The rationale and role of defamation law: balancing protection of reputation and freedom of speech:

“The purpose of the law of defamation is to strike a balance between the right to reputation and freedom of speech”: Lange v ABC (1997) 189 CLR 520 at 568

This case introduced a notion of reasonableness

 “Both interests are highly valued in our society, the one as perhaps the most dearly prized attribute of civilised man, the other the very foundation of a democratic society”: Fleming, The Law of Torts, 9th ed, 1998, p580

•    The law substantively regulates the ways journalists write their stories
•    Arguably, defamation law is not only about freedom of speech and reputation, but also about quality control
•    The implied freedom of political communication in Australia is not a ‘sword’ that can be used against the state. Rather it is a limitation against the legislature. They cannot legislate against things that are inconsistent with the implied freedom of political communication

How does defamation law vary with other jurisdictions?

•    In the US, defamation law is highly constitutionalised by the First Amendment
•    In some states, defamation has been entirely codified under statute
•    Whilst in other states, it is primarily governed by case law (common law)

Defamation law in NSW

•    In NSW, defamation is governed by both Common Law and Statute
o    Defamation Act 1974 (NSW)
–  The DA codifies the defences of truth/justification (see s 15)
– and comment (s 29).
– All matters of law and fact regarding defences and damages are a matter for the judge (s7A(4)).

The Contingent and Variable Nature of Defamation Law
Concepts of “reputation”

 “…defamation law presupposes an image of how people are tied together, or should be tied together, in a social setting. As this image varies, so will the nature of the reputation that the law of defamation seeks to protect. This suggests that an evaluation of the state’s interest in reputation can have no single outcome, for the meaning and significance of reputation will depend upon the kinds of social relationships that defamation law is designed to uphold”. (Post, (1986) 74 California Law Review 691, at 693)

▪ Lange (p 564): “Under a legal system based on the common law, “everybody is free to do anything, subject only to the provisions of the law”, so that one proceeds “upon an assumption of freedom of speech” and turns to the law “to discover the established exceptions to it. The common law torts of libel and slander are such exceptions”.

•    Defamation law changes occasionally since what is regarded as defamatory changes from time to time. Generally, the balancing process between reputation and freedom of speech necessarily responds to a variety of factors that accompany change in any society.
•    In Lange (p832), HC quoted McHugh J in Stephens: the dependence of the ordinary Australian citizen upon the exercise of functions and powers vested in public representatives and officials within a vast, publicly funded bureaucracy, means citizens have an important interest in receiving information concerning the exercise of those functions and powers, and the performance of public officials.
•    Conversely (Tilbury p246), we also live in an era characterised by the rapid development of telecommunications facilitating rapid and widespread dissemination of defamatory material, and in a country where the concentration of media ownership is very high.

Concepts of “Freedom of Speech”

•    We have now introduced anti-vilification legislation – it disallows discriminatory behaviour, and makes vilification unlawful (racial, HIV aids, homosexual) on particular grounds. Thus, freedom of speech can get you in trouble on some grounds.
•    This legislation suppresses free speech to avoid hurt caused to others.
•    It may be that in the end, freedom of speech requires different rules in different aspects.
•    Mahoney J in Ballina Shire Council v Ringland (1994) 33 NSWLR attacks the idea of free speech at all times and all places is good in itself. He says:
 “The D’s claim is to say what he or she wishes….Free speech is not…a good in itself. It is not in itself an end; it is a means to another or other ends. There is nothing inherently good or bad in free speech as such... The law favours free speech because of the good which is likely to be produced if citizens are entitled under the law to speak freely and because of the evil which is apt to arise if the right to speak freely is limited. If persons may speak freely, they may create great literature, increase the store of knowledge by the exchange of ideas, identify and criticise wrongs and check the abuse of power. Experience has shown that if citizens may not speak freely power is apt to be abused and democratic freedoms lost.”

Why is free speech a good thing?
•    We begin with the CL with an assumption of free speech, and then see if there is a reason why you should not be allowed to let that free speech come through
•    “Voyeurism”: Revenue for the publisher. If people will read it, they will put it in there. If people did not buy, would not have paparazzi etc.
•    Entertainment value!  The “My mother married my husband” magazine article
•    Free speech facilitates the discovery of truth, and truth is either an end in itself or contributes to the development of society
•    Suppressing free speech inhibits the development of one’s personality, intellectual and spiritual development. Free speech enables us to work our way through the “marketplace of ideas”, to develop intellectual maturity, to enjoy moral autonomy. Self-expression contributes to self-fulfillment.
•    Free speech facilitates citizens’ participation in democracy.
•    Free speech is a safety valve; a vent for the tensions of society

Recognition of freedom of speech within international instruments
The International Covenant on Civil and Political Rights

•    Article 19.2: Everyone shall have the right
of freedom of expression; [including] 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
•    Article 19.3: The exercise of the rights provided for in paragraph 2 (above) of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) for the protection of the rights and reputations of others…
•    Article 17.1: No one shall be subjected to arbitrary or unlawful interference with his privacy… nor to unlawful attack on his honour and reputation.

Recognition of freedom of speech within domestic constitutions and bills of rights

United States Constitution: First Amendment:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The tort of defamation in context: Other actions protecting reputation and other over-lapping interests

Defamation is quite different from other torts.
The tort of defamation in context: Other actions (remedies) protecting reputation and other over-lapping interests
-    Injurious falsehood
-    Deceit
-    Conspiracy
-    Intimidation
-    Negligent misstatement
-    Liability under the Trade Practices Act
-    Privacy and breach of confidence

Versace v Monte [2002] FCA 190
FACTS: Action between Donatella and Santo, and a Private Investigator Monte. M wrote book “The Spying Game”, and Newspaper Magazine published bits of it. M claimed he was a confidant of Gianni during 1996 and that it was the Italian Mafia that killed him, not Andrew Cunanan. He claimed G told him “Johnny the Cat” stole 5 secret ledgers and was asking $5M for them back. He could not tell Police, because this would make public that he was involved in the underground world. He also claimed G told him the family was trying to cut off his money because they thought he had Aids.
The Versace claim was that Monte made false and misleading statements in claiming a commercial relationship with Gianni, who M claimed had retained him as a private investigator and advisor. (Also looks at defamation, but we don’t look at that aspect here)
Pleadings as against the Versace Company:
(a)    One or more of the Versace companies was criminally involved in the Mafia
(b)    One or more of the Versace companies had been laundering millions of “dirty money”
(c)    One or more of the Versace companies maintained secret ledgers that recorded dealings with the underworld.
(d)    One or more of the Versace companies was associated with mobster “Johnny the Cat”
(e)    One or more of the Versace companies was being blackmailed due to involvement in mob
(f)    One or more of the Versace companies had been infiltrated by organised crime
Pleadings as against Santo and Donatella:
•    They were criminally involved in the Italian underworld
•    They were criminally involved in laundering millions of ‘dirty’ dollars
•    Both were reasonably suspected of murdering G
•    Both involved in maintaining secret ledgers recording transactions with organised crime
•    Both reasonably suspected of murdering G to conceal their engagement in criminal activity
•    Both were being blackmailed by a mobster
Monte and the Newspaper denied the allegations. M claimed he was an “information provider” and thus had protection under legislation with respect to claims of misleading conduct.
ISSUE: Could Monte and Arkitude Holdings Pty Ltd bring themselves within the “prescribed information provider” exception in s 62A?
HELD: M’s statements lack credibility and the judge said he does not believe that he was ever in contact with G. He is not within the protection of the “information provider” defence regarding misleading and deceptive conduct. (Nor does he have any defence with respect to the claim of defamation). Injunctive relief was granted to restrain further publication
Judge notes the overlap between the tort of defamation, and the TPA. It is not a defence to a claim under the TPA or the FTA 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 common law.
Tamberlin J made some findings of fact regarding the alleged relationship between M and G:
•    TPA - s52(1): A corporation shall not…engage in conduct that is misleading or deceptive or is likely to mislead or deceive
•    FTA - s42: as above, but replace ‘corporation’ with ‘person’
•    TPA – s53: False or Misleading representations. A corporation shall not…
(bb) falsely represent that a particular person has agreed to acquire goods or services;
(c)  represent that goods or services have sponsorship, approval, performance characteristics, accessories, uses or benefits they do not have;
(d) represent that the corporation has a…affiliation it does not have
He said the evidence points to a finding against M having had a meeting with G.
Due to the handwriting experts’ evidence, Judge concluded the entry into the appointment book was false as evidence showed different ink written at a different time. With respect to the faxes, experts said he used the ‘stray’ fax, which he found, and changed it to make it look like it was not fabricated. Judge concluded M did not have any association with G and his conduct was misleading and deceptive within the meaning of the TPA and the FTA.
Section 65A of the TPA introduces the “prescribed information defence” (defence to s52 claims) – it exempts liability for “prescribed information providers” (s65(1)(v)). However the exemption does not apply, if advertising is involved.
The Second Reading Speech made no specific reference to authors or publications of books (fiction or non-fiction). It indicates s65A is intended to exempt media from actions brought under s52, “which would inhibit activities relating to the provision of news and other information…The exemption is not available, however, in respect of the provision of information where they have what might be regarded as a commercial interest in the content of the information”.
Judge did not accept M was an “information provider”, and M did not help his case by describing his book as a “fast moving fictional film”. Thus it could not be brought within s65A. Because the book had false and misleading representations, an injunction was imposed.

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