F(3) – (9); Defamation Act 2006 (NT) s 32(3) – (8); Defamation Act 2005 (NSW) s 35(3) – (8); Defamation Act 2005 (Qld) s 35(3) – (8); Defamation Act 2005 (SA) s 33(3) – (8); Defamation Act 2005 (Tas) s 35(3) – (8); Defamation Act 2005 (Vic) s 35(3) – (8); Defamation Act 2005 (WA) s 35(3) – (8). Civil Law (Wrongs) Act 2002 (ACT) s 139F(2); Defamation Act 2006 (NT) s 32(2); Defamation Act 2005 (NSW) s 35(2); Defamation Act 2005 (Qld) s 35(2); Defamation Act 2005 (SA) s 33(2); Defamation Act 2005 (Tas) s 35(2); Defamation Act 2005 (Vic) s 35(2); Defamation Act 2005 (WA) s 35(2). Although this subsection links aggravated damages to “the circumstances of publication”, this does not exclude a consideration of the defendant’s conduct of the trial: Davis v Nationwide News Pty Ltd [2008] NSWSC 693 at [19]-[20] per McClellan CJ at CL. As to damages for economic loss, see [15.150].

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-27 03:14:30.

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statutory capping of such damages may provide an incentive for plaintiffs to claim damages for economic loss in defamation cases. In assessing damages, the court is to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.115 The national, uniform defamation laws therefore preserve what was considered to be the most important part of the Defamation Act 1974 (NSW) s 46A.

Proper approach to assessment of compensatory damages under national, uniform defamation laws [15.130] The proper approach to the assessment of compensatory damages under the national, uniform defamation laws has been the subject of differing judicial views. In Attrill v Christie,116 Bell J approached the task on the basis that the maximum amount of damages for non-economic loss fixed the outer limit and that the award of damages in a given case had to be placed within that range. Her Honour emphasised, though, that: [t]his is not to say that an award of the maximum damages amount in a case not warranting an award of aggravated damages is to be reserved for the worst defamation imaginable.117

In Papaconstuntinos v Holmes a Court,118 McCallum J drew an analogy between the maximum amount of damages permitted under the national, uniform defamation laws and the maximum penalty able to be imposed for a crime. Her Honour then observed that:

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the maximum damages amount is to be regarded as being reserved for the worst category of case, such as the publication of an imputation of paedophilia on the front page of a major newspaper or in the prime time broadcast of the television news.119

The approach to the assessment of damages, which seeks to place a given case within a range from least serious to most serious, has not been universally accepted. In Cripps v Vakras,120 Kyrou J declined to follow Bell J’s approach in Attrill v Christie.121 His Honour held that the statutory cap was not intended to have a scaling effect but merely provided a cut-off amount.122

115

Civil Law (Wrongs) Act 2002 (ACT) s 139E; Defamation Act 2006 (NT) s 31; Defamation Act 2005 (NSW) s 34; Defamation Act 2005 (Qld) s 34; Defamation Act 2005 (SA) s 32; Defamation Act 2005 (Tas) s 34; Defamation Act 2005 (Vic) s 34; Defamation Act 2005 (WA) s 34.

116 117

[2007] NSWSC 1386 at [44]. Attrill v Christie [2007] NSWSC 1386 at [44]. This approach was adopted by Nicholas AJ in Ahmed v Harbour Radio Pty Ltd [2013] NSWSC 1928 at [60]. [2009] NSWSC 903. Papaconstuntinos v Holmes a Court [2009] NSWSC 903 at [114]. [2014] VSC 279 at [608]. [2007] NSWSC 1386. Cripps v Vakras [2014] VSC 279 at [605]-[607], [609].

118 119 120 121 122

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-27 03:14:30.

[15.140]

Available heads of damages

Effect of statutory cap on multiple publications and multiple proceedings [15.140] A particular difficulty has arisen due to the wording of the statutory

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cap. The national, uniform defamation laws impose “the maximum amount of damages for non-economic loss that may be awarded in defamation proceedings”.123 The difficulty relates to whether the statutory cap applies to the proceedings as a whole, irrespective of the number of publications sued upon in the proceedings, or whether the statutory cap applies to each publication in the proceedings. If the former interpretation is correct, then plaintiffs would be tempted to bring separate proceedings in respect of separate publications, even if the underlying matter is substantially similar. The proliferation of defamation proceedings in respect of substantially similar matter is undesirable as a matter of policy. The plaintiff’s latitude is constrained, however, in two ways. First, serial litigation of substantially similar matter may be struck out as an abuse of process.124 Secondly, leave of the court is required for the plaintiff to litigate substantially similar matter in further proceedings.125 The extent to which these in fact constrain the latitude of plaintiffs is open to question. As McCallum J noted, however, in Dank v Whittaker [No 4],126 the statutory provision caps the maximum amount of damages awarded, saying nothing about the number of applications which may be brought for injunctive relief in respect of defamatory matter. These difficult issues have started to be explored in the decided cases. In Davis v Nationwide News Pty Ltd,127 McClellan CJ at CL rejected the view that the statutory cap applied to each publication in the proceedings. Rather, his Honour held that the statutory cap applied to the proceedings, regardless of the number of publications in suit. In Buckley v Herald & Weekly Times Ltd,128 the plaintiff commenced two separate defamation proceedings. The trial judge consolidated the proceedings. Previously, the trial judge had held that the plaintiff did not require leave to institute the second proceedings because the publication in issue was not substantially similar to the publication in the first proceedings. The Victorian Court of Appeal, the leading judgment being given by Nettle JA (as his Honour then was), held that the plaintiff had a substantive right to bring two defamation proceedings and that this was prejudiced by the consolidation order.

123

Civil Law (Wrongs) Act 2002 (ACT) s 139F(1); Defamation Act 2006 (NT) s 32(1); Defamation Act 2005 (NSW) s 35(1); Defamation Act 2005 (Qld) s 35(1); Defamation Act 2005 (SA) s 33(1); Defamation Act 2005 (Tas) s 35(1); Defamation Act 2005 (Vic) s 35(1); Defamation Act 2005 (WA) s 35(1).

124

Maple v David Syme & Co Ltd [1975] 1 NSWLR 97 at 99, 102 per Begg J. As to abuse of process, see [8.170], [8.210]. Civil Law (Wrongs) Act 2002 (ACT) s 133; Defamation Act 2006 (NT) s 20; Defamation Act 2005 (NSW) s 23; Defamation Act 2005 (Qld) s 23; Defamation Act 2005 (SA) s 21; Defamation Act 2005 (Tas) s 23; Defamation Act 2005 (Vic) s 23; Defamation Act 2005 (WA) s 23.

125

126 127 128

[2014] NSWSC 732 at [29]. [2008] NSWSC 693 at [8]-[10]. (2009) 24 VR 129; [2009] VSCA 118 at 131-2 (VR).

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In Fairfax Media Publications Pty Ltd v Cummings,129 the plaintiff commenced two defamation proceedings in respect of substantially similar matter against different entities within the same media group. The defendants in the two proceedings were unsuccessful in obtaining a consolidation order. On appeal to the Australian Capital Territory Court of Appeal, Katzmann J, with whom Burns J agreed, held that the trial judge did not err in refusing to consolidate the proceedings. Her Honour did not accept that the maintenance of separate proceedings amounted to an abuse of process. She pointed to the separate legal personalities of the defendants.130 The fact that the plaintiff could obtain two amounts of damages did not constitute an abuse of process.131 Most recently, in Dank v Whittaker (No 4),132 the plaintiff commenced six defamation proceedings against the same newspaper company and its editors and journalists in respect of print and online articles published on three different dates. McCallum J refused to consolidate all six proceedings into one.133

Damages for economic loss [15.150] It is always open to a plaintiff to plead and prove actual pecuniary

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losses flowing from the publication of defamatory matter.134 As damages for defamation, like other torts, are assessed on a “once and for all” basis,135 it is also open to a plaintiff to plead and prove anticipated pecuniary losses flowing from the publication of defamatory matter.136 In many cases, damages for non-economic loss are the only ones sought and awarded. Whilst damages were at large, there was less incentive for plaintiffs to plead and prove actual pecuniary losses flowing from the publication of defamatory matter. Nevertheless, there were cases in which plaintiffs sought and recovered damages for economic loss in defamation.137 The capping of damages for non-economic loss under the national, uniform defamation laws may provide an incentive for plaintiffs increasingly to claim damages for economic loss in defamation.

129 130 131 132 133 134

135 136 137

(2013) 280 FLR 238; [2013] ACTCA 37 at 248-9 (FLR) per Katzmann J. Fairfax Media Publications Pty Ltd v Cummings (2013) 280 FLR 238; [2013] ACTCA 37 at 254 (FLR). Fairfax Media Publications Pty Ltd v Cummings (2013) 280 FLR 238; [2013] ACTCA 37 at 256 (FLR) per Katzmann J. [2014] NSWSC 732 at [2] per McCallum J. Dank v Whittaker (No 4) [2014] NSWSC 732 at [40]. McCarey v Associated Newspapers Ltd (No 2) [1965] 2 QB 86 at 108 per Diplock LJ; Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 at 639 per Mason and Jacobs JJ; Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327; [2003] HCA 52 at 349 (CLR) per Hayne J. For an example of a case involving the award of damages of actual economic loss flowing from the publication of defamatory matter, see Crampton v Nugawela (1996) 41 NSWLR 176 at 189-90 per Mahoney ACJ. Todorovic v Waller (1981) 150 CLR 402. McCarey v Associated Newspapers Ltd (No 2) [1965] 2 QB 86 at 104 per Pearson LJ. See, eg, Haertsch v Channel Nine Pty Ltd [2010] NSWSC 182 per Nicholas J ($15,000 damages for economic loss).

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[15.170]

Available heads of damages

The plaintiff’s reputation [15.160] Paradoxically, even though reputation is the central interest protected

by the tort of defamation,138 the plaintiff’s actual reputation and the precise nature of the damage done to it only emerge fully during the assessment of damages at trial. The plaintiff does not need to establish at the outset that he or she had a good reputation. It is only after liability and defences are determined that the impact of the defendant’s conduct on the plaintiff’s reputation is assessed. Consistent with its own reputation for artificiality and complexity,139 defamation law has developed a range of rules, principles and practices for the pleading of the plaintiff’s bad or good reputation, which are not entirely rational.140

Evidence of bad reputation [15.170] Defamation law circumscribes the types of evidence of the plaintiff’s bad reputation which are admissible so as “to prevent libel trials from becoming roving inquiries into the plaintiff’s reputation, character or disposition”.141 Issues relating to the admissibility of evidence as to the plaintiff’s bad reputation are informed by concerns about procedural fairness and case management.142 As Lord Chief Baron Richards observed in Jones v Stevens:143

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I cannot assent to a doctrine which would go to permit persons to be guilty of slander, under pretence of mitigating damages, on the plea of the general issue; and to allow Defendants to impeach all the transactions of a man’s life who may have occasion to seek redress in Courts of Justice, and throw on him the difficulty of shewing a uniform propriety of conduct during all his existence. It would be impossible for any man to come prepared to meet such a charge.

The breadth of these dicta has been narrowed subsequently. Thus, a defendant can adduce evidence of the plaintiff’s general bad reputation in order to mitigate damages.144 The evidence of the plaintiff’s general bad reputation needs to be in the relevant sector, so as to be related to the damage done to the plaintiff’s reputation by the defendant’s defamatory publication.145 The rationale for this principle is that: [t]he damage … which [the plaintiff] has sustained must depend almost entirely on the estimation in which he was previously held. He complains of an injury to his 138 139 140 141

142

143 144

145

See [2.10]. See [1.20]-[1.40]. See, eg, Goody v Odhams Press Ltd [1967] 1 QB 333 at 342 per Danckwerts LJ: “the law on the subject which we have been discussing has got into some queer twists and tangles”. Burstein v Times Newspapers Ltd [2001] 1 WLR 579 at 596 per May LJ; see also Jorgensen v New Zealand Newspapers Ltd [1974] 2 NZLR 45 at 51 per Perry J; Turner v News Group Newspapers Ltd [2006] 1 WLR 3469; [2006] EWCA Civ 540 at 3481 (WLR) per Keene LJ. Burstein v Times Newspapers Ltd [2001] 1 WLR 579 at 597 per May LJ; Turner v News Group Newspapers Ltd [2006] 1 WLR 3469; [2006] EWCA Civ 540 at 3477, 3479 (WLR) per Keene LJ. (1822) 11 Price 234; 147 ER 458 at 468 (ER). Scott v Sampson (1882) 8 QBD 491 at 503 per Cave J; Hobbs v Tinling (CT) & Co Ltd [1929] 2 KB 1 at 17 per Scrutton LJ; Chappell v Mirror Newspapers Ltd (1984) Aust Torts Reports 80-691 at 68,951-2 per Moffitt P; Pamplin v Express Newspapers Ltd [1988] 1 WLR 116 at 119 per Neill LJ; O’Hagan v Nationwide News Pty Ltd (2001) 53 NSWLR 89; [2001] NSWCA 302 at 91 (NSWLR) per Meagher JA; see also Plato Films Ltd v Speidel [1961] AC 1090 at 1124-5 per Viscount Simonds. Pamplin v Express Newspapers Ltd [1988] 1 WLR 116 at 119 per Neill LJ.

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reputation and seeks to recover damages for that injury; and it seems most material that the jury who have to award those damages should know if the fact is so that he is a man of no reputation.146

The defendant is not entitled to adduce evidence of rumours or suspicions about the plaintiff in mitigation of damages.147 As Cave J noted in Scott v Sampson:148 If these rumours and suspicions have, in fact, affected the plaintiff’s reputation, that may be proved by general evidence of reputation. If they have not affected it they are not relevant to the issue.

As Lord Denning expressed it evocatively in Plato Films Ltd v Speidel,149 “[r]umour is a lying jade, begotten by gossip out of hearsay, and is not fit to be admitted to audience in a court of law.” Returning to the issue in Dingle v Associated Newspapers Ltd,150 his Lordship observed: Our English law does not love tale-bearers. If the report or rumour was true, let him justify it. If it was not true, he ought not to have repeated it or aided its circulation.

In addition, a defendant cannot adduce evidence of particular acts of misconduct by the plaintiff.151 So to permit this course would be to: give rise to interminable issues which would have but a very remote bearing on the question in dispute, which is to what extent the reputation which he actually possessed has been damaged by the defamatory matter complained of.152

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Whether it is possible in practice satisfactorily to draw a distinction between evidence of general bad reputation and evidence of particular acts of misconduct is open to question.153 However, it is necessary to draw a distinction between evidence solely adduced for the purposes of mitigating damages due to the plaintiff’s bad reputation and evidence already before the court in relation to another issue which may also be relevant to the issue of the plaintiff’s bad reputation.154 For the purpose of mitigating damages, though, a defendant may rely upon evidence before the court in relation to other issues, such as defences of 146 147

148 149 150 151

152 153 154

Scott v Sampson (1882) 8 QBD 491 at 503 per Cave J. Scott v Sampson (1882) 8 QBD 491 at 504 per Cave J; Hobbs v Tinling (CT) & Co Ltd [1929] 2 KB 1 at 18 per Scrutton LJ; Plato Films Ltd v Speidel [1961] AC 1090 at 1130 per Lord Radcliffe; Dingle v Associated Newspapers Ltd [1964] AC 371 at 410-11 per Lord Denning. (1882) 8 QBD 491 at 504. [1961] AC 1090 at 1136. [1964] AC 371 at 410. Scott v Sampson (1882) 8 QBD 491 at 505 per Cave J; Mangena v Wright [1909] 2 KB 958 at 979 per Phillimore J; Hobbs v Tinling (CT) & Co Ltd [1929] 2 KB 1 at 18 per Scrutton LJ; Plato Films Ltd v Speidel [1961] AC 1090 at 1123 per Viscount Simonds; Pamplin v Express Newspapers Ltd [1988] 1 WLR 116 at 119 per Neill LJ; O’Hagan v Nationwide News Pty Ltd (2001) 53 NSWLR 89; [2001] NSWCA 302 at 91 (NSWLR) per Meagher JA, at 93 per Stein JA. Scott v Sampson (1882) 8 QBD 491 at 505 per Cave J. Plato Films Ltd v Speidel [1961] AC 1090 at 1130-1 per Lord Radcliffe. Pamplin v Express Newspapers Ltd [1988] 1 WLR 116 at 119 per Neill LJ; see also Turner v News Group Newspapers Ltd [2006] 1 WLR 3469; [2006] EWCA Civ 540 at 3481 (WLR) per Keene LJ (should not treat principle in Scott v Sampson (1882) 8 QBD 491 as absolute).

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-27 03:14:30.

[15.170]

Available heads of damages

justification or fair comment.155 The evidence needs to be in the relevant sector of the plaintiff’s reputation.156 If it is relevant to defences such as justification or fair comment, it is liable already to be in the relevant sector of the plaintiff’s reputation.157 As May LJ observed in Burstein v Times Newspapers Ltd,158 a consequence of these principles is that “[t]his apparently straightforward state of law and practice, together with other such strands, can nevertheless lead to unsatisfactory tactical manoeuvring”. For instance, a defendant may plead a weak defence of justification so as to make available evidence in mitigation of damages. Alternatively, a defendant may elect not to plead a defence of justification but attempt to adduce evidence by other means. As May LJ in Burstein v Times Newspapers Ltd159 noted, “[t]actical footwork of this kind breeds complication, expense and delay”. A defendant may also be able to rely upon particular facts in mitigation of damages, where those facts are directly relevant to the contextual background in which the defamatory matter was published.160 In limited circumstances, a defendant may rely upon the plaintiff’s own conduct in mitigation of damages. Merely because the plaintiff has engaged in similar conduct to that conveyed in the defamatory matter does not make the matter defensible or otherwise mitigate the damage done by it. However, if the plaintiff provoked the defendant’s publication, the plaintiff’s conduct may be relied upon to reduce the damages.161

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A defendant cannot adduce evidence of other publications alone to establish the plaintiff’s prior bad reputation.162 Were it otherwise, the plaintiff may never receive full vindication of his or her damaged reputation and would be forced to seek redress from the initial publisher only.163 In addition, a media outlet could rely upon its own reports about the plaintiff to minimise the damages payable to him or her.164

155

156 157

158 159 160 161

162

163 164

Pamplin v Express Newspapers Ltd [1988] 1 WLR 116 at 120 per Neill LJ; Turner v News Group Newspapers Ltd [2006] 1 WLR 3469; [2006] EWCA Civ 540 at 3481 (WLR) per Keene LJ. Holt v TCN Channel Nine Pty Ltd (2014) 86 NSWLR 96; [2014] NSWCA 90 at 103 (NSWLR) per Macfarlan JA. As to the importance of identifying with precision the relevant sector of the plaintiff’s reputation, cf Jones v Pollard [1997] EMLR 233 at 251 per Hirst LJ; Turner v News Group Newspapers Ltd [2006] 1 WLR 3469; [2006] EWCA Civ 540 at 3492 (WLR) per Moses LJ. See further, [15.200]. [2001] 1 WLR 579 at 589. [2001] 1 WLR 579 at 589. Holt v TCN Channel Nine Pty Ltd (2014) 86 NSWLR 96; [2014] NSWCA 90 at 103 (NSWLR) per Macfarlan JA. Burstein v Times Newspapers Ltd [2001] 1 WLR 579 at 589-90 per May LJ; see also Broome v Cassell & Co Ltd [1972] AC 1027 at 1071 per Lord Hailsham of St Marylebone LC. Saunders v Mills (1829) 6 Bing 213; 3 Moo & P 520; 130 ER 1262 at 1264 (ER) per Tindal CJ, at 1265 per Park J, at 1266 per Burrough J; Dingle v Associated Newspapers Ltd [1964] AC 371 at 396 per Lord Radcliffe, at 411 per Lord Denning (this is the position even if the other publications are privileged). Dingle v Associated Newspapers Ltd [1964] AC 371 at 396 per Lord Radcliffe. Chappell v Mirror Newspapers Ltd (1984) Aust Torts Reports 80-691 at 68,951 per Moffitt P.

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[15.180]

Plaintiff’s prior convictions [15.180] The common law position was that, in a civil proceeding, a criminal conviction was not evidence of guilt. This position was understandably criticised.165 In Goody v Odhams Press Ltd,166 Lord Denning MR held that evidence of a plaintiff’s previous convictions was admissible in mitigation of damages. His Lordship stated that the plaintiff’s prior convictions: stand in a class by themselves. They are the raw material upon which bad reputation is built up. They have taken place in open court. They are matters of public knowledge. They are accepted by people generally as giving the best guide to his reputation and standing.

In order to be admissible, the previous convictions must be in the relevant sector of the plaintiff’s reputation as touched upon by the defamatory matter.167 Proof of the plaintiff’s prior convictions then constitutes an exception to the general principles governing a defendant’s pleading of the plaintiff’s bad reputation in mitigation of damages.168 Under the national, uniform defamation laws, proof that a person was convicted of an offence by a court or a court martial, whether in Australia or overseas, is conclusive evidence that the person committed the offence.169

Evidence of good reputation [15.190] It is not necessary for the plaintiff to establish that he or she had a

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good reputation. He or she is presumed to have a good reputation in the relevant sector. The defendant, if he or she wishes to mitigate the damages payable to the plaintiff, may seek to adduce evidence of the plaintiff’s prior bad reputation.170 However, for forensic reasons, the plaintiff may nevertheless seek to adduce evidence of his or her good reputation. The traditional view was that evidence of good reputation was inadmissible unless the defendant sought to prove the plaintiff had a bad reputation.171 The rationale for this view was that damage to the plaintiff’s good reputation was presumed, and therefore evidence of it was inadmissible on the basis of irrelevance.172 However, as Hunt J observed in Bickel v John Fairfax & Sons Ltd,173 “the precise basis for 165 166 167 168 169

170 171 172 173

Goody v Odhams Press Ltd [1967] 1 QB 333 at 339 per Lord Denning MR, at 342 per Salmon LJ. [1967] 1 QB 333 at 340-1 per Lord Denning MR. Goody v Odhams Press Ltd [1967] 1 QB 333 at 341 per Lord Denning MR. As to the pleading of the plaintiff’s bad reputation in mitigation of damages, see [15.170]. Civil Law (Wrongs) Act 2002 (ACT) s 139M(1); Defamation Act 2006 (NT) s 39(1); Defamation Act 2005 (NSW) s 42(1); Defamation Act 2005 (Qld) s 42(1); Defamation Act 2005 (Tas) s 42(1); Defamation Act 2005 (Vic) s 42(1); Defamation Act 2005 (WA) s 42(1). For the purposes of this section, a conviction does not include a conviction which has been set aside or quashed, or a conviction in respect of which the person has received a pardon: Civil Law (Wrongs) Act 2002 (ACT) s 139M(4); Defamation Act 2006 (NT) s 39(4); Defamation Act 2005 (NSW) s 42(4); Defamation Act 2005 (Qld) s 42(4); Defamation Act 2005 (Tas) s 42(4); Defamation Act 2005 (Vic) s 42(4); Defamation Act 2005 (WA) s 42(4). There is no equivalent provision in South Australia. Channel Seven Sydney Pty Ltd v Mahommed (2010) 278 ALR 232; [2010] NSWCA 335 at 267 (ALR) per McColl JA. As to the pleading of bad reputation, see [15.170]. See, eg, Hobbs v Tinling (CT) & Co Ltd [1929] 2 KB 1 at 39 per Greer LJ (cannot give evidence of particular facts in support of claim to good reputation). Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474 at 482 per Hunt J. [1981] 2 NSWLR 474 at 482.

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-27 03:14:30.

[15.200]

Available heads of damages

the presumption of good reputation is unstated and its existence … remains uncertain”. Even if the plaintiff has the benefit of the presumption of a good reputation, that does not render irrelevant and therefore inadmissible evidence by the plaintiff on this issue.174 It should still be open to the plaintiff to adduce evidence of good reputation. As Hunt J further observed in Bickel v John Fairfax & Sons Ltd, there is often a question in a defamation trial about “the quality of the reputation which is presumed”. The corollary of preventing a plaintiff from leading evidence of good reputation and compelling him or her merely to rely upon the presumption in his or her favour would be “to treat a plaintiff with the highest reputation in the relevant sector upon exactly the same basis as a plaintiff with an indifferent reputation”.175 Such an approach seems unsound in principle and would reinforce the perception that defamation law is highly artificial. The better view now appears to be that evidence of good reputation is admissible.176

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Relevant sector [15.200] Evidence of reputation must be in the relevant sector of the plaintiff’s reputation at issue in the proceedings.177 This means that the evidence of reputation must relate to the aspect of the plaintiff’s reputation damaged by the defendant’s defamatory publication.178 This applies whether the issue is the plaintiff’s good or bad reputation. As Lord Denning suggests in Plato Films Ltd v Speidel,179 if a plaintiff sues in relation to an allegation of dishonesty, a defendant cannot raise the issue of whether the plaintiff is a bad driver. If a plaintiff sues in relation to an allegation of promiscuity, a defendant cannot rely on the plaintiff’s bad reputation for dishonesty to mitigate the damages.180 If a plaintiff sues in relation to an allegation of murder, a defendant cannot rely on the plaintiff’s bad reputation for alcoholism or philandering.181 If a plaintiff sues in relation to an allegation of having received favouritism as a prisoner, it has been held that a defendant cannot rely in mitigation of damages on the plaintiff’s conviction for murder, which resulted in the plaintiff’s imprisonment, as it was not in the relevant sector of the plaintiff’s reputation.182 Conversely, if a plaintiff sues in relation to an allegation of being a dishonest solicitor, he or she cannot rely on evidence as to his or her reputation as a good golfer.183 If a plaintiff police officer sues in relation to allegations of arranging a murder, the 174 175 176

177

178 179 180 181 182 183

Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474 at 483 per Hunt J. Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474 at 483 per Hunt J. Anderson v Mirror Newspapers Ltd (No 2) (1986) 5 NSWLR 736 at 737-8 per Hunt J; O’Hagan v Nationwide News Pty Ltd (2001) 53 NSWLR 89; [2001] NSWCA 302 at 91 (NSWLR) per Meagher JA. Plato Films Ltd v Speidel [1961] AC 1090 at 1140 per Lord Denning, at 1131 per Lord Radcliffe; Pamplin v Express Newspapers Ltd [1988] 1 WLR 116 at 119 per Neill LJ; O’Hagan v Nationwide News Pty Ltd (2001) 53 NSWLR 89; [2001] NSWCA 302 at 91 (NSWLR) per Meagher JA, at 95 per Stein JA; Australian Broadcasting Corporation v McBride (2001) 53 NSWLR 430; [2001] NSWCA 322 at 435 (NSWLR) per Ipp AJA. Australian Broadcasting Corporation v McBride (2001) 53 NSWLR 430; [2001] NSWCA 322 at 436-7 (NSWLR) per Ipp AJA. [1961] AC 1090 at 1140 per Lord Denning. Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 801. Jones v Pollard [1997] EMLR 233 at 251 per Hirst LJ. Jorgensen v New Zealand Newspapers Ltd [1974] 2 NZLR 45 at 51 per Perry J. As to mitigation of damages, see [15.210]. O’Hagan v Nationwide News Pty Ltd (2001) 53 NSWLR 89; [2001] NSWCA 302 at 91 (NSWLR) per Meagher JA.

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-27 03:14:30.

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defendant can rely upon specific acts of misconduct by the police officer, the relevant sector being not the engagement in violent activities but rather conduct as a police officer.184 What the relevant sector of the plaintiff’s reputation is at issue in a given proceeding is a matter for the court to determine.185 Determining what constitutes the relevant sector in a particular case may prove difficult.186 It is important not to expand the relevant sector too broadly. It is equally important not to narrow the relevant sector unduly or artificially.187

Mitigation of damages [15.210] There are a range of factors, under statute and at common law, upon which a defendant might rely in mitigation of an award of damages in a defamation claim. There are also some important divergences between the common law and the national, uniform defamation laws on the factors relevant to the mitigation of damages. At common law, the state of mind of the defendant has been considered to be relevant in certain circumstances to the mitigation of damages.188 However, under the national, uniform defamation laws, the court, in assessing damages for defamation, is to disregard the malice or other state of mind of the defendant at the time of the publication of the defamatory matter, except to the extent that the malice or other state of mind affects the harm sustained by the plaintiff.189 At common law, in the absence of a defence of justification, the defendant cannot adduce evidence of the truth of the defamatory matter in mitigation of damages.190 The rationale for this position is that justification is a complete defence and a defendant who elects not to plead and establish a defence of justification should not be entitled to rely upon the same facts which would tend to prove that defence to mitigate damages.191 Under the national, uniform defamation laws, a defendant can

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184 185 186 187 188

189

190

191

O’Hagan v Nationwide News Pty Ltd (2001) 53 NSWLR 89; [2001] NSWCA 302 at 91 (NSWLR) per Meagher JA, at 96 per Stein JA, at 97 per Brownie AJA. Plato Films Ltd v Speidel [1961] AC 1090 at 1140 per Lord Denning. O’Hagan v Nationwide News Pty Ltd (2001) 53 NSWLR 89; [2001] NSWCA 302 at 91 (NSWLR) per Meagher JA. Australian Broadcasting Corporation v McBride (2001) 53 NSWLR 430; [2001] NSWCA 322 at 437 (NSWLR) per Ipp AJA. See, eg, Forsdike v Stone (1868) LR 3 CP 607 at 610-11 per Willes J; Lemaire v Smith’s Newspapers Ltd (1927) 28 SR(NSW) 161 at 165-7; Broome v Cassell & Co Ltd [1972] AC 1027 at 1071; Pamplin v Express Newspapers Ltd [1988] 1 WLR 116 at 120; Australian Broadcasting Corporation v McBride (2001) 53 NSWLR 430; [2001] NSWCA 322 at 434-5 (NSWLR); Burstein v Times Newspapers Ltd [2001] 1 WLR 579 per May LJ; Turner v News Group Newspapers Ltd [2006] 1 WLR 3469 per Keene LJ; Channel Seven Sydney Pty Ltd v Mahommed (2010) 278 ALR 232; [2010] NSWCA 335 at 287 (ALR). Civil Law (Wrongs) Act 2002 (ACT) s 139G; Defamation Act 2006 (NT) s 33; Defamation Act 2005 (NSW) s 36; Defamation Act 2005 (Qld) s 36; Defamation Act 2005 (SA) s 34; Defamation Act 2005 (Tas) s 36; Defamation Act 2005 (Vic) s 36; Defamation Act 2005 (WA) s 36. Smith v Richardson (1737) Willes 20; 125 ER 1034 at 1035-6 (ER); Underwood v Parks (1743) 2 Stra 1200; 93 ER 1127 at 1127 (ER); Watt v Watt [1905] 2 AC 115 at 118 per Earl of Halsbury LC; Hobbs v Tinling (CT) & Co Ltd [1929] 2 KB 1 at 18 per Scrutton LJ, at 50 per Sankey LJ; Goldsbrough v John Fairfax & Sons Ltd (1934) 34 SR(NSW) 524 at 529-30 per Jordan CJ; Plato Films Ltd v Speidel [1961] AC 1090 at 1133-4 per Lord Denning; Age Co Ltd v Elliott (2006) 14 VR 375; [2006] VSCA 168 at 378 (VR) per Buchanan JA, at 379 per Ashley JA. Rigby v Associated Newspapers Ltd [1969] 1 NSWR 729 at 738 per Walsh JA.

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-27 03:14:30.

[15.220]

Available heads of damages

adduce evidence of an apology he or she has made,192 or a correction he or she has published, in relation to the defamatory matter.193 This reflects the position at common law.194 The plaintiff’s refusal of an opportunity to respond to allegations has not been considered a factor in mitigation of damages.195 A defendant can also adduce evidence that the plaintiff has already recovered damages,196 has brought defamation proceedings197 or has received, or agreed to receive, compensation198 for the publication of matter having the same meaning or effect as the defamatory matter sued upon. This also broadly reflects the common law position.199 The statutory grounds for the mitigation of damages are expressly stated not to be exhaustive,200 so recourse can still be had to the factors identified at common law as relevant to this inquiry.

Effect of plaintiff’s post-publication conduct on assessment of damages [15.220] Previously, it was held that the plaintiff’s post-publication conduct could not be taken into account when assessing the damages he or she should be awarded for defamation. The plaintiff was entitled to have his or her damages for defamation assessed on the basis of his or her reputation as it stood at the time of the publication.201 This approach could, however, lead to highly artificial outcomes in cases where the plaintiff had been convicted of a criminal offence or had been subject to adverse judicial findings in a civil case after the

192

Civil Law (Wrongs) Act 2002 (ACT) s 139I(1)(a); Defamation Act 2006 (NT) s 35(1)(a); Defamation Act 2005 (NSW) s 38(1)(a); Defamation Act 2005 (Qld) s 38(1)(a); Defamation Act 2005 (SA) s 36(1)(a); Defamation Act 2005 (Tas) s 38(1)(a); Defamation Act 2005 (Vic) s 38(1)(a); Defamation Act 2005 (WA) s 38(1)(a).

193

Civil Law (Wrongs) Act 2002 (ACT) s 139I(1)(b); Defamation Act 2006 (NT) s 35(1)(b); Defamation Act 2005 (NSW) s 38(1)(b); Defamation Act 2005 (Qld) s 38(1)(b); Defamation Act 2005 (SA) s 36(1)(b); Defamation Act 2005 (Tas) s 38(1)(b); Defamation Act 2005 (Vic) s 38(1)(b); Defamation Act 2005 (WA) s 38(1)(b). Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 66 per Mason CJ, Deane, Dawson and Toohey JJ; Cerutti v Crestside Pty Ltd [2014] QCA 33 at [44] per Applegarth J. Roux v Australian Broadcasting Corporation [1992] 2 VR 577 at 602 per Byrne J. Civil Law (Wrongs) Act 2002 (ACT) s 139I(1)(c); Defamation Act 2006 (NT) s 35(1)(c); Defamation Act 2005 (NSW) s 38(1)(c); Defamation Act 2005 (Qld) s 38(1)(c); Defamation Act 2005 (SA) s 36(1)(c); Defamation Act 2005 (Tas) s 38(1)(c); Defamation Act 2005 (Vic) s 38(1)(c); Defamation Act 2005 (WA) s 38(1)(c). Civil Law (Wrongs) Act 2002 (ACT) s 139I(1)(d); Defamation Act 2006 (NT) s 35(1)(d); Defamation Act 2005 (NSW) s 38(1)(d); Defamation Act 2005 (Qld) s 38(1)(d); Defamation Act 2005 (SA) s 36(1)(d); Defamation Act 2005 (Tas) s 38(1)(d); Defamation Act 2005 (Vic) s 38(1)(d); Defamation Act 2005 (WA) s 38(1)(d). Civil Law (Wrongs) Act 2002 (ACT) s 139I(1)(e); Defamation Act 2006 (NT) s 35(1)(e); Defamation Act 2005 (NSW) s 38(1)(e); Defamation Act 2005 (Qld) s 38(1)(e); Defamation Act 2005 (SA) s 36(1)(e); Defamation Act 2005 (Tas) s 38(1)(e); Defamation Act 2005 (Vic) s 38(1)(e); Defamation Act 2005 (WA) s 38(1)(e). Saunders v Mills (1829) 6 Bing 213; 130 ER 1262; Dingle v Associated Newspapers Ltd [1964] AC 371 at 410-11 per Lord Denning MR. Civil Law (Wrongs) Act 2002 (ACT) s 139I(2); Defamation Act 2006 (NT) s 35(2); Defamation Act 2005 (NSW) s 38(2); Defamation Act 2005 (Qld) s 38(2); Defamation Act 2005 (SA) s 36(2); Defamation Act 2005 (Tas) s 38(2); Defamation Act 2005 (Vic) s 38(2); Defamation Act 2005 (WA) s 38(2). Rochfort v John Fairfax & Sons Ltd [1972] 1 NSWLR 16 at 22 per Sugerman ACJ.

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194 195 196

197

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199 200

201

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publication of defamatory matter.202 However, in Channel Seven Sydney Pty Ltd v Mahommed,203 the New South Wales Court of Appeal held that this position was incorrect, as it failed to account for the continuing nature of the damage done to the plaintiff’s reputation by the publication of defamatory matter.204

Aggravated damages [15.230] If the defendant defames the plaintiff in circumstances where he or she increases the hurt or humiliation to the plaintiff, the defendant can be ordered to pay aggravated damages.205 Aggravated damages are compensatory in purpose.206 To reinforce this, they are sometimes referred to as “aggravated compensatory damages”.207 When assessing aggravated damages, the focus is on the subjective experience of the plaintiff as the victim of the tort.208 An award of aggravated damages can be based on the defendant’s conduct from the time the tort was committed up until the date of judgment.209 Aggravated damages ordinarily focus on conduct which increases injury to the plaintiff’s feelings but can also be awarded for conduct which increases damage to the plaintiff’s reputation.210 Although damages for non-economic loss in defamation are now capped in Australia,211 the statutory cap can be exceeded if the court is satisfied that aggravated damages should be awarded.212 In order to determine whether aggravated damages should be awarded, the test ultimately to be applied is whether the defendant’s conduct was improper, unjustifiable or lacking in bona fides.213 The defendant’s conduct need not be

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202 203 204

205 206

207 208

209

210

211 212

213

As to the use of the plaintiff’s prior convictions in mitigation of damages, see [15.210]. (2010) 278 ALR 232; [2010] NSWCA 335. Channel Seven Sydney Pty Ltd v Mahommed (2010) 278 ALR 232; [2010] NSWCA 335 at 278 (ALR) per McColl JA. In reaching this view, the New South Wales Court of Appeal overruled Rochford v John Fairfax & Sons Ltd [1972] 1 NSWLR 16. As to need for caution when dealing with judicial findings in civil cases as opposed to criminal convictions, see (2010) 278 ALR 232; [2010] NSWCA 335 at 236 (ALR) per Beazley JA. Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 74-5 per Hunt J. Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 at 241 per Hutley JA; Lamb v Cotogno (1987) 164 CLR 1 at 8 per curiam; Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 66 per Mason CJ, Deane, Dawson and Gaudron JJ; Cerutti v Crestside Pty Ltd [2014] QCA 33 at [37] per Applegarth J. Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 74 per Hunt J. David Syme & Co Ltd v Mather [1977] VR 516 at 526 per Lush J; Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 at 241 per Hutley JA; Gray v Motor Accident Commission (1998) 196 CLR 1 at 7 per Gleeson CJ, McHugh, Gummow and Hayne JJ. Praed v Graham (1889) 24 QBD 53 at 55 per Lord Esher MR; Broome v Cassell & Co Ltd [1972] AC 1027 at 1071 per Lord Hailsham of St Marylebone LC; Cerutti v Crestside Pty Ltd [2014] QCA 33 at [37] per Applegarth J. Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 75 per Hunt J. However, see also McCarey v Associated Newspapers Ltd (No 2) [1965] 2 QB 86 at 107 per Diplock LJ. See [15.120]. Civil Law (Wrongs) Act 2002 (ACT) s 139F(2); Defamation Act 2006 (NT) s 32(2); Defamation Act 2005 (NSW) s 35(2); Defamation Act 2005 (Qld) s 35(2); Defamation Act 2005 (SA) s 33(2); Defamation Act 2005 (Tas) s 35(2); Defamation Act 2005 (Vic) s 35(2); Defamation Act 2005 (WA) s 35(2). Triggell v Pheeney (1951) 82 CLR 497 at 514 per Dixon, Williams, Webb and Kitto JJ; Bickel v John Fairfax & Sons Ltd [1984] 2 NSWLR 474 at 497 per Hunt J; Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643 at 660 per Samuels JA; Clark v Ainsworth (1996) 40 NSWLR 463 at 466 per Sheller JA.

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[15.230]

Available heads of damages

malicious.214 There are a number of factors which may support the award of aggravated damages, depending upon the circumstances of the particular case. For instance, a failure to make inquiries prior to publication may be a factor supporting the award of aggravated damages,215 where there was an obligation on the part of the defendant to make inquiries.216 The failure to make inquiries or the failure to investigate prior to publication could form the basis for an award of aggravated damages.217 There is no general obligation on the part of the defendant to give the plaintiff forewarning as to the matter which is to be published.218 Thus, in Bickel v John Fairfax & Sons Ltd,219 Hunt J found that a book reviewer was not required to inquire of the author as to the correctness of the reviewer’s comments. Thus, the failure to inquire in such circumstances could not support an award of aggravated damages. In Waterhouse v Broadcasting Station 2GB Pty Ltd,220 Hunt J found that, where a defendant had been found to have published a substantially inaccurate report, a plaintiff could only rely upon the defendant’s failure to make inquiries prior to publication where the plaintiff could demonstrate that the failure was connected to the substantial inaccuracy or inaccuracies in the report. Recklessness in publishing defamatory matter could also warrant an award of aggravated damages.221 The repetition of defamatory matter may support an award of aggravated damages. Acts of retaliation or reprisal against the plaintiff for suing in defamation can aggravate the harm.222 The tone of voice used in the matter and giving unreasonable prominence to the matter are also factors which can be relevant to the award of aggravated damages.223

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A mere failure to apologise is not a sufficient ground for an award of aggravated damages,224 but the failure to retract or apologise may support such

214

215 216 217

218 219 220 221

222 223 224

Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 at 250 per Glass JA; Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474 at 497 per Hunt J; Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643 at 653 per Samuels JA. Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 at 243-4 per Hutley JA, at 250 per Glass JA, at 265 per Mahoney JA. Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 77 per Hunt J. Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 at 243-4 per Hutley JA, at 250 per Glass JA, at 265 per Mahoney JA; Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1; [2003] VSCA 161 at [402] per Gillard AJA. Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 77 per Hunt J. [1981] 2 NSWLR 474 at 487 per Hunt J. (1985) 1 NSWLR 58 at 76. Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 at 243-4 per Hutley JA. As to the distinction between recklessness and negligence, see David Syme & Co Ltd v Mather [1977] VR 516 at 529 per Lush J. Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643 at 648 per Hutley JA, at 652-3 per Samuels JA. Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 79 per Hunt J. Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 66 per Mason CJ, Deane, Dawson and Gaudron JJ.

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-27 03:14:30.

331

332

15: Damages

[15.230]

an award if the failure is, in the circumstances of the case, improper, unjustifiable or lacking in bona fides.225 As Samuels JA observed in Mirror Newspapers Ltd v Fitzpatrick:226 [t]he defendant’s failure to apologize does not enjoy any special status which excuses it from satisfying any element of that description; and the principle that an apology may go in mitigation does not support as a corollary the proposal that its absence may cause aggravation.

An inadequate apology may support an award of aggravated damages, depending upon the circumstances.227 The falsity of the imputations is relevant to an award of aggravated damages.228 The defendant’s conduct at trial may afford grounds for aggravated damages.229 The pleading of a baseless defence, whether abandoned or not,230 and the persistence in a baseless defence are factors which may support the award of aggravated damages.231 Particular care might need to be taken in the pleading of a defence of justification, as, in relying on this defence, a defendant will be reaffirming the defamation and might thereby “extend its vitality and capability for causing injury to the plaintiff”.232 It is not every unsuccessful or abandoned defence, though, that will support the award of aggravated damages. A defendant is entitled to plead, then abandon or pursue, even vigorously, a bona fide defence without risk of aggravating the damages.233 It is only where the pleaded defence or the defendant’s conduct in relation to it is improper, unjustifiable or lacking bona fides that the plaintiff may rely on this factor in relation to a claim for aggravated damages.234 The conduct of the litigation by the defendant may also support a claim for aggravated damages.235 Aggravated damages are not ordinarily assessed separately from compensatory damages. If aggravated damages are awarded, the usual course is

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225

226 227 228

229 230 231 232 233

234

235

See, eg, Fielding v Variety Inc [1967] 2 QB 841 at 851 per Lord Denning MR; Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 at 243 per Hutley JA, at 250 per Glass JA; Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643 at 660 per Samuels JA; Cerutti v Crestside Pty Ltd [2014] QCA 33 at [38] per Applegarth J; Herald & Weekly Times Ltd v McGregor (1928) 41 CLR 254 at 263 per Knox CJ, Gavan Duffy and Starke JJ. [1984] 1 NSWLR 643 at 660. David Syme & Co Ltd v Mather [1977] VR 516 at 528 per Lush J; Lawrie v Northern Territory News Services Pty Ltd (1985) 82 FLR 70 at 88 per Nader J. Rigby v Associated Newspapers Ltd [1969] 1 NSWLR 729 at 738 per Walsh JA; Aldridge v John Fairfax & Sons Ltd [1984] 2 NSWLR 544 at 549 per Hunt J; Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 75 per Hunt J. Singleton v Ffrench (1986) 5 NSWLR 425 at 439 per McHugh J. Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 at 242-3 per Hutley JA; Cerutti v Crestside Pty Ltd [2014] QCA 33 at [38] per Applegarth J. Coyne v Citizen Finance Ltd (1991) 172 CLR 211 at 237 per Toohey J; Cerutti v Crestside Pty Ltd [2014] QCA 33 at [38] per Applegarth J. Herald & Weekly Times Pty Ltd v McGregor (1928) 41 CLR 254 at 264 per Knox CJ, Gavan Duffy and Starke JJ. Triggell v Pheeney (1951) 82 CLR 497 at 514 per Dixon, Williams, Webb and Kitto JJ; Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 at 379 per Samuels JA; Singleton v Ffrench (1986) 5 NSWLR 425 at 439 per McHugh J; Cerutti v Crestside Pty Ltd [2014] QCA 33 at [38] per Applegarth J. Triggell v Pheeney (1951) 82 CLR 497 at 514 per Dixon, Williams, Webb and Kitto JJ; Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 75 per Hunt J; Coyne v Citizen Finance Ltd (1991) 172 CLR 211 at 237 per Toohey J. Darby v Ouseley (1856) 25 LJ (Exch) 227 at 230 per Pollock CB; Praed v Graham (1889) 24 QBD 53 at 55; Rigby v Associated Newspapers Ltd [1969] 1 NSWR 729 at 739 per Walsh JA; Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 at 379 per Samuels JA;

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-27 03:14:30.

[15.240]

Available heads of damages

to assess compensatory damages, including any component for aggravation, globally.236 It may assist an appellate court reviewing defamation damages awarded by a trial judge if the component of aggravated damages is identified separately but, as Applegarth J observed in Cerutti v Crestside Pty Ltd,237 “the task of the trial judge should not be made more onerous than is necessary”. Aggravated damages are not only awarded for increased hurt to feelings but can also be awarded for increased damage to reputation.238 The entitlement to damages under the national, uniform defamation laws may be restricted by the terms of the legislation, thereby excluding some of the grounds upon which aggravated damages were awarded at common law. Under the national, uniform defamation laws, aggravated damages may be awarded if the court is satisfied that they are warranted in “the circumstances of publication”.239 This appears to mandate a more restrictive approach to aggravated damages than that at common law, which can take into account any factors from the time of publication down to the date of judgment, such as the conduct of the defamation trial itself. Thus far, courts have held that, so long as the statutory cap has not been exceeded, the full range of relevant factors can be considered when assessing damages under the national, uniform defamation laws. It will only be when a court proposes to award aggravated damages in excess of the statutory cap that this restriction may be enlivened.240 As the statutory cap has not yet been exceeded by an award of aggravated damages under the national, uniform defamation laws, this issue has not yet arisen.

Exemplary damages

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[15.240] At common law, exemplary damages are available for defamation. Exemplary damages are sometimes referred to as “punitive” or “vindictive” damages. The various labels point to the underlying purposes of this head of damages. Exemplary damages serve the dual purposes of punishment and deterrence.241 Deterrence operates, specifically, in relation to the particular defendant in a given case, and generally, as a warning to potential wrongdoers.242 Exemplary damages often arise in the same circumstances as aggravated damages and awards under each of these heads are often supported by the same factors. However, exemplary damages are not compensatory in

236

237 238 239

240

241

242

David Syme & Co Ltd v Mather [1977] VR 516 at 530 per Lush J; Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643 at 648 per Hutley JA; Cerutti v Crestside Pty Ltd [2014] QCA 33 at [38] per Applegarth J; Pedavoli v John Fairfax Publications Pty Ltd [2014] NSWSC 1674 at [155] per McCallum J. Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 75 per Hunt J; Cerutti v Crestside Pty Ltd [2014] QCA 33 at [41] per Applegarth J; Lower Murray Urban and Rural Water Corporation v Di Masi [2014] VSCA 104 at [116] per curiam. [2014] QCA 33 at [42]. Lower Murray Urban and Rural Water Corporation v Di Masi [2014] VSCA 104 at [118] per curiam. Civil Law (Wrongs) Act 2002 (ACT) s 139F(2); Defamation Act 2006 (NT) s 32(2); Defamation Act 2005 (NSW) s 35(2); Defamation Act 2005 (Qld) s 35(2); Defamation Act 2005 (SA) s 33(2); Defamation Act 2005 (Tas) s 35(2); Defamation Act 2005 (Vic) s 35(2); Defamation Act 2005 (WA) s 35(2). Forrest v Askew [2007] WASC 161 at [71]-[74] per Newnes J; Davis v Nationwide News Pty Ltd [2008] NSWSC 693 at [19]-[20] per McClellan CJ at CL; Greig v WIN Television NSW Pty Ltd [2009] NSWSC 632 at [110]-[111] per McClellan CJ at CL. Wilkes v Wood (1763) Lofft 1; 98 ER 489 at 498-9 (ER) per Pratt LCJ; XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448 at 470-1 per Brennan J; Lamb v Cotogno (1987) 164 CLR 1 at 8 per curiam. Lamb v Cotogno (1987) 164 CLR 1 at 9-10 per curiam.

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-27 03:14:30.

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[15.240]

purpose.243 They can operate as a windfall for the plaintiff.244 Because exemplary damages are not compensatory in purpose, different factors are relevant to the consideration of whether they should be awarded.245 Unlike aggravated damages, which focus on the subjective experience of the plaintiff as the victim of the tort, exemplary damages focus on the objective seriousness of the defendant’s conduct.246 The purpose of an award of exemplary damages is “to teach a wrong-doer that tort does not pay”.247 There have been different formulations of the applicable test for whether a plaintiff should be awarded exemplary damages.248 In Whitfield v De Lauret & Co,249 Knox CJ stated that exemplary damages should only be awarded where the defendant has engaged in “conscious wrongdoing in contumelious disregard of another’s rights”.250 This articulation of the test has proven to be one of the most influential.251 Awards of exemplary damages should be rare.252 They serve to signal the court’s disapprobation of the defendant’s conduct. Exemplary damages may be criticised for confusing the civil and criminal functions of the law but, at common law, are an established head of damages.253 Although exemplary damages are rarely awarded in claims in tort, they are more frequently awarded

243 244 245 246

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247

248

249 250 251 252

253

As to the distinction between compensatory and punitive damages, see McCarey v Associated Newspapers Ltd (No 2) [1965] 2 QB 86 at 105 per Pearson LJ. Lamb v Cotogno (1987) 164 CLR 1 at 9-10 per curiam. XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448 at 471 per Brennan J. Gray v Motor Accident Commission (1998) 196 CLR 1 at 7 per Gleeson CJ, McHugh, Gummow and Hayne JJ. Rookes v Barnard [1964] AC 1129 at 1227 per Lord Devlin; Broome v Cassell & Co [1972] AC 1027 at 1130 per Lord Diplock; see also XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448 at 471 per Brennan J. See, eg, Rookes v Barnard [1964] AC 1129 at 1229 per Lord Devlin: “[Judges] have used numerous epithets – wilful, wanton, high-handed, oppressive, malicious, outrageous”; see also Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 129 per Taylor J: “[T]he conduct of the defendant had been high-handed, insolent, vindictive or malicious or had in some other way exhibited a contumelious disregard of the plaintiff’s rights”. (1920) 29 CLR 71. Whitfield v De Lauret & Co (1920) 29 CLR 71 at 77; see also XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448 at 471 per Brennan J. Gray v Motor Accident Commission (1998) 196 CLR 1 at 7 per Gleeson CJ, McHugh, Gummow and Hayne JJ. Gray v Motor Accident Commission (1998) 196 CLR 1 at 6 per Gleeson CJ, McHugh, Gummow and Hayne JJ. Awards of exemplary damages are even rarer in the United Kingdom where the House of Lords limited them to cases involving “oppressive, arbitrary or unconstitutional action by the servants of government”; cases where the defendant’s conduct was calculated to make a profit which exceeds the compensation payable to the defendant; and cases where exemplary damages are authorised by statute: Rookes v Barnard [1964] AC 1129 at 1226-7 per Lord Devlin. The limits imposed on the award of exemplary damages by the House of Lords in Rookes v Barnard [1964] AC 1129 were rejected by the High Court of Australia in Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 as not representing the law of Australia: see (1966) 117 CLR 118 at 122-3 per McTiernan J, at 139 per Taylor J, at 147 per Menzies J, at 154 per Windeyer J, at 161-2 per Owen J. Rookes v Barnard [1964] AC 1129 at 1221 per Lord Devlin; Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 149 per Windeyer J; Gray v Motor Accident Commission (1998) 196 CLR 1 at 7 per Gleeson CJ, McHugh, Gummow and Hayne JJ.

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-27 03:14:30.

[15.260]

Available heads of damages

in defamation than for other torts.254 Prior to the introduction of the national, uniform defamation laws, awards of exemplary damages were made in defamation cases in a number of jurisdictions.255 However, under the national, uniform defamation laws, exemplary or punitive damages are no longer available.256

Distinction between aggravated and exemplary damages [15.250] The common law draws a distinction between aggravated and exemplary damages. In principle, aggravated damages are compensatory in nature, whereas exemplary damages aim to punish and to deter.257 Moving beyond a mere statement of principle, this distinction can be confusing to apply, not only in defamation258 but also in the law of torts more generally.259 As Windeyer J observed in Uren v John Fairfax & Sons Pty Ltd,260 it “is not easy to make in defamation, either historically or analytically; and in practice it is hard to preserve”. The same factors that support an award of aggravated damages may be deployed to support an award of exemplary damages.261 In many instances, the distinction between aggravated and exemplary damages is a purely formal one.262 However, under the national, uniform defamation laws, exemplary damages are abolished, but aggravated damages are preserved.

Appeals against awards of damages [15.260] The assessment of damages by a jury or by a trial judge is not

immune from appellate review.263 An appellate court can interfere with an award of damages made by a jury or by a trial judge. However, given that an award of damages for defamation is substantially a matter of impression, an appellate court will not interfere lightly with such an award. Deference will

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254

255

256

257

258 259 260 261 262 263

Gray v Motor Accident Commission (1998) 196 CLR 1 at 43 per Callinan J; see also Crampton v Nugawela (1996) 41 NSWLR 176 at 187-8 per Mahoney ACJ (suggesting that defamation is different from other torts and more often requires an award of exemplary damages). See, eg, Shepherd v Walsh [2001] QSC 358 ($20,000 exemplary damages); Martin v Trustrum [2003] TASSC 22 ($5,000 exemplary damages); Cullen v White [2003] WASC 153 ($25,000 exemplary damages). Civil Law (Wrongs) Act 2002 (ACT) s 139H; Defamation Act 2006 (NT) s 34; Defamation Act 2005 (NSW) s 37; Defamation Act 2005 (Qld) s 37; Defamation Act 2005 (SA) s 35; Defamation Act 2005 (Tas) s 37; Defamation Act 2005 (Vic) s 37; Defamation Act 2005 (WA) s 37. Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 129 per Taylor J, at 149 per Windeyer J; Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474 at 496 per Hunt J; Lamb v Cotogno (1987) 164 CLR 1 at 8 per curiam. Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 129 per Taylor J. Lamb v Cotogno (1987) 164 CLR 1 at 8 per curiam; Gray v Motor Accident Commission (1998) 196 CLR 1 at 34 per Kirby J. (1966) 117 CLR 118 at 149. As to the factors supporting an award of aggravated damages, see [15.230]. As to the factors supporting an award of exemplary damages, see [15.240]. Uren v John Fairfax & Sons Pty Ltd (1996) 117 CLR 118 at 149 per Windeyer J. Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327; [2003] HCA 52 at 348-9 (CLR) per Hayne J.

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-27 03:14:30.

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ordinarily be shown to the assessment of damages undertaken by a jury or by the trial judge. Greater deference will be shown towards the assessment of damages by a jury but an appellate court can still interfere with such an award where it is satisfied that no reasonable jury performing its duty could have reached such a verdict.264 An appellate court will not interfere merely because it would have awarded a smaller or a larger sum.265 It will only interfere if it is satisfied that the award of damages is manifestly excessive or manifestly inadequate,266 or otherwise acted upon a wrong principle.267 Rather than the appellate court positing a notional range for an appropriate award of damages, the issue might properly be approached by asking whether the figure arrived at by the judge or the jury, in assessing damages, “bespeaks error”.268 As Applegarth J observed in Cerutti v Crestside Pty Ltd,269 manifestly inadequate and manifestly excessive awards of damages for defamation are equally problematic, albeit for different reasons: Manifestly inadequate or manifestly excessive awards undermine the interests protected by the law of defamation. Inadequate awards place too small a value on reputation and other interests that the law protects … Very low awards of damages may provide an inadequate incentive for a wronged plaintiff to take on the risks and costs of potentially complex and protracted litigation. They may not deter careless, reckless or malicious communications which harm individuals and businesses. Excessive awards of damages have the potential to act as a brake on freedom of speech and encourage unnecessary self-censorship, notwithstanding the availability of defences designed to protect legitimate communication made without malice.270

Although, in principle, appellate interference with the level of damages should be, and is largely, rare, there have been cases in which appellate courts have

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264

265

266

267

268 269 270

Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581 at 585 per Scrutton LJ; Triggell v Pheeney (1951) 82 CLR 497 at 516 per Dixon, Williams, Webb and Kitto JJ; Kornhauser v John Fairfax & Sons Pty Ltd [1964-5] NSWR 199 at 209-10 per Sugerman J; Broome v Cassell & Co Ltd [1972] AC 1027 at 1065 per Lord Hailsham of St Marylebone LC; Coyne v Citizen Finance Ltd (1991) 172 CLR 211 at 227-8 per Toohey J; Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 61 per Mason CJ, Deane, Dawson and Gaudron JJ. Lemaire v Smith’s Newspapers Ltd (1927) 28 SR(NSW) 161 at 168 per Gordon J; Fielding v Variety Incorporated [1967] 2 QB 841 at 853 per Salmon LJ; Coyne v Citizen Finance Ltd (1991) 172 CLR 314 at 320 per Toohey J; Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 61-2 per Mason CJ, Deane, Dawson and Gaudron JJ. Rook v Fairrie [1941] 1 KB 507 at 513 per Sir Wilfrid Greene MR; Abraham v Advocate Co Ltd [1946] 2 WWR 181 at 186 (PC); Fielding v Variety Incorporated [1967] 2 QB 841 at 853 per Salmon LJ: “wholly out of proportion to the injury suffered”; Broome v Cassell & Co Ltd [1972] AC 1027 at 1065 per Lord Hailsham of St Marylebone LC; Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327; [2003] HCA 52 at 348 (CLR) per Hayne J: “manifest excess, not just excess” (original emphasis). For different formulations of the test, see Coyne v Citizen Finance Ltd (1991) 172 CLR 211 at 238 per Toohey J. Fielding v Variety Incorporated [1967] 2 QB 841 at 853 per Salmon LJ; see also Praed v Graham (1889) 24 QBD 53 at 55 per Lord Esher MR (test whether jury verdict “against the weight of the evidence” and “so excessive that no twelve men could reasonably have given them”); Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581 at 585 per Scrutton LJ. Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327; [2003] HCA 52 at 348 (CLR) per Hayne J. [2014] QCA 33. Cerutti v Crestside Pty Ltd [2014] QCA 33 at [55].

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-27 03:14:30.

[15.260]

Available heads of damages

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been satisfied that such interference is warranted, either for manifest excess or manifest inadequacy.271

271

See, eg, Falcke v Herald & Weekly Times Ltd [1925] VLR 56 at 79 per McArthur J (jury award manifestly excessive, set aside and new trial ordered); Fielding v Variety Incorporated [1967] 2 QB 841 (£5,000 damages reduced to £1,500 damages); David Syme & Co Ltd v Mather [1977] VR 516 at 517 per Starke J, at 531 per Lush J, at 533 per Kaye J ($40,000 damages reduced to $17,500 damages); Nationwide News Pty Ltd v Sleeman [2005] NSWCA 349 at [66]-[68] per Brownie AJA ($400,000 damages reduced to $250,000 damages). For more recent examples, see Coull v Nationwide News Pty Ltd (2008) 23 NTLR 147; 155 NTR 1; [2008] NTCA 10 at 26 (NTR) per Mildren J, at 26 per Southwood J ($12,000 damages increased to $80,000 damages); Ali v Nationwide News Pty Ltd [2008] NSWCA 183 at [133]-[135] per Tobias and McColl JJA ($125,000 damages increased to $275,000 damages); Cerutti v Crestside Pty Ltd [2014] QCA 33 at [75]-[77], [87]-[88] per Applegarth J (personal plaintiff’s damages increased from $7,000 damages to $20,000 damages and partnership’s damages increased from $5,000 damages to $10,000 damages).

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16

Injunctions [16.10]

Introduction..............................................................................................339

[16.20]

Interlocutory injunctions......................................................................... 340

[16.20]

Historical context........................................................................... 340

[16.30]

Bonnard v Perryman......................................................................340

[16.40]

The rigid and flexible approaches................................................. 341

[16.50]

Australian Broadcasting Corporation v O’Neill........................... 343

[16.60] Practical effect of Australian Broadcasting Corporation v O’Neill...................................................................................................... 345 [16.70]

Defamation – a special case?........................................................ 345

[16.80]

Freedom of speech.........................................................................346

[16.90]

Matter clearly defamatory............................................................. 346

[16.100] Usurpation of function of jury.................................................... 346 [16.110] Pleading defence of justification................................................. 346 [16.120] The role of reputation and likelihood of nominal damages.......347 [16.130] Repetition of defamatory matter................................................. 347

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[16.140] Permanent injunctions..................................................................348

Introduction [16.10] Although damages remain the primary remedy for defamation, they are not the only one. It is possible for a plaintiff to seek an injunction to restrain the initial or repeated publication of defamatory matter. As a matter of principle and practice, interlocutory injunctions are rarely granted to restrain the publication of allegedly defamatory matter. There are frequent judicial reminders of the need for caution in exercising the discretion to grant an interlocutory injunction in a defamation claim.1 This chapter analyses the principles relating to the grant of interlocutory injunctions in defamation cases as the most common form of injunctive relief sought. It also deals with permanent injunctions in defamation claims.

1

See, eg, Stocker v McElhinney (No 2) [1961] NSWR 1043 at 1048 per Walsh J; Healy v Askin [1974] 1 NSWLR 436 at 441 per Lee J; Church of Scientology of California Inc v Reader’s Digest Services Pty Ltd [1980] 1 NSWLR 344 at 349 per Hunt J; Shapowloff v John Fairfax & Sons Ltd [1980] 1 NSWLR 344n at 360 per Asprey J; Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153 at 163 per Hunt J; National Mutual Life Association of Australasia Ltd v GTV Corporation Pty Ltd [1989] VR 747 at 764 per Fullagar, Hampel and McDonald JJ; Holley v Smyth [1998] QB 726 at 743 per Auld LJ.

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-27 03:14:41.

340

16: Injunctions

[16.20]

Interlocutory injunctions Historical context [16.20] Given the long history of defamation in English law, the power of courts to grant an interlocutory injunction in a defamation case was a relatively late development. Prior to the enactment of the Common Law Procedure Act 1854 (UK), common law courts lacked the power to grant injunctive relief.2 In addition, before the passage of the Judicature Act 1873 (UK), courts of chancery could not restrain the publication of defamation matter unless a proprietary right was involved, as they had no jurisdiction over defamation.3 It is unsurprising, therefore, that the principles relating to the grant of interlocutory injunctions in defamation cases emerged in the last quarter of the 19th century.4

Bonnard v Perryman [16.30] The principles relating to the grant of interlocutory injunctions in defamation cases were settled, for the purposes of English law, in two decisions of the Court of Appeal. The first case was William Coulson & Sons v James Coulson & Co.5 The second case, which expressly approved and adopted the reasoning of Lord Esher MR in the first case, was Bonnard v Perryman.6 Notwithstanding the antecedent case, Bonnard v Perryman has been treated as the leading authority on the proper approach to the grant of an interlocutory injunction in a defamation case. The relevant part of Lord Coleridge CJ’s judgment in Bonnard v Perryman was as follows:

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But it is obvious that the subject-matter of an action for defamation is so special as to require exceptional caution in exercising the jurisdiction to interfere by injunction before the trial of an action to prevent an anticipated wrong. The right of free speech is one which it is for the public interest that individuals should possess, and, indeed, that they should exercise without impediment, so long as no wrongful act is done; and, unless an alleged libel is untrue, there is no wrong committed; but, on the contrary, often a very wholesome act is performed in the 2

3

4

5 6

Lennox v Krantz (1978) 19 SASR 272 at 275-6 per Zelling J; Holley v Smyth [1998] QB 726 at 737 per Auld LJ; Greene v Associated Newspapers Ltd [2005] QB 972; [2004] EWCA Civ 1462 at 986 (QB) per Brooke LJ; Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46 at 121 (CLR) per Heydon J. Dixon v Holden (1869) LR 7 Eq 488 at 492 per Sir Richard Malins VC; Collard v Marshall [1892] 1 Ch 571 at 577 per Chitty J; Lennox v Krantz (1978) 19 SASR 272 at 275 per Zelling J; Holley v Smyth [1998] QB 726 at 737 per Auld LJ; Greene v Associated Newspapers Ltd [2005] QB 972; [2004] EWCA Civ 1462 at 986 (QB) per Brooke LJ; Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46 at 121-2 (CLR) per Heydon J; see also Mulkern v Ward (1872) LR 13 Eq 619 at 621 per Sir John Wickens VC. As to earlier cases suggesting that a court of chancery had no jurisdiction at all to grant an injunction in relation to a defamation claim, see Gee v Pritchard (1818) 2 Swans 403; 36 ER 670 at 413 (Swans), at 674 (ER) per Lord Eldon LC; Clark v Freeman (1848) 11 Beav 111; 50 ER 759 at 117 (Beav), at 761 (ER) per Lord Langdale MR. See, eg, Quartz Hill Consolidated Gold Mining Company v Beall (1882) 20 Ch D 501 at 507 per Jessel MR, at 509-10 per Baggallay LJ; Monson v Tussauds Ltd [1894] 1 QB 671 at 693-4 per Lopes LJ. As to the historical development of the power to grant interlocutory injunctions in defamation cases, see Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 227 CLR 57; [2001] HCA 63 at 121-3 (CLR) per Heydon J. (1887) 3 TLR 846. [1891] 2 Ch 269.

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-27 03:14:41.

[16.40]

Interlocutory injunctions

publication and repetition of an alleged libel. Until it is clear that an alleged libel is untrue, it is not clear that any right at all has been infringed; and the importance of leaving free speech unfettered is a strong reason in cases of libel for dealing most cautiously and warily with the granting of interim injunctions. We entirely approve of, and desire to adopt as our own, the language of Lord Esher MR, in Coulson v Coulson – To justify the Court in granting an interim injunction it must come to a decision upon the question of libel or no libel, before the jury have decided whether it was a libel or not. Therefore the jurisdiction was of a delicate nature. It ought only to be exercised in the clearest cases, where any jury would say that the matter complained of was libellous, and where, if the jury did not so find, the Court would set aside the verdict as unreasonable. In the particular case before us, indeed, the libellous character of the publication is beyond dispute, but the effect of it upon the defendant can be finally disposed of only by a jury, and we cannot feel sure that the defence of justification is one which, on the facts which may be before them, the jury may find to be wholly unfounded; nor can we tell what may be the damages recoverable. Moreover, the decision at the hearing may turn upon the question of the general character of the plaintiffs; and this is a point which can rarely be investigated satisfactorily upon affidavit before the trial – on which further it is not desirable that the court should express an opinion before the trial. Otherwise an injunction might be granted before the trial in a case in which at the trial nothing but nominal damages, if so much, could be obtained.7

His Lordship concluded his judgment by observing that “it is wiser in this case, as it generally and in all but exceptional cases must be, to abstain from interference until the trial and determination of the plea of justification”.8 The “rule in Bonnard v Perryman” has sanctioned a restrictive approach to the grant of injunctive relief in defamation claims for over a century.

The “rigid” and “flexible” approaches Copyright © 2015. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

[16.40] The “rule” or principle in Bonnard v Perryman9 has been consistently applied in England and adopted in New Zealand without significant difficulty.10 It was initially adopted and applied in Australia without apparent 7 8 9 10

Bonnard v Perryman [1891] 2 Ch 269 at 284-5. Bonnard v Perryman [1891] 2 Ch 269 at 285. [1891] 2 Ch 269. As to the position in the United Kingdom, see, eg, Monson v Tussauds Ltd [1894] 1 QB 671 at 694 per Lopes LJ, at 697-8 per Davey LJ; Sim v HJ Heinz Co Ltd [1959] 1 All ER 547; 1 WLR 313; Fraser v Evans [1969] 1 QB 349 at 360-1 per Lord Denning MR; Hubbard v Vosper [1972] 2 QB 84 at 96-7 per Lord Denning MR; Wallersteiner v Moir [1974] 1 WLR 991; 3 All ER 217 at 230 per Lord Denning MR; Bryanston Finance Ltd v de Vries [1975] QB 703 at 724 per Lord Denning MR; Bestobell Paints Ltd v Bigg [1975] FSR 421; Crest Homes Ltd v Ascott [1980] FSR 396 at 397 per Lord Denning MR, at 398 per Stephenson LJ; Herbage v Pressdram Ltd [1984] 1 WLR 1160; 2 All ER 769; Khashoggi v IPC Magazines Ltd [1986] 1 WLR 1412; 2 All ER 577; Holley v Smyth [1998] QB 726. The “rule in Bonnard v Perryman” has been found to be consistent with the Human Rights Act 1998 (UK): see Greene v Associated Newspapers Ltd [2005] QB 972; [2004] EWCA Civ 1462. As to the position in New Zealand, see, eg, McSweeney v Berryman [1980] 2 NZLR 168 at 175 per Barker J; New Zealand Mortgage Guarantee Co Ltd v Wellington Newspapers Ltd [1989] 1 NZLR 4 at 7 per Cooke P; Ron West Motors Ltd v Broadcasting Corporation of New Zealand (No 2) [1989] 3 NZLR 520 at 541 per Cooke P; TV3 Network Services Ltd v Fahey [1999] 2 NZLR 129 at 132-3 per Richardson P.

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controversy.11 Prior to the High Court’s decision in Australian Broadcasting Corporation v O’Neill,12 the leading Australian case was considered to be the decision of Walsh J in Stocker v McElhinney (No 2),13 which substantially endorsed the approach in Bonnard v Perryman. However, a division of judicial opinion subsequently emerged amongst Australian judges as to the correct approach to the grant of injunctions in defamation cases. Broadly, the competing approaches came to be designated as “rigid” and “flexible”. The “rigid” approach tended to treat defamation as a special case, to which the general equitable principles relating to interlocutory injunctions did not apply.14 Instead, it gave great weight, if not controlling effect, to the particular considerations identified in Bonnard v Perryman. Under this approach, an interlocutory injunction in a defamation case was difficult for a plaintiff to obtain. The “flexible” approach refused to treat defamation as a special case. Rather, the general equitable principles relating to injunctive relief applied equally to defamation claims, without giving controlling effect to the special considerations identified in Bonnard v Perryman, thereby making an interlocutory injunction more readily available.15 The view that general equitable principles applied to defamation cases was complicated by the fact that there was some lack of clarity about those principles themselves under Australian law. In Beecham Group Ltd v Bristol Laboratories Pty Ltd,16 the High Court of Australia stated that the first issue to be determined on an application for an interlocutory injunction was whether the plaintiff had established “a prima facie case, in the sense that if the evidence remains as it is there is the probability that at the trial of the action the plaintiff will be held entitled to relief”.17 However, Lord Diplock in the House of Lords in American Cyanamid v Ethicon Ltd18 was critical of this formulation, suggesting that the court need only be satisfied that there was “a serious question to be tried”. There has been considerable debate in Australia about which test is to be preferred or whether the tests can in fact be reconciled. The differences between the “flexible” and “rigid” approaches to interlocutory injunctions in defamation cases may have been overstated, given that there are examples of the application of the “flexible” approach leading to 11

12 13 14

15

16 17 18

Royal Automobile Club of Victoria v Paterson [1968] VR 508 at 510 per McInerney J; Edelsten v John Fairfax & Sons Ltd [1978] 1 NSWLR 685 at 697 per Yeldham J; Lennox v Krantz (1978) 19 SASR 272 at 276 per Zelling J, following Stocker v McElhinney (No 2), describing it as “the locus classicus for Australia”; Swimsure (Laboratories) Pty Ltd v McDonald [1979] 2 NSWLR 796 at 799-800 per Hunt J. (2006) 227 CLR 57; [2006] HCA 46. [1961] NSWR 1043. Cases usually cited as examples of the “rigid” approach include: Church of Scientology of California Inc v Reader’s Digest Services Pty Ltd [1980] 1 NSWLR 344; Shiel v Transmedia Productions Pty Ltd [1987] 1 Qd R 199; Lovell v Lewandowski [1987] WAR 81; Australian Broadcasting Corporation v Hanson (unreported, Qld CA, de Jersey CJ, McMurdo P and McPherson JA, 28 September 1998) at p 4 per de Jersey CJ; see also Nationwide News Pty Ltd v Furber (1984) 3 FCR 19 at 25 per Toohey and Fitzgerald JJ. Cases usually cited as examples of the “flexible” approach include: National Mutual Life Association of Australasia Ltd v GTV Corporation Pty Ltd [1989] VR 747 at 763-5 per Fullagar, Hampel and McDonald JJ; Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153 at 158-63 per Hunt J; Jakudo Pty Ltd v South Australian Telecasters Ltd (1997) 69 SASR 440 at 442 per Doyle CJ, at 448 per Williams J, at 449 per Bleby J. See also Australian Broadcasting Corporation v Hanson [1998] QCA 306 at p 4 per de Jersey CJ: “there is much to commend the slight relaxation suggested in Chappell [and] Marsden”. (1968) 118 CLR 618. Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622. [1975] AC 396 at 407.

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[16.50]

Interlocutory injunctions

the refusal of an injunction19 and, more significantly, the application of the “rigid” approach leading to the grant of an injunction.20

Australian Broadcasting Corporation v O’Neill [16.50] The High Court of Australia addressed the issue of the applicable test

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for the grant of an interlocutory injunction in a defamation case in Australian Broadcasting Corporation v O’Neill.21 In doing so, it not only dealt with the issue of whether the “rigid” or the “flexible” approach was to be preferred but also sought to reconcile the threshold tests for injunctive relief generally, the “prima facie case” test, derived from Beecham Group v Bristol Laboratories Pty Ltd,22 and the “serious question to be tried” test, derived from American Cyanamid v Ethicon Ltd.23 This case was a rare example of a court of final appeal in a common law country determining this issue. In Australian Broadcasting Corporation v O’Neill, the respondent was a prisoner serving a life sentence for the murder of a child. A former police officer turned documentary filmmaker suspected that the respondent was involved in the disappearance of the Beaumont children from Glenelg Beach on Australia Day, 1966 – one of Australia’s enduring, unsolved mysteries. He won the respondent’s confidence by feigning interest in the respondent’s worm farm and insect breeding. The resulting documentary, The Fisherman, was screened at the Hobart International Film Festival and generated political and media commentary. When the appellant scheduled a national broadcast of the documentary, the respondent obtained an injunction from a single justice of the Supreme Court of Tasmania. An appeal to the Full Court of the Supreme Court of Tasmania was dismissed by majority. However, the High Court of Australia allowed the appeal by majority (Gleeson CJ, Gummow, Hayne and Crennan JJ, Kirby and Heydon JJ dissenting). In their joint judgment, Gummow and Hayne JJ, with whom Gleeson CJ and Crennan J agreed,24 held that general equitable principles relating to the grant of injunctive relief applied to defamation cases. However, the application of these principles, derived from the High Court’s decision in Beecham Group v Bristol Laboratories, would be informed by the special features of the particular subject matter or right in issue.25 Their Honours were critical of both the “rigid” and the “flexible” approaches: the “rigid” approach tended to obscure the fact of the court’s discretion; the “flexible” approach failed to give sufficient weight to the rights at issue, most notably the common

19 20

21 22 23 24 25

See, eg, National Mutual Life Association of Australasia Ltd v GTV Corporation Pty Ltd [1989] VR 747. See, eg, Stocker v McElhinney (No 2) [1961] NSWR 1043; Australian Broadcasting Corporation v Hanson [1998] QCA 306. See further, D Rolph, “Showing Restraint: Interlocutory Injunctions in Defamation Cases” (2009) 14 Media and Arts Law Review 255 at 290-1. (2006) 227 CLR 57; [2006] HCA 46. (1968) 118 CLR 618. [1975] AC 396. Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46 at 68 (CLR). Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46 at 81-2 (CLR).

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law’s longstanding commitment to freedom of expression and its equally enduring aversion to prior restraint, and suggested that the discretion was unfettered.26 In their joint judgment, Gleeson CJ and Crennan J identified four reasons underpinning the restrictive approach to injunctive relief in Lord Coleridge LJ’s judgment in Bonnard v Perryman:27 First, there is the public interest in the right of free speech. Secondly, until the defence of justification is resolved, it is not known whether publication of the matter would invade a legal right of the plaintiff. Thirdly, a defence of justification is ordinarily a matter of decision by a jury, not a judge sitting alone as in an application for an injunction. Fourthly, the general character of the plaintiff may be an important matter in the outcome of the trial; it may produce an award of only nominal damages.28

Their Honours observed that these reasons required caution to be exercised when dealing with applications for interlocutory injunctions, but that this caution: does not deny the existence of a discretion. Inflexibility is not the hallmark of a jurisdiction that is to be exercised on the basis of justice and convenience. Formulations of principle which, for purposes of legal analysis, gather together considerations which must be taken into account may appear rigid if the ultimate foundation for the exercise of the jurisdiction is overlooked.29

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Gleeson CJ and Crennan J found that the judges at the lower levels had made an error of principle by failing to give sufficient weight to the importance of freedom of expression and the related issue of the common law’s longstanding aversion to prior restraint.30 In addition, their Honours observed that O’Neill was “a most unpromising candidate” for an interlocutory injunction because of the prospect that he might only be awarded nominal damages.31 Gummow and Hayne JJ agreed with Gleeson CJ and Crennan J that the case against injunctive relief was “very strong”.32

26 27 28 29 30 31 32

Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46 at 86-7 (CLR). [1891] 2 Ch 269. See Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46 at 68-9 (CLR). Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46 at 67 (CLR). Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46 at 72 (CLR). Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46 at 73 (CLR). Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46 at 89 (CLR).

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[16.70]

Interlocutory injunctions

Practical effect of Australian Broadcasting Corporation v O’Neill [16.60] Prior to Australian Broadcasting Corporation v O’Neill,33 it was rare for an interlocutory injunction to be granted to restrain the publication of defamatory matter.34 Subsequent applications for interlocutory injunctions in defamation claims have been consistently refused, confirming the restrictive approach in practice to such relief being granted.35 In dissent, Heydon J had a pessimistic assessment of the practical effect of the majority’s position in Australian Broadcasting Corporation v O’Neill: [A]s a practical matter, no plaintiff is ever likely to succeed in an application against a mass media defendant for an interlocutory injunction to restrain publication of defamatory matter on a matter of public interest, however strong that plaintiff’s case, however feeble the defences, and however damaging the defamation.36

Defamation – a special case? [16.70] At the level of principle in Australia, defamation is not treated as an

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exception to the general equitable approach to the grant of an interlocutory injunction,37 although in substance it arguably is, given the weight ascribed to freedom of expression.38 This contrasts with the position in the United Kingdom and New Zealand, where it is well established and frankly acknowledged that defamation is a special case for the purposes of granting an interlocutory injunction.39 However, in Australian Broadcasting Corporation v O’Neill,40 Gleeson CJ and Crennan J acknowledged at the outset of their judgment “the special context of a defamation action”.

33 34

35

36 37

38 39 40

(2006) 227 CLR 57; [2006] HCA 46. See, eg, Star Hotel Holdings Pty Ltd v Newcastle Newspapers Pty Ltd [2001] NSWSC 53; Meriton Apartments Pty Ltd v SBS Corporation [2002] NSWSC 915; Cromwells Auctions and Appraisers Pty Ltd v John Fairfax Publications Pty Ltd [2002] NSWSC 948; Edith Cowan University Student Guild v Edith Cowan University [2004] WASC 83; Channel Seven Adelaide Pty Ltd v Draper (2004) 234 LSJS 15; [2004] SASC 144; Duncan v Allen & Unwin [2004] NSWSC 1069; Annabel v Seven Network (Operations) Ltd [2005] ACTSC 54; Zacharia v Channel Seven Sydney [2006] NSWSC 663. Cf Hemmes v Seven Network Ltd [2000] NSWSC 246; ING (Australia) Ltd v Muscat [2003] NSWSC 1133. See, eg, Kelly v Graham & Hobson [2007] QSC 172; Heartcheck Australia Pty Ltd v Channel 7 Sydney Pty Ltd [2007] NSWSC 555; Advanced Medical Institute Pty Ltd v Channel Seven Sydney Pty Ltd [2007] NSWSC 793; True Value Solar (SA) Pty Ltd v Seven Network Ltd [2011] SASC 91; McJannett v Daley [2012] WASC 217. Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46 at 115 (CLR). As to the position in the United Kingdom, see, eg, Bestobell Paints Ltd v Bigg [1975] FSR 421 at 429-30 per Oliver J; Herbage v Pressdram Ltd [1984] 1 WLR 1160 at 1162 per Griffiths LJ. D Rolph, “Showing Restraint: Interlocutory Injunctions in Defamation Cases” (2009) 14 Media and Arts Law Review 255 at 290. Greene v Associated Newspapers Ltd [2005] QB 972; [2004] EWCA Civ 1462 at 989 (QB) per Brooke LJ. Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46 at 60 (CLR).

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[16.80]

Freedom of speech [16.80] There are a number of considerations identified in Bonnard v Perryman41 and Australian Broadcasting Corporation v O’Neill42 informing the exercise of the discretion to grant an interlocutory injunction in a defamation case. The most significant reason for the reluctance to grant injunctive relief is the importance of freedom of speech.43 There is a public interest in freedom of speech.44 Therefore, such relief will usually not be granted unless freedom of speech has been abused.45

Matter clearly defamatory [16.90] An application for an interlocutory injunction will ordinarily be

refused if the matter is arguably defamatory.46 This is because the issue of whether the matter is defamatory is pre-eminently a question for the jury, where one is empanelled.47 Thus, an interlocutory injunction will only be granted in circumstances where the judge is satisfied that the matter is plainly defamatory and that a jury verdict to the contrary would be set aside as unreasonable.48

Usurpation of function of jury [16.100] Related to this, another reason for the reluctance to grant interlocutory injunctions to restrain the publication of defamatory matter is that a judge determining an application for such relief might pre-empt, if not usurp, the function of the jury.49 It is for the jury to determine whether the matter is defamatory and any question of fact relevant to defences.50

Pleading defence of justification [16.110] Another reason for the reluctance to grant interlocutory injunctions

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to restrain the publication of defamatory matter is, if the defendant ultimately succeeds at trial with a defence of justification, no wrong has been committed against the plaintiff and the defendant’s freedom of speech has been unjustifiably 41 42 43

44

45 46 47 48

49

50

[1891] 2 Ch 269. (2006) 227 CLR 57; [2006] HCA 46. Fraser v Evans [1969] 1 QB 349 at 360 per Lord Denning MR; Herbage v Pressdram Ltd [1984] 1 WLR 1160 at 1162 per Griffiths LJ; Holley v Smyth [1998] QB 726 at 737 per Auld LJ; Greene v Associated Newspapers Ltd [2005] QB 972; [2004] EWCA Civ 1462 at 990 (QB) per Brooke LJ. Jakudo Pty Ltd v South Australian Telecasters Ltd (1997) 69 SASR 440 at 442 per Doyle CJ; Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46 at 67 (CLR) per Gleeson CJ and Crennan J. Shiel v Transmedia Productions Pty Ltd [1987] 1 Qd R 199 at 205 per Moynihan J. Stocker v McElhinney (No 2) [1961] NSWR 1043 at 1048 per Walsh J. As to the use of juries in defamation trials, see [5.150]–[5.160]. Stocker v McElhinney (No 2) [1961] NSWR 1043 at 1048 per Walsh J; Church of Scientology of California Inc v Reader’s Digest Services Pty Ltd [1980] 1 NSWLR 344 at 349 per Hunt J. Cf Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153 at 158 per Hunt J. Holley v Smyth [1998] QB 726 at 737 per Auld LJ; Greene v Associated Newspapers Ltd [2005] QB 972; [2004] EWCA Civ 1462 at 990 (QB) per Brooke LJ; see also Liverpool Household Stores Association v Smith (1887) 37 Ch D 170 at 184 per Lopes LJ. Holley v Smyth [1998] QB 726 at 737 per Auld LJ; Shiel v Transmedia Productions Pty Ltd [1987] 1 Qd R 199 at 205 per Moynihan J.

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[16.130]

Interlocutory injunctions

interfered with.51 Thus, the defendant’s stated intention to plead a defence of justification is an important factor telling against the grant of such relief.52 More broadly, then, an interlocutory injunction will not be granted if there is an arguable defence available to the defendant.53 As Hunt J observed in Church of Scientology of California Inc v Reader’s Digest Services Pty Ltd,54 “questions of privilege and malice are not normally appropriate to be decided upon an interlocutory application”.

The role of reputation and likelihood of nominal damages [16.120] A further reason for the reluctance to grant interlocutory injunctions to restrain the publication of defamatory matter is that a plaintiff at trial may only receive an award of nominal damages.55 Whether the plaintiff’s right to reputation has been violated and, if so, to what extent, will only be determined at trial. It might be that the jury determines that the plaintiff’s right has not been infringed.56 If the plaintiff’s right has been infringed, the exact nature of the plaintiff’s reputation and the extent to which it has been damaged will only be determined at a very late stage of the proceedings, when damages are assessed.

Repetition of defamatory matter [16.130] An interlocutory injunction can be sought not only on a quia timet basis but also to restrain the repetition of the publication of defamatory matter. For instance, in Australian Broadcasting Corporation v O’Neill,57 the

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51

52

53

54 55

56 57

Greene v Associated Newspapers Ltd [2005] QB 972; [2005] EWCA Civ 1462 at 990 (QB) per Brooke LJ; Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46 at 67 (CLR) per Gleeson CJ and Crennan J; see also Khashoggi v IPC Magazines Ltd [1986] 1 WLR 1412 at 1417-8 per Sir John Donaldson MR (dealing with the Polly Peck variant of the defence of justification, as to which see [9.80]–[9.110]. Bestobell Paints Ltd v Bigg [1975] FSR 421 at 430 per Oliver J; Crest Homes Ltd v Ascott [1980] FSR 396 at 398-9 per Lord Denning MR; Khashoggi v IPC Magazines Ltd [1986] 1 WLR 1412 at 1414 per Sir John Donaldson MR. Cf National Mutual Association of Australasia Ltd v GTV Corporation Pty Ltd [1989] VR 747 at 772 per Fullagar, Hampel and McDonald JJ; Holley v Smyth [1998] QB 726 at 743 per Auld LJ. Stocker v McElhinney (No 2) [1961] NSWR 1043 at 1048 per Walsh J; Fraser v Evans [1969] 1 QB 349 at 360-1 per Lord Denning MR; Wallersteiner v Moir [1974] 1 WLR 991 at 1004 per Lord Denning MR; Bryanston Finance Ltd v de Vries [1975] QB 703 at 724 per Lord Denning MR; Church of Scientology of California Inc v Reader’s Digest Services Pty Ltd [1980] 1 NSWLR 344 at 349 per Hunt J; Harakas v Baltic Mercantile and Shipping Exchange Ltd [1982] 1 WLR 958 at 960 per Lord Denning MR; Herbage v Pressdram Ltd [1984] 1 WLR 1160 at 1162 per Griffiths LJ; see also Khashoggi v IPC Magazines Ltd [1986] 1 WLR 1412 at 1417 per Sir John Donaldson MR. See further, Gabriel v Lobban [1976] VR 689 at 690-2 per Menhennitt J (seeking to reconcile the “rigid” and “flexible” approaches, reasoning that if a defendant makes out a prima facie defence, then the plaintiff has not established a prima facie case). [1980] 1 NSWLR 344 at 349. Stocker v McElhinney (No 2) [1961] NSWR 1043 at 1048 per Walsh J; Healy v Askin [1974] 1 NSWLR 436 at 441 per Lee J; Church of Scientology of California Inc v Reader’s Digest Services Pty Ltd [1980] 1 NSWLR 344 at 349 per Hunt J. Greene v Associated Newspapers Ltd [2005] QB 972; [2005] EWCA Civ 1462 at 994 (QB) per Brooke LJ. (2006) 227 CLR 57; [2006] HCA 46 at 129 (CLR) per Heydon J.

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-27 03:14:41.

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documentary, The Fisherman, had already been screened at the Hobart International Film Festival and what was being sought to be restrained was its national television broadcast.

Permanent injunctions [16.140] A permanent injunction may be sought as part of the final relief in a

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defamation claim. It is rare that such relief is actually pursued at trial, given the primacy of damages as a remedy for defamation, and even rarer that such relief is granted in final judgment.58 It is granted in circumstances where it is probable that the defamation would be repeated.

58

For cases in which a permanent injunction was granted, see, eg, Woolcott v Seeger [2010] WASC 19; Rastogi v Nolan [2010] NSWSC 735; Hallam v Ross (No 2) [2012] QSC 407; Graham v Powell (No 4) [2014] NSWSC 1319. As to a case in which a permanent injunction was set aside on appeal, see Bryanston Finance Ltd v de Vries [1975] QB 703 at 724-6 per Lord Denning MR, at 740-2 per Lawton LJ.

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-27 03:14:41.

17

Offers of Amends and Other Remedies [17.10]

Introduction..............................................................................................349

[17.20]

Offer of amends.......................................................................................351

[17.20]

Introduction.................................................................................... 351

[17.30] To whom an offer of amends can be made and content of the offer........................................................................................................... 351 [17.40]

Timing of making an offer of amends.......................................... 354

[17.50]

Timing of acceptance or refusal of offer of amends.................... 354

[17.60]

Withdrawal of and making of renewed offer of amends............. 355

[17.70]

Effect of acceptance of offer of amends....................................... 355

[17.80]

Effect of refusal or failure to accept offer of amends.................. 356

[17.90]

Interaction between offers of amends and limitation periods...... 357

[17.100] Declarations........................................................................................... 357 [17.110] Apologies and retractions......................................................................358 [17.120] Corrections.............................................................................................360 [17.130] Right of reply........................................................................................ 361

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[17.10] The principal remedies for defamation are an award of damages or,

less frequently, the grant of an injunction.1 The imperfect nature of damages as a remedy for defamation has often been noted.2 The eminent torts law scholar, John Fleming, described defamation law’s “preoccupation” with damages as “a crippling experience over the centuries”. He went further, opining that “[t]he damages remedy is not only singularly inept for dealing with, but actually exacerbates, the tension between protection of reputation and freedom of expression.”3 The centrality of damages as a remedy for defamation promotes an “all-or-nothing” approach to resolving disputes,4 which might be insufficiently protective of both reputation and freedom of speech. It also protracts disputes about defamation, whereas, as Fraser JA suggested in Pingel v Toowoomba Newspapers Pty Ltd,5 “[d]efamation claims should be pursued very promptly”. 1 2 3 4 5

Goldsmith v Sperrings Ltd [1977] 1 WLR 478 at 499 per Scarman LJ. See [15.10]. JG Fleming, “Retraction and Reply: Alternative Remedies for Defamation” (1978) 12 University of British Columbia Law Review 15 at 15. JG Fleming, “Retraction and Reply: Alternative Remedies for Defamation” (1978) 12 University of British Columbia Law Review 15 at 30. [2010] QCA 175 at [37].

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-27 03:14:41.

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[17.10]

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Law reformers and legislators have sought to displace the centrality of damages as the principal remedy for defamation, not entirely successfully. One of the stated objects of the national, uniform defamation laws is “to promote speedy and non-litigious methods of resolving disputes about the publication of defamatory matter”.6 The most significant way this is given effect is through the “offer of amends” regime. The national, uniform defamation laws introduce an offer of amends regime across Australia,7 although prior to their introduction, such regimes were in place in a number of Australian jurisdictions.8 An offer of amends regime has also been a long-standing feature of English defamation law.9 When first introduced, such regimes tend to be underused10 but they become increasingly relied upon as legal practitioners become accustomed to them and see a purpose in them.11 There have also been other remedies for defamation which have been sought by parties. Whilst a court has the power to make a declaration, this power has seldom been invoked in a defamation proceeding. Law reform processes have considered whether courts should have a specific power to make declarations of falsity in defamation proceedings. They have also canvassed whether courtordered apologies, court-ordered corrections and court-ordered retractions should be available as remedies. Currently, courts cannot order apologies, corrections and retractions as remedies in a defamation claim,12 even though this might be principally what a given plaintiff desires most. If, indeed, a plaintiff wants a remedy other than an award of damages, he or she has to negotiate that remedy as part of a settlement. It is not necessarily an abuse of process for a plaintiff to secure a different remedy from damages or an injunction by means of a settlement. A settlement may be more effective than a trial in protecting a plaintiff’s reputation.13 As Applegarth J suggests in Pingel v Toowoomba Newspapers Pty Ltd,14 “[a] potential plaintiff who genuinely wants a correction, retraction or apology is well-advised to negotiate one.” The same judge observed in Cerutti v Crestside Pty Ltd15 that “[u]nless and until the legislature creates other forms of remedy which pass constitutional muster, [an 6

Civil Law (Wrongs) Act 2002 (ACT) s 115(d); Defamation Act 2005 (NSW) s 3(d); Defamation Act 2006 (NT) s 2(d); Civil Law (Wrongs) Act 2002 (ACT) s 115(d); Defamation Act 2005 (SA) s 3(d); Defamation Act 2005 (WA) s 3(d); Defamation Act 2005 (Tas) s 3(d).

7

Civil Law (Wrongs) Act 2002 (ACT) Pt 9.3; Defamation Act 2006 (NT) Pt 3; Defamation Act 2005 (NSW) Pt 3; Defamation Act 2005 (Qld) Pt 3; Defamation Act 2005 (SA) Pt 3; Defamation Act 2005 (Tas) Pt 3; Defamation Act 2005 (Vic) Pt 3; Defamation Act 2005 (WA) Pt 3.

8

See, eg, Civil Law (Wrongs) Act 2002 (ACT) Pt 9.2 (repealed); Defamation Act 1974 (NSW) Pt 3 Div 8 (as enacted) (repealed); Defamation Act 1974 (NSW) Pt 2A (repealed); Defamation Act 1957 (Tas) s 17 (repealed). For the highest appellate consideration of the offer of amends regime under the Defamation Act 1974 (NSW), as originally enacted, see Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643. See, eg, Defamation Act 1952 (UK) s 4 (repealed); Defamation Act 1996 (UK) ss 2 – 4. See, eg, O’Shea v MGN Ltd [2001] EMLR 40); [2001] EWHC 425 (QB) at 953 (EMLR) per Morland J; Nail v Jones [2004] EMLR 20; [2004] EWHC 647 (QB) at 369 (EMLR) per Eady J. A Kenyon, “Six Years of Australian Defamation Law: Damages, Opinion and Defence Meanings” (2012) 35 UNSWLJ 31 at 35. Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 at [47] per Fraser JA, at [137]-[138] per Applegarth J. Goldsmith v Sperrings Ltd [1977] 1 WLR 478 at 499-500 per Scarman LJ. [2010] QCA 175 at [138]. [2014] QCA 33 at [36].

9 10

11 12 13 14 15

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-27 03:14:41.

[17.30]

Offer of amends

award of damages] remains the principal remedy by which indefensible defamations are redressed.” Thus, the issue for law reformers is whether prospective litigants should have to rely on imperfect awards of damages, negotiating an effective remedy, or whether courts should be empowered to grant a greater range of remedies for defamation.

Offer of amends Introduction [17.20] The offer of amends regime provides parties to a defamation proceeding with an alternative to rules of court and other laws dealing with payment into court or offers of compromise.16 It is not the exclusive means of settling a defamation claim. It is always open to the parties to settle a defamation claim otherwise than in accordance with the offer of amends regime.17 It is also not mandatory to make an offer of amends. A plaintiff may commence proceedings without having made such an offer.18 However, the offer of amends regime is clearly designed to promote the speedy, non-litigious resolution of defamation disputes, although its efficacy and the extent to which it directly attempts to achieve this aim are open to question.19 The offer of amends regime is not limited to media publications but can be used in all claims for defamation, including private communications.20 Given its novelty and its purpose in promoting non-litigious dispute resolution, it is unsurprising that the offer of amends regime has not yet received much judicial consideration.21

To whom an offer of amends can be made and content of the offer [17.30] The requirements of an offer of amends under the national, uniform

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defamation laws have been described as “quite prescriptive”.22 A publisher may make an offer of amends to a person who has been aggrieved by the publication of defamatory matter.23 The offer of amends may relate to the whole of the 16

Civil Law (Wrongs) Act 2002 (ACT) s 124(2); Defamation Act 2006 (NT) s 11(2); Defamation Act 2005 (NSW) s 12(2); Defamation Act 2005 (Qld) s 12(2); Defamation Act 2005 (SA) s 12(2); Defamation Act 2005 (Tas) s 12(2); Defamation Act 2005 (Vic) s 12(2); Defamation Act 2005 (WA) s 12(2).

17

Civil Law (Wrongs) Act 2002 (ACT) s 124(3); Defamation Act 2006 (NT) s 11(3); Defamation Act 2005 (NSW) s 12(3); Defamation Act 2005 (Qld) s 12(3); Defamation Act 2005 (SA) s 12(3); Defamation Act 2005 (Tas) s 12(3); Defamation Act 2005 (Vic) s 12(3); Defamation Act 2005 (WA) s 12(3). See also Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 at [100] per Applegarth J. Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 at [99] per Applegarth J. See, eg, Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 at [61]-[62], [64] per Fryberg J (pointing out that, at best, the offer of amends regime indirectly promotes or facilitates alternative dispute resolution of defamation claims and suggesting it is for the benefit of publishers, rather than aggrieved persons): at [134]-[142] per Applegarth J. Szanto v Melville [2011] VSC 574 at [170] per Kaye J. Pedavoli v John Fairfax Publications Pty Ltd [2014] NSWSC 1674 at [33] per McCallum J. Pedavoli v John Fairfax Publications Pty Ltd [2014] NSWSC 1674 at [35] per McCallum J. Civil Law (Wrongs) Act 2002 (ACT) s 125(1); Defamation Act 2006 (NT) s 12(1); Defamation Act 2005 (NSW) s 13(1); Defamation Act 2005 (Qld) s 13(1); Defamation Act 2005 (SA) s 13(1); Defamation Act 2005 (Tas) s 13(1); Defamation Act 2005 (Vic) s 13(1); Defamation Act 2005 (WA) s 13(1). As to the definition of “aggrieved person”, see Civil

18 19

20 21 22 23

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-27 03:14:41.

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matter24 or it may be limited to one or more particular imputations conveyed by the matter.25 Where a matter is defamatory of two or more persons, the making of an offer of amends to one or more of them does not affect the liability to the others.26 However, this does not mean that an employee of a publisher has to make a separate offer of amends.27 Unless otherwise stated, an offer of amends is deemed to be made without prejudice.28 An offer of amends must be readily identifiable as such29 and must be made in writing.30 If the offer of amends is limited to particular imputations, it must state this and identify the imputations to which it is limited.31 It must offer to publish a reasonable correction in respect of the defamatory imputations to which it is addressed.32 It must also include an offer to pay the expenses reasonably incurred by the aggrieved person prior to the offer of amends being made, and by the aggrieved person considering the offer of amends.33 If the defamatory matter has been given to another person by the publisher or with the publisher’s knowledge, the offer of amends must also include an offer to

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Law (Wrongs) Act 2002 (ACT) s 124(1); Defamation Act 2006 (NT) s 11(1); Defamation Act 2005 (NSW) s 12(1); Defamation Act 2005 (Qld) s 12(1); Defamation Act 2005 (SA) s 12(1); Defamation Act 2005 (Tas) s 12(1); Defamation Act 2005 (Vic) s 12(1); Defamation Act 2005 (WA) s 12(1). 24

Civil Law (Wrongs) Act 2002 (ACT) s 125(2)(a); Defamation Act 2006 (NT) s 12(2)(a); Defamation Act 2005 (NSW) s 13(2)(a); Defamation Act 2005 (Qld) s 13(2)(a); Defamation Act 2005 (SA) s 13(2)(a); Defamation Act 2005 (Tas) s 13(2)(a); Defamation Act 2005 (Vic) s 13(2)(a); Defamation Act 2005 (WA) s 13(2)(a).

25

Civil Law (Wrongs) Act 2002 (ACT) s 125(2)(b); Defamation Act 2006 (NT) s 12(2)(b); Defamation Act 2005 (NSW) s 13(2)(b); Defamation Act 2005 (Qld) s 13(2)(b); Defamation Act 2005 (SA) s 13(2)(b); Defamation Act 2005 (Tas) s 13(2)(b); Defamation Act 2005 (Vic) s 13(2)(b); Defamation Act 2005 (WA) s 13(2)(b).

26

Civil Law (Wrongs) Act 2002 (ACT) s 125(3); Defamation Act 2006 (NT) s 12(3); Defamation Act 2005 (NSW) s 13(3); Defamation Act 2005 (Qld) s 13(3); Defamation Act 2005 (SA) s 13(3); Defamation Act 2005 (Tas) s 13(3); Defamation Act 2005 (Vic) s 13(3); Defamation Act 2005 (WA) s 13(3).

27 28

Pedavoli v John Fairfax Publications Pty Ltd [2014] NSWSC 1674 at [73] per McCallum J. Civil Law (Wrongs) Act 2002 (ACT) s 125(4); Defamation Act 2006 (NT) s 12(4); Defamation Act 2005 (NSW) s 13(4); Defamation Act 2005 (Qld) s 13(4); Defamation Act 2005 (SA) s 13(4); Defamation Act 2005 (Tas) s 13(4); Defamation Act 2005 (Vic) s 13(4); Defamation Act 2005 (WA) s 13(4). Civil Law (Wrongs) Act 2002 (ACT) s 127(1)(b); Defamation Act 2006 (NT) s 14(1)(b); Defamation Act 2005 (NSW) s 15(1)(b); Defamation Act 2005 (Qld) s 15(1)(b); Defamation Act 2005 (SA) s 15(1)(b); Defamation Act 2005 (Tas) s 15(1)(b); Defamation Act 2005 (Vic) s 15(1)(b); Defamation Act 2005 (WA) s 15(1)(b). Civil Law (Wrongs) Act 2002 (ACT) s 127(1)(a); Defamation Act 2006 (NT) s 14(1)(a); Defamation Act 2005 (NSW) s 15(1)(a); Defamation Act 2005 (Qld) s 15(1)(a); Defamation Act 2005 (SA) s 15(1)(a); Defamation Act 2005 (Tas) s 15(1)(a); Defamation Act 2005 (Vic) s 15(1)(a); Defamation Act 2005 (WA) s 15(1)(a). Civil Law (Wrongs) Act 2002 (ACT) s 127(1)(c); Defamation Act 2006 (NT) s 14(1)(c); Defamation Act 2005 (NSW) s 15(1)(c); Defamation Act 2005 (Qld) s 15(1)(c); Defamation Act 2005 (SA) s 15(1)(c); Defamation Act 2005 (Tas) s 15(1)(c); Defamation Act 2005 (Vic) s 15(1)(c); Defamation Act 2005 (WA) s 15(1)(c). Civil Law (Wrongs) Act 2002 (ACT) s 127(1)(d); Defamation Act 2006 (NT) s 14(1)(d); Defamation Act 2005 (NSW) s 15(1)(d); Defamation Act 2005 (Qld) s 15(1)(d); Defamation Act 2005 (SA) s 15(1)(d); Defamation Act 2005 (Tas) s 15(1)(d); Defamation Act 2005 (Vic) s 15(1)(d); Defamation Act 2005 (WA) s 15(1)(d). An expression of opinion can be the subject of a correction: Szanto v Melville [2011] VSC 574 at [169]-[170] per Kaye J. Civil Law (Wrongs) Act 2002 (ACT) s 127(1)(f); Defamation Act 2006 (NT) s 14(1)(f);

29

30

31

32

33

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[17.30]

Offer of amends

take reasonable steps to inform the other person that the matter is defamatory of the aggrieved person.34 This means that the offer of amends must attempt to reach, to the extent possible, the same audience as the publication of the defamatory matter.35 The identity of the persons to whom the defamatory matter was published is peculiarly within the knowledge of the defendant.36 The offer of amends may also include an offer to publish an apology;37 an offer to pay compensation for economic or non-economic loss to the aggrieved person;38 or the particulars of any correction or apology made before the date of the offer of amends.39 The content of an offer of amends is not limited to these matters. In relation to the payment of compensation, the offer of amends may include an offer to pay a stated amount;40 an amount agreed between the publisher and the aggrieved person;41 or an amount determined by an arbitrator42 or a court.43

34

35 36 37

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40

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43

Defamation Act 2005 (NSW) s 15(1)(f); Defamation Act 2005 (Qld) s 15(1)(f); Defamation Act 2005 (SA) s 15(1)(f); Defamation Act 2005 (Tas) s 15(1)(f); Defamation Act 2005 (Vic) s 15(1)(f); Defamation Act 2005 (WA) s 15(1)(f). Civil Law (Wrongs) Act 2002 (ACT) s 127(1)(e); Defamation Act 2006 (NT) s 14(1)(e); Defamation Act 2005 (NSW) s 15(1)(e); Defamation Act 2005 (Qld) s 15(1)(e); Defamation Act 2005 (SA) s 15(1)(e); Defamation Act 2005 (Tas) s 15(1)(e); Defamation Act 2005 (Vic) s 15(1)(e); Defamation Act 2005 (WA) s 15(1)(e). Pedavoli v John Fairfax Publications Pty Ltd [2014] NSWSC 1476 at [42] per McCallum J. Pedavoli v John Fairfax Publications Pty Ltd [2014] NSWSC 1476 at [45] per McCallum J. Civil Law (Wrongs) Act 2002 (ACT) s 127(1)(g)(i); Defamation Act 2006 (NT) s 14(1)(g)(i); Defamation Act 2005 (NSW) s 15(1)(g)(i); Defamation Act 2005 (Qld) s 15(1)(g)(i); Defamation Act 2005 (SA) s 15(1)(g)(i); Defamation Act 2005 (Tas) s 15(1)(g)(i); Defamation Act 2005 (Vic) s 15(1)(g)(i); Defamation Act 2005 (WA) s 15(1)(g)(i). Civil Law (Wrongs) Act 2002 (ACT) s 127(1)(g)(ii); Defamation Act 2006 (NT) s 14(1)(g)(ii); Defamation Act 2005 (NSW) s 15(1)(g)(ii); Defamation Act 2005 (Qld) s 15(1)(g)(ii); Defamation Act 2005 (SA) s 15(1)(g)(ii); Defamation Act 2005 (Tas) s 15(1)(g)(ii); Defamation Act 2005 (Vic) s 15(1)(g)(ii); Defamation Act 2005 (WA) s 15(1)(g)(ii). Civil Law (Wrongs) Act 2002 (ACT) s 127(1)(g)(iii); Defamation Act 2006 (NT) s 14(1)(g)(iii); Defamation Act 2005 (NSW) s 15(1)(g)(iii); Defamation Act 2005 (Qld) s 15(g)(iii); Defamation Act 2005 (SA) s 15(1)(g)(iii); Defamation Act 2005 (Tas) s 15(1)(g)(iii); Defamation Act 2005 (Vic) s 15(g)(iii); Defamation Act 2005 (WA) s 15(1)(g)(iii). Civil Law (Wrongs) Act 2002 (ACT) s 127(2)(a); Defamation Act 2006 (NT) s 14(2)(a); Defamation Act 2005 (NSW) s 15(2)(a); Defamation Act 2005 (Qld) s 15(2)(a); Defamation Act 2005 (SA) s 15(2)(a); Defamation Act 2005 (Tas) s 15(2)(a); Defamation Act 2005 (Vic) s 15(2)(a); Defamation Act 2005 (WA) s 15(2)(a). Civil Law (Wrongs) Act 2002 (ACT) s 127(2)(b); Defamation Act 2006 (NT) s 14(2)(b); Defamation Act 2005 (NSW) s 15(2)(b); Defamation Act 2005 (Qld) s 15(2)(b); Defamation Act 2005 (SA) s 15(2)(b); Defamation Act 2005 (Tas) s 15(2)(b); Defamation Act 2005 (Vic) s 15(2)(b); Defamation Act 2005 (WA) s 15(2)(b). Civil Law (Wrongs) Act 2002 (ACT) s 127(2)(c); Defamation Act 2006 (NT) s 14(2)(c); Defamation Act 2005 (NSW) s 15(2)(c); Defamation Act 2005 (Qld) s 15(2)(c); Defamation Act 2005 (SA) s 15(2)(c); Defamation Act 2005 (Tas) s 15(2)(c); Defamation Act 2005 (Vic) s 15(2)(c); Defamation Act 2005 (WA) s 15(2)(c). The arbitrator needs to be appointed or agreed upon by the publisher and the aggrieved person. Civil Law (Wrongs) Act 2002 (ACT) s 127(2)(d); Defamation Act 2006 (NT) s 14(2)(d); Defamation Act 2005 (NSW) s 15(2)(d); Defamation Act 2005 (Qld) s 15(2)(d); Defamation Act 2005 (SA) s 15(2)(d); Defamation Act 2005 (Tas) s 15(2)(d); Defamation Act 2005 (Vic) s 15(2)(d); Defamation Act 2005 (WA) s 15(2)(d). See further, Civil Law (Wrongs) Act 2002

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-27 03:14:41.

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Timing of making an offer of amends [17.40] An offer of amends can be made pre-emptively. The serving of a defence in a defamation action precludes the defendant from making an offer of amends.44 A defendant may also make an offer of amends in response to the issuing of a concerns notice by an aggrieved person. The concerns notice must be in writing45 and must inform the publisher of the defamatory imputations the aggrieved person thinks are, or may be conveyed by, the matter.46 The publisher must respond to a concerns notice within 28 days of its receipt.47 However, if the concerns notice does not adequately particularise the imputations, the publisher may request, in writing, reasonable further particulars.48 The aggrieved person must provide those particulars within 14 days of receiving a further particulars notice (or any further period agreed between the publisher and the aggrieved person).49 If the aggrieved person fails to provide reasonable further particulars within the stipulated time, the aggrieved person is deemed not to have given the publisher a concerns notice.50

Timing of acceptance or refusal of offer of amends [17.50] The national, uniform defamation laws do not prescribe a time limit for the acceptance or rejection of an offer of amends. An offer of amends may remain open for a limited period of time. There is no requirement that the offer

44

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45

46

47

48

49

50

(ACT) s 127(3), (4); Defamation Act 2006 (NT) s 14(3), (4); Defamation Act 2005 (NSW) s 15(3), (4); Defamation Act 2005 (Qld) s 15(3), (4); Defamation Act 2005 (SA) s 15(3), (4), Defamation Act 2005 (Tas) s 15(3), (4); Defamation Act 2005 (Vic) s 15(3), (4); Defamation Act 2005 (WA) s 15(3), (4). Civil Law (Wrongs) Act 2002 (ACT) s 126(1)(b); Defamation Act 2006 (NT) s 13(1)(b); Defamation Act 2005 (NSW) s 14(1)(b); Defamation Act 2005 (Qld) s 14(1)(b); Defamation Act 2005 (SA) s 14(1)(b); Defamation Act 2005 (Tas) s 14(1)(b); Defamation Act 2005 (Vic) s 14(1)(b); Defamation Act 2005 (WA) s 14(1)(b). Civil Law (Wrongs) Act 2002 (ACT) s 126(2)(a); Defamation Act 2006 (NT) s 13(2)(a); Defamation Act 2005 (NSW) s 14(2)(a); Defamation Act 2005 (Qld) s 14(2)(a); Defamation Act 2005 (SA) s 14(2)(a); Defamation Act 2005 (Tas) s 14(2)(a); Defamation Act 2005 (Vic) s 14(2)(a); Defamation Act 2005 (WA) s 14(2)(a). Civil Law (Wrongs) Act 2002 (ACT) s 126(2)(b); Defamation Act 2006 (NT) s 13(2)(b); Defamation Act 2005 (NSW) s 14(2)(b); Defamation Act 2005 (Qld) s 14(2)(b); Defamation Act 2005 (SA) s 14(2)(b); Defamation Act 2005 (Tas) s 14(2)(b); Defamation Act 2005 (Vic) s 14(2)(b); Defamation Act 2005 (WA) s 14(2)(b). Civil Law (Wrongs) Act 2002 (ACT) s 126(1)(a); Defamation Act 2006 (NT) s 13(1)(a); Defamation Act 2005 (NSW) s 14(1)(a); Defamation Act 2005 (Qld) s 14(1)(a); Defamation Act 2005 (SA) s 14(1)(a); Defamation Act 2005 (Tas) s 14(1)(a); Defamation Act 2005 (Vic) s 14(1)(a); Defamation Act 2005 (WA) s 14(1)(a). Civil Law (Wrongs) Act 2002 (ACT) s 126(3); Defamation Act 2006 (NT) s 13(3); Defamation Act 2005 (NSW) s 14(3); Defamation Act 2005 (Qld) s 14(3); Defamation Act 2005 (SA) s 14(3); Defamation Act 2005 (Tas) s 14(3); Defamation Act 2005 (Vic) s 14(3); Defamation Act 2005 (WA) s 14(3). Civil Law (Wrongs) Act 2002 (ACT) s 126(4); Defamation Act 2006 (NT) s 13(4); Defamation Act 2005 (NSW) s 14(4); Defamation Act 2005 (Qld) s 14(4); Defamation Act 2005 (SA) s 14(4); Defamation Act 2005 (Tas) s 14(4); Defamation Act 2005 (Vic) s 14(4); Defamation Act 2005 (WA) s 14(4). Civil Law (Wrongs) Act 2002 (ACT) s 126(5); Defamation Act 2006 (NT) s 13(5); Defamation Act 2005 (NSW) s 14(5); Defamation Act 2005 (Qld) s 14(5); Defamation Act 2005 (SA) s 14(5); Defamation Act 2005 (Tas) s 14(5); Defamation Act 2005 (Vic) s 14(5); Defamation Act 2005 (WA) s 14(5).

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-27 03:14:41.

[17.70]

Offer of amends

of amends remain open until the trial.51 However, if the offer of amends is only left open for a limited period of time, it may be deemed not reasonable in all of the circumstances, thereby depriving the publisher of a defence.52

Withdrawal of and making of renewed offer of amends [17.60] A publisher may withdraw an offer of amends prior to the aggrieved person accepting it in writing.53 It is open to a publisher to make a renewed offer54 on the same or on different terms.55 A renewed offer is to be treated as a new offer.56 However, the time limits prescribed for the making of offers do not prevent the making of a renewed offer if the renewed offer represents a genuine attempt by the publisher to address the aggrieved person’s concerns about the withdrawn offer and the renewed offer is made within 14 days of the previous offer, or such other period as agreed between the publisher and the aggrieved person.57

Effect of acceptance of offer of amends [17.70] The effect of an aggrieved person accepting an offer of amends and the publisher complying with the terms of its offer of amends is that the aggrieved person cannot assert, continue or enforce a defamation claim against the publisher, even if the offer of amends is limited to particular defamatory imputations conveyed by the defamatory matter.58 A court may order the publisher to pay the aggrieved person’s reasonably incurred costs associated with the acceptance of the offer of amends,59 even on an indemnity basis.60 51 52

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53

54

55

56

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59

Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 at [101] per Applegarth J; Bushara v Nobananbas Pty Ltd [2012] NSWSC 63 at [8], [12], [14] per Nicholas J. Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 at [102] per Applegarth J; Bushara v Nobananbas Pty Ltd [2012] NSWSC 63 at [12], [14] per Nicholas J. As to the effect of a refusal or a failure to accept an offer of amends, see [17.80]. Civil Law (Wrongs) Act 2002 (ACT) s 128(1); Defamation Act 2006 (NT) s 15(1); Defamation Act 2005 (NSW) s 16(1); Defamation Act 2005 (Qld) s 16(1); Defamation Act 2005 (SA) s 16(1); Defamation Act 2005 (Tas) s 16(1); Defamation Act 2005 (Vic) s 16(1); Defamation Act 2005 (WA) s 16(1). Civil Law (Wrongs) Act 2002 (ACT) s 128(2); Defamation Act 2006 (NT) s 15(2); Defamation Act 2005 (NSW) s 16(2); Defamation Act 2005 (Qld) s 16(2); Defamation Act 2005 (SA) s 16(2); Defamation Act 2005 (Tas) s 16(2); Defamation Act 2005 (Vic) s 16(2); Defamation Act 2005 (WA) s 16(2). Defamation Act 2005 (NSW) s 16(3); Defamation Act 2006 (NT) s 15(3); Civil Law (Wrongs) Act 2002 (ACT) s 128(3); Defamation Act 2005 (SA) s 16(3); Defamation Act 2005 (WA) s 16(3); Defamation Act 2005 (Tas) s 16(3). Defamation Act 2005 (NSW) s 16(4); Defamation Act 2006 (NT) s 15(4); Civil Law (Wrongs) Act 2002 (ACT) s 128(4); Defamation Act 2005 (SA) s 16(4); Defamation Act 2005 (WA) s 16(4); Defamation Act 2005 (Tas) s 16(4). Defamation Act 2005 (NSW) s 16(5); Defamation Act 2006 (NT) s 15(5); Civil Law (Wrongs) Act 2002 (ACT) s 128(5); Defamation Act 2005 (SA) s 16(5); Defamation Act 2005 (WA) s 16(5); Defamation Act 2005 (Tas) s 16(5). Defamation Act 2005 (NSW) s 17(1); Defamation Act 2006 (NT) s 16(1); Civil Law (Wrongs) Act 2002 (ACT) s 129(1); Defamation Act 2005 (SA) s 17(1); Defamation Act 2005 (WA) s 17(1); Defamation Act 2005 (Tas) s 17(1). Defamation Act 2005 (NSW) s 17(2)(a); Defamation Act 2006 (NT) s 16(2)(a); Civil Law (Wrongs) Act 2002 (ACT) s 129(2)(a); Defamation Act 2005 (SA) s 17(2)(a); Defamation Act 2005 (WA) s 17(2)(a); Defamation Act 2005 (Tas) s 17(2)(a).

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-27 03:14:41.

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[17.70]

Effect of refusal or failure to accept offer of amends [17.80] If an aggrieved person refuses or fails to accept an offer of amends, the publisher can have a defence to defamation if it establishes that the offer of amends was made as soon as practicable after becoming aware that the matter was or may be defamatory;61 that it was ready and willing, at any time before the trial, to carry out the terms of the offer of amends, once it had been accepted;62 and that the offer of amends was reasonable in all the circumstances.63 In evaluating the reasonableness of the offer of amends, the court must have regard to any correction or apology made by the publisher in relation to the defamatory matter, including the extent to which the correction or apology was brought to the attention of the original audience of the defamatory matter.64 In particular, the court must have regard to the relative prominence of the original defamatory matter and the purported correction or apology,65 and the period between the publication of the original defamatory matter and the correction or apology.66 The court may also consider, inter alia, whether the aggrieved person’s refusal to accept an offer of amends was due to a disagreement with the publisher about the imputations which were conveyed by the defamatory matter.67

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Evidence of a statement or admission made in connection with the making or the acceptance of an offer of amends is not admissible,68 except to the extent

60

Defamation Act 2005 (NSW) s 17(2)(b); Defamation Act 2006 (NT) s 16(2)(b); Civil Law (Wrongs) Act 2002 (ACT) s 129(2)(b); Defamation Act 2005 (SA) s 17(2)(b); Defamation Act 2005 (WA) s 17(2)(b); Defamation Act 2005 (Tas) s 17(2)(b).

61

Defamation Act 2005 (NSW) s 18(1)(a); Defamation Act 2006 (NT) s 17(1)(a); Civil Law (Wrongs) Act 2002 (ACT) s 130(1)(a); Defamation Act 2005 (SA) s 18(1)(a); Defamation Act 2005 (WA) s 18(1)(a); Defamation Act 2005 (Tas) s 18(1)(a). See, eg, Szanto v Melville [2011] VSC 574 at [168] per Kaye J. Defamation Act 2005 (NSW) s 18(1)(b); Defamation Act 2006 (NT) s 17(1)(b); Civil Law (Wrongs) Act 2002 (ACT) s 130(1)(b); Defamation Act 2005 (SA) s 18(1)(b); Defamation Act 2005 (WA) s 18(1)(b); Defamation Act 2005 (Tas) s 18(1)(b). Defamation Act 2005 (NSW) s 18(1)(c); Defamation Act 2006 (NT) s 17(1)(c); Civil Law (Wrongs) Act 2002 (ACT) s 130(1)(c); Defamation Act 2005 (SA) s 18(1)(c); Defamation Act 2005 (WA) s 18(1)(c); Defamation Act 2005 (Tas) s 18(1)(c).

62

63

64

65

66

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Defamation Act 2005 (NSW) s 18(2)(a); Defamation Act 2006 (NT) s 17(2)(a); Civil Law (Wrongs) Act 2002 (ACT) s 130(2)(a); Defamation Act 2005 (SA) s 18(2)(a); Defamation Act 2005 (WA) s 18(2)(a); Defamation Act 2005 (Tas) s 18(2)(a). Defamation Act 2005 (NSW) s 18(2)(a)(i); Defamation Act 2006 (NT) s 17(1)(a)(i); Civil Law (Wrongs) Act 2002 (ACT) s 130(1)(a)(i); Defamation Act 2005 (SA) s 18(2)(a)(i); Defamation Act 2005 (WA) s 18(2)(a)(i); Defamation Act 2005 (Tas) s 18(2)(a)(i). Defamation Act 2005 (NSW) s 18(2)(a)(ii); Defamation Act 2006 (NT) s 17(1)(a)(ii); Civil Law (Wrongs) Act 2002 (ACT) s 130(1)(a)(ii); Defamation Act 2005 (SA) s 18(2)(a)(ii); Defamation Act 2005 (WA) s 18(2)(a)(ii); Defamation Act 2005 (Tas) s 18(2)(a)(ii). Defamation Act 2005 (NSW) s 18(2)(b); Defamation Act 2006 (NT) s 17(2)(b); Civil Law (Wrongs) Act 2002 (ACT) s 130(2)(b); Defamation Act 2005 (SA) s 18(2)(b); Defamation Act 2005 (WA) s 18(2)(b); Defamation Act 2005 (Tas) s 18(2)(b). Defamation Act 2005 (NSW) s 19(1); Defamation Act 2006 (NT) s 18(1); Civil Law (Wrongs) Act 2002 (ACT) s 131(1); Defamation Act 2005 (SA) s 19(1); Defamation Act 2005 (WA) s 19(1); Defamation Act 2005 (Tas) s 19(1).

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[17.100]

Declarations

that it relates to an issue concerning the application of a provision of the offer of amends regime under the national, uniform defamation laws69 or to costs in defamation proceedings.70 The existence of this defence has been described by McCallum J in Pedavoli v John Fairfax Publications Pty Ltd71 as “creating a powerful incentive for defendants to make amends rather than to fight the cause”. Her Honour observed that the operation of the offer of amends regime imposes a “draconian” sanction on plaintiffs who fail to comply with a reasonable offer of amends because they risk having the claims defeated by a complete defence.

Interaction between offers of amends and limitation periods [17.90] In Pingel v Toowoomba Newspapers Pty Ltd,72 Applegarth J observed that the offer of amends regime does not appear to contemplate a process of negotiation, yet, in practice, the negotiated settlement of a defamation dispute is often complex and protracted. A plaintiff who elects to continue negotiations rather than commence proceedings within the limitation period runs a risk that his or her claim will be barred by statute and that a court will not be satisfied that there is a ground for an extension of time.73 Broadly, the underlying, respective policies of defamation claims and the requirement that plaintiffs commence proceedings in a timely manner are able to co-exist, although there may be circumstances in which they conflict.74

Declarations [17.100] It is now well-settled that Australian courts have the power to make

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declarations.75 In principle, declaratory relief is available in a defamation proceeding76 but is rarely sought. A possible reason for this reluctance on the part of plaintiffs to seek declaratory relief is that such a remedy is perceived as 69

Defamation Act 2005 (NSW) s 19(2)(a); Defamation Act 2006 (NT) s 18(2)(a); Civil Law (Wrongs) Act 2002 (ACT) s 131(2)(a); Defamation Act 2005 (SA) s 19(2)(a); Defamation Act 2005 (WA) s 19(2)(a); Defamation Act 2005 (Tas) s 19(2)(a).

70

Defamation Act 2005 (NSW) s 19(2)(b); Defamation Act 2006 (NT) s 18(2)(b); Civil Law (Wrongs) Act 2002 (ACT) s 131(2)(b); Defamation Act 2005 (SA) s 19(2)(b); Defamation Act 2005 (WA) s 19(2)(b); Defamation Act 2005 (Tas) s 19(2)(b). [2014] NSWSC 1674 at [34]-[35]. [2010] QCA 175. Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 at [103]-[104]. As to limitation periods for defamation claims, see [5.30]–[5.40]. Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 at [105]-[108] per Applegarth J. As to the historical development of the courts’ power to make declarations, see JD Heydon MJ Leeming, and PG Turner, Meagher, Gummow and Lehane’s Equity: Doctrines and Remedies (5th ed, LexisNexis Butterworths, Sydney, 2015) at [19-010]–[19-060]. See now Federal Court of Australia Act 1976 (Cth) s 21; Court Procedures Rules 2006 (ACT) r 2900; Supreme Court Act 1979 (NT) s 18; Supreme Court Act 1970 (NSW) s 75; Civil Proceedings Act 2011 (Qld) s 10(2), Supreme Court Act 1935 (SA) s 31; Supreme Court Rules 2000 (Tas) r 103; Supreme Court Act 1986 (Vic) s 36; Supreme Court Act 1935 (WA) s 25(6). Bracks v Smyth-Kirk (2009) 263 ALR 522; [2009] NSWCA 401 at 529 (ALR) per McColl JA, citing PW Young, Declaratory Orders (2nd ed, Butterworths, Sydney, 1984) at [1712]. Cf Jameel v Dow Jones & Co Inc [2005] QB 946; [2005] EWCA Civ 75 at 969 (QB) per curiam: “English law and procedure does not permit the court to make a declaration of falsity at the end of a libel action … The presumption of falsity does not however leave the judge in a position to make a declaration to all the world that the allegation was false.”

71 72 73 74 75

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unnecessary.77 An award of damages is intended to vindicate a successful plaintiff’s reputation.78 Thus, an award of damages implicitly has a declaratory effect, such that a separate declaration is not required. Given the limitation of damages as a remedy for defamation, there may be scope for increased use of a declaration as relief in such a case. Whilst law reform bodies have, on occasion, contemplated or recommended the introduction of a declaration of falsity as an alternative remedy for defamation,79 such a recommendation has yet to be taken up by an Australian legislature.80

Apologies and retractions [17.110] Although defamation law “has always paid attention to

apologies”,81 it has largely been in relation to the mitigation of damages, rather than as a freestanding remedy. An apology can seek to remedy the injury to the dignity of the plaintiff. As a remedy, an apology is best understood as a form of corrective justice, rather than a form of pure compensation.82 According to Bromberg J in Eatock v Bolt (No 2),83 “[a]n apology includes an acknowledgment of wrongdoing together with an act of contrition.” An apology by the defendant to the plaintiff could serve a number of related purposes. In the context of a claim under the Racial Discrimination Act 1975 (Cth) s 18C, Bromberg J in Eatock v Bolt suggested that an apology would serve the purpose of “public vindication”.84 Vindication is also an important purpose of defamation law,85 which could be achieved more efficaciously through an apology than an award of damages.86 A full and complete apology by the defendant to the plaintiff might also serve as a disincentive to the commencement or the continuation of litigation.87 In this way, an apology would further the stated object of the national, uniform defamation laws

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77 78

79 80

81 82 83 84 85 86

87

See, eg, Sharples v Hanson [2006] FCA 387 at [54] per Spender J. As to the purposes of an award of damages for defamation, see [15.50]. The award of damages can be taken to have a declaratory effect. For a recent, explicit example, see Pedavoli v John Fairfax Publications Pty Ltd [2014] NSWSC 1674 at [3] per McCallum J: “[The plaintiff] is entitled to a large award of damages and to have the court declare to all the world the falsity of that which has been imputed to her by the newspaper.” In this case, there was no separate declaration made, outside of the award of damages. See, eg, New South Wales Law Reform Commission, Defamation, Report No 75, Ch 6. For an expression of judicial support for a declaration of falsity as a remedy for defamation, see Mann v Medicine Group Pty Ltd (1992) 38 FCR 400 at 405 per Wilcox J; Reading v Australian Broadcasting Corporation [2003] NSWSC 716 at [61]-[62] per Shaw J. However, a declaration is available as a remedy in New Zealand: see Defamation Act 1992 (NZ) s 24. P Vines, “Apologising to Avoid Liability: Cynical Civility or Practical Morality?” (2005) 27 Syd LR 483 at 484. As to the mitigation of damages, see [15.210]. P Vines, “Apologising to Avoid Liability: Cynical Civility or Practical Morality?” (2005) 27 Syd LR 483 at 499-501. (2011) 284 ALR 114; [2011] FCA 1180 at 126 (ALR). Eatock v Bolt (2011) 197 FCR 261; [2011] FCA 1103 at 365-6 (FCR); see also Creek v Cairns Post Pty Ltd (2001) 112 FCR 352; [2001] FCA 1007 at 360 (FCR) per Kiefel J. As to vindication, particularly as a purpose for the award of compensatory damages for defamation, see [15.50]. Attorney-General’s Department (Cth), Revised Outline of a Possible National Defamation Law (2004) p 33: http://www.pandora.nla.gov.au/pan/64344/20061012-0000/ 0+0+defamationV5+19+August.pdf (accessed 20 September 2015). Attorney-General’s Department (Cth), Revised Outline of a Possible National Defamation Law (2004) p 33: http://www.pandora.nla.gov.au/pan/64344/20061012-0000/ 0+0+defamationV5+19+August.pdf (accessed 20 September 2015).

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[17.110]

Apologies and retractions

in encouraging speedy, non-litigious resolution of defamation disputes.88 Apologies are often allied with, or described interchangeably as, retractions.89 A court has no power to order a defendant to apologise to a plaintiff.90 An apology by the defendant is a relevant factor in mitigating any damages to be awarded to a successful plaintiff,91 but it is not relevant to liability.92 The fact that an apology has been made to a person in relation to defamatory matter does not constitute an express or implied admission of fault or liability93 and evidence of that apology is not admissible in civil proceedings to establish fault or liability.94 For some forms of liability, courts are authorised by the legislature to order a defendant to apologise. For example, under the Australian Human Rights Commission Act 1986 (Cth) s 46PO(4)(b), a court is permitted to make an order requiring a defendant “to perform any reasonable act or course of conduct to redress any loss or damage suffered” by the plaintiff. This power is sufficiently broad to extend to court-ordered apologies. Even though the court might have the power to order an apology, it may not always be appropriate for it so to order. This is because the court-ordered apology may not reflect the actual sentiment of the defendant. In addition to being an interference with the defendant’s freedom of speech or, if the defendant is a media outlet, freedom of the press, a court-ordered apology may also lack sincerity. A compelled apology, lacking in genuineness, is hardly an efficacious remedy. This was the position reached by Bromberg J in Eatock v Bolt.95 In the law reform process leading up to the introduction of the national, uniform defamation laws, the Commonwealth Attorney-General’s report canvassed the issue of apologies, including retractions. It noted the benefits of an apology or a retraction to overcome the damage caused by a defamatory publication. However, it did not recommend that courts should be given the broad-based power to order apologies or retractions. It suggested that defendants were more likely to apologise for, or retract, defamatory statements Copyright © 2015. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

88

89

90 91

92

93

94

95

Defamation Act 2005 (NSW) s 3(d); Defamation Act 2006 (NT) s 2(d); Civil Law (Wrongs) Act 2002 (ACT) s 115(d); Defamation Act 2005 (SA) s 3(d); Defamation Act 2005 (WA) s 3(d); Defamation Act 2005 (Tas) s 3(d). See, eg, Attorney-General’s Department (Cth), Revised Outline of a Possible National Defamation Law (2004) p 33, particularly n 109: http://www.pandora.nla.gov.au/pan/ 64344/20061012-0000/0+0+defamationV5+19+August.pdf (accessed 20 September 2015). Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 at [47] per Fraser JA, at [137]-[138] per Applegarth J. Defamation Act 2005 (NSW) s 38(1)(a); Defamation Act 2006 (NT) s 35(1)(a); Civil Law (Wrongs) Act 2002 (ACT) s 139I(1)(a); Defamation Act 2005 (SA) s 36(1)(a); Defamation Act 2005 (WA) s 38(1)(a); Defamation Act 2005 (Tas) s 38(1)(a). See also [15.210]. Defamation Act 2005 (NSW) s 20(1)(b); Defamation Act 2006 (NT) s 19(1)(b); Civil Law (Wrongs) Act 2002 (ACT) s 14(1)(b); Defamation Act 2005 (SA) s 20(1)(b); Defamation Act 2005 (WA) s 20(1)(b); Defamation Act 2005 (Tas) s 20(1)(b). Defamation Act 2005 (NSW) s 20(1)(a); Defamation Act 2006 (NT) s 19(1)(a); Civil Law (Wrongs) Act 2002 (ACT) s 14(1)(a); Defamation Act 2005 (SA) s 20(1)(a); Defamation Act 2005 (WA) s 20(1)(a); Defamation Act 2005 (Tas) s 20(1)(a). Defamation Act 2005 (NSW) s 20(2); Defamation Act 2006 (NT) s 19(2); Civil Law (Wrongs) Act 2002 (ACT) s 14(2); Defamation Act 2005 (SA) s 20(2); Defamation Act 2005 (WA) s 20(2); Defamation Act 2005 (Tas) s 20(2). (2011) 197 FCR 261; [2011] FCA 1103 at 365-6 (FCR); see also Eatock v Bolt (No 2) (2011) 284 ALR 114; [2011] FCA 1180 at 117-8, 126 (ALR).

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-27 03:14:41.

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if their apology or retraction was not taken to be an express or an implied admission of liability. It recommended that an apology or a retraction should be relevant to the mitigation of damages or the availability of other remedies, but only in limited circumstances. In order to be able to rely upon an apology or a retraction: the defendant would have to show that they (sic) published, at the earliest opportunity after becoming aware that the matter was false and defamatory, an apology that was of substantially similar prominence to the original defamatory story or article.96

In addition, the purported apology or retraction would need to be “full and complete”.97 What constituted “publication at the earliest opportunity”, an apology or a retraction of “substantially similar prominence to the original story or article” and a “full and complete” apology or retraction would depend upon the circumstances of the particular case.98 These recommendations were not embodied in the national, uniform defamation laws ultimately enacted by the States and Territories. Apologies and retractions as remedies for defamation are more effective than awards of damages. Their efficacy, though, is dependent upon their genuineness, which, in turn, is dependent upon voluntariness. Allowing courts to compel a defendant to apologise or to retract will not only deprive a plaintiff of an effective remedy, but will undermine the efficacy of apologies and retractions on the whole as a remedy for defamation. A future defamation law reform process might usefully investigate ways of encouraging full and timely apologies and retractions but the starting-point for such a consideration must always be the voluntary conduct of the publisher.

Corrections

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[17.120] A court has no power to order a correction in a defamation

proceeding.99 Yet, in many cases, a prospective litigant may be less interested in suing for an award of damages and more concerned with setting the record straight in a timely manner. For many plaintiffs, a correction may be a preferable remedy to damages.

Although the national, uniform defamation laws do not confer a power on courts to order a correction, the law reform process leading up to their enactment did consider this alternative remedy. The Commonwealth AttorneyGeneral’s report supported giving courts the power to order corrections of substantially similar prominence to the original defamatory statement with a view to the correction reaching the same audience. It went further, recommending that a plaintiff who successfully sought only correction orders 96

97

98

99

Attorney-General’s Department (Cth), Revised Outline of a Possible National Defamation Law (2004) p 33: http://www.pandora.nla.gov.au/pan/64344/20061012-0000/0+0+ defamationV5+ 19+August.pdf (accessed 20 September 2015). Attorney-General’s Department (Cth), Revised Outline of a Possible National Defamation Law (2004) p 34: http://www.pandora.nla.gov.au/pan/64344/20061012-0000/0+0+ defamationV5+19+August.pdf (accessed 20 September 2015). Attorney-General’s Department (Cth), Revised Outline of a Possible National Defamation Law (2004) pp 33-4: http://www.pandora.nla.gov.au/pan/64344/20061012-0000/0+0+ defamationV5+19+August.pdf (accessed 20 September 2015). Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 at [47] per Fraser JA.

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[17.130]

Right of reply

should be awarded indemnity costs.100 By contrast, the Standing Committee of Attorneys-General thought that courts should be given the power to order corrections as an alternative to damages and that defendants should have the option of either paying damages or publishing a correction.101 The most significant objection to court-ordered corrections as a remedy for defamation is that they may amount to an actual or potential interference with freedom of speech or, where the defendant is a media outlet, with freedom of the press. Both the Commonwealth Attorney-General’s report and the Standing Committee of Attorneys-General’s report note this concern. The latter attempts to address this concern by making a correction an alternative to the payment of damages. The former dismissed the concern about intrusion upon freedom of speech and freedom of the press on the basis that any such intrusion was minimal, being “limited to rectifying defamatory matter that was published by the defendant in the first place”. A power to order corrections was not ultimately conferred on courts by the national, uniform defamation laws. As with apologies or retractions, a future defamation law reform process should seriously consider corrections as a remedy for defamation, as an alternative to the still-dominant award of damages.

Right of reply

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[17.130] Australian courts have no power to order that a defendant provide the plaintiff with a right of reply. Yet the right of reply has been an important and long-standing feature of defamation law in many civil law countries, most notably France. In Chakravarti v Advertiser Newspapers Ltd,102 Kirby J suggested that a right of reply was perhaps a more effective remedy for defamation than an award of damages. The Australian Law Reform Commission has recommended that a right of reply be introduced but its recommendation has not been implemented.103 In the law reform process leading up to the introduction of the national, uniform defamation laws, the Commonwealth Attorney-General’s report strongly supported defendants giving plaintiffs a right of reply. It identified a number of reasons in support of this remedy. It argued that a right of reply would not assuage the indignation of a prospective litigant, thereby reducing the likelihood of litigation, but would also provide the audience with both sides of the story. The Commonwealth Attorney-General’s report was uncertain as to whether to make such a right of reply legally enforceable. Ultimately, it decided to provide a “strong incentive” for media outlets to permit a plaintiff a right of reply.104 The projected legislation would provide word limits on the right of reply, as well as defining what was meant by the requirements for “publication at the earliest opportunity” and “substantially similar prominence”. If the 100

101 102 103 104

Attorney-General’s Department (Cth), Revised Outline of a Possible National Defamation Law (2004) p 34: http://www.pandora.nla.gov.au/pan/64344/20061012-0000/0+0+ defamationV5+19+August.pdf (accessed 20 September 2015). Standing Committee of Attorneys-General Working Group of State and Territory Officers, Proposal for Uniform Defamation Law (July 2004) at [4.11], Recommendation 19. (1998) 193 CLR 519 at 592. Unfair Publication: Defamation and Privacy, Report No 11 (1979) at [178]-[180]. Attorney-General’s Department (Cth), Revised Outline of a Possible National Defamation Law (2004) p 32: http://www.pandora.nla.gov.au/pan/64344/20061012-0000/0+0+ defamationV5+19+August.pdf (accessed 20 September 2015).

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defendant permitted the plaintiff to exercise a right of reply in accordance with the legislative requirements, it would then have an absolute immunity against any defamation claims brought against it by third parties in relation to the plaintiff’s right of reply. The plaintiff, however, would only have a qualified privilege, proving a disincentive for the plaintiff to misuse the right of reply to defame third parties.105 The national, uniform defamation laws, as enacted, did not embody such a remedy. Whether such a remedy should be introduced might be usefully considered in any further defamation law reform process. There are limitations to the right of reply, which should be borne in mind when considering whether such a remedy should be available to those aggrieved by what has been published about them. Fleming has argued that a right of reply was a less effective remedy for a plaintiff than an apology or a retraction because it “lacks the persuasive force” of these alternatives, but noted that all of these remedies were superior to an award of damages.106 The efficacy of a right of reply varied, in Fleming’s view, according to the defence a defendant could establish. He suggested, for instance, that a right of reply might be useful in cases of absolute and qualified privilege, where the plaintiff is defamed but is denied any public vindication because of the countervailing public interest supporting the privileged occasion.107 He also canvassed the possibility of a right of reply in response to a defendant’s exercise of the right to fair comment108 – again, another defence in which the plaintiff’s ability to protect his or her reputation is subordinated to the greater public interest in the protection of the commentator’s right to exercise his or her freedom of expression. In Fleming’s view, a right of reply need not be dependent upon the plaintiff proving that what the defendant published was false.109

105

106 107

108

109

Attorney-General’s Department (Cth), Revised Outline of a Possible National Defamation Law (2004) p 33: http://www.pandora.nla.gov.au/pan/64344/20061012-0000/0+0+ defamationV5+19+August.pdf (accessed 20 September 2015). JG Fleming, “Retraction and Reply: Alternative Remedies for Defamation” (1978) 12 University of British Columbia Law Review 15 at 22. JG Fleming, “Retraction and Reply: Alternative Remedies for Defamation” (1978) 12 University of British Columbia Law Review 15 at 22. As to absolute privilege, see Ch 10. As to qualified privilege, see Ch 11. JG Fleming, “Retraction and Reply: Alternative Remedies for Defamation” (1978) 12 University of British Columbia Law Review 15 at 23. As to the defence of fair comment, see Ch 13. JG Fleming, “Retraction and Reply: Alternative Remedies for Defamation” (1978) 12 University of British Columbia Law Review 15 at 22.

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18

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Causes of Action Other Than Defamation [18.10] Introduction..............................................................................................363 [18.20] Injurious falsehood.................................................................................. 364 [18.20] Historical background of tort of injurious falsehood................... 364 [18.30] Elements of cause of action for injurious falsehood....................365 [18.40] Examples of allegations amounting to injurious falsehood......... 367 [18.50] Relief for injurious falsehood........................................................368 [18.60] Differences between defamation and injurious falsehood and their respective advantages.......................................................................369 [18.70] Misleading or deceptive conduct............................................................ 372 [18.70] Introduction.................................................................................... 372 [18.80] Trade Practices Act 1974 (Cth) s 52 and equivalent State and Territory provisions...................................................................................373 [18.90] Elements of liability for misleading or deceptive conduct.......... 374 [18.100] Misleading or deceptive conduct for statements of fact and opinion...................................................................................................... 376 [18.110] In trade or commerce...................................................................376 [18.120] Interaction of misleading or deceptive conduct and defamation.................................................................................................377 [18.130] Background to exemption for information providers................. 378 [18.140] Requirements for exemption for information providers.............379 [18.150] Remedies for misleading or deceptive conduct..........................380 [18.160] Negligent misstatement......................................................................... 381 [18.160] Introduction.................................................................................. 381 [18.170] Negligent misstatement causing economic loss or psychiatric harm.......................................................................................................... 382 [18.180] Racial discrimination.............................................................................386 [18.190] False imprisonment............................................................................... 387 [18.200] Privacy and breach of confidence.........................................................388 [18.230] Interaction between defamation and alternative causes of action for purposes of injunctive relief........................................................................... 397

Introduction [18.10] Thus far, the way in which defamation law protects reputation has been analysed in detail. Reputation is the central interest protected by the tort of defamation.1 However, defamation is not the only cause of action which 1

As to the concept of reputation, see [2.20]–[2.80].

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-27 03:14:41.

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directly or indirectly protects reputation. It is also not the only cause of action which imposes liability for the publication of false matter. It is important to explore these alternative causes of action, particularly for corporations, which now have an attenuated right to sue for defamation.2 A useful starting point is the dictum of Hallett J in Foaminol Laboratories Ltd v British Artid Plastics Ltd3 to the effect that “a claim for mere loss of reputation is the proper subject of an action for defamation, and cannot ordinarily be sustained by means of any other form of action”.4 His Lordship’s dictum is a reminder of the centrality of defamation law in protecting reputation. It does raise questions, though, as to when a case concerns “mere loss of reputation” and when other types of legally recognised harms can also be implicated in a given set of circumstances. This chapter examines some of the most important causes of action which can be pleaded concurrently with, or alternatively to, defamation, starting with injurious falsehood and misleading or deceptive conduct. It then explores the difficult issues of principle raised by the interaction of defamation and negligence. Finally, it addresses the prospect of developing direct protection of privacy through some legal means and, more particularly, foreshadows the practical and jurisprudential issues of defamation law arising from the recognition or creation of a direct, comprehensive right to privacy.

Injurious falsehood Historical background of tort of injurious falsehood

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[18.20] The tort of injurious falsehood, in its modern form, coalesced in the late 19th century. The decision of the English Court of Appeal in Ratcliffe v Evans5 is considered to be the foundation of the tort of injurious falsehood as it is currently understood and applied.6 Injurious falsehood is based upon, but has effectively absorbed and superseded, earlier causes of action, such as slander of goods and slander of title, which are actions on the case with a long history in English law dating back to at least the 16th century.7 Therefore it is important to note that, even though defamation and injurious falsehood have many similarities and can often arise from the same circumstances, they are separate causes of action, each with a distinct history.

2 3 4 5 6 7

See [5.110]. [1941] 2 All ER 393. Foaminol Laboratories Ltd v British Artid Plastics Ltd [1941] 2 All ER 393 at 399. [1892] 2 QB 524. Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; [2001] HCA 69 at 405 (CLR) per Gummow J: “the modern foundation of the tort”. Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; [2001] HCA 69 at 405 (CLR) per Gummow J; Orion Pet Products Pty Ltd v Royal Society for the Prevention of Cruelty to Animals (Vic) (2002) 120 FCR 191; [2002] FCA 860 at 223 (FCR) per Weinberg J. See also JH Baker, An Introduction to English Legal History (4th ed, Butterworths LexisNexis, London, 2002) p 458; C Sappiddeen and P Vines (eds), Fleming’s The Law of Torts (10th ed, Lawbook Co., Sydney, 2011) p 796. In British Railway Traffic and Electric Co v CRC Co [1922] 2 KB 260 at 266, McCardle J describes the action for slander of title as “curious in its origin, its history and its present features”.

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[18.30]

Injurious falsehood

Elements of cause of action for injurious falsehood [18.30] In order to establish a cause of action for injurious falsehood, a plaintiff needs to prove that the defendant maliciously published false statements about the plaintiff’s goods or business, thereby causing actual damage.8 Publication for the purposes of injurious falsehood is likely to be treated in the same way as publication for the purposes of defamation.9 The plaintiff needs to demonstrate that the defendant has published a false statement about his or her goods or business. Unlike defamation, the false statements need not be disparaging of, or even touch upon, the plaintiff’s reputation.10 It is possible for a statement about a plaintiff’s goods or business to injure a plaintiff without the same statement touching upon his or her reputation.11 Examples of false statements which can support a cause of action in injurious falsehood, but which are ordinarily unable to support a cause of action in defamation, include claims that the seller of goods or land is not the true owner or that a business owner has closed down his or her business.12 The statement needs to be false. Mere advertising puffery, self-promotion or hyperbole, asserting the superiority of one’s own goods, does not itself constitute falsity.13 The denigration of a trade rival’s goods may be more problematic.14 As to malice, “impropriety of purpose is the essence of malice”.15 The issue is “a question of motive, intention or state of mind and it involves the use of an occasion for some indirect purpose or indirect motive such as to cause injury to another person”.16 In some cases, it may be possible to prove malice through direct evidence, but more commonly, malice will need to be established by

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8

9 10 11 12 13

14 15

16

Ratcliffe v Evans [1892] 2 QB 524 at 527-8 per Bowen LJ; Royal Baking Powder Co v Wright, Crossley & Co (1900) 18 RPC 95 at 99 per Lord Davey; Swimsure (Laboratories) Pty Ltd v McDonald [1979] 2 NSWLR 796 at 799 per Hunt J; Joyce v Sengupta [1993] 1 WLR 337 at 341 per Sir Donald Nicholls VC; Ballina Shire Council v Ringland (1994) 33 NSWLR 680 at 692 per Gleeson CJ; Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; [2001] HCA 69 at 393 (CLR) per Gleeson CJ, at 404 per Gummow J, at 447 per Callinan J, see also at 425 per Kirby J. Australand Holdings Ltd v Transparency & Accountability Council Inc [2008] NSWSC 669 at [98] per McCallum J. As to publication in defamation law, see Ch 8. Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 at 639 per Mason and Jacobs JJ, see also at 644 per Aickin J. Linotype Co Ltd v British Empire Type-Setting Machine Co Ltd (1899) 81 LT 331 at 333 per Earl of Halsbury LC. Joyce v Sengupta [1993] 1 WLR 337 at 341 per Sir Donald Nicholls VC. For further examples, see [18.40]. White v Mellin [1895] 1 AC 154 at 164-5 per Lord Herschell LC, at 168 per Lord Watson; Hubbuck & Sons Ltd v Wilkinson, Heywood & Clark Ltd [1899] 1 QB 86 at 92 per Lindley MR; Alcott v Millar’s Karri & Jarrah Forests Ltd (1904) 90 LT 722 at 723 per Collins MR; Lyne v Nicholls (1906) 23 TLR 86 at 87-8 per Swinfen Eady J; De Beers Abrasive Products Ltd v International General Electric Co of New York Ltd [1975] 1 WLR 972 at 978 per Walton J. De Beers Abrasive Products Ltd v International General Electric Co of New York Ltd [1975] 1 WLR 972 at 978 per Walton J. Australand Holdings Ltd v Transparency & Accountability Council Inc [2008] NSWSC 669 at [156] per McCallum J; see also London Ferro-Concrete Co Ltd v Justicz (1951) 68 RPC 65 at 66 per Vaisey J. AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 1395 at [31] per Brereton J; see also British Railway Traffic and Electric Co v CRC Co [1922] 2 KB 260 at 269 per McCardle J; Shapiro v La Morta (1923) 40 TLR 201 at 203 per Scrutton LJ.

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-27 03:14:52.

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drawing inferences from the defendant’s conduct.17 Malice is a question of fact.18 As with defamation, proof that the defendant knew that what he or she was publishing was not true, or was recklessly indifferent as to the truth or falsity, is ordinarily strong evidence supporting a finding of malice.19 A lesser state of mind, such as the defendant’s mere carelessness as to the truth or falsity of what he or she published, will ordinarily be insufficient to establish malice.20 An honest belief in the truth of what has been published tends strongly against a finding of malice.21 A lack of lawful excuse in publishing the statement is not to be equated with malice.22 Although English courts have been willing to treat malice for the purposes of defamation and injurious falsehood in the same way, Australian judges, on occasion, have been cautious about this. This is because, as McCallum J suggested in Australand Holdings Ltd v Transparency & Accountability Council Inc,23 a defendant’s malice in defamation is assessed by reference to its relevance to the privileged occasion, whereas “[t]he parameters of impropriety of purpose in the context of injurious falsehood are more elusive.”24 Nevertheless, in many Australian cases, in practice, similar factors are identified, similar principles are applied and similar authorities are cited in determining whether there is malice for the purposes of injurious falsehood, as relied upon in determining the same issue in defamation cases.25 Merely because harm was the natural and probable consequence of the defendant’s conduct is insufficient to establish that the defendant acted maliciously.26 Proof of actual damage is essential, as it is the gist of the action.27 Thus, general damages for injury to reputation are not recoverable in a claim for 17

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18 19

20 21 22 23 24 25 26 27

AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 1395 at [32] per Brereton J. British Railway Traffic and Electric Co v CRC Co [1922] 2 KB 260 at 269 per McCardle J. Schindler Lifts Australia Pty Ltd v Debelak (1989) 89 ALR 275; 15 IPR 129 at 291 (ALR) per Pincus J; AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 1395 at [32] per Brereton J; Menulog Pty Ltd v TCN Channel Nine Pty Ltd [2012] NSWSC 247 at [30] per Davies J. Clarke v Meigher (1917) 17 SR(NSW) 617 at 622 per Cullen CJ; AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 1395 at [36] per Brereton J. Greers Ltd v Pearman and Corder Ltd (1922) 39 RPC 406 at 417 per Scrutton LJ. British Railway Traffic and Electric Co v CRC Co [1922] 2 KB 260 at 269 per McCardle J. [2008] NSWSC 669. Australand Holdings Ltd v Transparency & Accountability Council Inc [2008] NSWSC 669 at [156] per McCallum J. See, eg, AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 1395 at [31]-[32] per Brereton J. Australand Holdings Ltd v Transparency & Accountability Council Inc [2008] NSWSC 669 at [151] per McCallum J. Ratcliffe v Evans [1892] 2 QB 524 at 528 per Bowen LJ; Swimsure (Laboratories) Pty Ltd v McDonald [1979] 2 NSWLR 796 at 799 per Hunt J; Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; [2001] HCA 69 at 425-6 (CLR) per Kirby J. Older authorities state the test in terms of special damage: see, eg, Ratcliffe v Evans [1891] 2 QB 524 at 528 per Bowen LJ; Royal Baking Powder Co v Wright, Crossley & Co (1900) 18 RPC 95 at 99 per Lord Davey; Griffiths v Benn (1911) 27 TLR 346 at 350 per Cozens-Hardy MR; see also Dunlop Pneumatic Tyre Co Ltd v Talbot (1904) 20 TLR 579 at 581 per Collins MR (where terms used interchangeably). However, the prevailing modern judicial view is that special damage does not need to be proven; actual damage is sufficient: AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 1395 at [37] per Brereton J; Mahon v Mach 1 Financial Services Pty Ltd (2012) 96 IPR 547; [2012] NSWSC 651 at 551 (IPR) per McCallum J.

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-27 03:14:52.

[18.40]

Injurious falsehood

injurious falsehood. However, proof of a general loss of business,28 general downturn in profits29 or loss of employment prospects30 will be sufficient.31 The requirement of proof of actual damage is distinct from the requirement of proof of malice. As Lord Robertson observed in Royal Baking Powder Co v Wright, Crossley & Co:32 [t]he fact that the Defendant has acted maliciously cannot supply the want of special damage, nor can a superfluity of malice eke out a case wanting in special damage.

The damage caused to the plaintiff’s interests must either have been intended by the defendant or have been the natural and probable consequence of the defendant’s act.33 Intention can be established by direct evidence or by evidence which allows the court to infer intention.34 One aspect of injurious falsehood which has not been resolved is whether the plaintiff must prove that the persons to whom the defendant published the false statements believed those statements. In the leading High Court authority on injurious falsehood, Palmer Bruyn & Parker Pty Ltd v Parsons,35 Gummow J, citing the Restatement of Torts 2d,36 suggests that the better view is that the publication of the false statements needs only to be a “substantial factor in bringing about the loss” and that the fact that the persons to whom the statements were directed did not believe them was not fatal to a claim in injurious falsehood.37

Examples of allegations amounting to injurious falsehood [18.40] The case law is replete with examples of allegations amounting to injurious falsehood. For instance, to claim that a competitor manufactures or sells goods of inferior quality may be actionable as injurious falsehood.38 To allege that one or more employees of a trader has a contagious disease, like scarlet fever, thereby deterring customers from dealing with that trader, may

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28

29 30 31 32 33

34 35 36 37 38

Riding v Smith (1876) 1 Ex D 91 at 95 per Pollock B, at 96 per Huddleston B; Ratcliffe v Evans [1891] 2 QB 524 at 533 per Bowen LJ; AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 1395 at [37] per Brereton J; Mahon v Mach 1 Financial Services Pty Ltd (2012) 96 IPR 547; [2012] NSWSC 651 at 551 (IPR) per McCallum J. Cf Leetham v Rank (1912) 57 Sol Jo 111 at 111 per Cozens-Hardy MR. Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 288; [2001] HCA 69 at 432 (CLR) per Kirby J. Joyce v Sengupta [1993] 1 WLR 337 at 346 per Sir Donald Nicholls VC. For further examples, see London Ferro-Concrete Co Ltd v Justicz (1951) 68 RPC 65 at 69 per Vaisey J (costs of obtaining expert reports to prove safety of designs). (1900) 18 RPC 95 at 103; see also Dunlop Pneumatic Tyre Co Ltd v Talbot (1904) 20 TLR 579 at 581 per Collins MR. Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; [2001] HCA 69 at 396 (CLR) per Gleeson CJ, at 411 per Gummow J, at 425 per Kirby J. In this case the High Court of Australia explicitly rejected the use of reasonable foreseeability as a principle limiting a defendant’s liability for injurious falsehood: at 396 per Gleeson CJ, at 413 per Gummow J. Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; [2001] HCA 69 at 411 (CLR) per Gummow J. (2001) 208 CLR 388; [2001] HCA 69. (American Law Institute, 1965) Vol 3 Ch 28. Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; [2001] HCA 69 at 418-9 (CLR). Western Counties Manure Co v Lawes Chemical Manure Co (1874) LR 9 Ex 218 at 221 per Bramwell B; Alcott v Millar’s Karri & Jarrah Forests Ltd (1904) 90 LT 722 at 723-4 per Collins MR.

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[18.40]

constitute injurious falsehood.39 To suggest that a particular model of car distributed by a car dealer is unsafe may be actionable as injurious falsehood.40 To assert that the plaintiff has ceased to trade41 or is unavailable for an employment opportunity42 may be actionable as injurious falsehood. To claim that the plaintiff’s premises are haunted may also constitute injurious falsehood.43 These are merely illustrations of the types of statements that have supported a cause of action in injurious falsehood.

Relief for injurious falsehood [18.50] The principal remedy for injurious falsehood, being a tort, is an award

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of damages.44 Although defamation and injurious falsehood are not mutually exclusive causes of action and can arise concurrently, a plaintiff cannot recover the same loss twice.45 It is clear that a plaintiff can recover damages for actual pecuniary losses caused by the defendant’s conduct. Whether injurious falsehood extends beyond the protection of a plaintiff’s business or property to the protection of any prospective advantage, even of a non-commercial kind, is not settled.46 It is unclear whether a plaintiff can recover damages for non-economic loss for injury to reputation and hurt to feelings in injurious falsehood.47 These heads of damages are ordinarily recoverable in defamation. Indeed, they are often the only damages awarded.48 There is authority to suggest that, as injurious falsehood protects a plaintiff’s goods or business, not his or her reputation per se, damages for injury to reputation should not be awarded for injurious falsehood. There is more, albeit divided, authority on whether damages for injury to feelings should be awarded for injurious

39

40 41 42 43 44 45 46

47

48

Riding v Smith (1876) 1 Ex D 91 at 94 per Kelly CB. In this case, the allegation that the plaintiff’s wife, who also worked in the business and lived on the business premises, was held to be actionable as injurious falsehood: at 93-4 per Kelly CB. Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1 at 23 per Mason J. Ratcliffe v Evans [1891] 2 QB 524; Hall-Gibbs Mercantile Agency Ltd v Dun (1910) 12 CLR 84. Shapiro v La Morta (1923) 40 TLR 201 at 202 per Bankes LJ, at 203 per Scrutton LJ. Barrett v Associated Newspapers (1907) 23 TLR 666; Manitoba Press v Nagy (1907) 39 SCR 340. For examples of cases in which damages for injurious falsehood were awarded, see Fielding v Variety Incorporated [1967] 2 QB 841 (£100 damages). Joyce v Sengupta [1993] 1 WLR 337 at 341 per Sir Donald Nicholls VC. Bride v KMG Hungerfords (1991) 109 FLR 256 at 280 per Murray J (plaintiff’s economic wellbeing); Ballina Shire Council v Ringland (1994) 33 NSWLR 680 at 692 per Gleeson CJ; Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; [2001] HCA 69 at 407 (CLR) per Gummow J. Cf Bride v KMG Hungerfords (1991) 109 FLR 256 at 281 per Murray J; James v Faddoul [2007] NSWSC 821 at [18] per Price J. In Thornton v Telegraph Media Group Ltd [2012] EMLR 8; [2012] EWHC 1884 (QB) at 211 (EMLR), Tugendhat J awarded the claimant £15,000 damages for malicious falsehood in the nature of general damages without analysing the availability of such damages for this tort. As to the heads of damages awarded for defamation, see [15.40]–[15.50], [15.230]–[15.240].

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-27 03:14:52.

[18.60]

Injurious falsehood

falsehood.49 There is also English authority supporting the availability of aggravated damages in a claim for injurious falsehood.50 A plaintiff is able to seek an interlocutory or a final injunction to restrain threatened conduct which would constitute injurious falsehood.51 In doing so, the plaintiff does not need to prove that actual damage has already occurred. It is sufficient for the plaintiff to demonstrate that there is a reasonable probability that actual damage will result if the threatened publication is not restrained.52 As Hunt J observed in Swimsure (Laboratories) Pty Ltd v McDonald,53 “it would be a strange result that such relief, designed as it is to prevent injury, could not be granted until after the injury had occurred”.

Differences between defamation and injurious falsehood and their respective advantages [18.60] Although causes of action in defamation and injurious falsehood can

arise from the same circumstances,54 are not mutually exclusive causes of action55 and the decision to pursue one or the other or both is “as often tactical as jurisprudential”,56 they are directed towards the protection of different legal interests. Whereas defamation is centrally concerned with the protection of the plaintiff’s reputation, injurious falsehood protects the plaintiff’s goods or business.57 It is possible for a false statement about a plaintiff’s goods or business to injure the plaintiff without the same statement touching upon his or her reputation. 49

50

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51

52

53 54 55 56 57

See, eg, Fielding v Variety Inc [1967] 2 QB 841 at 850 per Lord Denning MR (damages for malicious falsehood limited to monetary losses and unavailable for injury to feelings); cf Joyce v Sengupta [1993] 1 WLR 337 at 347-9 per Sir Donald Nicholls VC) (no reason in principle why damages for distress and injury to feelings should not be awarded in claim for malicious falsehood). Khodaparast v Shad [2000] 1 All ER 5451 WLR 618 at 630-1 per Stuart-Smith LJ (malicious falsehood “a species of defamation”, therefore aggravated damages should be awarded in claim for malicious falsehood as they are in claim for defamation). White v Mellin [1895] 1 AC 154 at 167 per Lord Watson. For examples of an interlocutory injunction to restrain a threatened publication arguably constituting injurious falsehood, see Swimsure (Laboratories) Pty Ltd v McDonald [1979] 2 NSWLR 796 at 799 per Hunt J; Menulog Pty Ltd v TCN Channel Nine Pty Ltd [2012] NSWSC 247 per Davies J. For examples of a final injunction to restrain a threatened or repeated publication arguably constituting injurious falsehood, see Australand Holdings Ltd v Transparency & Accountability Council Inc [2008] NSWSC 669; Mahon v Mach 1 Financial Services Pty Ltd (2012) 96 IPR 547; [2012] NSWSC 651 at 551 (IPR) per McCallum J. Swimsure (Laboratories) Pty Ltd v McDonald [1979] 2 NSWLR 796 at 802 per Hunt J; AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 1395 at [38] per Brereton J; Mahon v Mach 1 Financial Services Pty Ltd (2012) 96 IPR 547; [2012] NSWSC 651 at 549-50 (IPR) per McCallum J; Menulog Pty Ltd v TCN Channel Nine Pty Ltd (No 3) [2012] NSWSC 908 at [23] per McCallum J. [1979] 2 NSWLR 796 at 802. Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; [2001] HCA 69 at 406 (CLR) per Gummow J, at 426 per Kirby J. Ballina Shire Council v Ringland (1994) 33 NSWLR 680 at 693 per Gleeson CJ, at 733 per Mahoney JA. Ajinomoto Sweeteners SAS v Asda Stores Ltd [2011] QB 508; [2010] EWCA Civ 609 per Sedley LJ. Ballina Shire Council v Ringland (1994) 33 NSWLR 680 at 694 per Gleeson CJ; Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; [2001] HCA 69 at 393 (CLR) per Gleeson CJ, at 426 per Kirby J; Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460; [2009] HCA 16 at 468-9, 476-7 (CLR) per French CJ, Gummow, Kiefel and Bell JJ. See also Hall-Gibbs Mercantile Agency Ltd v Dun (1910) 12 CLR 84 at 93 per Griffith CJ (in the context of discussing the Defamation Act 1889 (Qld) s 46 and slander of title).

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One of the classic examples given to illustrate the difference between injurious falsehood and defamation is provided by Lord Esher MR in South Hetton Coal Co Ltd v North-Eastern News Association Ltd,58 wherein his Lordship stated: Suppose the plaintiff was a merchant who dealt in wine, and it was stated that wine which he had for sale of a particular vintage was not good wine; that might be so stated as only to import that the wine of the particular year was not good in whosesoever hands it was, but not to imply any reflection on his conduct of his business. In that case the statement would be with regard to his goods only, and there would be no libel, although such a statement, if it were false and were made maliciously, with intention to injure him, and it did injure him, might be made the subject of an action on the case. On the other hand, if the statement were so made as to import that his judgment in the selection of wine was bad, it might import a reflection on his conduct of his business, and shew that he was an inefficient man of business. If so, it would be a libel. In such a case a jury would have to say which sense the libel really bore; if they thought it related to the goods only, they ought to find that it was not a libel; but, if they thought that it related to the man’s conduct of business, they ought to find that it was a libel.

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As Mason J observed in Sungravure Pty Ltd v Middle East Airlines Airliban SAL,59 “[n]ot every statement likely to injure a person in his profession or trade is a statement about him.” In practice, of course, this distinction might be difficult to draw. In the context of what the defendant actually published, an aspersion cast against the plaintiff’s reputation as well as the plaintiff’s goods might have been made, in which event both causes of action would arise. Nevertheless, a distinction has been maintained between a trader’s reputation and his or her goods. This might be contrasted with the approach defamation law adopts in relation to professional reputation. In Drummond-Jackson v British Medical Association,60 dealing with a defamation claim brought by a dental surgeon arising out of a scientific paper published in the British Medical Journal criticising a particular dental technique the plaintiff was known for using, Lord Pearson stated: I doubt whether the analogy sought to be drawn in the present case between a trader’s goods and a professional man’s technique is sound. Goods are impersonal and transient. A professional man’s technique is at least relatively permanent, and it belongs to him: it may be considered to be an essential part of his professional activity and of him as a professional man.61

Lord Denning MR took a different approach, arguing for the similar treatment of traders and professional persons through a clear demarcation between defamation and injurious falsehood, observing that: there is all the difference between a meaning which is defamatory of him personally, and a meaning which is defamatory of his technique. If the words are defamatory of him personally, he has an action for libel: but if they are only defamatory of his technique, he has no action for libel but at most an action for malicious falsehood. These two actions must be kept distinct.62

Whether the distinction drawn between traders and professional persons by Lord Pearson is defensible as a matter of principle is open to question. 58 59 60 61 62

[1894] 1 QB 133 at 139. (1975) 134 CLR 1 at 23. [1970] 1 WLR 688. Drummond-Jackson v British Medical Association [1970] 1 WLR 688 at 698. Drummond-Jackson v British Medical Association [1970] 1 WLR 688 at 694.

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-27 03:14:52.

[18.60]

Injurious falsehood

There are forensic advantages in being able to bring a claim in defamation, rather than injurious falsehood. In a claim for defamation, a plaintiff needs only to prove, on the balance of probabilities, that the defendant published defamatory matter of and concerning the plaintiff. The onus of proof then shifts to the defendant to establish a defence. By contrast, in a claim for injurious falsehood, the plaintiff must establish, on the balance of probabilities, falsity, publication, malice and actual damage.63 The presumption of falsity in defamation is a clear forensic advantage for a plaintiff which might cause him or her to frame a claim in defamation rather than injurious falsehood.64 The defendant’s state of mind is not an element of the cause of action in defamation, whereas malice is an element of the cause of action in injurious falsehood, making the defendant’s state of mind a crucial issue for liability.65 As it is an action on the case, damage is the gist of the action. Thus, in order to establish injurious falsehood, actual damage must be proven66 whereas, in defamation, there is a presumption of damage to reputation.67 The forensic burden of establishing liability is clearly greater in injurious falsehood than in defamation.68 A limitation of injurious falsehood which individuals may confront is that they need to establish that there was an injury to their property or trading or business reputation. Individuals may have difficulty establishing this requisite interest for protection by injurious falsehood. Thus, an employee of a large commercial organisation was found not to have the requisite interest protected by the tort of injurious falsehood.69 There is no such threshold requirement for an individual bringing a claim in defamation to vindicate his or her reputation. Equally, there are forensic advantages in being able to frame a claim in injurious falsehood, rather than defamation. It is exceedingly difficult to obtain an interlocutory injunction to restrain the publication of defamatory matter.70 The same restrictive approach to injunctive relief does not ordinarily apply to a claim for injurious falsehood.71 The reason usually given for this is

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66 67 68 69 70 71

Drummond-Jackson v British Medical Association [1970] 1 WLR 688 at 694 per Lord Denning MR; Joyce v Sengupta [1993] 1 WLR 337 at 341-2 per Sir Donald Nicholls VC; Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; [2001] HCA 69 at 406 (CLR) per Gummow J; Orion Pet Products Pty Ltd v Royal Society for the Prevention of Cruelty to Animals (Vic) Inc (2002) 120 FCR 191; [2002] FCA 860 at 223 (FCR) per Weinberg J; see also Shapiro v La Morta (1923) 40 TLR 201 at 203 per Scrutton LJ. As to the proof of falsity and malice in these respective causes of action, see AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 1395 at [30]-[31] per Brereton J. Drummond-Jackson v British Medical Association [1970] 1 WLR 688 at 694 per Lord Denning MR; Ballina Shire Council v Ringland (1994) 33 NSWLR 680 at 694 per Gleeson CJ; Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; [2001] HCA 69 at 426 (CLR) per Kirby J. As to the presumption of falsity in defamation, see [9.40]. Orion Pet Products Pty Ltd v Royal Society for the Prevention of Cruelty to Animals (Vic) Inc (2002) 120 FCR 191; [2002] FCA 860 at 223 (FCR) per Weinberg J; Australand Holdings Ltd v Transparency & Accountability Council Inc [2008] NSWSC 669 at [22] per McCallum J. Ratcliffe v Evans [1892] 2 QB 524 at 528 per Bowen LJ. As to the presumption of damage to reputation in defamation law, see [15.30]. Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; [2001] HCA 69 at 419-20 (CLR) per Kirby J. Dye v Commonwealth Securities Ltd [2012] FCA 242 at [665] per Buchanan J. As to the restrictive approach to injunctive relief against defamation, see [16.60]. Palmer Bruyn v Parker Pty Ltd v Parsons (2001) 208 CLR 388; [2001] HCA 69 at 406 (CLR) per Gummow J; Menulog Pty Ltd v TCN Channel Nine Pty Ltd [2012] NSWSC 247 at [21] per Davies J.

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-27 03:14:52.

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that the concern about interfering with freedom of speech, which underpins the disposition against injunctive relief in defamation, is largely absent in injurious falsehood, which is directed to protecting proprietary or commercial interests.72 This difference has become even more important now that corporations are restricted from suing for defamation. Prior to the introduction of the restrictions on the right of corporations to sue for defamation under the national, uniform defamation laws, the tort of injurious falsehood was not frequently litigated. Since the introduction of those restrictions, there has been an increase in the number of claims for injurious falsehood, as corporations are forced to rely on causes of action other than defamation in order to protect their commercial interests, including their reputations.73 If the facts are capable of supporting claims in defamation and injurious falsehood, it is open to the plaintiff to frame his or her claim in injurious falsehood. Allowing the plaintiff to sue for injurious falsehood is not an impermissible subversion of the restrictions on corporations being able to sue for defamation.74 Indeed, it would appear to be consistent with one of the stated rationales behind the restriction now placed upon corporations suing for defamation, namely compelling corporations to rely on alternative causes of action with more onerous requirements for liability.75 Another difference between defamation and injurious falsehood is that, whilst the “single meaning” rule is an entrenched part of defamation law, there is English authority suggesting that this rule does not apply to claims in injurious falsehood.76 There is another difference between defamation and injurious falsehood, which may or may not be a forensic advantage to a plaintiff. In a defamation claim, either party has a statutory right, in most Australian jurisdictions, to elect to have a jury,77 whereas a claim for injurious falsehood is tried by a judge sitting alone.78

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Introduction [18.70] The publication of false matter may be defamatory but may also contravene legislative provisions dealing with misleading or deceptive conduct. There is a potential overlap between defamation and misleading or deceptive conduct.79 As the case law demonstrates, it is possible to find a defendant liable 72

73 74 75 76 77 78 79

Swimsure (Laboratories) Pty Ltd v McDonald [1979] 2 NSWLR 796 at 801 per Hunt J; AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 1395 at [39] per Brereton J. See, eg, Menulog Pty Ltd v TCN Channel Nine Pty Ltd [2012] NSWSC 247. Joyce v Sengupta [1993] 1 WLR 337 at 342-3 per Sir Donald Nicholls VC. As to the rationale behind restricting corporations’ right to sue for defamation in Australia, see [5.110]. Ajinomoto Sweeteners SAS v Asda Stores Ltd [2011] QB 497; [2010] EWCA Civ 609 at 508-9 (QB) per Sedley LJ, at 509-11 per Rimer LJ. See [5.150]. Joyce v Sengupta [1993] 1 WLR 337 at 342 per Sir Donald Nicholls VC. Defamation is not the only cause of action with which misleading or deceptive conduct may overlap or conflict: see, eg, Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 205-6 per Mason J (discussing trade marks, passing off, designs and patents).

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-27 03:14:52.

[18.80]

Misleading or deceptive conduct

for both defamation and misleading or deceptive conduct.80 This section of the chapter analyses the origins and development of misleading or deceptive conduct, as well as examining the similarities and differences between misleading or deceptive conduct and defamation.

Trade Practices Act 1974 (Cth) s 52 and equivalent State and Territory provisions [18.80] The Trade Practices Act 1974 (Cth) (TPA) included a provision which had a profound impact not only on consumer law but also on private law more generally. Section 52 of the TPA provided that: A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.81

State and Territory fair trading legislation incorporated an equivalent provision, extending liability for misleading or deceptive conduct to natural persons.82 The legislative provision is open-textured, capable of applying to a wide range of circumstances and, as such, its effect has been far-reaching.83 Courts have repeatedly emphasised the generality of the TPA s 52 and equivalent State and Territory provisions.84 The underlying policy of the TPA Pt V, in which s 52 was located, was consumer protection.85 Although the purpose of the legislation is the protection of consumers, it is not limited to consumers but is equally available to, and not infrequently used by, trade rivals.86 There is no basis upon which to read down the legislation so as only to protect consumers.87 Liability for misleading and deceptive conduct under the TPA s 52 and its State and Territory analogues was replaced in 2010 by the introduction of the 80 81

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See, eg, Versace v Monte (2002) 119 FCR 349 at 404 per Tamberlin J. The words “likely to mislead or deceive” were not in the provision as originally enacted but were inserted in the TPA s 52 by an amendment in 1977: see Trade Practices Amendment Act 1977 (Cth) s 29. Fair Trading Act 1992 (ACT) s 12; Consumer Affairs and Fair Trading Act 1990 (NT) s 42; Fair Trading Act 1987 (NSW) s 42; Fair Trading Act 1989 (Qld) s 38; Fair Trading Act 1987 (SA) s 56; Fair Trading Act 1990 (Tas) s 12; Fair Trading Act 1999 (Vic) s 9; Fair Trading Act 1987 (WA) s 10. All these provisions have now been repealed. The TPA s 52 also had an extended application to certain natural persons by virtue of the TPA s 6(3), based on the legislative power of the Commonwealth with respect to “postal, telegraphic, telephonic and other like services”: Commonwealth Constitution s 51(v). Australian Ocean Line Pty Ltd v West Australian Newspapers Ltd (1985) 58 ALR 549 at 580 per Toohey J (describing the language of the TPA s 52 as “deceptively simple”). Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216 at 223 per Stephen J; Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 202 per Mason J. McWilliam’s Wines Pty Ltd v McDonald’s System of Australia Pty Ltd (1980) 33 ALR 394 at 405 per Northrop J; Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 at 183 per Franki J, at 199 per Deane and Fitzgerald JJ; Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 at 601 per Mason CJ, Deane, Dawson and Gaudron JJ. Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 197-8 per Gibbs CJ, at 202 per Mason J, at 218 per Brennan J; Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 at 198 per Deane and Fitzgerald JJ; Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 at 601 per Mason CJ, Deane, Dawson and Gaudron JJ. Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 202 per Mason J; Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 at 601 per Mason CJ, Deane, Dawson and Gaudron JJ.

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-27 03:14:52.

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Australian Consumer Law (ACL). The ACL is contained in Sch 2 of the Competition and Consumer Act 2010 (Cth) and applies to the conduct of corporations.88 The ACL has been enacted in each State and Territory as part of its own law.89 The equivalent provision to the TPA s 52 is now the ACL s 18.

Elements of liability for misleading or deceptive conduct [18.90] Like defamation, liability for misleading or deceptive conduct can be imposed on the basis of the objective tendency of the conduct to cause the identified harm. It is not necessary that the conduct in fact mislead or deceive.90 Nor is it necessary that the defendant intended to mislead or deceive.91 Like defamation, liability for misleading or deceptive conduct is strict.92 However, mere confusion, short of a likelihood of misleading or deception on the part of consumers, is insufficient.93 Evidence as to actual misleading or deception is relevant but not determinative of the issue.94 The focus of the inquiry is the effect on the entire class of affected consumers. The test is an objective one.95 The onus is on the plaintiff to establish that the defendant’s conduct misled or deceived, or was likely to mislead or deceive.96 In every case, it is a question of fact whether, in the context and circumstances, the defendant’s conduct misled or deceived, or was likely to mislead or deceive.97 88 89

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Competition and Consumer Act 2010 (Cth) s 131(1). Fair Trading (Australian Consumer Law) Act 1992 (ACT) ss 7, 11; Consumer Affairs and Fair Trading Act 1990 (NT) ss 27, 31; Fair Trading Act 1987 (NSW) ss 28, 32; Fair Trading Act 1989 (Qld) ss 16, 20; Fair Trading Act 1987 (SA) ss 14, 18; Australian Consumer Law (Tasmania) Act 2010 (Tas) ss 6, 10; Australian Consumer Law and Fair Trading Act 2012 (Vic) ss 8, 12; Fair Trading Act 2010 (WA) ss 19, 24. Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 198 per Gibbs CJ. Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216; Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 197 per Gibbs CJ. Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 197 per Gibbs CJ; see also Australian Ocean Line Pty Ltd v West Australian Newspapers Pty Ltd (1985) 58 ALR 549 at 581 per Toohey J: “There is no mental element involvement in a contravention of s 52; conduct is misleading if it is of the kind that leads somebody into error. It does not matter whether the conduct is fraudulent, negligent or entirely innocent.” As to strict liability for defamation, see [6.90]. McWilliam’s Wines Pty Ltd v McDonald’s System of Australia Pty Ltd (1980) 33 ALR 394 at 399 per Fisher J; Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 198 per Gibbs CJ, at 209-10 per Mason J; see also Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 at 201 per Deane and Fitzgerald JJ. Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 198-9 per Gibbs CJ; Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 at 202 per Deane and Fitzgerald JJ; see also McWilliam’s Wines Pty Ltd v McDonald’s System of Australia Pty Ltd (1980) 33 ALR 394 at 399 per Smithers J. McWilliam’s Wines Pty Ltd v McDonald’s System of Australia Pty Ltd (1980) 33 ALR 394 at 399 per Smithers J; Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 198 per Gibbs CJ; Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 at 202 per Deane and Fitzgerald JJ; Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82 at 87. Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 210 per Mason J. Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 at 199-200 per Deane and Fitzgerald JJ.

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-27 03:14:52.

[18.90]

Misleading or deceptive conduct

The terms “mislead” and “deceive” are to be given their natural and ordinary meaning. Broadly, they both mean “to lead into error”.98 The misleading or deceptive conduct has to be caused by the conduct itself, for which the defendant is responsible, not originate from erroneous assumptions on the part of members of the public.99 Just as with defamation, so too for the purposes of liability for misleading or deceptive conduct, the defendant’s conduct needs to be viewed as a whole,100 in the context of the particular circumstances of the case, rather than in the abstract.101 Unlike liability for defamation, which is assessed by reference to the ordinary, reasonable reader, liability for misleading or deceptive conduct is determined by reference to the effect, or likely effect, on the entire class of affected consumers.102 As Gibbs CJ observed in Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd:103 [While] ordinarily a class of consumers may include the inexperienced as well as the experienced, and the gullible as well as the astute, the section must … be regarded as contemplating the effect of the conduct on reasonable members of the class.

There needs to be an objective attribution of characteristics to members of the class.104 A representative member of that class needs to be ascertained, in order that the defendant’s conduct can be assessed by reference to him or her.105 In constructing this representative member of the class, extreme or fanciful reactions are excluded.106 The class does not include members of the public who fail to take reasonable care of their own interests.107 However, when ascertaining the meaning of a publication, in particular whether an ordinary 98 99

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Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 198 per Gibbs CJ. McWilliam’s Wines Pty Ltd v McDonald’s System of Australia Pty Ltd (1980) 33 ALR 394 at 404 per Smithers J; Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 199 per Gibbs CJ; Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82 at 91 per curiam; Campomar Sociedad Limitada v Nike International Ltd (2000) 202 CLR 45; [2000] HCA 12 at 83 (CLR) per curiam. Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 199 per Gibbs CJ. As to the role of context in defamation law, see [6.150]. Campomar Sociedad Limitada v Nike International Ltd (2000) 202 CLR 45; [2000] HCA 12 at 83 (CLR) per curiam. Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 199 per Gibbs CJ; Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 at 181 per Franki J, at 202 per Deane and Fitzgerald JJ; Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82 at 91 per curiam; Campomar Sociedad Limitada v Nike International Ltd (2000) 202 CLR 45; [2000] HCA 12 at 85 (CLR) per curiam. (1982) 149 CLR 191 at 199. Campomar Sociedad Limitada v Nike International Ltd (2000) 202 CLR 45; [2000] HCA 12 at 85 (CLR) per curiam. In this case, the High Court of Australia distinguishes between cases where the conduct is directed towards a particular individual and where it is directed towards a class of persons. Most cases involving the overlap between misleading or deceptive conduct and defamation, or publication of false matter giving rise to potential liability for misleading or deceptive conduct, are likely to be directed towards the latter category. Campomar Sociedad Limitada v Nike International Ltd (2000) 202 CLR 45; [2000] HCA 12 at 85 (CLR) per curiam. Campomar Sociedad Limitada v Nike International Ltd (2000) 202 CLR 45; [2000] HCA 12 at 86 (CLR) per curiam. Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 199 per Gibbs CJ (what constitutes “reasonable care” will depend upon the circumstances of the case).

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-27 03:14:52.

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member of the class would have understood the publication to convey misleading or deceptive representations, recourse may be had to the principles of determining defamatory meaning to the ordinary, reasonable reader.108

Misleading or deceptive conduct for statements of fact and opinion [18.100] The publication of incorrect information can constitute misleading or deceptive conduct if the conduct conveys a misrepresentation. In this context, the meaning of the words published will be crucial.109 Liability for misleading or deceptive conduct is not limited to statements of fact. The expression of an opinion can also constitute misleading or deceptive conduct.110 However, if the opinion is genuinely held and there is a proper foundation for it, it will not attract liability for misleading or deceptive conduct.111

“In trade or commerce” [18.110] In order for liability to arise for misleading or deceptive conduct, the activities or transactions in question must bear a trading or commercial character.112 It is not sufficient that the activities or transactions are undertaken by an entity which engages in trading or commercial activities. The quality of the specific activities or transactions needs to be assessed. The communication of information can constitute conduct for the purposes of misleading or deceptive conduct.113 However, the communication need not be in relation to a commercial transaction in order to qualify as being in trade or commerce.114 In order to determine whether conduct is “in trade or commerce”, the whole of the conduct must be examined.115 For example, the making of a representation in a book, even an autobiography, can constitute conduct “in trade or commerce”.116 Securing interviews for a documentary, which was being made

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See, eg, Madden v Seafolly Pty Ltd (2014) 313 ALR 1; [2014] FCAFC 30 at 25-6 (ALR), [82] per Rares and Robertson JJ. As to the principles relating to the ascertainment of defamatory meaning by reference to the “ordinary reasonable reader”, see [6.80]. Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82 at 90. Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82 at 91; Orion Pet Products Pty Ltd v Royal Society for the Prevention of Cruelty to Animals (Vic) Inc (2002) 120 FCR 191; [2002] FCA 860 at 213 (FCR) per Weinberg J. Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82 at 88; Orion Pet Products Pty Ltd v Royal Society for the Prevention of Cruelty to Animals (Vic) Inc (2002) 120 FCR 191; [2002] FCA 860 at 213 (FCR) per Weinberg J. As to the defences of fair comment and honest opinion in defamation law, see Ch 13. Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 at 603-4 per Mason CJ, Deane, Dawson and Gaudron JJ. Advanced Hair Studios Pty Ltd v TVW Enterprises Ltd (1987) 18 FCR 1 at 13 per French J. Advanced Hair Studios Pty Ltd v TVW Enterprises Ltd (1987) 18 FCR 1 at 14 per French J. His Honour gives examples as to communications occurring in trade or commerce, such as a public statement on the benefits of a particular industry, intended to protect the interests of members of that industry, during the course of a political debate and a statement by a dissatisfied consumer to other prospective customers. By contrast, his Honour suggests that a statement on a commercial subject-matter may comment on trade or commerce without itself being in trade or commerce. Versace v Monte (2002) 119 FCR 349; [2002] FCA 190 at 378 (FCR) per Tamberlin J. Versace v Monte (2002) 119 FCR 349; [2002] FCA 190 at 378-80 (FCR) per Tamberlin J (website and article promotional activities for publication of book and private investigation business).

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-27 03:14:52.

[18.120]

Misleading or deceptive conduct

for profit, can also constitute conduct “in trade or commerce”.117 The making of statements about a fashion rival on a personal Facebook page, where the Facebook friends and followers were also in the fashion industry, has been held to constitute conduct “in trade or commerce”.118 By contrast, making statements in a radio broadcast, giving an interview to a newspaper journalist and publishing statements on a website in relation to the cruelty and effectiveness of electronic dog collars by officers of an animal rights organisation did not constitute conduct “in trade or commerce” because the conduct was in furtherance of the educational and political agenda of the organisation.119

Interaction of misleading or deceptive conduct and defamation

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[18.120] Defamation and misleading or deceptive conduct protect different interests. Defamation is concerned with the protection of reputation,120 whereas misleading or deceptive conduct is concerned with consumer protection.121 Defamation, then, is more directed towards the protection of private, personal interests, whereas misleading or deceptive conduct is more directed towards the protection of a broader public interest. This distinction, though, should not, given that a private individual or entity can always bring a claim for misleading or deceptive conduct against another private individual or entity. Misleading or deceptive conduct can be, and is not infrequently, used by trade rivals. In Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd,122 the Full Federal Court held that there was “no definable boundary” between misleading or deceptive conduct and defamation. Their Honours rejected the notion that the statutory provision creating this form of liability should be read down to exclude defamatory material, finding that this was insupportable, given the generality of the language used in the statutory provision.123 They also rejected the notion that the doctrine of freedom of speech or freedom of the press should be introduced to limit a defendant’s exposure to liability for misleading or deceptive conduct, reasoning that, although freedom of speech is of fundamental importance, there are many areas of law, at common law, in equity and under statute, where some restriction has been placed upon freedom of speech in order to protect competing interests. Their Honours concluded that “detailed rules have been evolved to deal with the liability in defamation of those who publish or republish such material or cause its publication. No comparable provisions are found in the Act.”124

117 118 119 120 121 122 123 124

Hearn v O’Rourke (2003) 129 FCR 64; [2003] FCAFC 78 at 67 (FCR) per Finn and Jacobson JJ. Madden v Seafolly Pty Ltd (2014) 313 ALR 1; [2014] FCAFC 30 at 28 (ALR) per Rares and Robertson JJ. Orion Pet Products Pty Ltd v Royal Society for the Prevention of Cruelty to Animals (Vic) Inc (2002) 120 FCR 191; [2002] FCA 860 at 222-3 (FCR) per Weinberg J. As to the protection of reputation as the central interest of defamation law, see [2.20]–[2.80]. Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216 at 220 per Barwick CJ. (1984) 2 FCR 82. Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82 at 86. Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82 at 86-7.

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-27 03:14:52.

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This decision predated the introduction of the “information provider” exemption, which provided a measure of effective protection for media outlets. Nevertheless, this approach still pertains. As Tamberlin J observed in Versace v Monte:125 This case does not call for a delineation of any boundary between the limits of consumer protection law and that body of law concerning defamation. Such a task would be fruitless because they are clearly capable of covering the same ground to some extent. The provisions of the TP Act and the FT Act must be given their natural and ordinary meaning. If provisions of that legislation overlap to some extent with the traditional area of defamation law, it is not appropriate to read down the legislation by reference to any inferential or implied constraint that there should not be any such overlap … It is therefore no defence to a claim under the TP or the FT Act to argue that the field is already covered by the law of defamation. There is no reason why the trade practices or fair trading legislation should be read down to “accommodate” this body of law.

Furthermore, in TCN Channel Nine Pty Ltd v Ilvariy Pty Ltd,126 Spigelman CJ rejected the suggestion, based on the coherence of the law, that the TPA s 52 should be read down so as not to extend to proceedings for damage to reputation, either in their entirety or to the extent that they were covered by defamation law. One advantage for a plaintiff that a claim in misleading or deceptive conduct has over a claim in defamation is that evidence is admissible in relation to whether conduct is misleading or deceptive, whereas evidence is not admissible as to defamatory meaning, where a plaintiff relies upon the natural and ordinary meaning of the words published.127 Another advantage is that a plaintiff in a claim for misleading or deceptive conduct merely has to prove that the conduct was misleading or deceptive, or had a tendency to mislead or deceive, whereas, in order for matter to be defamatory of the plaintiff, it needs not only to be false, but also, in most cases, to be disparaging of the plaintiff’s reputation.128

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Background to exemption for information providers [18.130] Shortly after the introduction of the TPA s 52, cases began to be brought, and liability for misleading or deceptive conduct was established against, media outlets for material they published or broadcast in the ordinary course of their business.129 As originally enacted, the TPA lacked any effective defences for media organisations in their news reporting activities. Although defences to defamation might be difficult to establish in practice, at least they existed and provided media outlets with an opportunity to avoid liability. The TPA s 52 imposed a new form of liability on media outlets without counterbalancing it with a meaningful defence. Some attempt was made 125 126 127

128 129

(2002) 119 FCR 349; [2002] FCA 190 at 364 (FCR). (2002) 71 NSWLR 323; [2008] NSWCA 9 at 338-41 (NSWLR). Nixon v Slater & Gordon (2000) Aust Torts Reports 81-565; [2000] FCA 531 at 63, 817 (Aust Torts Reports) per Merkel J. As to the inadmissibility of evidence as to defamatory meaning in defamation, see [6.100]. As to the requirement of disparagement as part of the tests for what is defamatory, see [6.230]. See, eg, Universal Telecasters (Qld) Ltd v Guthrie (1978) 18 ALR 531; Universal Telecasters (Qld) Ltd v Ainsworth Consolidated Industries Ltd (1983) 78 FLR 16; Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82.

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-27 03:14:52.

[18.140]

Misleading or deceptive conduct

initially to read down liability under the TPA s 52 in order to exclude defamatory matter or to incorporate defences to defamation into the application of the TPA s 52, but this was decisively rejected by the Full Federal Court in Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd.130 In response to the unintended and undesirable consequence of exposing media outlets to a more onerous and indefensible form of liability than defamation, the Commonwealth Parliament amended the TPA to introduce a statutory exemption for “prescribed information providers”. The defence has sometimes been described as a “media safe harbour” defence.131 Equivalent provisions were introduced into the State and Territory fair trading legislation.132 These provisions have now been repealed. The current legislation conferring an exemption on information providers is now found under the ACL s 19.

Requirements for exemption for information providers [18.140] The predecessor provisions, the TPA s 65A and its State and Territory

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analogues, were drafted in an extraordinarily complex way.133 The current provision is drafted in more straightforward terms. It provides an exemption from liability for misleading or deceptive conduct for information providers making publications in the course of conducting a business of providing information.134 The exemption also extends specifically to publication by way of radio or television broadcast.135 An “information provider” is broadly defined as a person who carries on a business of providing information.136 It is further, but non-exhaustively defined, to include the holders of licences and the providers of broadcasting services under licences conferred or continued by the Broadcasting Services Act 1992 (Cth), as well as the Australian Broadcasting Corporation and the Special Broadcasting Service.137 The exemption under the ACL is not absolute. There are exceptions to it. For instance, it does not apply to the publication of an advertisement.138 It also does not apply where the publication is in connection with the supply or possible supply, or the promotion of the supply or use, of goods or services if those goods or services were of a kind supplied by the information provider itself or any related body corporate.139 Similarly, it does not apply where the publication is in relation to interests in land of a kind sold or granted by the 130 131 132

133

134 135 136 137 138 139

(1984) 2 FCR 82. Bond v Barry (2008) 173 FCR 106; [2008] FCAFC 115 at 110 (FCR) per curiam. Fair Trading Act 1992 (ACT) s 31; Consumer Affairs and Fair Trading Act 1990 (NT) s 60; Fair Trading Act 1987 (NSW) s 60; Fair Trading Act 1989 (Qld) s 51; Fair Trading Act 1987 (SA) s 74; Fair Trading Act 1990 (Tas) s 28; Fair Trading Act 1999 (Vic) s 32; Fair Trading Act 1987 (WA) s 63. All these provisions have now been repealed. Sun Earth Homes Pty Ltd v Australian Broadcasting Corporation (1991) ATPR 41-067 at 52,031 per Burchett J; Australian Competition and Consumer Commission v Channel Seven Brisbane Pty Ltd (2009) 239 CLR 305; [2009] HCA 19 at 323, 325-7 (CLR) per Gummow J, at 330 per Hayne J. ACL s 19(1)(a). ACL s 19(1)(b). ACL s 19(5). ACL s 19(6). ACL s 19(2). ACL s 19(3)(a).

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information provider itself or any related body corporate.140 It also does not apply to a publication made on behalf of, or pursuant to a contract, arrangement or understanding with a person or a related body corporate who supplies the goods or services, or sells or grants interests in land of the same kind as the publicised goods, services or interests in land.141 An understanding or an arrangement connotes reciprocity, even if not legal enforceability, but needs to be more than an expectation that the parties will act in accordance with its terms.142 The “information provider” exemption is particularly directed towards providing protection for media outlets, but it is not limited to them.143 Any person or entity in the business of providing information can seek to rely upon it. The “information provider” exemption has been successfully relied upon on a number of occasions by media outlets when sued for misleading or deceptive conduct.144 The rationale for the exemption and its limits is usefully expounded in the joint judgment of French CJ and Kiefel J in Australian Competition and Consumer Commission v Channel Seven Brisbane Pty Ltd:145

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The purpose of the exemption in s 65A … was to maintain a vigorous free press as well as to maintain an effective and enforceable TPA. That purpose is served by releasing newspapers and electronic media proprietors, inter alia, from undesirable inhibitions on the provision, by them, of news, information, opinion and comment. Consistently with that purpose information providers are free as part of the function of an independent free press to praise or criticise the providers of goods and services and the quality of what they provide. Where, however, the information provider publishes matter in connection with goods or services which it itself provides, or publishes an advertisement for its own or someone else’s goods or services, the rationale of maintaining a free and rigorous press does not require its exemption from the prohibition of misleading or deceptive conduct. The same is true where the information provider promotes the goods or services of a third party pursuant to a contract, arrangement or understanding with that party. It would be true also of publications critical of goods or services provided by competitors of the information provider or of a third party with whom the information provider has a contract, arrangement or undertaking.

Notwithstanding the difference in wording of the two statutory provisions, the rationale behind the “information provider” exemption identified by their Honours remains relevant to the current provision.

Remedies for misleading or deceptive conduct [18.150] One advantage a claim for misleading or deceptive conduct has over a claim for defamation from the plaintiff’s perspective is that the former claim 140 141 142 143 144

145

ACL 19(4)(a). ACL ss 19(3)(b), (c), 19(4)(b), (c). Australian Competition and Consumer Commission v Channel Seven Brisbane Pty Ltd (2009) 239 CLR 305; [2009] HCA 19 at 322 (CLR) per French CJ and Kiefel J. Versace v Monte (2002) 119 FCR 349; [2002] FCA 190 at 384 (FCR) per Tamberlin J. See, eg, Sun Earth Homes Pty Ltd v Australian Broadcasting Corporation (1993) 45 FCR 265 at 282 per Wilcox J (television program on consumer affairs); Bond v Barry (2008) 173 FCR 106; [2008] FCAFC 115 at 116 (FCR) per curiam (freelance journalist’s newspaper article on corporation’s affairs). For unsuccessful attempts to rely on the “information provider” exemption, see TCN Channel Nine Pty Ltd v Ilvariy Pty Ltd (2008) 71 NSWLR 323; [2008] NSWCA 9 at 335 (NSWLR) per Spigelman CJ (statements made in tabloid current affairs investigation into “shonky builder”). (2009) 239 CLR 305; [2009] HCA 19 at 320 (CLR).

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[18.160]

Negligent misstatement

has a wider range of remedies available, in the event that the plaintiff succeeds. The principal remedy for defamation remains an award of damages,146 with injunctive relief being comparatively rare.147 Beyond these remedies, there are no enforceable, alternative remedies, such as apologies, corrections or retractions. Under the ACL, a court may award damages,148 grant an injunction149 or make a compensation order150 in a claim for misleading or deceptive conduct. A court may also make non-punitive orders, such as community service, the introduction of a compliance or an education and training program, the revision of internal operations at the business, a disclosure order or the publication of an advertisement, upon application by the Australian Competition and Consumer Commission or the relevant State or Territory regulator.151 In making an award of damages for misleading or deceptive conduct, a court may, in appropriate circumstances, award damages for harm to a plaintiff’s reputation.152

Negligent misstatement Introduction

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[18.160] The publication of defamatory material may cause a plaintiff harm other than damage to reputation. It may cause economic loss or even psychiatric harm. It is always open to a plaintiff to plead and prove actual pecuniary loss flowing from a defamatory publication.153 Similarly, a plaintiff could seek to recover damages for psychiatric harm under damages for injury to health.154 However, defamation is not the only tort which can provide compensation for economic loss and psychiatric injury. The law of negligence has imposed liability on defendants for causing these types of harms.155 A difficult issue of principle has arisen as to how liability for defamation and negligence interact in cases involving the publication of false matter. Amongst Commonwealth countries, different approaches to the issue have been adopted. The divergence turns fundamentally upon the function of a cause of action in negligence: whether it should provide a remedy when a gap is left in the law or whether it should reflect and respect the balancing of rights and interests undertaken by other areas of law which already regulate the conduct in question. Under Australian and New Zealand law, the publication of false and 146 147 148 149 150 151 152 153 154 155

As to damages for defamation, see Ch 15. As to injunctions for defamation, see Ch 16. ACL s 236. ACL s 232. ACL s 237. ACL s 246. See, eg, Madden v Seafolly Pty Ltd (2014) 313 ALR 1; [2014] FCAFC 30 at 29-31 (ALR) per Rares and Robertson JJ. As to damages for economic loss in defamation, see [15.150]. See [15.90]. The leading High Court authorities on “nervous shock” or recognised psychiatric harm are Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35; Wicks v State Rail Authority of New South Wales (2010) 241 CLR 60; [2010] HCA 22. The leading High Court authorities on pure economic loss are Perre v Apand Pty Ltd (1999) 198 CLR 180; Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515; [2004] HCA 16; Barclay v Penberthy (2012) 246 CLR 258; [2012] HCA 40; Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 (2014) 313 ALR 408; 88 ALJR 911; [2014] HCA 36.

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381

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[18.160]

disparaging matter can only be the subject of a claim in defamation. By contrast, under English and Canadian law, the position is that a claim in relation to such matter can be framed either in defamation or in negligence.

Negligent misstatement causing economic loss or psychiatric harm

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[18.170] The elements of a cause of action for negligence are well established and well known. In order to sue for negligence, a plaintiff needs to establish that the defendant owed a duty of care, which the defendant breached by failing to act with the requisite standard of care, thereby causing the plaintiff reasonably foreseeable damage.156 The case law relating to whether a defendant can be held liable in negligence for the publication of false and disparaging matter has principally addressed the threshold question of law, namely whether the defendant owed the plaintiff a duty of care. The issue of the duty of care is important because, in relation to claims for negligent misstatement, it is still true to state that a defendant does not owe a general duty of care not to inflict pure economic loss on a plaintiff under Australian law.157 Claims for negligent misstatement also raise particular concerns about indeterminacy of liability. They may expose defendants “to a liability in an indeterminate amount for an indeterminate time to an indeterminate class”.158 In relation to claims for pure psychiatric harm, the common law has been rationalised, with the removal of artificial control mechanisms limiting liability, but is still developing incrementally and, in some Australian jurisdictions, is complicated by the overlay of statute.159 For a number of reasons then, the imposition of a duty of care in negligence in relation to the publication of false and disparaging matter is novel. In Spring v Guardian Assurance plc,160 the House of Lords found that a person who was the subject of an adverse reference from a former employer, which prevented him from continuing to earn a livelihood in his chosen industry, was owed a duty of care in negligence in respect of that reference for the economic loss he suffered. This was notwithstanding the fact that his claim for defamation in respect of the reference failed because he had been unable to defeat the common law defence of qualified privilege by establishing that his former employer had been actuated by malice.161 This approach was followed by Harper J in Wade v Victoria162 based on a set of facts similar to those in Spring v Guardian Assurance. However, the correctness of this decision should be questioned in light of subsequent cases and subsequent developments in the law of negligence. 156 157 158 159

160 161 162

Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35 at 348-9 (CLR) per McHugh J. Perre v Apand (1999) 198 CLR 180 at 208-9 per McHugh J. Ultramares Corporation v Touche 174 NE 441 (1932) per Cardozo J. As to the position at common law, see Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35 at 493-5 per Gummow and Kirby JJ (CLR). As to the relevant legislation across Australia, see Civil Law (Wrongs) Act 2002 (ACT) Pt 3.2; Civil Liability Act 2002 (NSW) Pt 3; Civil Liability Act 1936 (SA) ss 3, 33, 53; Civil Liability Act 2002 (Tas) Pt 8; Wrongs Act 1958 (Vic) Pt XI; Civil Liability Act 2002 (WA) Pt 1B. [1995] 2 AC 296. Spring v Guardian Assurance plc [1995] 2 AC 296 at 324 per Lord Goff of Chieveley, at 325-7 per Lord Lowry, at 334-7 per Lord Slynn of Hadley, at 345, 350-1 per Lord Woolf. [1999] 1 VR 121 at 128-30.

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[18.170]

Negligent misstatement

Apart from this authority, the House of Lords’ decision in Spring v Guardian Assurance has had a decidedly mixed reception in Australia. In Sattin v Nationwide News Pty Ltd,163 Levine J held that a cause of action in negligence was not available under Australian law in respect of a publication in a mass media outlet. In doing so, his Honour refused to follow Spring v Guardian Assurance.164 However, he held that, if the plaintiff had suffered personal injuries as a result of the publication of defamatory matter, she could plead these as part of her claim for damages in her defamation claim.165 Subsequently, Levine J refined his position in GS v News Ltd.166 In that case, his Honour found that a plaintiff could plead a cause of action in negligence against a mass media outlet in respect of the publication of true matter because, in such circumstances, a claim in defamation would ordinarily be unavailable. He distinguished Sattin v Nationwide News on the basis that it related to the publication of false matter.167 In Doe v Australian Broadcasting Corporation,168 Hampel J of the County Court of Victoria found that the national broadcaster breached the duty of care it owed to the plaintiff by publishing material which identified her in contravention of a statutory prohibition. The plaintiff had been raped by her husband and, as the victim of a sexual offence which was the subject of a prosecution, was not allowed to be identified under the Judicial Proceedings Act 1958 (Vic) s 4(1A). Hampel J found that the ABC owed the plaintiff a duty of care not to inflict psychiatric injury through its negligent publication,169 that it had breached its duty and that there was a causal connection between the ABC’s broadcasts and the exacerbation of the plaintiff’s post-traumatic stress disorder.170 The plaintiff’s award of damages in this case appears, then, to be the first case in which a broadcaster was found liable to the subject of the broadcast in negligence under Australian law. The correctness of this decision is open to doubt in light of relevant High Court dicta, which were considered but distinguished in the case. As in GS v News Ltd, no cause of action in defamation was pleaded because the plaintiff was truly identified. Whether a differential approach to the availability of a cause of action in negligence against a publisher should be adopted, depending upon whether the matter is alleged to be true or false, raises difficult issues in practice and in principle. The status of Spring v Guardian Assurance under Australian law now falls to be determined by the considered dicta of the High Court of Australia in two cases, Sullivan v Moody171 and Tame v New South Wales.172 In Sullivan v Moody, the joint judgment of the High Court emphasised the need to consider the coherence of the law when determining whether a novel duty of care in negligence should be imposed.173 If the imposition of a duty of care would subvert the balancing of interests already undertaken by the legislature in creating a statutory provision, or by courts in developing common law or 163 164 165 166 167 168 169 170 171 172 173

(1996) 39 NSWLR 32 at 43-4. Sattin v Nationwide News Pty Ltd (1996) 39 NSWLR 32 at 37-42. Sattin v Nationwide News Pty Ltd (1996) 39 NSWLR 32 at 45. (1998) Aust Torts Reports 81-466. GS v News Ltd (1998) Aust Torts Reports 81-466 at 64,911-2. [2007] VCC 281. Doe v Australian Broadcasting Corporation [2007] VCC 281 at [100]. Doe v Australian Broadcasting Corporation [2007] VCC 281 at [167]-[171]. (2001) 207 CLR 562; [2001] HCA 59. (2002) 211 CLR 317; [2002] HCA 35. Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59 at 579-81 (CLR) per curiam.

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-27 03:14:52.

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equitable doctrines and principles over centuries, this was a powerful reason not to impose such a duty.174 In separate judgments in Tame v New South Wales, various judges of the High Court returned to this point.175 In particular, the defence of qualified privilege, which was the most relevant one on the facts in Spring v Guardian Assurance and Sullivan v Moody, provides a complete defence to defamation unless the defendant was actuated by malice or improper motive. There is no requirement that a defendant in a defamation claim take reasonable care in order to establish a defence of qualified privilege.176 The effect of the dicta in Sullivan v Moody and Tame v New South Wales is that a duty of care in negligence will not be imposed in respect of false and disparaging statements where the law of defamation already provides a complete answer to a claim for liability. The issue of the availability of a cause of action in negligence in addition to a cause of action in defamation arising out of the publication of false matter is one which has divided the Commonwealth. Canadian law has followed the English approach, allowing concurrent causes of action in negligence and defamation.177 What should be noted about both the ultimate appellate consideration of this issue in the United Kingdom and in Canada is that the publication in dispute was made by a defendant with a pre-existing relationship with the plaintiff. In Spring v Guardian Assurance plc, the relationship was one of employer and employee, as well as company and company representative; in Young v Bella,178 the relationship was one of professor and student. Although the element of proximity is no longer treated as a test for whether a novel duty of care should be imposed under Australian law,179 the presence of such a relationship in these cases is a distinctive feature of them. Given legitimate concerns about indeterminacy of liability flowing from the imposition of a duty of care in negligence on publishers, particularly where those publishers are communicating to the world at large, Australian courts, confronted with such a novel claim, may properly take the view that the actual position under the law of negligence in the United Kingdom and Canada is in fact quite narrow. By contrast, New Zealand law is emphatically against allowing such concurrent pleading.180 In Bell-Booth Group Ltd v AttorneyGeneral,181 Cooke P stated that a significant reason for this position was that defamation law had developed over centuries and had struck a well-settled 174 175 176 177 178 179 180

181

Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59 at 579-81 (CLR) per curiam. (2002) 211 CLR 317; [2002] HCA 35 at 335 (CLR) per Gleeson CJ, at 342 per Gaudron J, at 361 per McHugh J. As to the defence of qualified privilege, see Ch 11. Young v Bella (2006) 261 DLR (4th) 516 at 535-6. (2006) 261 DLR (4th) 516. Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59 at 578-9 (CLR) per curiam. Bell-Booth Group Ltd v Attorney-General [1989] 2 NZLR 148 at 156 per Cooke P, citing Foaminol principle: “the law as to injury to reputation and freedom of speech is a field of its own. To impose the law of negligence upon it by accepting that there may be common law duties of care not to publish the truth would be to introduce a distorting element”; Balfour v Attorney-General [1991] 1 NZLR 519 at 529 per Hardie Boys J: “Any attempt to merge defamation is to be resisted … An inability in a particular case to bring it within the criteria of a defamation suit is not to be made good by the formulation of a duty of care not to defame”; South Pacific Manufacturing Co Ltd v New Zealand Security Consultants & Investigations Ltd [1992] 2 NZLR 282 at 302 per Cooke P: “The suggested cause of action in negligence would therefore impose a greater restriction on freedom of speech than exists under the law worked out over many years to cover freedom of speech and its limitations. By a side wind the law of defamation would be overthrown.” [1989] 2 NZLR 148.

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[18.170]

Negligent misstatement

balance between the protection of reputation and freedom of speech, particularly manifested in the defences to defamation. The introduction of the law of negligence would upset this balance. To the extent that defamation law imposed a duty upon publishers, it was “a duty not to defame without justification or privilege or otherwise than by way of fair comment”. It did not extend, or should not extend, to a more onerous duty to take reasonable care not to injure the plaintiff’s reputation.182 In Balfour v Attorney-General,183 Hardie Boys J affirmed that defamation and negligence were distinct areas of law, in each of which principles had been developed to strike a balance between competing interests. His Honour suggested that “[a]n inability in a particular case to bring it within the criteria of a defamation suit is not made good by the formulation of a duty of care not to defame.”184 This reflects the position under Australian law – that the role of the law of negligence is to cohere with the balancing of interests undertaken by existing causes of action, rather than supplementing the other causes of action by providing a remedy for real or perceived gaps in the legal protection afforded by them. In Fleming v Securities Commission,185 Cooke P (as his Lordship then was) stated that concerns about indeterminacy of liability and a fear of opening the floodgates to claims were the central reasons a duty of care in negligence was not imposed upon media defendants. His Honour implied that freedom of speech and freedom of the press were relevant considerations, with the effect that it was not appropriate to seek to impose a duty of care in negligence on publishers. Richardson J explicitly stated that the inhibition of the free flow of information and the adverse impact on media outlets’ commercial viability, with the adverse consequences which would result for the wider public, were important policy considerations militating against the imposition of such a duty.186 As Cooke P observed:

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[I]n an ideal world the press might perhaps be expected to have a legal obligation to take reasonable care that what is published to its readers is accurate and lawful. But we do not live in Utopia. I accept that in practice such a rule would cripple the media.187

Even if a cause of action were to be recognised, there may be difficulties, from the perspective of negligence, with articulating the relevant duty of care.188 There may also be difficulties in fashioning the appropriate standard of care.189 Finally, there may be difficulties proving a causal connection between a media publication and the damage sustained by the plaintiff.190 It seems clear then, whatever the position may be in other parts of the Commonwealth, that defamation and negligence are mutually exclusive causes of action under Australian and New Zealand law. 182 183 184 185 186 187 188 189 190

Bell-Booth Group Ltd v Attorney-General [1989] 2 NZLR 148 at 156 per Cooke P. [1991] 1 NZLR 519. Balfour v Attorney-General [1991] 1 NZLR 519 at 529. [1995] 2 NZLR 514 at 520; see also at 533 per Richardson J, at 534-5 per Casey J. Fleming v Securities Commission [1995] 2 NZLR 514 at 533 per Richardson J. Fleming v Securities Commission [1995] 2 NZLR 514 at 520. Balfour v Attorney-General [1991] 1 NZLR 519 at 529 per Hardie Boys J. Bell-Booth Group Ltd v Attorney-General [1989] 3 NZLR 148 at 156-7 per Cooke P; Sattin v Nationwide News Pty Ltd (1996) 39 NSWLR 32 at 44 per Levine J. Bell-Booth Group Ltd v Attorney-General [1989] 3 NZLR 148 at 156-7 per Cooke P; Balfour v Attorney-General [1991] 1 NZLR 519 at 525-7 per Hardie Boys J; Fleming v Securities Commission [1995] 2 NZLR 514 at 525 per Cooke P.

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Racial discrimination [18.180] The focus of defamation law is highly individualistic. It confers a high level of protection on an individual’s reputation. To the extent that it addresses “group defamation”, it does so for the purpose of protecting individual reputations as members of a group.191 Defamation law may not provide an adequate remedy for “group defamation”, properly so called. Yet, for many people, it is not only their individual reputation which is important to them, but also collective aspects of their identity. Aspersions against collective aspects of identity, such as race, ethnicity, religion or sexual orientation, can be just as damaging or, in some instances or for some people, even more so than attacks on their individual reputations. It is always open to the legislature to create new forms of protection for collective aspects of identity. The Racial Discrimination Act 1975 (Cth) s 18C is an example of such a protection. This section makes it unlawful to do an act in public which is reasonably likely to offend, insult, humiliate or intimidate another person or group of people because of the race, colour or national or ethnic origin of the other person, or some or all of the group of people.192 The most high-profile consideration of this section thus far has been Bromberg J’s decision in Eatock v Bolt.193 In his judgment, his Honour explicitly stated that not only was dignity protected by the Racial Discrimination Act 1975 (Cth) s 18C, but also reputation as dignity.194 In doing so, he explicitly drew upon the influential work of Robert Post on the concept of reputation in defamation law.195 In the course of his judgment, Bromberg J stated:

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The protection of reputation through defamation law and the protection sought to be provided by s 18C are both infused with the need to protect social standing and public esteem … Just as an adherence to the value of truth protects reputation, so too will it serve to protect the values which s 18C seeks to foster.196

It should be noted that Post’s account of reputation in defamation law extends beyond reputation as dignity. Caution is required in introducing defamation theory into the interpretation and application of a statutory cause of action, which is not concerned in terms with protecting reputation. The decision in Eatock v Bolt was controversial for a range of reasons, including for its real or perceived highlighting of the encroachment of the Racial Discrimination Act 1975 (Cth) s 18C on freedom of speech. Defamation law, of course, encroaches upon freedom of speech and has for several centuries. Bromberg J anticipated the criticisms to be made of his decision, observing towards the end of his judgment that: [t]he intrusion upon freedom of expression [in this case] is of no greater magnitude than that which would have been imposed by the law of defamation if the conduct in question and its impact upon the reputations of many of the identified individuals had been tested against its compliance with that law.197 191 192

As to “group defamation”, see [7.80]–[7.90]. Racial Discrimination Act 1975 (Cth) s 18C(1).

193 194 195 196 197

(2011) 197 FCR 261; [2001] FCA 1103. Eatock v Bolt (2011) 197 FCR 261; [2011] FCA 1103 at 313-4 (FCR) per Bromberg J. As to Post’s contribution to the understanding of reputation in defamation law, see [2.50]. Eatock v Bolt (2011) 197 FCR 261; [2011] FCA 1103 at 350 (FCR) per Bromberg J. Eatock v Bolt (2011) 197 FCR 261; [2011] FCA 1103 at 358 (FCR).

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[18.190]

False imprisonment

The Racial Discrimination Act 1975 (Cth) s 18C arguably encroaches upon freedom of speech more than the tort of defamation to the extent that the former imposes liability for conduct which is offensive or insulting. Mere offence or insult, in the absence of disparagement of reputation, has never been sufficient at common law to constitute defamation.198 In most cases where liability has been established under the Racial Discrimination Act 1975 (Cth) s 18C, though, the conduct in question has not merely been offensive or insulting but has also been found to be humiliating and intimidating. It should be noted, however, that complainants in Eatock v Bolt could have sued for defamation and, given the findings made by Bromberg J about the respondents’ conduct, would have had a strong prospect of success in that cause of action.

False imprisonment [18.190] A tort that has long been recognised as having a significant

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reputational aspect is false imprisonment. False imprisonment occurs where the defendant completely deprives the plaintiff of his or her liberty without lawful excuse.199 Whilst the plaintiff’s liberty is the principal interest protected by the tort of false imprisonment, this cause of action also protects the plaintiff’s reputation. The nature of the tort and the manner in which it is commonly committed mean that the interference with the plaintiff’s liberty carries with it injury to the plaintiff’s dignity and reputation.200 As such, reputational damage can be taken into account when assessing damages or “any attended loss of social status” for false imprisonment.201 The damage to the plaintiff’s reputation may be dealt with by an award of ordinary compensatory damages in a claim for false imprisonment.202 In an appropriate case, where the defendant’s conduct was improper, unjustifiable or lacking in bona fides, he or she may be ordered to pay aggravated damages, particularly to serve “as a vindication of the reputation of the plaintiff in an action for false imprisonment, to make clear that there was no stain of any kind on the character of the plaintiff”.203 As Lawrence LJ stated in Walter v Alltools Ltd:204 198 199

200

201

202 203 204

See [2.20]. Bird v Jones (1845) 7 QB 742; 115 ER 668 at 672 (ER) per Patteson J; Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379 at 389 per O’Connor J; Herd v Weardale Steel, Coal and Coke Co Ltd [1915] AC 67 at 71 per Viscount Haldane LC; Myer Stores Ltd v Soo [1991] 2 VR 597 at 611 per O’Bryan J; McDonald v Coles Myer Ltd (1995) Aust Torts Reports 81-361 at 62,689-90 per Powell JA; South Australia v Lampard-Trevorrow (2010) 106 SASR 331; [2010] SASC 56 at 391-2 (SASR) per curiam. Walter v Alltools Ltd (1944) 61 TLR 39 at 40 per Lawrence LJ; Goldie v Commonwealth (No 2) (2004) 81 ALD 422; [2004] FCA 156 at 428-9 (ALD) per French J; see also Broome v Cassell & Co Ltd [1972] AC 1027 at 1125 per Lord Diplock, wherein his Lordship recognised reputational harm as an element of false imprisonment, amongst other torts, for which a successful plaintiff may be compensated. McDonald v Coles Myer Ltd (1995) Aust Torts Reports 81-361 at 62,690 per Powell JA; see also Watson v Marshall (1961) 124 CLR 621 at 632 per Walsh J, aff’d Marshall v Watson (1972) 124 CLR 621; Myer Stores Ltd v Soo [1991] 2 VR 597 at 602-3 per Murphy J; Houda v New South Wales (2005) Aust Torts Reports 81-816; [2005] NSWSC 1053 at 68,050-1, 68,061-2 (Aust Torts Reports) per Cooper AJ; Hook v Cunard Steamship Co [1953] 1 WLR 682 at 686 per Slade J. McDonald v Coles Myer Ltd (1995) Aust Torts Reports 81-361 at 62,690 per Powell JA. Myer Stores Ltd v Soo [1991] 2 VR 597 at 602 per Murphy J; see also McDonald v Coles Myer Ltd (1995) Aust Torts Reports 81-361 at 62,690 per Powell JA. (1944) 61 TLR 39.

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-27 03:14:52.

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The general principle, in my view, is that any evidence which tends to aggravate or mitigate the damage to a man’s reputation which flows naturally from his imprisonment must be admissible up to the moment when damages are assessed. A false imprisonment does not merely affect a man’s liberty; it also affects his reputation. The damage continues until it is caused to cease by an avowal that the imprisonment was false.205

In Myer Stores Ltd v Soo,206 McDonald J suggested that “[t]he tort of false imprisonment is a tort by its nature that gives rise to aggravated damages.”

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Privacy and breach of confidence [18.200] Reputation and privacy are different aspects of an individual’s persona, reputation being broadly the public self and privacy self-evidently protecting the private self.207 Human rights instruments tend to protect reputation and privacy holistically, as complementary aspects of the individual’s dignity.208 However, as the common law developed, whilst it protected reputation highly, it did not protect privacy directly at all. The extent to which defamation law previously protected privacy indirectly was limited. Arguably, it has decreased. Prior to the introduction of the national, uniform defamation laws, the proof of substantial truth alone was insufficient to establish a defence of justification in four Australian jurisdictions. In those jurisdictions, a defendant also needed to prove an additional element of public interest or public benefit.209 This may have provided an indirect protection of privacy. However, now, under the national, uniform defamation laws, proof of substantial truth alone is a complete defence to defamation, with no additional requirement of public interest or public benefit.210 The consequence is that the indirect protection of privacy through defamation law has diminished.211 Public interest is an element of both the common law defence of fair comment and the statutory defences of honest opinion, meaning a defendant cannot gratuitously comment on a plaintiff’s private life.212 Nevertheless, viewing defamation law as a whole, it is accurate to state that defamation law does not indirectly protect privacy effectively. This is unsurprising, given that its focus is the protection of reputation, rather than privacy. For many decades, the High Court of Australia’s decision in Victoria Park Racing & Recreation Grounds Co Ltd v Taylor213 was cited as authority for

205 206 207 208 209 210 211 212

213

Walter v Alltools Ltd (1944) 61 TLR 39 at 40; see also McDonald v Coles Myer Ltd (1995) Aust Torts Reports 81-361 at 62,387 per Clarke JA. [1991] 2 VR 597 at 633. As to the concept of reputation, see [2.20]–[2.80]. As to the treatment of reputation under international human rights instruments, see [2.70]. As to the requirement of public interest or public benefit as an element of the defence of justification, see [9.50]–[9.60]. As to the requirements of the defence of justification under the national, uniform defamation laws, see [9.30]. See generally, D Rolph, “Preparing for a Full-Scale Invasion? Truth, Privacy and Defamation” (2007) 25(3/4) Communications Law Bulletin 5. As to the requirement of public interest for the common law defence of fair comment, see [13.70]. As to the requirement of public interest for the statutory defences of honest opinion, see [13.110]. (1937) 58 CLR 479.

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[18.200]

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the proposition that there was no right to privacy at common law.214 The case involved a claim for injunctive relief brought by a racecourse operator against a nearby property owner, a radio station and a radio announcer. The property owner had entered into an arrangement with the radio station whereby the radio station constructed a tower on the property, fitted with a telephone line. The radio announcer was able to climb the tower and provide commentary of the races via the telephone line, which was then broadcast to the radio station’s audience. The audience was able to listen to the race calls and was therefore discouraged from attending the racecourse itself.215 By majority, the High Court of Australia found that the racecourse operator was not entitled to an injunction. In his judgment, Latham CJ stated: Any person is entitled to look over the plaintiff’s fences and to see what goes on in the plaintiff’s land. If the plaintiff desires to prevent this, the plaintiff can erect a higher fence … In my opinion, the law cannot by an injunction in effect erect fences which the plaintiff is not prepared to provide. The defendant does no wrong by looking at what takes place on the plaintiff’s land. Further, he does no wrong to the plaintiff by describing to other persons, to as wide an audience as he can obtain, what takes place on the plaintiff’s ground. The court has not been referred to any principle of law which prevents any man from describing anything which he sees anywhere if he does not make defamatory statements, infringe the law as to offensive language, etc, break a contract, or wrongfully reveal confidential information.216

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Latham CJ rejected the submission that there was a general right to privacy.217 In his judgment, Dixon J found that: English law is, rightly or wrongly, clear that the natural rights of an occupier do not include freedom from the view and inspection of neighbouring occupiers or of other persons who enable themselves to overlook the premises. An occupier of land is at liberty to exclude his neighbour’s view by any physical means he can adopt. But while it is no wrongful act on his part to block the prospect from adjacent land, it is no wrongful act on his part to block the prospect from the adjacent land. Not only is it lawful on the part of those occupying premises in the vicinity to overlook the land from any natural vantage point, but artificial erections may be made which destroy the privacy existing under natural conditions.218

His Honour held that freedom from view or inspection was not a legally protected interest.219 214

215 216 217

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219

See, eg, Cruise v Southdown Press Pty Ltd (1993) 26 IPR 125 at 125 per Gray J; Australian Consolidated Press Ltd v Ettingshausen (unreported, NSW CA, Gleeson CJ, Kirby P and Clarke JA, 13 October 1993) at pp 26-7 per Kirby P; GS v News Ltd (1998) Aust Torts Reports 81-466 at 64,913-5 per Levine J. As to the facts of the case, see Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479 at 498-500 per Rich J, at 512-3 per Evatt J. Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479 at 494. Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479 at 495-6, citing Chandler v Thompson (1811) 3 Camp 80; 170 ER 1312; Turner v Spooner (1861) 30 LJ Ch 801 at 803; Tapling v Jones (1865) 1 LHC 290, 305, 311; 11 ER 1344, 1350, 1352, 1353. Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479 at 507, also citing Johnson v Wyatt (1863) 2 De GJ & S 18; 46 ER 281 at 27 (De GJ & S), at 284 (ER) per Turner LJ. Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479 at 408 per Dixon J; see also at 523 per McTiernan J.

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-28 03:39:02.

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Even Evatt J in dissent accepted the proposition that “the law of England does not recognize any general right to privacy”. However, his Honour did not accept that the instant case involved a mere right to privacy. He also did not accept that the consequence of accepting that there was no general right to privacy was that every interference with privacy was lawful.220 Presciently, in his dissenting judgment, Rich J suggested that then nascent technological developments would compel courts in the future to review their approach to privacy, stating that:

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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.221

The High Court of Australia revisited the issue of privacy and the proper interpretation of Victoria Park Racing v Taylor in its more recent decision in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd.222 In their joint judgment, Gummow and Hayne JJ, with whom Gaudron J agreed, stated that Victoria Park Racing & Recreation Grounds Co Ltd v Taylor, properly understood, did not stand in the way of Australian law recognising a right to privacy in some form. Their Honours noted that the cause of action in that case was private nuisance.223 Paradoxically, then, the tort of private nuisance does not protect privacy, but that does not mean that Australian law cannot otherwise protect privacy. Gleeson CJ observed that “[t]he law should be more astute than in the past to identify and protect interests of a kind which fall within the concept of privacy”.224 Thus, the issue becomes how such protection should be effected and for whose benefit such protection should be conferred. Gleeson CJ expressed a preference for protecting privacy through the existing equitable cause of action for breach of confidence.225 An alternative would be to recognise a new, freestanding tort of invasion of privacy. Whether the courts could or should develop such a tort, or whether it is properly a matter for the legislature, is a further, difficult issue of policy and principle which would need to be addressed if Australian law were to protect privacy directly and comprehensively. The issue of the beneficiaries of any such privacy protection was also addressed in Australian Broadcasting Corporation v Lenah Game Meats. If Australian law is to develop some form of direct privacy protection, it will be for the benefit of natural persons, not corporations. Privacy warrants

220 221

222 223

224 225

Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479 at 517. Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479 at 505. Television technology had been developed by John Logie Baird in 1926 and the British Broadcasting Corporation began transmitting television in 1936. (2001) 208 CLR 199; [2001] HCA 63. Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63 at 248-9 (CLR). See Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479 at 492 per Latham CJ, at 506 per Dixon J. On appeal, the racecourse owner attempted to rely upon a claim for copyright infringement: see (1937) 58 CLR 479 at 510-11 per Dixon J. Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63 at 225 (CLR). Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63 at 225 (CLR).

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-28 03:39:02.

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legal protection because it is part of the innate dignity of the individual. As such, corporations, like Lenah Game Meats Pty Ltd, should not be recognised as having a right to privacy.226 The complexity of the issues for determination in Australian Broadcasting Corporation v Lenah Game Meats has meant that significantly different interpretations have been placed upon the reasoning in this case. Inferior courts in Australia have interpreted Australian Broadcasting Corporation v Lenah Game Meats as recognising a tort of invasion of privacy as part of Australian law.227 In Grosse v Purvis,228 Skoien DCJ of the District Court of Queensland stated that it was “a bold step”, but also “a logical and desirable step”, to identify a tort of invasion of privacy. His Honour identified the elements of the cause of action as: (a) a willed act by the defendant, (b) which intrudes upon the privacy or seclusion of the plaintiff, (c) in a manner which would be considered highly offensive to a reasonable person of ordinary sensibilities, (d) and 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 she is lawfully entitled to do.229

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His Honour also suggested that a defence of public interest should be available in an action for invasion of privacy, although, on the facts of the case, such a defence was not engaged.230 Skoien DCJ also found that compensatory, aggravated and exemplary damages should be available for such a tort.231 In Doe v Australian Broadcasting Corporation,232 Hampel J went further, imposing liability for a negligent act by the media defendant, being the naming of the victim of a sexual assault in contravention of the Judicial Proceedings Reports Act 1958 (Vic) s 4(1A).233 Her Honour identified this as taking “the next, incremental step” in the development of an Australian law of privacy.234 Superior courts have found no sanction in the judgments in Australian Broadcasting Corporation v Lenah Game Meats for such a development.235 The 226 227

228 229 230 231

232 233 234

235

Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63 at 226-7 (CLR) per Gleeson CJ. Grosse v Purvis (2003) Aust Torts Reports 81-706; [2003] QDC 151 at 64,184 (Aust Torts Reports) per Skoien DCJ; Doe v Australian Broadcasting Corporation [2007] VCC 281 at [157] per Hampel J; see also Doe v Yahoo! 7 Pty Ltd [2013] QDC 181. (2003) Aust Torts Reports 81-706; [2003] QDC 151. Grosse v Purvis (2003) Aust Torts Reports 81-706; [2003] QDC 151 at 64,187 (Aust Torts Reports). Grosse v Purvis (2003) Aust Torts Reports 81-706; [2003] QDC 151 at 64,187 (Aust Torts Reports). Grosse v Purvis (2003) Aust Torts Reports 81-706; [2003] QDC 151 at 64,189-91 (Aust Torts Reports) ($108,000 compensatory damages, $50,000 aggravated damages, $20,000 exemplary damages). [2007] VCC 281 at [162]-[163]. Doe v Australian Broadcasting Corporation [2007] VCC 281 at [3]. Doe v Australian Broadcasting Corporation [2007] VCC 281 at [162]. Hampel J awarded the plaintiff $85,000 general damages (including for breach of privacy), $85,000 equitable compensation and $25,000 aggravated damages by way of equitable compensation: at [176], [185]-[186]. According to her Honour, “development of a tort of invasion of privacy is intertwined with the development of the cause of action for breach of confidence”: at [148]. See, eg, Kalaba v Commonwealth [2004] FCA 763; Kalaba v Commonwealth [2004] FCAFC 326; Giller v Procopets (2008) 24 VR 1; [2008] VSCA 236 at 35 (VR) per Ashley JA.

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-28 03:39:02.

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Victorian Court of Appeal in Giller v Procopets236 suggested that the existing equitable cause of action for breach of confidence should be adequate and adaptable to protect privacy,237 following the approach of Gleeson CJ in Australian Broadcasting Corporation v Lenah Game Meats, as well as the development of the English law of privacy following the introduction of the Human Rights Act 1998 (UK).238 The court unanimously held that a plaintiff could recover damages for mere distress for the equitable cause of action, notwithstanding the fact that the common law has historically refused to award damages for mere distress.239 The majority of the Victorian Court of Appeal (Ashley and Neave JJA, Maxwell P dissenting) upheld the traditional view that an action on the case for the intentional infliction of harm, based on Wilkinson v Downton,240 required proof of actual psychiatric harm and affirmed that mere distress was insufficient to find liability for this claim.241 The court unanimously found that there was no necessity that equity should mirror the common law’s approach to the availability of damages for mere distress. Ashley JA went further, noting that the tort of defamation, which protected the plaintiff’s interest in his or her reputation, resembled the interest in privacy protected in the instant case and observed that defamation provided damages for injury to feelings.242 There may still be some indirect protection of privacy offered by defamation law.243 In Davis v Nationwide News Pty Ltd,244 McClellan CJ at CL suggested that the plaintiff’s privacy was a relevant consideration in the assessment of damages for defamation, notwithstanding the plaintiff’s public profile as an actor. His Honour noted that the plaintiff had never courted publicity. Indeed, he found that she was “a private person who has shunned publicity” and she had consistently sought to protect her privacy and that of her family.245 Moreover, the defendant newspaper was aware of the plaintiff’s desire for privacy. Whether or how this approach will be applied to the assessment of damages in defamation cases involving private individuals who have had their reputations damaged by mass media publications is yet to be determined. If a plaintiff like Judy Davis can have the intrusion upon her privacy taken into account in the assessment of damages for defamation, the 236 237

238

239 240 241 242

243 244 245

(2008) 24 VR 1; [2008] VSCA 236. Giller v Procopets (2008) 24 VR 1; [2008] VSCA 236 at 35-6 (VR) per Ashley JA, at 106-7 per Neave JA. Ashley JA (at 36) also pointed to the difficulties of defining privacy as another reason why the common law should be reluctant to identify a tort of invasion of privacy. The English law of privacy, or more precisely, “the tort of misuse of private information”, is considerable and constantly expanding. The landmark case in its development is the decision of the House of Lords in Campbell v MGN Ltd [2004] 2 AC 457; [2004] UKHL 22; see also McKennitt v Ash [2008] QB 73; [2006] EWCA Civ 1714; Douglas v Hello! Ltd [2006] QB 125; [2005] EWCA Civ 595; Mosley v News Group Newspapers Ltd [2008] EWHC 1777 (QB). Giller v Procopets (2008) 24 VR 1; [2008] VSCA 236 at 5 (VR) per Maxwell P, at 31-2, 34 per Ashley JA, at 96, 101-2 per Neave JA. [1897] 2 QB 57. Giller v Procopets (2008) 24 VR 1; [2008] VSCA 236 at 35 (VR) per Ashley JA, at 112-4 per Neave JA; contra at 13-14 per Maxwell P. Giller v Procopets (2008) 24 VR 1; [2008] VSCA 236 at 33 (VR). It should be noted that damages for injury to feelings are not awarded in isolation for defamation. As to damages for injury to feelings in defamation law, see [15.70]. See, eg, John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484; [2007] NSWCA 364 at 515 (NSWLR). [2008] NSWSC 693. Davis v Nationwide News Pty Ltd [2008] NSWSC 693 at [12], [40]-[41].

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entitlement of purely private individuals is surely even stronger. Conversely, careful consideration needs to be given as to whether privacy is properly protected, albeit incidentally, by an award of damages for defamation, in a system of law where reputation is the principal interest protected by defamation law, and whether there is as yet no general, enforceable right to privacy recognised. [18.210] The issue of privacy has also been given considerable attention by law reform bodies in Australia, with four substantial reports in the last seven years.246 It is not entirely clear how Australian privacy law will develop. However, if Australian law does develop direct protection of privacy in some form, it will undoubtedly raise a number of difficult issues of principle for defamation law. Australian law is considerably behind other cognate legal systems in its development of direct privacy protection. The most developed legal protection is to be found in the United States. The impetus for this development was the landmark journal article by Samuel Warren and Louis Brandeis, “The Right to Privacy”.247 The authors surveyed a range of private law causes of action and discerned an underlying right to privacy – “the right to be let alone”248 – which was worthy of legal protection in its own right. They acknowledged that a right to privacy bore some superficial resemblance to a right to reputation, but argued that it was distinctive because the latter dealt with the plaintiff’s “external relations with the community” and was therefore a material, rather than a “spiritual”, interest, whereas an invasion of privacy was more directed at the plaintiff’s sense of self and feelings.249 Nevertheless, in developing their argument as to the possible shape of direct privacy protection, Warren and Brandeis drew analogies with, or borrowed from, defamation law. They were concerned that a right to privacy should not prevent the publication of matters of public interest and suggested the need for analogous defences to qualified privilege and fair comment.250 However, they did not think that truth should be a defence.251 Warren and Brandeis thought that the principal remedy for an invasion of privacy should be an award of damages, with injunctions being rare,252 although, elsewhere in the article, they expressed the view that invasions of privacy should be prevented as far as possible.253 Over the next few decades, state courts and legislatures across the United States recognised a tort of invasion of privacy.254 Reviewing these developments, the eminent torts scholar, William Prosser, identified a fourfold tort of invasion of privacy, rather than a single, coherent tort. The four discrete types of invasion of privacy Prosser identified were: intrusion upon the plaintiff’s 246

247 248 249 250 251 252 253 254

Australian Law Reform Commission (ALRC), For Your Information: Australian Privacy Law and Practice, Report No 108 (2008); New South Wales Law Reform Commission, Invasion of Privacy, Report No 120 (2009); Victorian Law Reform Commission, Surveillance in Public Places, Final Report No 18 (2010); ALRC, Serious Invasions of Privacy in the Digital Era, Report No 123 (2014). (1890) 4 Harvard Law Review 193. S Warren and L Brandeis, “The Right to Privacy” (1890) 4 Harvard Law Review 193 at 195. S Warren and L Brandeis, “The Right to Privacy” (1890) 4 Harvard Law Review 193 at 197-8. S Warren and L Brandeis, “The Right to Privacy” (1890) 4 Harvard Law Review 193 at 214. S Warren and L Brandeis, “The Right to Privacy” (1890) 4 Harvard Law Review 193 at 218. S Warren and L Brandeis, “The Right to Privacy” (1890) 4 Harvard Law Review 193 at 219. S Warren and L Brandeis, “The Right to Privacy” (1890) 4 Harvard Law Review 193 at 215. See, eg, Melvin v Reid 112 297 P 91 (1931) at 93-4 per Marks J; Briscoe v Readers’ Digest Association 483 P 2d 34 (1971) at 37 per Peters J.

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-28 03:39:02.

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seclusion or solitude; public disclosure of private facts; publicly presenting the plaintiff in a false light; and appropriation of the plaintiff’s name or likeness.255 The tort of placing the plaintiff in a false light and, to a lesser extent, the tort of public disclosure of private facts both touch upon the plaintiff’s reputation, and thus overlap with the tort of defamation.256 Although Prosser and other scholars have been concerned about this overlap,257 defamation and privacy, in practice, have been allowed to develop alongside each other. Prosser’s classification of the fourfold invasion of privacy is now reflected in the Restatement of Torts.258 Although privacy claims had some measure of success in United States courts, the primacy increasingly given to freedom of speech, as protected by the First Amendment of the United States Constitution, has meant that the legal protection provided to privacy under United States law is weak in practice.259

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The United States law of privacy has been influential in other jurisdictions. Its most obvious impact has been on New Zealand law. From the mid-1980s onwards, New Zealand courts began to recognise a tort of invasion of privacy arising out of the public disclosure of private facts – one of the four torts recognised in the United States.260 In one of the earliest decisions, Tucker v News Media Ownership Ltd,261 McGechan J considered that the development of this novel tort was a natural extension of the action on the case for the intentional infliction of harm, derived from Wilkinson v Downton.262 The question of whether the courts or the legislature were the proper forum was acknowledged, with the view forming that it would be preferable for the legislature to develop legal protections for privacy but that the courts should not shrink from doing the same, in the absence of legislative activity, when the appropriate case was presented to them.263 The case law also demonstrates an awareness of the potential impact of a tort of invasion of privacy on freedom of expression and freedom of the press.264 As Nicholson J pointed out in P v D,265 freedom of expression is not absolute and can be curtailed by defamation, so there was no principled reason why it should not be subject to privacy, should that interest be recognised as legally enforceable. As it developed in New Zealand, the tort of public disclosure of private facts required that the defendant actually disclosed, or threatened to disclose, private facts, which conduct would be highly offensive to a reasonable person of 255 256 257 258 259 260 261 262 263

264 265

W Prosser, “Privacy” (1960) 48 California Law Review 383 at 389. W Prosser, “Privacy” (1960) 48 California Law Review 383 at 422. W Prosser, “Privacy” (1960) 48 California Law Review 383 at 422-3. American Law Institute, Restatement of Torts, 2d, American Law Institute Publishers, St Paul, 1964, §§ 652A-652E. See DA Anderson, “The Failure of American Privacy Law” in B Markesinis (ed), Protecting Privacy (Oxford University Press, Oxford, 1999), p 141. Tucker v News Media Ownership Ltd [1986] 2 NZLR 716 at 733 per McGechan J; Bradley v Wingnut Films Ltd [1993] 1 NZLR 415 at 423 per Gallen J. [1986] 2 NZLR 716. See Tucker v News Media Ownership Ltd [1986] 2 NZLR 716 at 733, citing Wilkinson v Downton [1897] 2 QB 57. Tucker v News Media Ownership Ltd [1986] 2 NZLR 716 at 733, 737 per McGechan J. Cf the approach to the common law development of privacy by English courts prior to the introduction of the Human Rights Act 1998 (UK) in Kaye v Robertson (1990) 19 IPR 147; [1991] FSR 62. Bradley v Wingnut Films Ltd [1993] 1 NZLR 415 at 423 per Gallen J. [2000] 2 NZLR 591 at 599.

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[18.220]

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ordinary sensibilities.266 In addition, the plaintiff’s cause of action would be precluded if there were a legitimate public interest in the disclosure.267 Over a series of almost two decades, these principles developed through a series of first-instance decisions. The recognition of a tort of invasion of privacy through the public disclosure of private facts was confirmed by an appellate court in Hosking v Runting.268 In their joint judgment, Gault and Blanchard JJ identified the growing recognition of privacy as a human right, and the challenges to privacy posed by technology as significant reasons that the common law should develop some direct form of privacy protection.269 It was suggested in Hosking v Runting that an award of damages was the appropriate remedy for a tort of invasion of privacy, rather than an injunction, mirroring the position in defamation law.270 More recently, the protection of privacy under New Zealand law has been further extended, through the recognition of a tort of invasion of privacy by intrusion upon seclusion271 – another of the torts of invasion of privacy recognised under United States law. English courts have taken a different approach to the protection of privacy, although it has been suggested that the English position is in substance the same as the tort of invasion of privacy by publication of private facts.272 Even after the introduction of the European Convention on Human Rights (ECHR) into domestic law, there is still no direct, comprehensive protection of the right to privacy recognised by English courts.273 Rather, in order to accommodate the right to a private life under Art 8 of the ECHR, English courts have extended and adapted the existing equitable cause of action for breach of confidence to create what is now recognised as a “tort of misuse of private information”.274 The plaintiff’s reasonable expectation of privacy had to be balanced against the defendant’s freedom of expression.275 The tort of misuse of private information is now a well-established part of English law. The case law is large and constantly growing.276 [18.220] A significant reason that breach of confidence was able to be adapted to become the vehicle for protecting the right to a private life was that the English law of breach of confidence had already weakened the requirement that there be a relationship between the parties importing an obligation of confidence. The position under English law had developed to recognise that 266 267 268 269 270 271 272 273 274

275 276

Bradley v Wingnut Films Ltd [1993] 1 NZLR 415 at 423 per Gallen J; P v D [2000] 2 NZLR 591 at 601-2 per Nicholson J. P v D [2000] 2 NZLR 591 at 601 per Nicholson J. [2005] 1 NZLR 1 at 32 per Gault and Blanchard JJ, at 62-3 per Tipping J. Hosking v Runting [2005] 1 NZLR 1 at 5-6. Hosking v Runting [2005] 1 NZLR 1 at 38 per Gault and Blanchard JJ, at 62 per Tipping J. C v Holland [2012] 3 NZLR 672; [2012] NZHC 2155 at 698 (NZLR) per Whata J. Hosking v Runting [2005] 1 NZLR 1 at 32 per Gault and Blanchard JJ. Wainwright v Home Office [2004] 2 AC 406; [2003] UKHL 53 at 424 (AC) per Lord Hoffmann. Campbell v MGN Ltd [2004] 2 AC 457; [2004] UKHL 22 at 465 (AC) per Lord Nicholls of Birkenhead; Vidal-Hall v Google Inc [2015] 3 WLR 409; [2015] EWCA Civ 311 at 425 (WLR) per Lord Dyson MR and Sharp LJ. Campbell v MGN Ltd [2004] 2 AC 457; [2004] UKHL 22 at 489 (AC) per Lord Hope of Craighead, at 496 per Baroness Hale of Richmond. The case law on the tort of misuse of private information is large and growing. The major cases include Campbell v MGN Ltd [2004] 2 AC 457; [2004] UKHL 22; Douglas v Hello! Ltd [2001] QB 967; Douglas v Hello! Ltd (No 3) [2003] 3 All ER 996; [2003] EWHC 786 (Ch); Douglas v Hello! Ltd (No 2) [2006] QB 125; [2005] EWCA Civ 595; OBG Ltd v Allan [2008] 1 AC 1; [2007] UKHL 21.

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-28 03:39:02.

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there were certain types of information which were self-evidently confidential such that a recipient’s conscience could be bound not to disclose the information, even in the absence of a relationship between the recipient and the person to whom the confidence was owed.277 This development in the law of breach of confidence has been recognised by Australian courts.278 This would facilitate breach of confidence being used as the vehicle for protecting privacy more directly and comprehensively under Australian law, as seems to have been the preference of superior courts. There is, however, a limitation on using breach of confidence to protect privacy. Whilst privacy and confidentiality are in many cases identical or at least synonymous, the concepts are not co-extensive. It may be that that which is confidential is necessarily private, but it does not follow that that which is private is necessarily confidential. Corporations and government bodies may be entitled to have their confidences respected but it is unlikely that they have privacy to be protected. There is an additional problem of legal method raised by using breach of confidence as the vehicle for protecting privacy, namely that using an established cause of action to protect a new interest will distort the existing cause of action. It may be preferable to preserve the existing cause of action and, if the new right or interest warrants legal protection, to protect it directly, through a sui generis cause of action. As the English courts have developed the tort of misuse of private information, they have, on occasion, considered the interaction between privacy and reputation. It is clear that truth is not a defence to the tort of misuse of private information. Liability for defamation may turn upon the dichotomy of truth and falsity, whereas liability for misuse of private information turns upon the dichotomy of privacy or publicity.279 How these dichotomies might intersect and interact has not been the subject of detailed consideration thus far in the English case law on the tort of misuse of private information. The principal context in which this issue has arisen is in relation to the grant of injunctive relief. If injunctive relief for misuse of private information is granted more readily than in defamation, then this will provide an incentive to plaintiffs to frame their claims in privacy, thereby undermining the careful balancing of interests developed by defamation law over several centuries.280 In Terry v Persons Unknown,281 Tugendhat J outlined a schema of the relationship between defamation and privacy. His Lordship suggested that there could be four categories of cases in which the relationship between defamation and privacy needed to be considered. In the first category of case, the information is not defamatory, so that breach of confidence and privacy will govern the claim. In the second category of case, the information is arguably defamatory and the disclosure of which is a breach of confidence or a misuse of private information, but reputation is not really the nub of the claim, so that again breach of confidence and privacy will govern the claim. In the third category of case, there is an overlap but no inconsistency. It is only in the fourth category of case, where there is an overlap and an inconsistency that problems will arise. His Lordship suggested that the scope of the problem is then likely to be 277 278

279 280 281

Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 at 268, 272 per Lord Griffiths. Australian Football League v Age Co Ltd (2006) 15 VR 419; [2006] VSC 308 at 427-30 (VR) per Kellam J; Victoria v Nine Network (2007) 19 VR 476; [2007] VSC 431 at 480-1 (VR) per Osborn J. McKennitt v Ash [2008] QB 73; [2009] EWCA Civ 1714 at 102 per Longmore LJ. This is discussed more fully at [18.230]. [2010] EWHC 119 (QB).

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[18.230]

Interaction between defamation and alternative causes of action

narrow.282 Whether Tugendhat J’s schema represents the full range of principled and practical problems presented by the interaction between defamation and privacy, and whether the problems will be confined within a narrow scope, will need to be determined as the law of privacy develops. It is not clear how Australian law will respond to the challenge of protecting privacy. It may be that, rather than being a distinct principle of law itself, privacy may be a value underlying the common law. In this way, it may be viewed as analogous to the common law’s treatment of freedom of speech.283 An objection to developing some form of direct, comprehensive protection of privacy regularly made is that privacy is incapable of precise definition.284 The inability to define privacy as a coherent and stable interest has been cited as an insuperable barrier to providing general legal protection in some form. Whether this should be so is open to question. It is not possible to define negligence comprehensively yet the definitional difficulty has not proven to be a barrier to providing relief. The difficulty of defining privacy may also be overstated. As Gleeson CJ in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd observed:285 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.

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The law of negligence has developed a flexible, open-textured approach to the legal protection it confers. If it is deemed desirable to protect privacy as a legal right or interest, the difficulties of adopting a similarly flexible, open-textured approach to the legal protection of privacy should not be overstated. Alternatively, rather than trying to identify one general definition or test for what constitutes an actionable invasion of privacy, it may be preferable to fashion narrower, more concrete remedies for particular infringements of privacy, particularly where there are identifiable gaps in existing legal protections.286 There is clearly a heightened interest in the legal protection of privacy throughout the common law world, although it is as yet unclear the form that such protection will take under Australian law.

Interaction between defamation and alternative causes of action for purposes of injunctive relief [18.230] One particular issue that arises when an alternative cause of action can be pleaded concurrently with a claim in defamation is how a court should deal with an application for injunctive relief. Defamation adopts a restrictive approach to injunctive relief,287 so to allow an injunction to be granted based on some other cause of action arising from the same facts would be to subvert the balancing of interests struck by defamation law. The starting point then is that an injunction will not be granted where the plaintiff relies on an alternative 282 283 284 285 286

287

Terry v Persons Unknown [2010] EWHC 119 (QB) at [96]. Wainwright v Home Office [2004] 2 AC 406; [2003] UKHL 53 at 423 (AC) per Lord Hoffmann. As to the common law’s treatment of freedom of speech, see [2.90]–[2.150]. See, eg, Wainwright v Home Office [2004] 2 AC 406; [2003] UKHL 53 at 419-20 (AC) per Lord Hoffmann. (2001) 208 CLR 199; [2001] HCA 63 at [42]. See, eg, Wainwright v Home Office [2004] 2 AC 406; [2003] UKHL 53 at 422-3 (AC) per Lord Hoffmann, citing Report of the Committee on Privacy and Related Matters (1990) (Cm 1102) at [12.5], [12.12], [12.32]. As to injunctive relief for defamation, see Ch 16.

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cause of action in order to avoid the restrictive approach in defamation.288 The plaintiff’s selection of the cause of action is not determinative of the issue.289 The approach to be adopted has been usefully distilled by Lightman J in Service Corp International plc v Channel Four Television Corp,290 in which his Lordship stated: The rule prohibiting the grant of an injunction where the claim is in defamation does not extend to claims based on other causes of action despite the fact that a claim in defamation might also have been brought, but if the claim based on some other cause of action is in reality a claim brought to protect the plaintiff’s reputation and the reliance on the other causes of action is merely a device to circumvent the rule, the overriding need to protect freedom of speech requires that the same rule be applied.291

A similar approach has been expressed and adopted in a number of cases in England and Australia.292 The approach requires the court to characterise the plaintiff’s interests in the proceedings and to draw inferences about the plaintiff’s intention in framing his or her claim in particular causes of action.293 The overlap or interaction between defamation and other causes of action has arisen in a number of cases. It has involved a wide variety of causes of action, including breach of confidence,294 injurious falsehood,295 passing off,296 conspiracy,297 breach of contract,298 trespass to land,299 private nuisance,300 unlawful interference with contractual relations,301 copyright 288

289

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290 291 292

293 294 295

296 297 298 299 300 301

Swimsure (Laboratories) Pty Ltd v McDonald [1979] 2 NSWLR 796 at 800 per Hunt J; AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 1395 at [39] per Brereton J; see also Fraser v Evans [1969] 1 QB 349 at 362; Woodward v Hutchins [1977] 1 WLR 760 at 764; Church of Scientology of California Inc v Reader’s Digest Services Pty Ltd [1980] 1 NSWLR 344 at 350-1; Broderick Motors Pty Ltd v Rothe (1986) Aust Torts Reports 80-059. Terry v Persons Unknown [2010] EMLR 16; [2010] EWHC 119 (QB) at 423 (EMLR) per Tugendhat J. [1999] EMLR 83. Service Corp International plc v Channel Four Television Corp [1999] EMLR 83 at 89-90. See, eg, Fraser v Evans [1969] 1 QB at 362 per Lord Denning MR; Woodward v Hutchins [1977] 2 All ER 751; 1 WLR 760 at 764 per Lord Denning MR; Swimsure (Laboratories) Pty Ltd v McDonald [1979] 2 NSWLR 796 at 800 per Hunt J; Church of Scientology of California Inc v Reader’s Digest Services Pty Ltd [1980] 1 NSWLR 344 at 350-1 per Hunt J; Edelsten v Australian Broadcasting Corporation (1984) Aust Torts Reports 80-672 at 68,822 per Hunt J; Gulf Oil (Great Britain) Ltd v Page [1987] Ch 327 at 333-4 per Parker LJ; Microdata Information Services Ltd v Rivendale Ltd [1991] FSR 681 at 688 per Griffiths LJ; Greene v Associated Newspapers Ltd [2005] QB 972; [2004] EWCA Civ 1462 at [78]-[81] per curiam; McKennitt v Ash [2008] QB 73; [2009] EWCA Civ 1714 at [79]-[80] per Buxton LJ. D Rolph, “Irreconcilable Differences? Interlocutory Injunctions for Defamation and Privacy” (2012) 17 Media and Arts Law Review 170 at 180. See, eg, Woodward v Hutchins [1977] 2 All ER 751; 1 WLR 760. See, eg, Swimsure (Laboratories) Pty Ltd v McDonald [1979] 2 NSWLR 796; Kaplan v Go Daddy Group [2005] NSWSC 636; Beechwood Homes (NSW) Pty Ltd v Camenzuli [2010] NSWSC 521. See, eg, Sim v HJ Heinz Co Ltd [1959] 1 All ER 547; 1 WLR 313; Brabourne v Hough [1981] FSR 79. See, eg, Gulf Oil (Great Britain) Ltd v Page [1987] Ch 327. See, eg, Edelsten v Australian Broadcasting Corporation (1984) Aust Torts Reports 80-672. Cf Khalid v Channel Seven Sydney Pty Ltd [2014] NSWSC 9. See, eg, Brighten Pty Ltd v Nine Network Australia Pty Ltd [2009] NSWSC 319. See, eg, Animal Liberation (Vic) Inc v Gasser [1991] 1 VR 51. See, eg, Microdata Information Services Ltd v Rivendale Ltd [1991] FSR 681.

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[18.230]

Interaction between defamation and alternative causes of action

infringement,302 trade mark infringement303 and contempt of court.304 In some cases, plaintiffs have succeeded in obtaining an injunction based on an alternative cause of action, notwithstanding the availability of a cause of action in defamation.305 In other cases, plaintiffs have been precluded from obtaining an injunction because their claim is deemed by the court to be, in substance, a claim for defamation.306 This approach is well established, although, given the nature of the issue, it understandably arises on an ad hoc basis. As the issue is determined at an interlocutory stage, the evidence before the court will necessarily be partial, if not imperfect, but such evidence as there is will be important to the court’s determination. The test to be applied begs the question as to when a matter is, in substance, concerned with reputation and when it is, in fact, concerned with some other legal interest, and when it should be permissible for a plaintiff to rely on a cause of action based on that other legal interest. The state of the evidence before the court will be important. In Terry v Persons Unknown,307 Tugendhat J refused an injunction on the basis that the failure of the plaintiff to give evidence as to his distress at the threatened publication and his willingness to leave the conduct of the litigation in the hands of his business manager tended to indicate that the plaintiff was more concerned with his reputation, rather than with his privacy. However, it is important to ask what the outcome would have been had the plaintiff given such evidence. It is not clear whether an injunction would have been refused. It is not difficult to conceive of cases in which plaintiffs might argue that their reputations and their privacy are in issue. Indeed, there is a significant and growing body of English case law on this point. The difficulty with the test to be applied is that it is pragmatic, rather than principled. The recognition of direct privacy protection in some form in Australia will require courts to determine the proper interaction between the restrictive approach to injunctive relief for defamation and the approach to be adopted in claims involving privacy. As defamation and privacy are both dignitary or personality interests, it is likely that the interaction, overlap or even conflict of these interests will arise more regularly than it would between defamation and other causes of action. English courts have already recognised that the

302 303 304 305

306

307

See, eg, Western Front Ltd v Vestron Inc [1987] FSR 66; Service Corp International plc v Channel Four Television Corp [1999] EMLR 83. See, eg, Bestobell Paints Ltd v Bigg [1975] FSR 421; Boehringer Ingelheim Ltd v Vetplus Ltd [2007] FSR 29. See, eg, Munsie v Dowling [2014] NSWSC 458; Tate v Duncan-Strelec [2013] NSWSC 1446; see also Y and Z v W (2007) 70 NSWLR 377; [2007] NSWCA 329. For cases in which plaintiffs have obtained an injunction in a cause of action other than defamation, notwithstanding the availability of a cause of action in defamation, see, eg, Swimsure (Laboratories) Pty Ltd v McDonald [1979] 2 NSWLR 796; Gulf Oil (Great Britain) Ltd v Page [1987] Ch 327; Animal Liberation (Vic) Inc v Gasser [1991] 1 VR 51; Y and Z v W (2007) 70 NSWLR 377; [2007] NSWCA 329. For cases in which plaintiffs have been refused an injunction on the basis of a cause of action other than defamation because of the availability of a cause of action in defamation, see, eg, Sim v HJ Heinz Co Ltd [1959] 1 All ER 547; 1 WLR 313 at 319 per Hodson LJ; Woodward v Hutchins [1977] 1 WLR 760 at 764 per Lord Denning MR, at 765 per Lawton LJ. [2010] EMLR 16; [2010] EWHC 119 (QB) at 424 (EMLR).

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interaction of defamation and privacy presents difficult issues of principle, which do not admit of a ready resolution.308

308

Browne v Associated Newspapers Ltd [2007] EMLR 19; [2007] EWHC 202 (QB) at 527-8 (EMLR) per Eady J; RST v UVW [2010] EMLR 13; [2009] EWHC 2448 (QB) at 362 (EMLR) per Tugendhat J.

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Index

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A Absolute privilege basis of, ................................. [10.20], [10.40] common law, at, ..... [10.20]-[10.40], [10.80] communications between high officers of state, ........................................ [10.80] effect of defence of, ........... [10.10], [10.20] extent of, ............................... [10.20]-[10.80] generally, ....... [4.30], [9.10], [10.10]-[10.80], [12.10], [14.10] general principles of, ......................... [10.20] judge’s role to decide, ....................... [10.10] meaning of, .......................... [10.10], [10.20] national uniform laws, under, .......... [10.50] other legislation, under, ..... [10.20], [10.30], [10.50]-[10.70] parliamentary proceedings, ............. [10.20], [10.40]-[10.60], [12.10] common law position, ................ [10.40] Commonwealth legislation, under, .................................................. [10.60] extent of, ......................... [10.40]-[10.60] national uniform laws, under, .................................................. [10.50] pleading and, ...................................... [10.30] publications in course of judicial proceedings, ............. [10.20]-[10.50], [12.10] common law position, ..................................... [10.20]-[10.40] extent of, ........................ [10.30], [10.50] purpose of, ...................... [10.20]-[10.40] statutory position, ........ [10.20], [10.30], [10.50] Abuse of process insubstantial publication and, .......... [15.30] proportionality and, .......................... [8.210] remedy other than award of damages, by negotiation as part of settlement, whether, .................................. [17.10] Aggravated damages — see Damages Apology — see also Remedies aggravated damages and relevance of, ................................................ [15.230]

assessment of damages and relevance of, ................. [15.70], [15.100], [15.210], [15.230] corrective justice, as, ....................... [17.110] court-ordered, whether, .................. [17.10], [17.110] effect of, ........................................... [17.110] generally, .... [3.20], [3.40], [11.100], [15.70], [15.100], [15.210], [15.230], [17.10], [17.30], [17.80], [17.110] law reform, ....................................... [17.110] mitigation of damages and, .......... [15.210], [17.110] offer of amends and, .......... [17.30], [17.80] performance of public penance as historic penalty, .......................... [3.20], [3.40] purposes of, ..................................... [17.110] refusal or failure to give, whether evidence of malice, ............................. [11.100] Appeal damages awards, against, ............... [15.110], [15.230], [15.260] grant or refusal of extension of limitation period, against, ......................... [5.40] Australian Law Reform Commission Report No 11, ...................... [3.70], [17.130] Report No 25, ...................................... [1.50] Report No 108, ............................... [18.210] Report No 123, ............................... [18.210]

B Bankruptcy defendant, of, ....................................... [5.70] plaintiff, of, and damages, .................. [5.70] standing to sue where, ........................ [5.70] Breach of confidence alternative cause of action to defamation, ................................. [18.200]-[18.220] privacy and, ....................... [18.200]-[18.220]

C Cause of action alternatives to defamation, ................................... [18.10]-[18.230]

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402

Index

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Cause of action — cont

breach of confidence and privacy, ................................. [18.200]-[18.220] direct protection of privacy, ...... [18.10] false imprisonment, .................. [18.190] injurious falsehood, ....... [18.10]-[18.60] — see also Injurious falsehood interaction of defamation and, for purposes of injunctive relief, ................................................ [18.230] interaction of defamation and negligence, ............ [18.10], [18.160], [18.170] misleading or deceptive conduct, .......... [18.10], [18.70]-[18.150] — see also Misleading or deceptive conduct negligent misstatement causing economic loss or psychiatric harm, ................................ [18.160], [18.170] privacy and breach of confidence, ................................. [18.200]-[18.220] racial discrimination, ................. [18.180] common law, at, ....................... [9.30], [9.80] fundamental interests engaged in defamation action, ..... [2.10]-[2.150] — see also Freedom of speech — see also Reputation imputation as, ........................... [6.20], [6.30] limitation periods, ..... [5.30], [5.40], [8.130] — see also Limitation periods matter as, ....... [6.20], [6.30], [6.100]-[6.120] — see also Defamatory matter — see also Matter based on natural and ordinary meaning of published words, ............. [6.100], [6.110] based on true innuendo, ........... [6.100], [6.120] imputations, ........................ [6.20], [6.30] “matter” defined, .............. [6.20], [8.50] multiple publication rule, ................. [8.130] purposes of, ..... [1.30], [1.40], [1.60], [1.70], [4.10] survival of, ................................ [3.40], [5.80] Claim acceptance of offer of amends and effect on, ............................................ [17.70] elements of, .... [6.10], [7.10]-[7.100], [8.10], [8.20], [18.60] matter defamatory of plaintiff, ..................... [6.10], [18.60] — see also Defamatory capacity — see also Defamatory matter — see also Defamatory meaning matter identifies / is “of and concerning” plaintiff, ............. [6.10],

[7.10]-[7.100] — see also Identification of plaintiff matter published by defendant, ........... [6.10], [8.10], [8.20] — see also Publication proof of, .............. [6.10], [7.10]-[7.100], [8.10], [8.20], [18.60] limitation periods, .... [5.30], [5.40], [8.130], [17.90] — see also Limitation periods multiple jurisdictions, in, and costs, .................................................. [8.170] pleading of — see Pleading presumptions, ........................ [6.10], [18.60] damage, of, ..................................... [6.10] falsity, of, .......................... [6.10], [18.60] settlement of — see Settlement standing to sue, ....................... [3.30], [2.60], [5.50]-[5.140], [18.10], [18.60] — see also Standing survival of, ................................ [3.40], [5.80] termination of, ..................................... [3.40] Corporations damage to reputation of, ...... [5.100], [7.80] damages awards to, ............. [5.100], [15.70] economic loss, ............................. [5.100] injury to feelings, ........... [5.100], [15.70] nominal, ........................................ [5.100] standing to sue, ....... [2.60], [5.100], [5.110], [18.10], [18.60] common law, at, ............ [5.100], [5.110] national uniform laws, under, ...................... [5.110], [18.10], [18.60] Correction — see also Remedies assessment of damages and relevance of, ................................ [15.210], [15.230] court-ordered, whether, ................... [17.10] law reform, ....................................... [17.120] mitigation of damages and, ........... [15.210] offer of amends and, .......... [17.30], [17.80] purpose of, ....................................... [17.120] Costs claims in multiple jurisdictions, ....... [8.170] correction orders and indemnity, ................................................ [17.120] criminal defamation, ........................... [4.10] insubstantial publication and, .......... [15.30] offer of amends and, .......... [17.70], [17.80] prohibitive nature of, .......................... [1.60] volume of cases litigated and, ......... [5.150] Criminal defamation abolition of, .................. [4.10], [4.30], [4.40] defamatory libel, ................ [4.30], [4.40]

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403

Index Criminal defamation — cont

whether necessary, ........... [4.10], [4.30], [4.40] blasphemous libel, ............................... [4.30] civil defamation and, ............... [4.10], [4.20] civil action largely superseded prosecution, ............................. [4.10] prosecution no bar to commencement/ determination of civil action against same defendant, ....................... [4.20] costs, ...................................................... [4.10] declining importance of, .................... [4.10] defamatory libel, .......... [3.40], [4.30], [4.40] abolition in England, .................... [4.40] abolition in New South Wales, .... [4.30] abolition in Northern Ireland, .... [4.40] abolition in Wales, ......................... [4.40] defences, ......................................... [4.30] history of, ........................... [3.40], [4.30] limited operation of, ..................... [4.30] nature of wrongful conduct, ....... [4.30] purposes of, .................................... [4.30] rarity of prosecution of, ............... [4.30] tort of defamation distinguished, ..................................................... [4.30] unclear aspects of, ......................... [4.30] generally, .................................... [4.10]-[4.40] history of, .............................................. [4.10] national uniform laws and, ................ [4.20] obscene libel, ........................................ [4.30] prosecution, .............................. [4.10], [4.40] purposes of, .............................. [4.10], [4.30] seditious libel, ........................... [3.40], [4.30] statutory offence of, ............................ [4.20]

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D Damages — see also Remedies aggravated, ........ [15.10], [15.230]-[15.250], [18.50], [18.190] apology, relevance of, ............... [15.230] assessment of, ............................ [15.230] exemplary damages distinguished, ................................ [15.240], [15.250] false imprisonment, where, ..... [18.190] falsity of imputation, where, ................................................ [15.230] injurious falsehood, for, whether, .................................................. [18.50] appeals against awards of, ............. [15.110], [15.230], [15.260] assessment of, ......... [5.150], [6.280], [8.70], [9.70], [15.10], [15.20]-[15.40], [15.60], [15.70], [15.100]-[15.230], [18.160], [18.170], [18.190] aggravated damages, ................. [15.230] apology, relevance of, ................ [15.70], [15.100], [15.210], [15.230]

correction, relevance of, ......... [15.210], [15.230] damage to professional reputation, .................................................. [6.280] defendant’s conduct, relevance of, ................................................ [15.230] effect of plaintiff’s post-publication conduct on, .......................... [15.220] “grapevine effect” and, .............. [15.60] injury to feelings, ......................... [15.70] judge, by, ........ [5.150], [15.20], [15.110] jury, by, .......................... [15.20], [15.110] malice, relevance of, ................. [15.210], [15.230] national uniform laws, under, ............... [15.120]-[15.140], [15.210], [15.230] non-economic loss, ...... [15.40], [15.60], [15.100], [15.120]-[15.150], [15.230], [18.160], [18.170], [18.190] “once and for all”, ....... [15.10], [15.40], [15.150] partial justification, ........................ [9.70] persistence in defence of justification and, ........................................ [15.100] plaintiff’s reputation, relevance of, ................................. [15.160]-[15.200] proportionality between harm and quantum, .............................. [15.120] range of relevant factors, ......... [15.100] republication, extent of, ............... [8.70] retraction, relevance of, ............ [15.230] common law, at, ............... [15.10], [15.210], [15.230]-[15.250] aggravated, .................................. [15.10], [15.230]-[15.250] “at large”, ...................................... [15.10] exemplary, .... [15.10], [15.240], [15.250] mitigation of damages, ............ [15.210] unlimited, ...................................... [15.10] compensatory, ........... [5.70], [5.90], [5.100], [15.10], [15.30]-[15.70], [15.90]-[15.150], [15.230], [18.50], [18.160], [18.170], [18.190] aggravated damages, .................. [15.10], [15.230] assessment of, ............... [15.40], [15.60], [15.100], [15.120], [15.130] bankrupt plaintiff, ......................... [5.70] damage to reputation, ................ [15.10], [15.30], [15.40], [15.60], [15.230], [18.50] false imprisonment, .................. [18.190] future loss, .................................... [15.40] general loss of business, ............ [15.80] injury to feelings, ............ [5.90], [5.100], [15.30], [15.40], [15.70], [15.90], [15.230], [18.50] injury to health, ........... [15.90], [18.160]

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-28 03:39:02.

404

Index

Copyright © 2015. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

Damages — cont

personal injury damages and, ................................ [15.110], [18.170] purposes of, ................................. [15.50] statutory cap on non-economic loss, ................................... [15.10], [15.40], [15.120]-[15.150], [15.230] contemptuous, ................................... [15.10] damage to reputation, for, .............. [15.10], [15.30], [15.40], [15.60], [15.230], [18.50] — see also Reputation “grapevine effect”, ...................... [15.60] declaratory effect of award of, ..... [17.100] derisory, ............................................... [15.10] economic loss, for, ............... [5.70], [5.100], [15.10], [15.80], [15.120], [15.150], [18.160] corporations, ................................ [5.100] bankrupt plaintiff, ......................... [5.70] general loss of business, ............ [15.80] no cap on quantum, .................. [15.120] efficacy of, .......................................... [15.50] exemplary, .......... [15.10], [15.240], [15.250] aggravated damages distinguished, ................................ [15.240], [15.250] purpose of, ................................. [15.240] statutory abolition of, .............. [15.240], [15.250] test for awarding, ...................... [15.240] disproportionate, whether, ................. [1.10] false imprisonment, for, ................. [18.190] generally, ..... [3.20]-[3.60], [15.10]-[15.260], [16.10], [16.140], [17.10], [17.100], [18.50], [18.150] history, ....................................... [3.20]-[3.60] imperfection of, ................... [15.10], [17.10] injurious falsehood, for, ..... [18.30], [18.50] injury to feelings, for, ........... [5.90], [5.100], [15.30], [15.40], [15.70], [15.90], [15.230], [18.50] assessment of damages, ............. [15.70] contingency of, ............................ [15.30] corporations, .................. [5.100], [15.70] evidence by plaintiff of, ............. [15.70] partnerships, ................................... [5.90] injury to health, for, .......... [15.90], [18.160] judge’s role in assessing, .................. [15.20], [15.110] jury’s role in assessing, ...... [5.150], [15.20], [15.110] lump-sum basis, ................................. [15.10] misleading or deceptive conduct, for, ................................................ [18.150] mitigation of, ................... [15.170]-[15.190], [15.210], [17.110] common law position, .............. [15.210] evidence of apology, ............... [15.210], [17.110] evidence of correction, ............ [15.210]

evidence of plaintiff’s bad reputation, ................................ [15.170], [15.190] evidence of plaintiff’s misconduct, ................................................ [15.170] evidence of plaintiff’s prior convictions, ................................................ [15.180] malice, relevance of, .................. [15.210] national uniform laws, under, ................................................ [15.210] truth, relevance of, .................... [15.210] national uniform laws, under, ......... [15.10], [15.20], [15.40], [15.120]-[15.150], [15.180], [15.210], [15.230]-[15.250] aggravated damages preserved, ................................ [15.230], [15.250] approach to assessment of, ............... [15.120]-[15.140], [15.210], [15.230] cap on quantum for non-economic loss, ................................... [15.10], [15.40], [15.120]-[15.150], [15.230] exemplary damages abolished, ................................ [15.240], [15.250] judge’s role in assessing, ............. [15.20] mitigation of damages, ............ [15.210] multiple proceedings, ............... [15.140] multiple publications, ............... [15.140] plaintiff’s prior convictions, evidence of, .......................................... [15.180] restricted heads, ........................... [15.10] nominal, ................. [5.100], [15.10], [15.30], [16.120] corporations, ................................ [5.100] interlocutory injunction and, ................................................ [16.120] non-economic loss, for, ......... [5.70], [5.90], [5.100], [15.10], [15.30]-[15.70], [15.90]-[15.150], [15.230], [18.50], [18.160], [18.170], [18.190] assessment of, ............... [15.40], [15.60], [15.100], [15.120]-[15.150], [15.230], [18.160], [18.170], [18.190] bankrupt plaintiff, ......................... [5.70] damage to reputation, ................ [15.10], [15.30], [15.40], [15.60], [15.230], [18.50] false imprisonment, .................. [18.190] future loss, .................................... [15.40] injury to feelings, ............ [5.90], [5.100], [15.30], [15.40], [15.70], [15.90], [15.230], [18.50] injury to health, ........... [15.90], [18.160] personal injury damages and, ................................ [15.110], [18.170] purposes of, ................................. [15.50] statutory cap on, ....... [15.120]-[15.150], [15.230] overview, ............................................. [15.10] personal injury, for, ......... [15.110], [18.170]

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-28 03:39:02.

Index

Copyright © 2015. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

Damages — cont

plaintiff’s reputation, relevance of, to assessment of, ...... [15.160]-[15.200] admissibility of evidence of bad reputation, .......... [15.170], [15.190], [15.200] admissibility of evidence of good reputation, ........... [15.190], [15.200] admissibility of prior convictions, ................................................ [15.180] presumption of good reputation, ................................................ [15.190] relevant sector, ........... [15.170]-[15.200] presumption of damage and, ......... [15.30], [15.70] punitive, ............................................ [15.240] purposes of award of, ...... [15.50], [17.100] quantum, ............... [15.10], [15.40], [15.50], [15.70], [15.120]-[15.150], [15.230] economic loss damages, ........... [15.120] multiple proceedings, ............... [15.140] multiple publications, ............... [15.140] proportionality between harm and, ................................................ [15.120] relevance of, ................... [15.50], [15.70] statutory cap on non-economic loss damages, .................. [15.10], [15.40], [15.120]-[15.150], [15.230] unlimited at common law, .......... [15.10] relationship between damages for personal injury and damages for defamation, ................................................ [15.110] sole or primary purpose of tort law, whether, .................................... [1.70] substantial, ............................ [15.10], [15.30] vindictive, ......................................... [15.240] who determines, ................................ [15.20] Declaration — see also Remedies falsity, of, ............................ [17.10], [17.100] rarity of, ............................................ [17.100] Defamatory capacity — see also Defamatory meaning defamatory meaning distinguished, ..................................................... [6.50] imputation, of, ............. [6.30], [6.50]-[6.70], [6.190] reasonableness test, ....................... [6.60] role of judge in determining, ..... [6.50], [6.60] role of jury, ..................................... [6.60] suspicion, ...................................... [6.190] question of law for judge, as threshold test, ......................................... [6.50], [6.60] reasonableness test, ....................... [6.60] test of “ordinary reasonable reader”, ................ [6.60], [6.80], [7.40], [7.80]

Defamatory matter — see also Defamatory meaning advertisements, .................................... [8.50] articles, .................................................. [8.50] changing views as to what is, ........... [6.300] clearly, and grant of interlocutory injunction, .............................. [16.90] determining whether, complexity of principles and tests for, ......... [6.10], [6.130], [6.220] form of, ...................... [6.160], [8.50], [8.90] gestures, ................................................ [8.50] interpreting, ............ [6.130]-[6.210], [18.60] “bane and antidote”, ................... [6.170] context, ............. [6.150], [6.170], [6.190] disclaimer, ..................................... [6.170] false innuendo, ............................. [6.180] implication, ................................... [6.180] imputation of guilt, ..................... [6.190] imputation of suspicion, ............ [6.190] inference, ........................ [6.180], [6.190] inference upon inference, .......... [6.190] mere jest, ...................................... [6.210] mere vulgar abuse, ...................... [6.200] natural and ordinary meaning, .................................................. [6.180] nature of publication, ................. [6.160] “single meaning” rule, ............... [6.140], [18.60] letters, .................................................... [8.50] “matter” defined by national uniform laws, ..................................................... [8.50] magazines, ............................................. [8.50] newspapers, .......................................... [8.50] online services, ...................... [6.160], [8.50] oral utterances, ..................................... [8.50] ordinary reasonable reader, ........ [6.140]-[6.160], [6.190], [6.210], [6.220], [6.260], [6.270], [6.290] periodicals, ............................................ [8.50] permanent, ......................................... [6.160] pictures, ................................................. [8.50] postcards, .............................................. [8.90] publication of — see Publication radio / television broadcasts, ......... [6.160], [8.50] recordings, .......................................... [6.160] reports, .................................................. [8.50] telegrams, .............................................. [8.90] tests for what is, ................... [6.220]-[6.300] broad working test, whether, .... [6.220], [6.230] changing views, ............................ [6.300] community standards, ................ [6.290] disparagement of reputation, .... [6.230] hatred, contempt or ridicule, .... [6.240], [6.250] lowering in estimation, ............... [6.250] multiplicity of, .............................. [6.220]

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-28 03:39:02.

405

406

Index Defamatory matter — cont

Copyright © 2015. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

professional reputation, ............. [6.280] ridicule, ......................................... [6.260] sectional standards, ..................... [6.290] “shun and avoid”, ....................... [6.270] trade reputation, .......................... [6.280] transient, ............................................. [6.160] websites, .............................................. [6.160] Defamatory meaning — see also Defamatory capacity — see also Defamatory matter communication to person other than plaintiff of, ............................... [8.20] defamatory capacity distinguished, ..................................................... [6.50] false innuendo, ................................... [6.110] imputation, of, ......................... [6.60], [6.70] reasonableness test, ....................... [6.70] role of judge, ................................. [6.60] role of jury in determining, ........ [6.60], [6.70] intention of publisher, relevance of, ......................................... [6.80], [6.90] natural and ordinary meaning, ......... [6.30], [6.100], [6.110], [6.120], [7.20] question of fact for jury, in imposing liability, ............. [6.50], [6.70], [6.80], [6.110], [6.120], [16.90], [16.100] role of judge, .......... [6.70], [6.120], [16.90], [16.100] test of “ordinary reasonable reader”, ............... [3.20], [6.50], [6.70], [6.80], [6.100]-[6.120], [18.90] characteristics of, ........................... [6.80] criticisms of, ................................... [6.80] purpose of, ..................................... [6.80] true innuendo, ......... [6.100], [6.120], [7.40] cause of action based on, ......... [6.100], [6.120] meaning of, .................................. [6.120] particularisation of meaning of, ...................................... [6.120], [7.40] pleading of, ................................... [6.120] Defences absolute privilege, ................... [4.30], [9.10], [10.10]-[10.80], [12.10], [14.10] — see also Absolute privilege common law, at, .......... [4.30], [8.10], [8.30], [9.10], [9.60], [9.120], [11.10], [11.180], [12.10]-[12.90], [13.10]-[13.100], [14.10]-[14.40], [14.110], [18.200] consent, ........................ [14.10], [14.110] defamatory libel, to, ...................... [4.30] fair and accurate report of particular

proceedings, .......................... [11.10], [12.10]-[12.90] — see also Protected reports fair comment, ....... [4.30], [9.10], [9.60], [9.120], [11.10], [11.180], [13.10]-[13.100], [14.10], [18.200] — see also Fair comment innocent dissemination, .............. [8.10], [8.30], [14.10]-[14.40] — see also Innocent dissemination preservation of, by national uniform laws, ....................................... [14.110] consent, .................. [8.40], [14.10], [14.110] volenti non fit injuria distinguished, ................................................ [14.110] criminal defamation, to, .......... [4.20], [4.30] defamatory libel, to, ............................ [4.30] failure or refusal to accept offer of amends, where, .......... [4.20], [17.80] fair and accurate report of particular proceedings, .......................... [11.10], [12.10]-[12.90] — see also Protected reports fair comment, .............. [4.30], [9.10], [9.60], [9.120], [11.10], [11.180], [13.10]-[13.100], [14.10], [18.200] — see also Fair comment fair report of proceedings of public concern, ...... [12.10], [12.80], [12.90] — see also Protected reports former codification of, ....................... [9.10] freedom of speech and, ..................... [2.90] honest opinion, .... [9.60], [11.180], [13.10], [13.110], [14.10], [18.200] — see also Honest opinion illegality, ............................................... [14.10] importance of, ...................................... [1.60] innocent dissemination, ..................... [8.10], [14.10]-[14.50] — see also Innocent dissemination interlocutory injunction and, .......... [16.50], [16.110] internet content hosts, for, ............. [14.10], [14.60] internet service providers, for, ....... [14.10], [14.60] judge, role of, in relation to, .............. [9.10], [9.60], [9.150], [10.10] jury, role of, in relation to, ..... [9.10], [9.60], [9.150] justification, ..... [3.40], [3.70], [4.20], [4.30], [9.10]-[9.180], [14.10], [15.100], [15.210], [16.50], [16.110], [18.200] — see also Justification miscellaneous, ..................... [14.10]-[14.110] national uniform laws, under, ........... [3.70], [9.10], [9.30]-[9.60], [9.130], [9.140], [9.170], [12.80]-[12.100], [14.50]-[14.110], [18.200]

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-28 03:39:02.

407

Index

Copyright © 2015. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

Defences — cont

fair report of proceedings of public concern, .................... [12.80], [12.90] innocent dissemination, ............. [14.50] justification, ........... [3.70], [9.30]-[9.60], [9.130], [9.140], [9.170], [18.200] preservation of common law defences, ................................................ [14.110] protection of internet service providers and internet content hosts, .................................................. [14.60] publication of public documents, ................................................ [12.100] triviality, ............. [3.70], [14.70]-[14.100] unlikelihood of harm, ................ [14.90] onus of proof to establish, ............... [6.10], [9.10], [9.30], [9.40], [11.30], [11.40], [11.140], [11.180], [12.30], [13.30], [13.50], [13.70], [13.100], [13.110], [14.30], [14.50], [14.70], [14.90], [18.60] privilege .............. [10.10], [14.10] — see also Absolute privilege — see also Qualified privilege occasion, of, ................................. [10.10] publication of public documents, .................................. [12.10], [12.100] qualified privilege, ...... [4.30], [8.90], [9.10], [10.10], [11.10]-[11.180], [13.10], [13.90], [13.100], [14.10], [18.170] — see also Qualified privilege refusal or failure to accept offer of amends, where, .......... [4.20], [17.80] statutory, .......... [3.70], [9.10], [9.50], [9.60], [12.80]-[12.100], [14.10], [14.50]-[14.110] fair report of proceedings of public concern, .................... [12.80], [12.90] innocent dissemination, ............ [14.10], [14.50] national uniform laws, under, ..... [3.70], [9.10], [9.50], [9.60], [12.80]-[12.100], [14.50]-[14.110] protection of internet service providers and internet content hosts, .................................................. [14.60] publication of public documents, ................................................ [12.100] triviality, ........... [14.10], [14.70]-[14.100] unlikelihood of harm, ............... [14.70], [14.90] triviality, ................... [3.70], [8.210], [14.10], [14.70]-[14.100] — see also Triviality truth, ................. [3.70], [4.20], [4.30], [9.10], [18.200] — see also Justification unlikelihood of harm, ......... [3.70], [14.70], [14.90]

Defendant assessment of damages and relevance of conduct of, ........................... [15.230] bankruptcy of, ...................................... [5.70] criminal defamation and onus of, ..... [4.20] injurious falsehood and knowledge, .................................................. [18.30] intention of, relevance of, ..... [7.30], [7.40], [7.60], [7.70] liability of — see Liability malice / improper conduct of, ................. [11.80]-[11.100], [11.120], [15.210], [15.230], [18.30], [18.60] defamation, .................. [11.80]-[11.100], [11.120], [15.210], [15.230], [18.30] injurious falsehood, ........ [18.30], [8.60] matter published by, .... [6.10], [8.10], [8.20] — see also Publication onus of proof to establish defence, ............... [6.10], [9.10], [9.30], [9.40], [11.30], [11.40], [11.140], [11.180], [12.30], [13.30], [13.50], [13.70], [13.100], [13.110], [14.30], [14.50], [14.70], [14.90], [18.60] fair and accurate report of judicial proceedings, ........................... [12.30] fair comment, ............... [13.30], [13.50], [13.70], [13.100] honest opinion, ......................... [13.110] innocent dissemination, ............ [14.30], [14.50] justification, ............ [9.10], [9.30], [9.40] qualified privilege, ........ [11.30], [11.40], [11.140], [11.180] triviality, .......................... [14.70], [14.90] position of plaintiff favoured over, ............... [1.60], [6.10], [6.30], [9.90], [9.170], [18.60] defence of justification and, ....... [9.90], [9.170] meaning of imputations, .............. [6.30] presumption of damage, .............. [6.10] presumption of falsity, ................ [6.10], [18.60] reliance on natural and ordinary meaning, ................................... [6.30] qualified privilege and reasonableness of conduct of, ........... [11.140], [11.180] vicarious liability of, ........................ [13.100] malice of employee, .................. [13.100]

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-28 03:39:02.

408

Index

E Exemplary damages — see Damages

F Fair reports — see Protected reports

Copyright © 2015. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

Fair and accurate reports — see Protected reports Fair comment complexity of common law defence of, .................................................. [13.10] criticism and, ...................................... [13.80] elements of common law defence of, ................................... [13.10]-[13.100] comment not fact, ........ [13.20]-[13.40], [13.80] difficulty in establishing, ............ [13.10] factual basis, ................... [13.20], [13.50] fairness, ............. [13.20], [13.60], [13.90] malice, lack of, ............. [13.20], [13.100] onus of proof, .............. [13.30], [13.50], [13.70], [13.100] public interest, .............. [13.20], [13.40], [13.70], [13.80], [13.90] factual basis, ......................... [13.20], [13.50] fairness, .................. [13.20], [13.60], [13.90], [13.100] malice, ......................................... [13.100] meaning of, .................................. [13.90] reasonableness distinguished, .... [13.90] test of, ........................................... [13.90] freedom of speech and, .... [13.10], [13.90], [13.100] generally, ........ [4.30], [9.10], [9.60], [9.120], [11.10], [11.180], [13.10]-[13.100], [14.10], [18.200] historical origins, ............................... [13.10] honest opinion distinguished, ......... [13.10] Hore-Lacy defence, ............................. [9.120] importance of defence of, ............... [13.10] malice, ................................. [13.20], [13.100] matter or pleaded imputation addressed by, .................................................. [13.60] national uniform law and, ............... [13.10], [13.60] onus of proof, ...... [13.30], [13.50], [13.70], [13.100] pleading and, ...................................... [13.60] Polly Peck defence, .............................. [9.120] public interest, ........ [9.60], [13.10], [13.20], [13.40], [13.70]-[13.100], [18.200] meaning of, .................................. [13.70]

publication of court proceedings, ................................................ [13.560] publication of matter on privileged occasion, ................................. [13.50] publication of parliamentary proceedings, .................................................. [13.50] purpose of defence of, ...... [13.10], [13.40], [13.70] qualified privilege and, .... [11.10], [11.180], [13.10], [13.90], [13.100] reviews and, ...................................... [13.180] statement of comment, ...... [13.20]-[13.40] assessment as to whether, .......... [13.40] meaning of, .................................. [13.40] statement of fact distinguished, .................................................. [13.40] statutory defences of honest opinion, distinguished, ......................... [13.10] technicality of defence of, ............... [13.10] False imprisonment aggravated damages where, ........... [18.190] alternative cause of action to defamation, ................................................ [18.190] compensatory damages for, .......... [18.190] Freedom of speech assumption of, ..................................... [2.90] balance between protection of reputation and, whether, .............. [2.10], [2.90], [2.120] centrality of, .............................. [1.60], [9.50] common law’s approach to, ............... [2.90] comparative perspective, .................. [2.140] defamation law as “chilling effect”, ............. [1.60], [2.90], [2.110], [4.40], [8.30] civil actions, .................................. [2.110] private prosecutions for criminal defamation, .............................. [4.40] self-censorship, ................ [2.110], [8.30] duty of care in negligence, whether, and, ................................................ [18.170] exceptions to, ....................................... [2.90] fair comment and, ............................. [13.10] freedom of the press distinguished, .................................................. [2.150] generally, .................................. [2.90]-[2.150] human right, as, ..... [2.100], [2.130], [2.140] importance of interests in, ............... [1.40], [1.60], [2.90], [2.100], [2.120], [16.80] justifications for, ................................ [2.100] law reform and, .................................... [1.60] legislative encroachment or abrogation of, ...................................... [2.90], [18.80] limits to, ................. [2.100], [2.120], [2.130], [18.120] misleading or deceptive conduct and, ................................................ [18.120]

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-28 03:39:02.

409

Index

Copyright © 2015. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

Freedom of speech — cont

nature of, ............................................... [2.90] political communication, implied freedom of, ................. [1.50], [2.100], [2.120], [11.10], [11.110], [11.120] application and limits of, ............ [2.120] identification of, .......................... [2.120] impact on defamation law, ....... [11.110] Lange qualified privilege, ........... [11.10], [11.110], [11.120] prioritised over protection of reputation, where, ...................................... [13.10] privacy and, .......................................... [9.60] protection of, ........................ [2.90], [2.100], [2.120]-[2.140], [5.110], [13.10], [13.90], [13.100], [16.10], [16.30]-[16.60], [16.80], [18.60], [18.230] defamation defences, role of generally in, ............................................... [2.90] fair comment defence and, ....... [13.10], [13.90], [13.100] human right, as, ............ [2.100], [2.130], [2.140] political communication, ...... [2.120] — see also Political communication rationales for, ................. [2.100], [16.80] restrictive approach to grant of interlocutory injunction to restrain, ........ [5.110], [16.10], [16.30]-[16.60], [16.80], [18.60], [18.230] statutory bases to, ........................ [2.140] protection of reputation privileged over, ............ [1.60], [2.20], [2.70], [18.180] qualified privilege and, ...................... [11.60] racial discrimination legislation and, ................................................ [18.180] tension between protection of reputation and, .......................................... [17.10]

H History action on the case, ............................... [3.30] Australian federalism, overlay of, ..... [3.10], [3.70] Australian law reform — see Law reform complexity, ................................ [3.10], [3.70] criminal defamation, ......... [4.10] — see also Criminal defamation defences, .......... [3.10], [3.40], [3.70], [9.10], [9.50], [14.20] — see also Defences deterrence of cases, ............................ [3.30] mitior sensus doctrine, ..................... [3.30] ecclesiastical courts, ................. [3.10]-[3.60] enduring features, ................................ [3.20] generally, ........................ [2.20], [3.10]-[3.70]

injurious falsehood, of, ..................... [18.20] innocent dissemination, development of defence of, ................. [8.10], [14.20], [14.40] interlocutory injunctions, ................ [16.20], [16.30] internet technologies, .......................... [3.70] libel, ....... [3.30], [3.40], [3.70], [4.30], [5.20] — see also Libel abolition of distinction between slander and, ................................ [3.70], [5.20] criminal, .............................. [3.40], [4.30] obscure origins of distinction between slander and, .................. [3.30], [5.20] local courts, .................. [3.10], [3.30], [3.60] malice, relevance of, ........ [3.20], [11.80] — see also Malice multiple publication rule, ................. [8.130] multiplicity and diversity of sources, 1,40, ........................... [3.10]-[3.60], [6.280] ecclesiastical courts, ........... [3.10]-[3.60] local courts, ............ [3.10], [3.30], [3.60] royal courts, .......... [3.10]-[3.60], [6.280] statutory offence of scandalum magnatum, ............................ [3.10], [3.40], [3.50] Star Chamber, ......... [3.10], [3.30]-[3.50] national uniform laws, of, ...... [3.10], [3.70] newspapers, .......................................... [3.70] oral defamation, .......... [3.20], [3.30], [3.70], [5.20] — see also “slander”, below — see also Slander penalty, ....................................... [3.20]-[3.40] corporal punishment, ................... [3.20] excommunication, ......................... [3.20] fine, ...................................... [3.20], [3.40] imprisonment, ................................ [3.40] performance of public penance/ apology, ......................... [3.20], [3.40] piecemeal reform, ................................ [1.40] printing press, ....................................... [3.40] qualified privilege, development of defence of, ............................................. [11.20] radio broadcasts, .................................. [3.70] recognition of defamation as tort, ..................................................... [3.30] remedy, ..................... [3.20]-[3.60] — see also Remedies royal courts, ................ [3.10]-[3.60], [6.280] slander, ........ [3.30], [3.40], [3.70], [5.20] — see also Slander abolition of distinction between libel and, ................................ [3.70], [5.20] categories actionable per se, ....... [3.30], [3.60] obscure origins of distinction between libel and, ....................... [3.30], [5.20] Star Chamber, ............... [3.10], [3.30]-[3.50] survival of claim, ................................. [3.40] television broadcasts, .......................... [3.70]

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-28 03:39:02.

410

Index History — cont

termination of claim, .......................... [3.40] tort, recognition as, ............................. [3.30] uniformity in Australia, .......... [3.10], [3.70] attempted, ........................... [3.10], [3.70] national uniform laws, ...... [3.10], [3.70] — see also National uniform laws written defamation, .... [3.20], [3.30], [3.40], [3.70], [5.20] — see also Libel Honest opinion expression of opinion, not fact, ................................................ [13.110] fair comment distinguished, ............ [13.10] generally, ................ [9.60], [11.180], [13.10], [13.110], [14.10], [18.200] national uniform law, under, ........... [13.10], [13.110], [18.200] elements of three defences, .... [13.110] differences between three defences, ................................................ [13.110] proper material, ............................... [13.110] public interest, ..... [9.60], [13.110], [18.200]

Copyright © 2015. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

I Identification of plaintiff aspersion against group or class, ...... [7.80], [7.90] examples of, ................................... [7.90] criminal defamation, ........................... [4.30] defendant’s intention, relevance of, ................ [7.30], [7.40], [7.60], [7.70] direct, ......................................... [7.10], [7.20] essential element in claim, ................. [6.10], [7.10]-[7.100] impact on reputation, ............ [7.40], [7.60], [7.70] indirect, ........... [7.10], [7.40], [7.50], [7.100] context, ........................................... [7.40] examples of, ................................... [7.50] extrinsic facts, .............................. [7.100] impact on reputation, ................... [7.40] innuendo, ........................................ [7.40] witness, ............................................ [7.40] onus of proof, ..................................... [7.10] plaintiff has same name as real person to whom defendant intends to refer, where, ........................................ [7.60] plaintiff has same name as fictitious person to whom defendant intends to refer, where, ........................................ [7.70] reasonableness, ............ [7.10], [7.40], [7.80] time of publication, as at, ................ [7.100] use of prior and subsequent publications to establish, ............................ [7.100]

Imputation cause of action, as, .................. [6.20], [6.30] defamatory capacity of, ......... [6.30], [6.60], [6.70], [6.190] reasonableness test, ....................... [6.60] role of judge in determining, ..... [6.60], [6.60] role of jury, ..................................... [6.60] suspicion, ...................................... [6.190] defamatory meaning, .............. [6.60], [6.70] reasonableness test, ....................... [6.70] role of judge, ................................. [6.60] role of jury in determining, ........ [6.60], [6.70] defined, ................................................. [6.30] fair comment and, ............................. [13.60] falsity of, and aggravated damages, ................................................ [15.230] guilt, of, ............................................... [6.190] pleading of, by plaintiff, ........ [6.20], [6.30], [9.20], [9.80], [9.100]-[9.140], [9.170] consequence of, ............................. [6.30] particularisation of meaning, ..... [6.20], [6.30] purpose of, ..................................... [6.30] requirements for, ......................... [6.320] role in litigation, ....................... [6.20], [6.30] suspicion, of, ...................................... [6.190] Injunction — see also Remedies concurrent pleadings in defamation and alternative cause of action, ................................................ [18.230] generally, .............. [16.10]-[16.140], [17.10], [18.60], [18.150] injurious falsehood, for, ..... [18.50], [18.60] interaction of defamation and alternative causes of action, for purposes of, ................................................ [18.230] interlocutory, ........ [16.10]-[16.140], [18.60] Australian test for grant of, ...... [16.50], [16.60] defence of justification and, ..... [16.50], [16.110] defences generally and, .............. [16.50], [16.110] “flexible” approach to grant of, .................................... [16.40], [16.50] freedom of speech, importance of, .................................................. [16.80] historical context, .......... [16.20], [16.30] judge’s and jury’s roles, ............. [16.90], [16.100] matter clearly defamatory, where, .................................................. [16.90] nominal damages and, .............. [16.120] pleading of defences and, ......... [16.50], [16.110] quia timet basis, ........................... [16.130]

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-28 03:39:02.

Index Injunction — cont

Copyright © 2015. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

reputation, role of, .................... [16.120] restraint of repetition by, ........ [16.130], [16.140] “rigid” approach to grant of, .... [16.40], [16.50] whether defamation a special case, .................................................. [16.70] misleading or deceptive conduct, for, ................................................ [18.150] permanent, ......................... [16.10], [16.140] protection of privacy by, ................ [18.230] purpose of, ......................... [16.10], [16.130] restrictive approach to, ...... [5.110], [16.10], [16.30]-[16.60], [16.80], [18.60], [18.150], [18.230] Injurious falsehood aggravated damages for, whether, .................................................. [18.50] alternative cause of action to defamation, ..................................... [18.10]-[18.60] advantages of, .............................. [18.60] differences between defamation and, .................................................. [18.60] elements of, .................... [18.30], [18.60] defendant’s knowledge, .............. [18.30] limitations to, ............................... [18.60] malice, relevance of, ..... [18.30], [18.60] proof of actual damage as gist of, .................................... [18.30], [18.60] purpose of, ................................... [18.60] remedies, .......... [18.30], [18.50], [18.60] examples of allegations amounting to, .................................................. [18.40] historical background of tort of, .... [18.20] malice, relevance of, ............ [18.30], [18.60] publication of, ...................... [18.30], [18.60] remedies, ................ [18.30], [18.50], [18.60] Innocent dissemination basis of, ............................................... [14.20] common law position, ....................... [8.10], [14.10]-[14.40] development, ..... [8.10], [14.20], [14.40] elements of defence, .................. [14.30] new technologies, ........................ [14.40] onus of proof, ............................. [14.30] who may rely on defence, .......... [14.30] development of defence of, ............. [8.10], [14.20], [14.40] generally, ........ [8.10], [8.30], [14.10]-[14.50] national uniform laws, under, .......... [14.50] new technologies and, ........ [14.40], [14.50] electronic media, ........... [14.40], [14.50] printers, ......................................... [14.40] purpose of defence of, ..................... [14.20] statutory position, ............... [14.40], [14.50]

Interlocutory disputes generally, ............................................... [1.10] increase in number of, ........................ [1.20] Interlocutory injunction — see Injunction Internet intermediaries — see also Internet technologies internet content host, ......... [14.10], [14.60] defences, ......................... [14.10], [14.60] “internet content” defined, ....... [14.60] statutory protection of, .............. [14.60] internet service provider, ...... [8.10], [8.30], [8.190], [14.10], [14.60] defences, ......................... [14.10], [14.60] defined, ......................................... [14.60] publication and, ................ [8.10], [8.30], [8.190], [14.10], [14.60] publisher, whether, ...................... [14.60] statutory protection of, .............. [14.60] publication and, ........ [8.10], [8.30], [8.140], [8.160]-[8.200], [14.10], [14.60], [15.60] “grapevine effect”, ...................... [15.60] publisher, whether, ............. [8.190], [8.200], [14.60] search engines, .......... [8.10], [8.30], [8.190], [8.200] social media platforms, ....... [8.30], [8.180], [8.200] statutory protection of, ...... [14.10], [14.60] Internet technologies — see also Internet intermediaries development and impact of, ............. [1.50], [1.80], [3.70] emails, ................................... [8.180], [14.60] “ordinary email” defined, .......... [14.60] publication, ................................... [8.180] forms of defamatory matter, ......... [6.160], [8.50] online services, ................ [6.160], [8.50] websites, ........................................ [6.160] impact of, ............................. [8.170], [15.60] innocent dissemination and, ........... [14.40], [14.50] “internet carriage service” defined, .................................................. [14.60] internet datacast and libel .................. [5.20] interpretation of defamatory matter via, .................................................. [6.160] jurisdiction, ......................................... [8.170] publication and, ........ [8.10], [8.80], [8.140], [8.160]-[8.180], [8.200], [15.60] anonymity, .................................... [8.180] emails, ............................................ [8.180] Facebook, ..................................... [8.180] hyperlinking, .................... [8.10], [8.200] multi-state defamation, ............... [8.170]

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-28 03:39:02.

411

412

Index Internet technologies — cont

proof of, ......................................... [8.80] Twitter, ............................ [8.180], [8.200] republication via hyperlinking, ........ [8.200] streaming of radio via, ....................... [5.20]

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J Judge — see also Trial role of, ............ [4.20], [5.150], [6.50]-[6.70], [6.120], [7.40], [9.10], [9.60], [9.150], [10.10], [11.30], [11.80], [11.150], [11.180], [13.40], [13.70], [13.90], [15.20], [15.110], [16.90], [16.100] absolute privilege and, ................ [10.10] assessment of damages, in, ....... [15.20], [15.110] contextual truth, in determining, .................................................. [9.150] criminal defamation trial, in, ........ [4.20] defamatory capacity, in determining, ......................................... [6.50], [6.60] defamatory meaning, ....... [6.60], [6.70], [6.120], [16.90], [16.100] defences, in relation to, .... [9.10], [9.60], [9.150], [10.10] “fairness” of fair comment, in determining, ........................... [13.90] indirect identification of plaintiff and, ..................................................... [7.40] interlocutory injunction and, .... [16.90], [16.100] public interest, in determining, .................................................. [13.70] qualified privilege, in determining, .... [11.30], [11.80], [11.150], [11.180] questions of law, in determining, .................................................. [5.150] statement of comment, in determining whether, .................................. [13.40] Jury — see also Trial Australian right to elect trial by, ....... [1.60], [5.150], [18.60] importance of retaining, .................... [1.60] recent developments in use of, ....... [5.160] role of, ......... [4.20], [5.150], [5.160], [6.60], [6.70], [7.40], [9.10], [9.60], [9.150], [11.30], [11.80], [11.150], [11.180], [13.40], [13.90], [13.100], [15.20], [15.110], [16.90], [16.100] assessment of damages, in, ....... [5.150], [15.20], [15.110] contextual truth, in determining, .................................................. [9.150] criminal defamation trial, in, ........ [4.20] defamatory capacity, ..................... [6.60]

defamatory meaning, in determining, .............. [5.150], [6.50]-[6.70], [6.80], [6.110], [6.120], [16.90], [16.100] defences, in relation to, .... [9.10], [9.60], [9.150] “fairness” of fair comment, in determining, ........................... [13.90] indirect identification of plaintiff and, ..................................................... [7.40] interlocutory injunction and, .... [16.90], [16.100] malice, in determining, ............. [13.100] qualified privilege, in determining, .... [11.30], [11.80], [11.150], [11.180] questions of fact, in determining, .................................................. [5.150] statement of comment, in determining whether, .................................. [13.40] size of, ................................................. [5.160] special position of, ............................ [5.150] United Kingdom presumption against, ...................................... [1.60], [5.160] Justification assessment of damages, ..... [9.70], [15.100] partial justification, ........................ [9.70] persistence in defence, and, ..... [15.100] common law, at, .......... [9.20]-[9.50], [9.70], [9.80], [9.100]-[9.120], [9.180] Hore-Lacy defence, ............ [9.20], [9.80], [9.120], [9.180] partial justification, ............ [9.20], [9.70] Polly Peck defence, ............. [9.20], [9.80], [9.100]-[9.120], [9.180] presumption of falsity, ................. [9.40] public interest, ............................... [9.50] complete defence, as, ............. [2.40], [9.20], [9.30], [9.80], [9.130], [15.210], [18.200] rationale for, ................... [9.30], [15.210] contextual truth, ...... [9.20], [9.130]-[9.180] elements of, .................................. [9.140] Hore-Lacy defence and, ............... [9.180] meaning of, .................... [9.130], [9.170] national uniform laws and, ....... [9.130], [9.140], [9.170] origins of, ...................................... [9.130] “pleading back”, .......................... [9.170] pleading of, .................... [9.140], [9.170] Polly Peck defence and, ................ [9.180] purpose of, ................................... [9.170] roles of judge and jury, .............. [9.150] scope of operation of, ............... [9.130], [9.160] failure of defence of, .......................... [9.30] Faulks Committee report, .................. [9.40] generally, ...................... [3.70], [4.20], [4.30], [9.10]-[9.180], [14.10], [15.100], [15.210], [16.50], [16.110], [18.200]

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-28 03:39:02.

413

Index

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Justification — cont

Hore-Lacy defence, .... [9.20], [9.80], [9.120], [9.180] application of, .................. [9.80], [9.120] contextual truth and, .................. [9.180] national uniform laws and, ........ [9.120] interlocutory injunction and pleading of defence of, ............. [16.50], [16.110] partial, ........................................ [9.20], [9.70] plaintiff’s forensic advantage, ........... [9.90], [9.170] pleadings and, ......................... [9.20], [9.80], [9.100]-[9.140], [9.170], [16.50], [16.110] Polly Peck defence, ................... [9.20], [9.80], [9.100]-[9.120], [9.180] application of, ................... [9.20], [9.80], [9.100]-[9.120] Australia, in, ........ [9.20], [9.100]-[9.120] contextual truth and, .................. [9.180] criticisms of, ................................. [9.110] example of limitations of, ......... [9.100] example of operation of, ........... [9.100] nature of, .......................... [9.80], [9.100] presumption of falsity, ........... [9.40], [9.50] proof of, ........................ [9.10]-[9.40], [9.60] difficulty of, ............ [9.20], [9.40], [9.60] onus, ........................ [9.10], [9.30], [9.40] public benefit, ............. [3.70], [9.50], [9.60], [18.200] removal of additional element of, ......................................... [3.70], [9.60] public interest, ............ [3.70], [9.50], [9.60], [18.200] interpretation of, ............... [9.50], [9.60] public figures, ................................. [9.60] removal of additional element of, ..................................................... [9.60] what is of interest to the public distinguished, ........................... [9.60] requirements for defence of, ......................................... [9.30]-[9.50] statutory, ........... [3.70], [4.20], [9.20]-[9.60], [9.130]-[9.180], [18.200] contextual truth, ........................... [9.20], [9.130]-[9.180] national uniform laws, .... [3.70], [9.30][9.60], [9.130], [9.140], [9.170], [18.200] public benefit, ....... [3.70], [9.50], [9.60], [18.200] public interest, ...... [3.70], [9.50], [9.60], [18.200] substantial truth, ............... [3.70], [9.30], [9.40], [18.200] substantial truth, ......... [3.70], [4.20], [4.30], [9.30]-[9.60], [18.200] meaning of, ..................................... [9.30]

L Law reform abolition of criminal defamation, whether necessary, .......... [4.10], [4.30], [4.40] abolition of distinction between libel and slander, .......................... [3.70], [5.20] Attorneys-General of New South Wales, Queensland and Victoria, ...... [3.70] Australian Law Reform Commission, Report No 11, ......... [3.70], [17.130] Australian Law Reform Commission, Report No 25, .......................... [1.50] Australian Law Reform Commission, Report No 108, ................... [18.210] Australian Law Reform Commission, Report No 123, ................... [18.210] Constitutional Commission, .............. [3.70] current need for, ....... [1.50], [1.60], [2.110], [3.70], [5.110], [6.140], [8.130], [9.80], [13.10], [17.10], [17.100]-[17.130], [18.220] adequacy of laws, .......................... [3.70] fair comment defence, ................ [13.10] minimisation of “chilling effect” on freedom of speech, ............... [2.110] multiple publication rule, ........... [8.130] pleading procedures, ..................... [9.80] privacy protection, .................... [18.220] range of appropriate remedies, .................. [17.10], [17.100]-[17.130] “single meaning” rule, ................ [6.140] difficulty of, .............................. [1.50], [3.70] freedom of speech and, ..................... [1.60] historical, ............................................... [1.40] impediments to, ................................... [3.70] justification defence, ........................... [3.70] national uniform laws, ........... [1.10], [1.50], [3.10], [3.70], [4.10], [4.20], [4.40], [5.30], [5.110], [17.110]-[17.130] — see also National uniform laws Commonwealth Attorney-General’s report (2004), .............. [3.70], [4.20], [17.110]-[17.130] introduction of, .... [1.10], [1.50], [3.10], [3.70], [4.10] limited to civil defamation, .......... [4.20] reduction of limitation period for claim, ......................................... [5.30] removal of standing to sue of corporations, .......................... [5.110] New South Wales Attorney-General’s Taskforce on Defamation Law Reform, ..................................... [5.30] New South Wales Law Reform Commission, 1971 Report, .... [6.30] New South Wales Law Reform

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-28 03:39:02.

414

Index Law reform — cont

Copyright © 2015. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

Commission, Report No 75, ............................ [1.50], [3.70], [5.30] New South Wales Law Reform Commission, Report No 120, ................................................ [18.210] piecemeal, historically, ........................ [1.40] privacy protection, .......................... [18.210] Standing Committee of Attorneys-General, .... [3.70], [4.20], [17.120] court-ordered corrections as alternative to damages, .......................... [17.120] model provision for criminal defamation, .............................. [4.20] Victorian Law Reform Commission, Report No 18, ..................... [18.210] Western Australian Defamation Law Reform Committee, Report, ..................................................... [1.50] Liability breadth of, .................. [8.10], [8.70], [14.20] harshness of, ................................ [14.20] republication of defamatory matter, ..................................................... [8.70] conduct tending to cause damage to reputation, for, ............. [1.30], [1.70] defamatory capacity, ..... [6.50], [6.60] — see also Defamatory capacity defamatory meaning distinguished, ..................................................... [6.50] question of law for judge, as threshold test, ................................ [6.50], [6.60] defamatory matter, ............. [6.130]-[6.300], [18.60] — see also Defamatory matter interpretation of, ........... [6.130]-[6.210], [18.60] tests for what is, ............. [6.220]-[6.300] defamatory meaning, ............. [3.20], [6.50], [6.70], [6.80], [6.100]-[6.120], [16.90], [16.100], [18.90] — see also Defamatory meaning defamatory capacity distinguished, ..................................................... [6.50] question of fact for jury, in imposing liability, ............. [6.50], [6.70], [6.80], [6.110], [6.120], [16.90], [16.100] test of “ordinary reasonable reader”, ............... [3.20], [6.50], [6.70], [6.80], [6.100]-[6.120], [18.90] identification of plaintiff — see Identification of plaintiff intention of publisher, relevance of, .......................... [6.80], [6.90], [14.20] negligence of publisher, relevance of, .................................................. [14.20] operation of publication and, ........... [2.20]

purpose of, ........................................... [1.30] relevant inquiry for, ............................. [6.90] “single meaning” rule, .......... [1.30], [18.60] strictness of, .............. [8.10], [8.30], [14.20], [14.110], [18.90] vicarious, ........................................... [13.100] Libel criminal defamation, as, ......... [3.40], [4.10], [4.30], [4.40] — see also Criminal defamation blasphemous libel, ......................... [4.30] defamatory libel, .... [3.40], [4.30], [4.40] obscene libel, .................................. [4.30] seditious libel, .................... [3.40], [4.30] damage to reputation, ......................... [5.20] internet datacast, .................................. [5.20] meaning of, ........................................... [5.20] radio broadcasts, .................................. [5.20] seditious, ............................................... [3.40] slander and, .................. [3.30], [3.70], [5.20] abolition of distinction, .............. [3.70], [5.20] distinguished, ..................... [3.30], [5.20] television broadcasts, .......................... [5.20] Limitation periods application of, ...................................... [5.40] before national uniform laws, ........... [5.30] court-ordered extension of, .............. [5.30], [5.40] interaction between offers of amends and, .................................................. [17.90] multiple publication rule, ................. [8.130] national uniform laws, ........................ [5.30] New South Wales Attorney-General’s Taskforce on Defamation Law Reform, ..................................... [5.30] New South Wales Law Reform Commission, Report No 75, ..................................................... [5.30]

M Magazines and newspapers defamatory matter, .............................. [8.50] history, ................................................... [3.70] indirect identification of plaintiff and type of, ............................................... [7.40] matter, as, .............................................. [6.40] printing press, introduction and regulation, ..................................................... [3.40] Malice employee, of, and defendant’s vicarious liability, .................................. [13.100]

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-19 00:52:39.

415

Index Malice — cont

evidence of, ........................ [11.90], [11.100] meanings of, ........ [11.80], [11.90], [13.100] plaintiff’s onus of proof of, ........... [11.80], [11.90] relevance of, ............ [3.20], [11.20], [11.30], [11.80], [11.110], [11.120], [13.20], [13.100], [13.110], [15.210], [15.230], [18.30], [18.60] assessment of damages, .......... [15.210], [15.230] defamation, .................. [11.80]-[11.100], [11.120], [15.210], [15.230], [18.30] fair comment defence, ............... [13.20], [13.100] honest opinion defence, ........... [13.110] injurious falsehood, ...... [18.30], [18.60] mitigation of damages, ............ [15.210] qualified privilege, ........ [11.20], [11.30], [11.80], [11.110], [11.120], [11.140], [13.100], [18.70]

Copyright © 2015. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

Matter — see also Defamatory matter cause of action, as, ................. [6.20], [6.30], [6.100]-[6.120] based on natural and ordinary meaning of published words, ............. [6.100], [6.110] based on true innuendo, ........... [6.100], [6.120] meaning of, ............................... [6.20], [8.50] pleaded imputations and, ....... [6.20], [6.30] pleading of whole, .............................. [6.40] publication of, .................... [6.10] — see also Publication what constitutes, .................................. [6.40] whether defamatory, ........................... [6.10] Misleading or deceptive conduct alternative cause of action to defamation, ..................... [18.10], [18.70]-[18.150] Australian Consumer Law, under, .................. [18.80], [18.130]-[18.150] elements of liability for, ............. [18.90] freedom of speech and, ........... [18.120] “information provider” exemption, ................................. [18.120]-[18.140] interaction of defamation and, ................................................ [18.120] “in trade or commerce”, meaning of, ................................................ [18.110] overlap with defamation, ........... [18.70] purpose of action, .................... [18.120] remedies, ..................................... [18.150] State and Territory fair trading legislation under, .................. [18.80], [18.130], [18.140] statements of fact and opinion, for, ................................................ [18.100]

N National uniform laws absolute privilege under, .................. [10.50] abolition of distinction between libel and slander, .......................... [3.70], [5.20] assessment of damages under, ............... [15.120]-[15.140], [15.210], [15.230] attempted, ................................. [3.10], [3.70] cause of action under, ............ [3.70], [9.30] criminal defamation and, .................... [4.20] damages under, ..... [15.10], [15.20], [15.40], [15.120]-[15.150], [15.180], [15.210], [15.230]-[15.250] aggravated damages preserved, ................................ [15.230], [15.250] approach to assessment of, ............... [15.120]-[15.140], [15.210], [15.230] cap on quantum for non-economic loss, ................................... [15.10], [15.40], [15.120]-[15.150], [15.230] exemplary damages abolished, ................................ [15.240], [15.250] judge’s role in assessing, ............. [15.20] mitigation of damages, ............ [15.210] multiple proceedings, ............... [15.140] multiple publications, ............... [15.140] plaintiff’s prior convictions, evidence of, .......................................... [15.180] restricted heads, ........................... [15.10] defences under, ....................... [3.70], [9.10], [9.30]-[9.60], [9.130], [9.140], [9.170], [12.10], [12.30], [12.80]-[12.100], [13.10], [13.110], [14.50]-[14.110], [18.200] fair report of proceedings of public concern, .................... [12.80], [12.90] honest opinion, .......... [13.10], [13.110], [18.200] innocent dissemination, ............. [14.50] justification, ........... [3.70], [9.30]-[9.60], [9.130], [9.140], [9.170], [18.200] preservation of common law defences, ................................................ [14.110] protected reports, ......... [12.10], [12.30], [12.80]-[12.100] protection of internet service providers and internet content hosts, .................................................. [14.60] publication of public documents, .................... [12.10], [12.30], [12.100] triviality, ............. [3.70], [14.70]-[14.100] unlikelihood of harm, ................ [14.90] enactment of, .............. [1.10], [1.50], [3.10], [3.70], [4.10]

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-19 00:52:39.

416

Index

Copyright © 2015. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

National uniform laws — cont

fair comment and, ............... [13.10], [13.60] “harm”, meaning of, ....................... [14.100] history of, ................................. [3.10], [3.70] honest opinion under, ..... [13.10], [13.110], [18.200] elements of three defences, .... [13.110] Hore-Lacy defence and, ..................... [9.120] jurisdiction and choice of law for multi-state defamation, ....... [8.160], [8.170] Anshun estoppel, .......................... [8.170] issue estoppel, .............................. [8.170] res judicata, ..................................... [8.170] justification as defence under, .......... [3.70], [9.30]-[9.60], [9.130], [9.140], [9.170], [18.200] removal of public interest / public benefit as additional element of, ......................................... [9.50], [9.60] limitation periods for claim, ............. [5.30], [17.90] matter, ............ [6.20], [6.100]-[6.120], [8.50] cause of action, as, ....................... [6.20], [6.100]-[6.120] defined, ............................... [6.20], [8.50] natural and ordinary meaning of published words, ..... [6.100], [6.110] true innuendo, ............... [6.100], [6.120] no test for what is defamatory, ....... [6.230] objects of, ............. [17.10], [17.20], [17.110] offer of amends, .................. [17.10]-[17.90] protected reports under, ................. [12.10], [12.30], [12.80]-[12.100] defence lost, where, .................... [12.90] extension of protection, ............ [12.90] fair report of proceedings of public concern, .................................. [12.90] publication of public documents, .................... [12.10], [12.30], [12.100] qualified privilege under, ................................. [11.130]-[11.180] course of giving information, ................................ [11.140], [11.170] elements of, ................ [11.140]-[11.180] interest or apparent interest, ................ [11.140], [11.160], [11.170] malice, relevance of, .................. [11.140] reasonableness of defendant’s conduct, ................................ [11.140], [11.180] responsible journalism and, ..... [11.130] roles of judge and jury, ........... [11.150], [11.180] remedies under, .................... [17.10]-[17.90] single publication rule, ...................... [8.130] standing to sue under, ......... [5.80], [5.110], [18.10], [18.60] corporations, .... [5.110], [18.10], [18.60] deceased persons, .......................... [5.80]

substantive differences between jurisdictions, ............................. [3.70] Negligence freedom of speech and duty of care, ................................................ [18.170] interaction of defamation and, ...... [18.10], [18.160], [18.170] negligent misstatement causing economic loss or psychiatric harm, as alternative cause of action to defamation, .......... [18.160], [18.170] elements of, ................................ [18.170] function of, ................................ [18.160] publisher, of, relevance of, ............... [14.20] Newspapers and magazines defamatory matter, .............................. [8.50] history, ................................................... [3.70] indirect identification of plaintiff and type of, ............................................... [7.40] matter, as, .............................................. [6.40] printing press, introduction and regulation, ..................................................... [3.40] New South Wales Attorney-General’s Taskforce on Defamation Law Reform, .................................... [5.30] New South Wales Law Reform Commission 1971 Report, ......................................... [6.30] Report No 75, .............. [1.50], [3.70], [5.30] Report No 120, ............................... [18.210]

O Offer of amends — see also Remedies admissibility of statements made in connection with, .................... [17.80] aggrieved person’s costs, .................. [17.70] alternative to payment into court or offers of compromise, as, ............... [17.20] breadth of, .......................................... [17.30] compliance with terms of, ............... [17.70] content of, .......................................... [17.30] effect of acceptance of, .................... [17.70] effect of refusal or failure to accept reasonable, .............................. [17.80] efficacy of, .......................................... [17.20] evaluation of reasonableness of, .... [17.80] extent of use of, ................................ [17.20] failure or refusal to accept reasonable, ...................................... [4.20], [17.80] formal requirements for, .................. [17.30] generally, ................................ [17.10]-[17.90]

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-19 00:52:39.

417

Index Offer of amends — cont

interaction between limitation periods and offers, ...................................... [17.90] introduction of remedy of, .............. [17.10] national uniform laws, regime under, ..................................... [17.10]-[17.90] payment of compensation, .............. [17.30] purpose of, ........................... [17.10], [17.20] refusal or failure to accept reasonable, ...................................... [4.20], [17.80] renewal of, .......................................... [17.60] service of defence precludes, .......... [17.40] timing of, .............................. [17.40], [17.60] timing of acceptance or refusal, ..... [17.50] to whom can be made, ..................... [17.30] withdrawal of, .................................... [17.60]

P

Copyright © 2015. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

Partnership awards of damages to, and injury to feelings, ..................................... [5.90] damage to reputation of, ........ [5.90], [7.80] protection of reputation of, whether, ..................................................... [5.90] standing to sue of, ............................... [5.90] Plaintiff assessment of damages and, .......... [15.70], [15.160]-[15.200], [15.220] effect of post-publication conduct of, on, ......................................... [15.220] evidence of injury to feelings, .................................................. [15.70] relevance of reputation of, for, ................................. [15.160]-[15.200] bad reputation of, whether relevant, ................... [14.80], [15.10], [15.170], [15.190], [15.200] mitigation of damages and, .... [15.170], [15.190] bankrupt, and damages, ...................... [5.70] elements to prove in claim by, .......... [6.10], [7.10]-[7.100], [8.10], [8.20], [18.60] matter defamatory of plaintiff, ..................... [6.10], [18.60] — see also Defamatory capacity — see also Defamatory matter — see also Defamatory meaning matter identifies / is “of and concerning” plaintiff, ............. [6.10], [7.10]-[7.100] — see also Identification of plaintiff matter published by defendant, ........... [6.10], [8.10], [8.20] — see also Publication

favoured position of, ............. [1.60], [6.10], [6.30], [9.90], [9.170], [18.60] defence of justification and, ....... [9.90], [9.170] presumption of damage, .............. [6.10] presumption of falsity, ................ [6.10], [18.60] reliance on natural and ordinary meaning, ................................... [6.30] good reputation of, presumption of, ................................................ [15.190] identification of, ..................... [4.30], [6.10], [7.10]-[7.100] — see also Identification of plaintiff identity of, as context for interpreting defamatory matter, ................ [6.150] misconduct of, and mitigation of damages, ................................................ [15.170] onus of proof of, ................. [5.40], [11.80], [11.90], [13.30], [13.100], [13.110] defence of fair comment, where, .................................. [13.30], [13.100] defence of honest opinion, where, ................................................ [13.110] extension of limitation period, ..................................................... [5.40] malice, of, ....................... [11.80], [11.90] pleading of imputation by, .... [6.20], [6.30], [9.20], [9.80], [9.100]-[9.140], [9.170] — see also Pleading prior convictions of, and mitigation of damages, ............................... [15.180] reputation of, ..... [6.150], [15.160]-[15.200] — see also Reputation context for interpreting defamatory matter, as, ............................... [6.150] relevance for assessment of damages, ................................. [15.160]-[15.200] standing to sue, ..... [5.50]-[5.140] — see also Standing Pleading absolute privilege and, ...................... [10.30] artificiality of, ........................... [1.30], [6.30] bad reputation, of, ............................. [15.10] binding nature of, ................................ [9.80] complexity of, ............. [1.10], [1.20], [6.20], [6.30], [9.30] concurrent, with alternative cause of action, ................... [18.170], [18.230] injunctive relief and, ................. [18.230] negligence, .................................. [18.170] contextual truth, of, ............ [9.140], [9.170] defences, of, and interlocutory injunction, .................................. [16.50], [16.110] generally, ..................................... [16.110] justification, ................. [16.50], [16.110] fair comment defence and, .............. [13.60] form of, ................................................. [1.20]

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-19 00:52:39.

418

Index Pleading — cont

imputations, of, ........... [6.20], [6.30], [9.20], [9.80], [9.100]-[9.140], [9.170] consequence of, ............................. [6.30] particularisation of meaning, ..... [6.20], [6.30] purpose of, ..................................... [6.30] requirements for, ........................... [6.30] interdependence between substance of law and, ............................................ [9.20] justification defence and, ...... [9.20], [9.80], [9.100]-[9.140], [9.170], [16.50], [16.110] multi-state publication and, ............. [8.170] need for reform of procedures for, ..................................................... [9.80] “pleading back”, ................................ [9.170] republication, of, ................................. [8.70] true innuendo, of, .............................. [6.120] whole matter, of, .................................. [6.40] Political communication implied freedom of, ............. [1.50], [2.100], [2.120], [11.10], [11.110], [11.120] application and limits of, ............ [2.120] identification of, .......................... [2.120] impact on defamation law, ....... [11.110] Lange qualified privilege, ........... [11.10], [11.110], [11.120]

Copyright © 2015. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

Printing printing press, introduction and regulation, ..................................................... [3.40] rise of printed works, ......................... [3.40] Privacy breach of confidence and, ................................. [18.200]-[18.220] freedom of speech and, ..................... [9.60] law reform, ....................................... [18.210] private nuisance and, ...................... [18.200] protection of, .......... [9.60], [13.70], [18.10], [18.200]-[18.230] breach of confidence action and, ................................. [18.200]-[18.220] direct, ............................................ [18.10] England, in, ............... [18.210], [18.220] indirectly through tort of defamation, ...................... [9.60], [13.70], [18.200] injunctive relief and, ................. [18.230] law reform, ................................. [18.210] New Zealand, in, ....................... [18.210] private nuisance action, whether, ................................................ [18.200] United States, in, ....................... [18.210] reputation and, ..... [2.70], [18.200]-[18.220] right of, whether, ............... [18.10], [18.200]

Privilege absolute, ..... [9.10], [10.10]-[10.80], [12.10], [14.10] — see also Absolute privilege qualified, generally, ................. [4.30], [9.10], [10.10], [11.10]-[11.180], [13.10], [13.90], [13.100], [14.10], [18.170] — see also Qualified privilege Proof court-ordered extension of limitation period, for, ................................ [5.40] defences, of, ..... [6.10], [9.10]-[9.40], [9.60], [11.30], [11.40], [11.140], [11.180], [12.30], [13.30], [13.50], [13.70], [13.100], [13.110], [14.30], [14.50], [14.70], [14.90], [18.60] fair and accurate report of judicial proceedings, ........................... [12.30] fair comment, ............... [13.30], [13.50], [13.70], [13.100] honest opinion, ......................... [13.110] innocent dissemination, ............ [14.30], [14.50] justification, ............ [9.10]-[9.40], [9.60] qualified privilege, ........ [11.30], [11.40], [11.140], [11.180] triviality, .......................... [14.70], [14.90] difficulty of proving damage to reputation, ..................................................... [3.30] elements of claim, of, ........................ [6.10], [7.10]-[7.100], [8.10], [8.20], [18.60] injurious falsehood, of, ...... [18.30], [18.60] malice, of, ............................. [11.80], [11.90] plaintiff’s onus of, .................. [5.40], [6.10], [7.10]-[7.100], [8.10], [8.20], [11.80], [11.90], [13.30], [13.100], [13.110], [18.60] defence of fair comment, where, .................................. [13.30], [13.100] defence of honest opinion, where, ................................................ [13.110] elements of claim, of, .................. [6.10], [7.10]-[7.100], [8.10], [8.20], [18.60] extension of limitation period, ..................................................... [5.40] malice, of, ....................... [11.80], [11.90] publication, of, ............ [8.10], [8.20], [8.80], [8.90] inferred, .............................. [8.80], [8.90] internet technologies, .................... [8.80] limited publication, ....................... [8.90] mass media publication, .............. [8.80], [8.90] reference to plaintiff by name, .... [8.80] Protected reports common law, at, ..... [11.10], [12.10]-[12.90]

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-19 00:52:39.

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Protected reports — cont

fair and accurate report of judicial proceedings, .......................... [11.10], [12.10]-[12.40], [12.60], [12.80], [12.90] fair and accurate report of parliamentary proceedings, ...................... [12.10], [12.70], [12.80] fair and accurate report of quasi-judicial and other proceedings, .................................................. [12.50] complete defence where, .................. [12.10] fair and accurate report of judicial proceedings, .......................... [11.10], [12.10]-[12.40], [12.60], [12.80], [12.90] accuracy, ........................................ [12.40] assessment of fairness, ............... [12.40] basis for defence, ......................... [12.20] defendant’s onus of proof, ........ [12.30] development of defence, .......... [12.10], [12.90] elements of defence, .................. [12.20] extent of defence, ......... [12.20], [12.30] foreign proceedings, ................... [12.60] purpose of, ................................... [12.20] qualified privilege and, .............. [11.10], [12.10], [12.40] fair and accurate report of parliamentary proceedings, ............ [12.10], [12.70], [12.80] assessment of fairness, ............... [12.70] content and form of, .................. [12.70] development of defence, ........... [12.10] qualified privilege and, ............... [12.10] fair and accurate report of quasi-judicial and other proceedings, ......... [12.50] fair report of proceedings of public concern, ...... [12.10], [12.80], [12.90] extent of defence, ......... [12.80], [12.90] “proceedings of public concern” defined, ................................... [12.80] generally, ............... [11.10], [12.10]-[12.100] national uniform laws, under, ......... [12.10], [12.30], [12.80]-[12.100] defence lost, where, .................... [12.90] extension of protection, ............ [12.90] fair report of proceedings of public concern, .................................. [12.90] publication of public documents, .................... [12.10], [12.30], [12.100] publication of public documents, .................... [12.10], [12.30], [12.100] defence lost, where, .................. [12.100] elements of defence, ................ [12.100] “public document” defined, .... [12.100] republication, ............................. [12.100] public interest in, ................ [12.10], [12.20], [12.70]

statutory, .............................. [12.10], [12.30], [12.80]-[12.100] defence lost, where, .................... [12.90] fair report of proceedings of public concern, ...... [12.10], [12.80], [12.90] publication of public documents, .................... [12.10], [12.30], [12.100] Publication abuse of process and insubstantial, .................................................. [15.30] accidental, ........................................... [8.100] acts amounting to, ............................... [8.50] assent / consent to, .............. [8.40], [14.10], [14.110] circumstances of, .............. [14.80], [15.230] concept of, ................................ [8.20], [8.30] bilateral act, as, ............................... [8.20] communication to person other than plaintiff as essence, ..... [8.20], [8.30] consent / assent to, .............. [8.40], [14.10], [14.110] context of, ............................................. [8.60] control over, ......................................... [8.40] course of judicial proceedings, in, and absolute privilege, ....................... [10.20]-[10.50], [12.10] defences to, ..... [8.10], [8.30], [8.40], [8.90], [8.210], [14.10]-[14.110] — see also Defences consent, ............ [8.40], [14.10], [14.110] innocent dissemination, .............. [8.10], [8.30], [14.10]-[14.50] qualified privilege, ......................... [8.90] triviality, ......................... [8.210], [14.10], [14.70]-[14.100] extent of, ................................... [8.20], [8.30] broadness of, .................................. [8.30] number of recipients, whether relevant, ..................................................... [8.20] foreign language, ............................... [8.120] form of, ..................................... [8.50], [8.90] generally, .................................. [8.10]-[8.210] “grapevine effect”, ............................ [15.60] harm caused other than damage to reputation by, ....................... [18.160] husband and wife, between, ............ [8.110] identification of plaintiff as at time of, .................................................. [7.100] inferred, .................................... [8.80], [8.90] injurious falsehood, of, ...... [18.30], [18.60] insubstantial, and abuse of process, .................................................. [15.30] international, ......................... [8.150]-[8.170] internet intermediaries, .......... [8.10], [8.30], [8.180]-[8.200], [14.10], [14.60], [15.60] “grapevine effect”, ...................... [15.60]

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-19 00:52:39.

420

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Copyright © 2015. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

Publication — cont

internet service providers, ........... [8.10], [8.30], [8.190], [14.10], [14.60] search engines, .... [8.10], [8.30], [8.190], [8.200] social media platforms, ................ [8.30], [8.180], [8.200] statutory protection of, ............. [14.10], [14.60] internet technologies and practices, .......... [8.10], [8.140], [8.160]-[8.180], [8.200], [15.60] anonymity, .................................... [8.180] emails, ............................................ [8.180] Facebook, ..................................... [8.180] hyperlinking, .................... [8.10], [8.200] impact of, ....................... [8.170], [15.60] jurisdiction, ................................... [8.170] Twitter, ............................ [8.180], [8.200] limitation periods, ............................. [8.130] limited, .................................... [8.90], [8.100] accidental or mistaken, ............... [8.100] proportionality, .............................. [8.90] matter, of, ............................................. [6.10] meaning of, ................ [8.10], [8.20], [8.190] misleading and deceptive conduct and, ................................. [18.90], [18.100], [18.120]-[18.140] “information provider” exemption, ................................. [18.120]-[18.140] mistaken, ............................................. [8.100] multiple publication rule, .... [8.130]-[8.170] multiple publications and damages, ................................................ [15.140] multi-state defamation, ...................... [8.10], [8.130]-[8.170] doctrine of renvoi, .......... [8.150], [8.160] internet, ......................................... [8.170] jurisdiction and choice of law, ..................................... [8.140]-[8.170] nature of, and interpreting defamatory matter, ..................................... [6.160] omissions amounting to, .................... [8.50] operation of, ...... [2.20] — see also Liability original, ..................................... [8.40], [8.70] person other than plaintiff, to, ......... [8.20], [8.210] place of, ................................. [8.140]-[8.170] international, .................. [8.150], [8.160] internet, ............ [8.140], [8.160], [8.170] multiple jurisdictions, .... [8.140]-[8.160] television program, ..................... [8.140] privileged — see Absolute privilege — see Qualified privilege proof of, ........... [8.10], [8.20], [8.80], [8.90] inferred, .............................. [8.80], [8.90] internet technologies, .................... [8.80] limited publication, ....................... [8.90]

mass media publication, .............. [8.80], [8.90] reference to plaintiff by name, .... [8.80] proportionality, .................................. [8.210] protected reports, of — see Protected reports question of fact, as, ............................. [8.20] reckless, ............................................. [15.230] repetition, ............ [8.60], [15.230], [16.130], [16.140] injunction to restrain, .............. [16.130], [16.140] republication, ............ [8.40], [8.70], [8.200], [12.100] assessment of damages and extent of, ..................................................... [8.70] hyperlinking, ................................ [8.200] public document, of, ................ [12.100] third parties, by, ............... [8.70], [8.200] single publication rule, ....... [8.130], [8.170] third party act of, ................... [8.70], [8.100] who is a publisher, .................. [8.10], [8.30], [8.190], [8.200], [14.20], [14.60] generally, ....................................... [14.20] internet intermediaries, ............. [8.190], [8.200], [14.60] signatories, ...................................... [8.30] strict liability, ...................... [8.10], [8.30] subordinate distributors, .............. [8.30] Public interest fair comment defence and, ............... [9.60], [13.10], [13.20], [13.40], [13.70]-[13.100], [18.200] honest opinion defences and, ........... [9.60], [13.110], [18.200] indirect protection of privacy by application of concept of, ..... [9.60] judge’s role in determining, ............. [13.70] justification defence and, ...... [3.70], [9.50], [9.60], [18.200] interpretation of, ............... [9.50], [9.60] public figures, ................................. [9.60] removal of additional element of public interest, ......................... [9.60] what is of interest to the public distinguished, ........................... [9.60] meaning of, ......................................... [13.70] protected reports, in, ......... [12.10], [12.20], [12.70] qualified privilege and matters of, .................................................. [11.10] truth and, .............................................. [3.70]

Q Qualified privilege Australian extension and adaptation of, .................................................. [11.10]

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-19 00:52:39.

421

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Qualified privilege — cont

basis of, ............................... [11.20], [13.100] common law, at, ................ [11.10]-[11.120], [13.100] development of defence of, ...... [11.20] Lange qualified privilege as extension of, .................. [11.10], [11.110], [11.120] lost, where, ...... [11.20], [11.30], [11.80], [1.110], [13.100] malice, ............................ [11.20], [11.30], [11.80]-[11.120], [13.100] matters of public interest, ......... [11.10] privileged occasion, ..................... [11.30] proof of, ....................................... [11.30] publisher’s duty or interest, ....................... [11.40]-[11.60], [11.90] reciprocity or community of interest, .................... [11.50], [11.60], [11.110] reply to an attack, where, ........... [11.60] responsible journalism, ............. [11.10], [11.120] volunteering information, .......... [11.70] widely disseminated publications, .................... [11.50], [11.60], [11.110] complexity of defence of, ................ [11.10] defendant’s onus of proof, ............. [11.30], [11.40], [11.140], [11.180] development of defence of, ............ [11.20] extent of, ............................... [11.30], [11.60] fair and accurate report of judicial proceedings and, .... [11.10], [12.10], [12.40] fair and accurate report of parliamentary proceedings and, ................... [12.10] fair comment and, ............ [11.10], [11.180], [13.10], [13.90], [13.100] freedom of speech and, ................... [11.60] generally, ........ [4.30], [8.90], [9.10], [10.10], [11.10]-[11.180], [13.10], [13.90], [13.100], [14.10], [18.170] implied freedom of political communication and, ............ [11.10], [11.110], [11.120] Lange qualified privilege, ........... [11.10], [11.110], [11.120] judge’s role in deciding whether, .... [11.30], [11.80], [11.150], [11.180] jury’s role in deciding whether, ...... [11.30], [11.80], [11.150], [11.180] Lange qualified privilege, .................. [11.10], [11.110], [11.120] lost, where, ............ [10.10], [11.20], [11.30], [11.80], [11.110], [11.140], [11.170], [11.180], [13.100] malice, .... [11.20], [11.30], [11.80]-[11.120], [11.140], [13.100], [18.170] evidence of, .................. [11.90], [11.100] meanings of, ................... [11.80], [11.90]

plaintiff’s onus of proof of, ..... [11.80], [11.90] relevance of, .... [11.20], [11.30], [11.80], [11.110], [11.120], [11.140], [13.100], [18.170] meaning of, ......................................... [10.10] national uniform laws, under, ................................. [11.130]-[11.180] course of giving information, ................................ [11.140], [11.170] elements of, ................ [11.140]-[11.180] interest or apparent interest, ................ [11.140], [11.160], [11.170] malice, relevance of, .................. [11.140] reasonableness of defendant’s conduct, ................................ [11.140], [11.180] responsible journalism and, ..... [11.130] roles of judge and jury, ........... [11.150], [11.180] proof of, ............. [11.30], [11.40], [11.140], [11.180] relevance / germaneness, requirement of, .................................... [11.30], [13.90] statutory, ............................ [11.10], [11.110], [11.130]-[11.180] — see also “national uniform laws, under”, above prior to national uniform laws, ................................ [11.110], [11.130]

R Racial discrimination alternative cause of action to defamation to protect collective identities, ................................................ [18.180] freedom of speech and, ................. [18.180] Radio broadcasts defamatory matter via, ......... [6.160], [8.50] interpretation of, ......................... [6.160] history, ................................................... [3.70] identification of plaintiff via, ............ [7.40] internet streaming of, .......................... [5.20] libel, ....................................................... [5.20] matter, as, .............................................. [6.40] slander, .................................................. [5.20] Reform — see Law reform Remedies — see also Damages — see also Injunction — see also Offer of amends apology, ..... [3.20], [3.40], [11.100], [15.70], [15.100], [15.210], [15.230], [17.10], [17.30], [17.80], [17.110]

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-19 00:52:39.

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Remedies — cont

aggravated damages and relevance of, ................................................ [15.230] assessment of damages and relevance of, ........... [15.70], [15.100], [15.210], [15.230] corrective justice, as, ................. [17.110] court-ordered, whether, ............ [17.10], [17.110] effect of, ..................................... [17.110] law reform, ................................. [17.110] mitigation of damages and, .... [15.210], [17.110] offer of amends and, .... [17.30], [17.80] performance of public penance as historic penalty, ............ [3.20], [3.40] purposes of, ............................... [17.110] refusal or failure to give, whether evidence of malice, ............. [11.100] compensation order, ....................... [18.150] correction, ......... [15.210], [15.230], [17.10], [17.30], [17.80], [17.120] assessment of damages and relevance of, .......................... [15.210], [15.230] court-ordered, whether, ............. [17.10] law reform, ................................. [17.120] mitigation of damages and, ..... [15.210] offer of amends and, .... [17.30], [17.80] purpose of, ................................. [17.120] court-ordered retraction, whether, .................................................. [17.10] damages, ..... [3.20]-[3.60], [15.10]-[15.260], [16.10], [16.140], [17.10], [17.100], [18.50], [18.150] — see also Damages declaration, ......................... [17.10], [17.100] falsity, of, ...................... [17.10], [17.100] rarity of, ...................................... [17.100] history, ....................................... [3.20]-[3.60] injunction, ............ [16.10]-[16.140], [17.10], [18.60], [18.150] — see also Injunction injurious falsehood, for, .... [18.30], [18.50], [18.60] misleading or deceptive conduct, for, ................................................ [18.150] non-punitive orders, ....................... [18.150] offer of amends, ....... [17.10]-[17.90] — see also Offer of amends other than award of damages, by negotiation as part of settlement, .................................................. [17.10] retraction, ......................... [15.230], [17.110] assessment of damages and relevance of, .......................................... [15.230] right of reply, whether, ................... [17.130] settlement, by negotiation in, .......... [17.10]

Reputation character distinguished, ...................... [2.20] context for interpreting defamatory matter, as, ............................................. [6.150] damage to, ....... [1.30], [1.70], [2.10], [2.20], [2.40], [2.50], [3.30], [3.60], [5.20], [5.90], [5.100], [6.280], [7.80], [8.20], [8.140], [14.80], [14.100], [15.10], [15.30], [15.60], [15.70], [18.60], [18.150], [18.190] already bad reputation, .............. [14.80], [15.10] assessment of, .................. [2.40], [15.10] conduct tending to cause, ........... [1.30], [1.70] corporations, .................... [5.100], [7.80] damages for — see Damages difficulty of proving, .................... [3.30] false imprisonment, by, ............ [18.190] gist of action, as, .............. [2.10], [2.20], [3.30], [3.60], [8.20], [8.140], [14.100], [15.70], [18.60] “grapevine effect”, ...................... [15.60] libel, ................................................. [5.20] misleading or deceptive conduct, by, ................................................ [18.150] partnerships, ....................... [5.90], [7.80] presumption of, ................ [2.10], [2.50], [15.30], [15.70] professional reputation, ............. [6.280] slander, ............................................ [5.20] dignity, as, whether, ................. [2.50]-[2.70], [18.180] disparagement of, .............................. [6.230] generally, .................................... [2.10]-[2.80] honour, as, whether, .... [2.50], [2.60], [2.80] human right, as, ................................... [2.70] identification of plaintiff and impact on, ............................ [7.40], [7.60], [7.70] importance of interests in, ............... [1.40], [2.10]-[2.30], [2.50], [2.60], [2.80] analogous to form of property, ............................ [2.30], [2.50], [2.60] scepticism about, ........................... [2.80] interlocutory injunction and role of, ................................................ [16.120] liability for conduct tending to cause damage to, .................... [1.30], [1.70] meaning of, ............................... [2.20]-[2.60] academic literature, ........... [2.50], [2.60] broad approach to, ........................ [2.30] case law, ............................... [2.20]-[2.40] competing conceptions, .............. [2.50], [2.60] differing sectors, ............................ [2.40] privacy and, .......... [2.70], [18.200]-[18.220] problematic nature of, ............. [2.20]-[2.50] professional, ....................................... [6.280]

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-19 00:52:39.

423

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Copyright © 2015. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

Reputation — cont

property, as, whether, ............. [2.30], [2.50], [2.60] protection of, ............... [1.60], [2.10]-[2.40], [2.70], [2.80], [2.120], [3.10], [3.40], [3.50], [4.10], [5.90]-[5.130], [6.280], [9.30], [9.60], [10.10], [10.20], [11.20], [12.10], [12.20], [12.70], [13.10], [13.70], [15.10], [15.30], [17.10], [18.10]-[18.230] alternatives to defamation as cause of action, .... [18.10]-[18.230] — see also Cause of action balance between freedom of speech and, whether, .............. [2.10], [2.90], [2.120] collective identities, ................... [18.180] corporations, ................................ [5.100] damages as imperfect remedy, .................................... [15.10], [17.10] freedom of speech prioritised, where, .................................................. [13.10] governmental bodies, ................. [5.120] historically, ...................................... [2.80] limitations to, .... [2.30], [5.110], [10.10], [10.20], [12.10], [12.20] literature, in, ................................... [2.80] occasions privileged over, ......... [10.10], [10.20], [11.20] — see also Absolute privilege, Qualified privilege partnerships, ................................... [5.90] personal reputation, .................... [6.280] privacy and, ................ [18.200]-[18.220] privileged over freedom of speech, .............. [1.60], [2.20], [2.70], [18.80] professional reputation, ............ [6.280], [18.60] publications prevailing over, ..... [12.10], [12.20], [12.70] — see also Protected reports purpose / principal interest of civil defamation, ..... [2.10], [2.20], [2.80], [4.10], [9.30], [15.30], [18.10], [18.60], [18.120] settlement, by, .............................. [17.10] statutory offence of scandalum magnatum, ............................ [3.10], [3.40], [3.50] tension between freedom of speech and, .......................................... [17.10] tort of false imprisonment as, ................................................ [18.190] trade reputation, ............ [6.280], [18.60] trade unions, ................................. [5.130] relevance of, for assessment of damages, ................................. [15.160]-[15.200] bad reputation, ......... [15.170], [15.190], [15.200] good reputation, ....... [15.190], [15.200] prior convictions, ...................... [15.180]

relevant sector, ........... [15.170]-[15.200] trade, ..................................... [6.280], [18.60] value of, ................................................. [2.80]

S

Settlement other than by way of offer of amends regime, .................................... [17.20] protection of reputation by, ............ [17.10] remedies negotiable as part of, ....... [17.10] Slander categories actionable per se, ............. [3.30], [3.60] damage to reputation, ......................... [5.20] history, .............. [3.30], [3.40], [3.70], [4.30], [5.20] internet streaming of radio, ............... [5.20] libel and, ........................ [3.30], [3.70], [5.20] abolition of distinction, .............. [3.70], [5.20] distinguished, ..................... [3.30], [5.20] meaning of, ........................................... [5.20] mere vulgar abuse, ............................ [6.200] radio broadcasts, .................................. [5.20] Sources of defamation law — see History Standing bankrupts, ............................................. [5.70] corporations, ........... [2.60], [5.100], [5.110], [18.10], [18.60] common law, at, ............ [5.100], [5.110] national uniform laws, under, ...................... [5.110], [18.10], [18.60] deceased persons, .................... [4.30], [5.80] generally, .................................. [5.50]-[5.140] governmental bodies, ........................ [5.120] limits to, ................................................ [2.30] natural persons, ........... [5.50], [5.80], [5.90], [5.110], [5.120] partnerships, ......................................... [5.90] prisoners, .............................................. [5.60] trade unions, ........................ [5.120], [5.130] unincorporated associations, ........... [5.140] Standing Committee of Attorneys-General court-ordered corrections as alternative to damages, whether, ............... [17.120] defamation law reform generally, ...... [3.70] defamation on agenda of, .................. [3.70] model provision for criminal defamation, ..................................................... [4.20]

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-19 00:52:39.

424

Index

T

Television broadcasts defamatory matter via, ........ [6.160], [8.50], [8.140] interpretation of, ......................... [6.160] history, ................................................... [3.70] identification of plaintiff via, ............ [7.40] libel, ....................................................... [5.20]

Truth — see Justification

V Victorian Law Reform Commission Report No 18, .................................. [18.210]

W Western Australian Defamation Law Reform Committee Report, .................................................. [1.50]

Copyright © 2015. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

Trial delays in getting to, .................. [1.10], [1.20] injurious falsehood claim, of, .......... [18.60] judge, role of, ........................ [4.20], [5.150], [6.50]-[6.70], [6.120], [7.40], [9.10], [9.60], [9.150], [10.10], [11.30], [11.80], [11.150], [11.180], [13.40], [13.70], [13.90], [15.20], [15.110], [16.90], [16.100] — see also Judge jury, by, ......... [1.60], [4.20], [5.150], [5.160], [6.60], [6.70], [7.40], [9.10], [9.60], [9.150], [11.30], [11.80], [11.150], [11.180], [13.40], [13.90], [13.100], [15.20], [15.110], [16.90], [16.100], [18.60] — see also Jury purpose of, ........................................... [2.60]

Triviality circumstances of publication and, .................................................. [14.80] effect of defence of, ......................... [14.70] elements of defence of, .................... [14.70] generally, .................. [3.70], [8.210], [14.10], [14.70]-[14.100] “harm”, meaning of, ....................... [14.100] introduction of defence of, ............. [14.70] likelihood of any harm, .................... [14.90] onus of proof on defendant, ......... [14.70], [14.90]

Associate, Professor David Rolph. Defamation Law, Thomson Reuters (Professional) Australia Pty Limited, 2015. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=4985506. Created from usyd on 2020-08-19 00:52:39.