Published on 25/06/2007

Defences to Defamation

Defences to Defamation
Introduction

s22 of Defamation Act
Roles of judicial officers and juries in defamation proceedings:
1) This section applies to defamation proceedings that are tried by jury.
2) The jury is to determine whether the defendant has published defamatory matter about the plaintiff and, if so, whether any defence raised by the defendant has been established.
3) If the jury finds that the defendant has published defamatory matter about the plaintiff and that no defence has been established, the judicial officer and not the jury is to determine the amount of damages (if any) that should be awarded to the plaintiff and all unresolved issues of fact and law relating to the determination of that amount.
4) If the proceedings relate to more than one cause of action for defamation, the jury must give a single verdict in relation to all causes of action on which the plaintiff relies unless the judicial officer orders otherwise.

•    Up until January 2006, the issue as to whether the defendant has a defence was a question for the judge/judicial officer. With the recent legislation, this is now the decision of the jury under s22(2).

There are three types of Defence in Defamation:

1)    Truth: Most applicable defence in circumstances where there are statements of fact.
2)    Comment: Provides defence where comment has been made, based on proper material for comment.
3)    Privilege: Where you can not satisfy a court that statement is true, this is the best defence to use.

At common law, truth or justification, is a complete defence.

(i)    JUSTIFICATION

1. Truth at common law and the defence of justification:
Section 25 of Defamation Act
Defence of Justification

It is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true.

Under the relevant section of NSW legislation, s 25, from 1 Jan 2006, the defence of justification requires proof of substantial truth alone. Previously, the element of public interest was also required.

Truth at Common Law:

•    Truth is a complete defence. If a defendant succeeds on a defence of truth they do not have to pay damages. It serves to recognize the goal of defamation. That is you are entitled to the reputation you have but not the reputation you do not: Rofe v Smith

•    Truth requires the truth of the imputation not the truth of the actual words.

•    The level of truth that is to be justified is the sting of the imputation. For example in Potts v Moran a sweeping generalization was made that most of the people in the town of Murray Bridge have had a stomach full of the plaintiffs activity. The defendant proved that 400 of the 7000 people agreed but the court did not deem this sufficient to qualify as most people.

•    Each imputation is justified separately. Thus in some cases a defendant may be capable of justifying a primary meaning but not an innuendo. Different evidence may thus be pleaded for each: Hepburn

•    Where the imputations are loose ambiguous or defamatory in more than one way the plaintiff may be ordered to clarify by way of particulars of false innuendo. This prevents trial by ambush because it is very difficult in these circumstances for a defendant to know how it should plead justification. For example in Singleton v French the question of defamatory meaning was left to the jury when there was an unclear imputation. A retrial was ordered because such a matter is for the judge and furthermore a defendant cannot properly meet imputation when they are vague.

What must be proved?

Potts v Moran (1976) SC of South Australia
FACTS: Defendant had published a newsletter stating that most of the people of Murray Ridge had ‘had a stomachful’ of the plaintiff’s activities. Defendant called 400 people who had had a ‘stomachful’. Not enough because 7000 people in Murray Ridge.
HELD: Bray CJ “If those minded to make defamatory statements of another use language of such sweeping generality that it is impossible to substantiate it according to its terms and are mulcted in damages accordingly, it seems to me that they have only themselves to blame.”
But the statement of ‘most’ was not a mere inaccuracy of detail or a rhetorical flourish. Thus the defence of justification was not made out.

Marsden v Amalgamated Television Services [2001]
FACTS: The background to the case was that, on the strength of a statutory declaration by Colin Fisk (later retracted), a member of the NSW State Parliament, Ms Deidre Grusovin, made allegations under absolute privilege in Parliament. These included that Mr Marsden had had sex with underage boys. John Marsden was the President of the Council for Civil Liberties, a former head of the NSW Law Society, former member of the NSW Police Board, and a high profile figure with political clout and connections. After these allegations were made, Mr Marsden held a press conference at Parliament House, presenting the retracting statutory declaration of Mr Fisk, and denying the allegations.
On 13 March 1995, Today Tonight reported on these allegations. It also contained an interview with two men who were later witnesses in the trial. The next day Mr Marsden began defamation proceedings.
IMPUTATIONS: From the “Today Tonight” program:
1. The plaintiff has had sexual intercourse with boys who were under the age of 18 knowing them to be under the age of 18.
2. The plaintiff has had sexual intercourse with a 15 year old boy who was then under the influence of drugs which had been given to him by the plaintiff.

Channel 7 followed up on 7 May 1996 with a segment of its Witness program called “The Dark Side”. Mr Marsden tried unsuccessfully to obtain an injunction preventing the broadcast of this segment. Three males were interviewed and identified as having had sex with Mr Marsden when they were 14 or 15. Within a week of broadcast, Mr Marsden commenced proceedings in respect of this program as well.
IMPUTATIONS: From the “Witness” Program:
1. The plaintiff has had sexual intercourse with 15 year old boys, having deliberately refrained from asking those boys how old they were.
2. The plaintiff has had sexual intercourse with 15 year old male prostitutes having deliberately refrained from asking them how old they were.
HELD: Jury found these imputations to be defamatory. D relied on two substantive defences of justification and qualified privilege. The burden of justification fell on the defendant, on the balance of probabilities, taking into account the imputations.
The D set out to prove the truth of the imputations (that the jury had found to arise) in 4 ways:
▪ Evidence of the complainants/witnesses
▪ By attacking the plaintiff’s credit in order to render him a witness unworthy of belief
▪ Admissions by conduct (I.e. to show that the plaintiff attempted to suborn a witness – something consistent with consciousness of guilt);
▪ Finally, the permeating concept of a modus operandi of the plaintiff to tip the probabilities in favour of the defendant.
▪ Note: Proof of the substantial truth of an imputation requires proof that the main charge, or gist, of the libel is true. Inaccuracy in the proof of the detail, including peripheral detail, of an imputation will not prevent the defendant from succeeding in a defence of justification provided that the main charge or gist of the libel is established.
▪ In this case, the defence of truth failed.

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Carleton v ABC [2002]
FACTS:
July 1995: Massacre of 8,000 Bosnian Muslims in the ethnic enclave of Srebrenica
August 1997: Publication of End Game by David Rhode
16 April 2000: SBS broadcasts “Cry from the Grave” (having acquired the rights from the BBC) .
June 2000: Carleton’s team travel to The Hague, Srebrenica, Potocari etc.
9 July 2000: Carleton’s story, “The Evil that Men Do” broadcast as part of “60 Minutes”.
17 July 2000: On ABC’s Media Watch program, presenter Paul Barry says: “Now I don’t know quite what you call this – plagiarism perhaps. But whatever the name it fits a pattern”.
-    Barry then played snippets of both programs to illustrate similarities.
-    Barry continues: “And that was just the start of it. 60 Minutes recruited the same cast of characters too.”
-    Barry concludes: “Now I don’t know quite what you call this – plagiarism perhaps. But whatever the name it fits a pattern. 60 Minutes has been caught at this by Media Watch several times before. It’s depressing to know we have so little effect. All I can say is that I hope the BBC producer and researchers have collected a hefty fee for doing the work. And should there be any awards, I’m sure Mr Carleton will know where to send them”.
HELD: Trial judge held that there was an imputation of plagiarism, but not theft or stealing, rather a copy or imitation of the ABC program. Judge did not find any imputations of deceit or dishonesty. Imputations of lazy journalism, therefore negative imputations of producers etc. Case of identification by innuendo.
Hence, two imputations:
i.    Lazy journalism; and
ii.    Plagiarism.
Defences argued:
i.    CL Qualified Privilege; and
ii.    Fair Comment

(1) CL Qualified Privilege Elements:
▪ The central question for the defence of qualified privilege is not about the accuracy of the attribution of plagiarism (or lazy journalism) to the facts of the case. Truth of the accusation is not necessary for the defence to be applicable. The test is whether the subject was a matter of sufficient public interest to make the publication of Media Watch’s allegations to the public at large, a privileged occasion at CL.
▪ The subject matter and context of the publication must advance the public interest, and not merely be informing the public of a matter of interest.
▪ The particular publication, in so far as it relates to the plaintiff, must be necessary in the circumstances in order to meet that ‘public interest’. That is, that the public interest objective cannot be achieved by publication to a more limited audience.
▪ The conduct of the defendants in publishing the defamatory matter must have been reasonable in all the circumstances. That is, it must have been matter believed to be true (or at least, worthy of a proper inquiry into its truth). It must be properly attributed, that is, the source of the accusation must be identified so as to enable the average reasonable reader/viewer to place it in a fair context. It must appear from the matter published that it does raise a question of public interest.

HELD: Defence of qualified privilege failed based on the question of the logic, fairness and hence, the reasonableness of the Media Watch conclusions. The Media Watch story was unfair because it did not acknowledge the evident diligence and trouble to which 60 Minutes had gone to procure the footage, interviews, research etc. The conclusions did not follow ‘logically, fairly or reasonably from the information which he had obtained’.

(2) Fair Comment Elements:
▪ Requirements for the defence of fair comment at CL:
1.    Comment (not fact)
2.    On a matter of public interest
3.    Fair
1. Comment (not fact):
-    Must be an opinion, and not fact.
-    Must be based on facts stated or indicated in the material – implicit in the notion of fair comment is that there are facts to warrant the opinion stated. Where the supporting facts are absent, the statement begins to look like an unproved statement of fact, and courts will exclude the defence of comment on that basis.
-    All the supporting facts on which comment is based must be true (or absolutely privileged).
Court held that the conclusions of plagiarism and lazy journalism were clearly matters of opinion.
2. On a matter of public interest:
-    Court held that the second requirement had been satisfied.
3. Fair:
-    The comment must satisfy the following objective test: Could an fair-minded man honestly express that opinion on the proved facts? Gardiner v John Fairfax & Sons Pty Ltd (1942). Note: Even though the comment satisfies the objective test the defence can be defeated if the plaintiff proves that the defendant was actuated by express malice.
-    The defendant who relies on a plea of fair comment does not have to show that the comment is an honest expression of his views.
HELD: Court held that the program could honestly be believed to be plagiarism. Although it set the bar for diligent journalism unreasonably high, it was an opinion that honest commentators could hold. Therefore the defence of fair comment would succeed unless the plaintiff could show that it was defeated by malice.

Court’s View on Plagiarism:
▪ Copying had to be wrongful before could be held to be plagiarism. Copying an idea is not necessarily plagiarism. SBS program inspired what Carlton did, but, according to the judge he was not plagiarising since the information was all his. Imputation of plagiarism was unsuccessful on basis of fact, there was no wrongful actions/plagiarism.
▪ Lazy journalism has imputations of being slack, failing to do things. Where as Carlton had actually gone to Bosnia, visited the places, interviewed the witnesses. Held not to be lazy to be inspired by someone else’s work, and to present in similar style.

2. NSW: Truth + (public interest or qualified privilege):

▪ Truth + (public interest or qualified privilege):

What must be proven?
s15 of Defamation Act 1974
(2) It is a defence as to any imputation complained of that:
(a) The imputation is a matter of substantial truth, and
(b) The imputation relates either to a matter of public interest or is published under qualified privilege.

Imputations that are (potentially) defamatory in more than one way, and the defence of justification:

NOTE This case is an example where ambiguous imputation was left to the jury.

Singleton v Ffrench (1986) 5 NSWLR 425.:
FACTS: The plaintiffs were the trustees of the John Farragher Trust Fund, set up in 1978 after Mr Farragher was injured playing rugby league for Penrith. Monies were raised by way of public appeal (the facts are complex). The action arose following TV interviews about the conduct of the plaintiffs as trustees. The statement of claim pleaded a number of imputations including imputation 4(ii), which said: “The plaintiffs had acted in breach of their trust in relation to John Farragher”. The defendants denied the imputations, and raised a defence of substantial truth on a matter of public interest in respect of, inter alia, imputation 4(ii). They argued at trial that the defence would be made out if they could establish that the defendants had (in the legal sense) breached the trusts on which they held the monies.
The appeal arose because the trial judge left it to the jury what imputation 4(ii) meant. He ruled that 4(ii) might mean what the defendants had suggested, or, alternatively, it might have a more “colloquial” meaning: that the trustees had acted in a morally blameworthy way to Mr Farragher (in the sense of “letting him down”).
HELD: Could only get damages on basis of imputations relied upon, therefore need to specify imputations. Jury could decide that damages should be based on the “moral blameworthiness” a meaning that was not relied upon.

“A matter of public interest” s15(2)(b)

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When will publication be in the public interest?

Bellino v ABC (1996) 135 ALR 368
FACTS: “Four Corners” TV program purported to expose corruption in the Qld Police Force whereby protection was given to persons controlling illegal drugs trafficking, illegal gambling and prostitution. Relevant parts of transcript referred to plaintiff Vincenzo Bellino’s activities in North Queensland.
Case dealt with s 377(8) of the Criminal Code (Qld) which reads: “It is a lawful excuse for the publication of defamatory matter: (8) if the publication is made in good faith in the course of, or for the purposes of, the discussion of some subject of public interest” (cf NSW DA s 15(2)(b)).
HELD: Majority took narrow view as to what public interest means. Rejected view that administration of justice etc, are matters of public interest. Looked at public interest very narrowly – some act of omission by person or institution that encourages discussion.
    [Minority] Brennan took a broader approach. He thought that whenever the matter affects people at large, then it was a matter of public interest. Matters such as administration of justice etc WOULD be of public interest.

Requirements of Public Interest:

Chappell v TCN Channel 9 (1988)
FACTS: Plaintiff, Chappell – a well-known Australian cricketer – had a sexual affair involving weird sex practices. Publication by TCN Channel 9. Pleaded justification (in NSW equals truth + justification (I.e. public interest or qualified privilege)).
HELD: Hunt rejected notion that public figure has no private life. A public figure makes their private life a matter of public interest in two ways:
(1) Affects their public performance;
(2) Private life can become a matter of public interest if they make it of public interest.
Neither limb applied in this case, therefore it was not a matter of public interest. Hunt found the defence of justification was bound to fail since there was no justification.

3. The Defence of Contextual Truth

Section 26 Defamation Act 2005 Defence of contextual truth: It is a defence to the publication of defamatory matter if the defendant proves that:
(a) The matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations ( "contextual imputations") that are substantially true, and
(b) The defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.

The defence of “contextual truth” operates in a context in which:
• Two imputations arise from a publication;
• The plaintiff only sues in respect of one of them (“Imputation A”) AND
• While imputation A either relates to a matter of public interest (or is published under qualified privilege), the defendant can not substantiate it.
• BUT the defendant can prove the substantial truth of another imputation (called the “contextual imputation”) arising from the same publication, which has not been pleaded by the plaintiff, and which is also a matter of public interest or qualified privilege.
▪ Example: Plaintiff alleges that X is guilty of shop lifting. Can not justify. But, set out a contextual imputation, that the defendant is a drug dealer. Can defend the drug dealing imputation, not the shop lifting reputation. Is the plaintiffs reputation going to be further ruined by proving the imputation (contextual) that the plaintiff is a drug dealer, but not a shop lifter? Will reputation be further injured by the shop lifting imputation?
▪ Contextual imputation MUST be worse than the unproven imputation.
▪Both of the imputations in question must be conveyed by the matter complained of at the same time and that each must differ in substance from the other. It follows that both imputations must be conveyed by the matter complained before any question of contextual truth can arise. Unless both imputations are conveyed at the same time to the same ordinary reasonable reader, the jury will be unable to weigh or to measure the relative worth or value of the imputations pleaded.

Jackson v John Fairfax & Sons Ltd [1981]
FACTS: The Australian Financial Review published an article alleging that Mr Jackson conspired with Harry M Miller to defraud Computicket Pty Ltd. It stated that the Corporate Affairs Commission of NSW action against Mr Miller had been postponed until the following year (because Mr Miller’s counsel was not available until that time). At that time the Fin Review article was published, a charge of conspiracy, earlier laid against the plaintiff, had been withdrawn.
IMPUTATIONS: Permitted by the judge were, essentially, that the
(i)    Plaintiff is suspected having conspired…,
(ii)    Plaintiff is facing a charge that he conspired to cheat and defraud; and
(iii)    Plaintiff is believed by the Corporate Affairs Commission to have conspired to cheat and defraud…
ISSUE: The D argued that a contextual imputation also arose: That is, that the P had at one time conducted himself in a way to warrant suspicion of conspiracy at that time. But in order to be substantially different, the imputation relied on by the defendant (the contextual imputation) had to mean that there was no suggestion that the plaintiff’s conduct warranted continued suspicion.
HELD: Judge did not think the imputation (so limited) could be understood to arise by the ordinary, reasonable reader of the newspaper. The defendant’s imputation was also incapable of being conveyed at the same time as the imputation of the plaintiff relied upon.

Example: An easy example is the publication that describes the plaintiff (falsely) with having been charged with a criminal offence and which, by reason of additional material, also imputes (truly) that he is guilty of such offence. If the plaintiff sued and complained only of the imputation conveyed by the assertion that he had been charged with that offence, it would be open to the defendant, in accordance with s16 (s26 of DA 2005), to plead the contextual imputation that the plaintiff was in fact guilty of such an offence and that such contextual imputation was substantially true.

Assuming that the contextual imputation also related to a matter of public interest or was published under qualified privilege, the defendant would succeed in the action complaining of the publication of the imputation pleaded by the plaintiff if the jury were satisfied that, by reason of the substantial truth of the defendant’s contextual imputation, the untrue imputation pleaded by the plaintiff did not further injure his reputation.
In coming to that decision the jury would be required to weigh or to measure the relative worth or value of the several imputations pleaded by both the plaintiff and the defendant.
Extreme Example: If the publication described the plaintiff (falsely) as a share swindler and (truly) as a rapist, the jury could well have considered it difficult in weighing or measuring the relative worth or value of the two imputations conveyed. In those circumstances, it seems that the trial judge would be obliged to leave the issue to the jury.

Waterhouse v Hickey (1995)
FACTS: H alleged that the defendants published in “The Gambling Man” the matter complained of, which in its natural and ordinary meaning conveyed two imputations, each defamatory of the plaintiff.
IMPUTATIONS: (1) that the plaintiff conspired with a known criminal, F, in order to ensure that W and others were unjustly accused and found guilty of major racing scandal known as the “Fine Cotton Affair”; and (2) that the plaintiff so conducted himself as to be suspected on reasonable grounds of having conspired with a known criminal F in order to ensure that W and others were unjustly accused and found guilty in a major racing scandal.
Principle: The jury question raised by a s16 defence (of DA 1974) in which a defendant undertakes to justify a number of contextual imputations in answer to a single imputation sued on by a plaintiff is whether the fact that the jury accepts some such imputations as justified means that the publication of the plaintiff’s imputation at the same time as the defendant’s imputation did not injure the plaintiff’s reputation further than the defendant’s imputation did.
ISSUE: Was there further harm that cannot be justified? If contextual imputations are proven, does that mean that plaintiff’s reputation is not further injured.
HELD: Judge could not accept/wasn’t satisfied that the plaintiff’s reputation was not further injured.

Questions to Ask:
1.    Does the contextual imputation relied upon by the defendant differ in substance from that pleaded by the plaintiff?
2.    Is the contextual imputation capable of being conveyed by the matter complained of at the same time as and in addition to the imputation pleaded by the plaintiff
3.    Is the nature of the contextual imputation such that its substantial truth is capable of being rationally considered by the jury as so affecting the plaintiff’s reputation that the imputation of which the plaintiff complains did not further injure that reputation?
4.    Is there evidence upon which the jury could find that the contextual imputation is substantially true?
5.    Does the contextual imputation relate to a matter of public interest or was it published under qualified privilege?

4. The “Polly Peck” defence:

Is the defendant restricted to justifying the specific imputations or meanings pleaded by the plaintiff, or can the defendant seek to justify a common sting, by relying on a different meaning that arises at a higher level of abstraction.

“Polly Peck”:
▪ Plaintiff cannot artificially limit the debate to selected portions of the article. Defendants are able to prove the truth of other imputations elsewhere in the article, to justify the publication of the sting.
▪ Defendant can allege that publication carried different imputations than what the plaintiff has complained about.
▪ If defendant can successfully plead that common sting, then they wont have to prove the truth of the specific allegation that the plaintiff complained about).
Note: only arises in cases with a common sting, that is, where imputations cannot be separated from the rest of the publication.

Circumstances where the defence applies:

A defendant may be entitled to plead the Polly Peck defence in two circumstances:

(i)    When the plaintiff pleads that the words from a publication contain several imputations, the defendant may argue, without having to prove the imputations alleged, that the publication has a common sting amounting to a single composite criticism.

(ii)    If the plaintiff complains of a specific allegation from a publication that contains several defamatory charges that together amount to a common sting, the plaintiff is entitled to justify that sting.

Khashoggi v IPR Magazines Ltd [1986]
FACTS: Mrs Soraya Khashoggi sought an injunction to restrain further distribution of an issue of “Woman’s Own”, which carried a story alleging that she had had a number of extra-marital affairs. Lord Donaldson MR noted that the material, read as a whole, was certainly “capable of carrying the meaning that she was a lady of considerable sexual enthusiasm”. The basis for the injunction sought was that the allegation that she was having an affair with the president of a friendly foreign state. The plaintiff alleged that this allegation was untrue, although she made no allegation that anything else in the article was defamatory of her. The case illustrates the “Polly Peck” principle.
ISSUE: Could defending imputation that Khashoggi had had an affair with President of France defend the other imputations? (Only pleaded one particular imputation).
HELD: Court held that the plaintiff was entitled to select the one allegation that she had an affair with the president of a friendly foreign state and to complain of that nowithstanding that she makes no complaint of the various other allegations. Whether a defamatory statement is separate and distinct from other defamatory statements contained in the publication is a question of fact and degree in each case. The several defamatory allegations in their context may have a common sting, in which event they are not to be regarded as separate and distinct allegations. The defendant is entitled to justify the sting.

Templeton v Jones [1984] NZLR
Polly Peck was held not to apply. General principle applied. When plaintiff pleads an imputation you cannot justify, then the plaintiff wins.

Application of “Polly Peck” in Australia?

▪ Unlikely that the “Polly Peck” defence would ever arise in NSW, since all the imputations are pleaded separately as separate causes of action; cause of action arises from the imputation, rather than the material (as opposed to CL jurisdictions).

▪ Brennan CJ and McHugh J in Chakravarti v Advertiser Newspapers Ltd (1998) ALR cast doubt on the applicability of the Polly Peck principle in Australia. They suggested that such an application would be contrary to the rules of CL pleadings, and that a defence which alleges a meaning different from that of the plaintiff would be struck out as embarrassing and was not a good defence. Note, however, that these statements were only obiter, and in Carrey v ACP (Vic), Hedigan J criticised their reasoning.

▪ The Polly Peck principle applies only where the imputations are not distinct, but have a common sting. The principle is therefore of narrower operation than the NSW statutory defence of contextual truth.

(ii) THE DEFENCE OF ABSOLUTE PRIVILEGE

(i) Absolute Privilege v. Qualified Privilege

•    Both are defences to defamation, even if the matter is false - hence justification cannot be used.
•    Privilege defences operate when it is assumed the published material is false               BUT:
-    With Qualified Privilege, you assume it is false but can still say it because of the circumstances – as long as there is no malice.
-    With Absolute Privilege, you can say false things with malice (therefore motive does not matter).

Categories of Absolute Privilege:
• Statements made in the course of parliamentary proceedings;
• Publication of a parliamentary paper by order or under authority of a House of Parliament: e.g. DA (NSW) s17.
• Publications by and to a variety of specified bodies and officials: DA (NSW) Part 3, Division 3.
• Publications made in the course of court proceedings.
• Quasi-judicial proceedings.
• Communications by high officers of state.
executive communications
communications between spouses.

What is the rationale for absolute privilege?
▪ HC said in Gibbons v Duffell: “The truth is that an indefeasible immunity for defamation is given only where upon clear grounds of public policy a remedy must be denied to private injury because complete freedom from suit appears indispensable to the effective performance of judicial, legislative or official functions. The presumption is against such a privilege and its extension is not favoured. Its application should end where its necessity ceases to be evident”.
CRUCIAL: Absolute privilege does not attach to the media. Instead, reports of parliamentary proceedings etc normally only attract qualified privilege. So if said outside of court or outside of proceedings, it is not privileged.

s27 Defence of Absolute Privilege
(1) It is a defence to the publication of defamatory matter if the defendant proves that it was published on an occasion of absolute privilege.
(2) Without limiting subsection (1), matter is published on an occasion of absolute privilege if:
a.    The matter is published in the course of the proceedings of a parliamentary body, including (but not limited to):
i.    The publication of a document by order, or under the authority, of the body, and
ii.    The publication of the debates and proceedings of the body by or under the authority of the body or any law, and
iii.    The publication of matter while giving evidence before the body, and
iv.    The publication of matter while presenting or submitting a document to the body,
OR
b. The matter is published in the course of the proceedings of an Australian court or Australian tribunal, including (but not limited to):
i.    The publication of matter in any document filed or lodged with, or otherwise submitted to, the court or tribunal (including any originating process), and
ii.    The publication of matter while giving evidence before the court or tribunal, and
iii.    The publication of matter in any judgment, order or other determination of the court or tribunal,
OR
c.    The matter is published on an occasion that, if published in another Australian jurisdiction, would be an occasion of absolute privilege in that jurisdiction under a provision of a law of the jurisdiction corresponding to this section,
OR
d.    The matter is published by a person or body in any circumstances specified in Schedule 1.

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(iii) THE DEFENCE OF QUALIFIED PRIVILEGE

1. Components of the defence at CL and under statute

What must be proved?
Note the several versions of the defence of qualified privilege:
•    Qualified privilege at CL  NSW
•    “Statutory” qualified privilege under s30 of DA  NSW
•    Publication of fair and accurate reports at CL, and protected reports under ss 28, 29, Schs 2 and 3 of DA
•    Constitutional Freedom of Discussion – extended qualified privilege concerning government and political matters: Lange v ABC

2. Common Law Qualified Privilege: Occasions of qualified privilege

1.    The D must establish that the publication took place on an occasion of qualified privilege.
2.    The onus then shifts to the P who – to defeat the defence – must prove that the defence was actuated by malice. (“Malice” is a technical legal term)

What will be an occasion of privilege?
QP will exist when there is a reciprocal duty interest. A privileged occasion is, in reference to qualified privilege an occasion where the person who makes the communication has an interest or duty, legal social or moral to make it to the person whom it is made, and the person to whom it is made has a corresponding interest or duty to receive it. This reciprocity is essential: Adam v Ward (1917)

‘Duty’ in giving

•    The duty to make a statement is to be determined by prevailing community values held by people of ordinary intelligence and moral principle: Stuart v Bell

•    The where duty to disclose is for the general welfare of society: Clough v Lees

‘Interest’ in receiving

•    There must be a requisite interest in receiving the false defamatory information: ‘A real direct personal, trade, business or social concern about the information or an interest such as would assist them in making an important decision or course of action.’: Brunton v Estate Agents Licensing Authority

•    Therefor the interest must be of a real and tangible nature – it must not be vague. Curiosity or gossip does not qualify as a legitimate interest. That is the fact that people might find the information will not qualify for the defence: Morosi

Extent of the Privilege:
•    The privilege only extends to the material given on the occasion of privilege. It will not privilege other additional irrelevant defamatory material: ‘The inclusion of information that is irrelevant to the communication will amount to evidence of malice and will destroy the privilege attaching to the relevant part’.: Bellino v ABC (1996)

•    QP is accorded to fair reports of judicial proceedings at CL. QP also applies to reports of quasi judicial proceedings exercising functions equivalent to that of a court.

Hughes v Western Australia Newspapers Ltd (1940)
FACTS: The plaintiff bought an action for defamation with respect to a report in which Alfred Blower had made a statement that ‘Hughes is the biggest racketeer in Perth.’ The statement was made in the office of the Registrar for bankruptcy. Legislation protected the fair and accurate report of ‘proceedings’ in a court of justice
HELD: Where QP applied to a court it attaches were the processes of law – the course of the proceedings for determination, those who have a right or duty to appear etc. There must be a real connection to the proceedings for it to be an occasion of privilege. Privilege does not extend to that which had no relation to the proceedings
Therefore the Report did not fall within the privilege conferred.

Publication to the public generally, and the position of the media:

ABC v Comalco (1986)
FACTS; Comalco sued the ABC for broadcasting a film on the four corners programme. The film was critical of Comalco’s treatment of Aboriginies at a site where it had a mine.
The imputations that were pleaded were:
(i)    Comalco treats the Aboriginies at Weipa like dogs
(ii)    Comalco continued the deliberate killing of Aboriginies commenced by early Australian settlers
(iii)    Comalco deliberately kills Aboriginies so as to obtain the benefit of their land.
HELD: The ABC failed to establish that it had a duty to publish the material or that the public had a reciprocal interest in receiving the material.
According to Pincus J only in unusual circumstances will the defamation from an unofficial source come under the cloak of qualified privilege. Most of the cases in which the defendant claims has succeeded has involved publications from material concerned with government
Wrt the separate issue of malice (see below): To publish defamatory statements that are believed to be untrue in respect of which reliable information is held that those statements are untrue will be an abuse of occasion and constitute malice.

At CL, can publication by a newspaper, to a broad audience, constitute an occasion of privilege?
Principle: At CL, a publication in a newspaper is not the subject of qualified privilege merely because it gives the public information concerning a matter in respect of which the public is interested. Something more is needed which is said to, in some circumstances, constitute a duty, and in other circumstances an interest, on the part of the newspaper to communicate the information.

Smiths Newspapers v Becker (1932)
FACTS: A newspaper attacked a person who practiced medicine in SA who was not entitled to practice there. The publication described the plaintiff as a person with a discreditable past who treated plaintiffs in an incompetent manner. The newspaper sought to rely on qualified privilege as a defence.
HELD: This was not an occasion of privilege because there was no community of interest between the defendants and the general body of readers. Communication of genuinely entertained opinions and suspicion to the authorities would have been more appropriate.
Evatt J however commented that the medium of a widely circulated newspaper will be an appropriate mechanism to meet an occasion, and therefore the publication will be privileged in this context.

Morosi v Mirror Newspapers Ltd (1977)
FACTS: Concerned an appeal from 9 actions against newspapers alleging defamation. Junie Morosi was the personal secretary of Jim Cairns the treasurer in Gough Whitlam’s Government. Imputation was that she was promiscuous etc (even though later went on to defend her). D sought to rely on QP.
HELD: It was not open to the D to rely on QP and allege that they had a duty to inform people that the defamatory statements were untrue b/c the public could not be said to have a general interest.

Retort - Self-defence and the right of reply:

Loveday v Sun Newspapers Ltd (1937)
FACTS: Article was published in a newspaper containing extracts form a letter written to the newspaper by the secretary of a District Unemployed Relief Council attacking the local municipal council with respect to its refusal of relief to the plaintiff. The same article contained a statement in reply, made for publication by the town clerk of the council, containing matters defamatory of the plaintiff.
HELD: The plaintiff 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. A man who attacks another in or through a newspaper cannot complain if that other repels or refutes the attack for the purpose of vindicating himself.

Adam v Ward [1917]
FACTS: A military officer who subsequently became a member of parliament made a speech in the House of Commons falsely charging the general commanding the brigade of which his former regiment formed part with misconduct in the course of his duty. The Army Council investigated and found that the charge was unfounded. The defendant, as secretary of the Army Council wrote to the general, exonerating him and contained defamatory statements about the plaintiff, and sent a copy of the letter to the press for publication.
HELD: HoL held publication to be privileged. The plaintiff’s speech in the House of Commons was a publication to the world, and that it was the right of the Army Council, having investigated the matter, to vindicate the General to the world.

Status of a riposte to the retort:

Riposte to retort?

•    You may respond to an attack only to the extent that the reply is commiserate to the original attack

•    As with the cases above, the reply is to be directed to the forum in which the attack occurred

•    In your reply you must not make fresh allegations as this will amount to defamation

Kennet v Farmer [1988]
FACTS:
-    Farmer’s article in The Bulletin – the “source defamation”
-    Kennett’s “retort” on the “Derryn Hinch Show”
-    Farmer’s “riposte” on “Derryn Hinch”: “Well he [K] either lied to me or he lied to you Hinch]”
-    Subsequently both men appeared on 4 separate TV broadcasts (Kennett, denying he had said he intended to block supply; Farmer, continuing to assert Kennett had told him just this)
-    The case raises the issue of retort of self defence
-    A riposte to a reply made in self-defence is not, itself, privileged.
HELD:
A riposte to a reply is not itself privileged for the following 3 reasons:
(i)    To permit an initial defamer to have a privileged right of reply to the victims retort would under mine the whole basis of the privilege. If the victim, by responding generates for the initial attacker a privileged right of reattck, then this would inhibit his own right of reattack
(ii)    If a riposte to a retort was privileged then this would allow the original defamer to benefit from his own tortious act. They would have a privileged right of reattack
(iii)    If a defamer could entice the victim into replying, knowing that he could then redefame the victim under privilege, then this would allow the wrong doer to profit from his or her own wrong doing
Thus
-    K’s QP to reply in self defence did not extend to Farmer’s ‘Ripostes’. That is, K would have not QP in respect of the 4 subsequent broadcasts
-    If K’s reply was not commiserate with the attack on him (that is, where defamatory) then Farmer would be privileged in his replies to K.

Qualified Privilege for fair reports of proceedings of public concern:

•    QP will only attach to reports that are a fair and accurate account of the subject matter: Hughes

Section 28 Defence for publication of a public document
(1) It is a defence to the publication of defamatory matter if the defendant proves that the matter was contained in:

(a) A public document a fair copy of a public document, OR
(b) A fair summary of, or a fair extract from, a public document.

(3) A defence established under subsection (1) is defeated if, and only if, the plaintiff proves that the defamatory matter was not published honestly for the information of the public or the advancement of education.

Section 29 Defences of fair report of proceedings of public concern
(1) It is a defence to the publication of defamatory matter if the defendant proves that the matter was, or was contained in, a fair report of any proceedings of public concern.

(2) It is a defence to the publication of defamatory matter if the defendant proves that:
a.    The matter was, or was contained in, an earlier published report of proceedings of public concern, and
b.    The matter was, or was contained in, a fair copy of, a fair summary of, or a fair extract from, the earlier published report, and
c.    The defendant had no knowledge that would reasonably make the defendant aware that the earlier published report was not fair.

(3) A defence established under subsection (1) or (2) is defeated if, and only if, the plaintiff proves that the defamatory matter was not published honestly for the information of the public or the advancement of education.

Rogers v Nationwide News Pty Ltd [2003] HCA
FACTS: Rogers was a prominent eye surgeon who was defamed in an article published on the front page and page two of the Daily Telegraph. Mrs Whittaker, Roger’s patient, suffered sympathetic blinding in her good eye and Rogers was negligent in failing to tell her the one in a 14,000 chance she could go blind in the other eye. He sued and was awarded $250,000 in damages in the DC. However, the CoA held that the publisher had made out a defence under s24 of the DA 1974 which protects fair reports of certain proceedings, including court proceedings.
HELD: The HC held that the s24 defence should be rejected.
-    s24(2) provides a defence for the publication of a fair protected report
-    s24(3) provides a defence for the ‘later publication’ by another person of a protected report that was published by any person (or a fair extract or summary of)
-    s24(4) provides a defence for the ‘later publication’ by another person of material purporting to be protected report (or a fair extract or summary of).
-    The plaintiff raised defences under s24(3) and 24(4), NOT s24(2).
Defence failed on a number of respects:
-    The handing of a judge’s reasons by a court officer to the public (i.e. a journalist) cannot constitute the officer publishing a report within the meaning of s24(3).
-    The Daily Telegraph article was not presented as an extract or abstract from, or summary of, Hill J’s judgment.
-    The article, to the extent to which it extracted from, or summarized, what Hill J said, was not fair. The defamatory sting in the article arose from what the journalist added to what was said by Hill J, not from any repetition or summary of what he said.

Continued on page 5

Continued

Smith v Harris [1996]
FACTS: Smith, former Minister for Finance and member of Cabinet, had a relationship with Harris who was employed as a member of his staff. Relationship came to a bitter end, and Harris employed services of Slater & Gordon (law firm) in proceedings against Smith. Slater & Gordon, acting on behalf of Harris, with her authority, published or caused to be published, a copy of the complaint to the Herald and other news media.
ISSUE: Is the publication of the content of a complaint simply filed in the Magistrate’s Court a report of a court proceeding within the meaning of the CL rule of qualified privilege?
HELD: Court held that CL qualified privilege did not apply and that the documents retained in the registry of the Magistrate’s court were not public documents available for public inspection.

The definition and effect of malice at common law:

Horrocks v Lowe [1975]
Principles:
-    The motive with which a defendant on a privileged occasion made a statement defamatory of the plaintiff is crucial
-    He is entitled to protection unless some other dominant and improper motive is proved – i.e. express malice
-    But to destroy the privilege the desire to injure must be the dominant motive for the defamatory publication; knowledge that it will have that effect it not enough if the defendant is nevertheless acting in accordance with a sense of duty or in bona fide protection of his own legitimate interests.
-    What is required on the part of the defamer to entitle him to the protection of the privilege is positive belief in the truth of what he published or honest belief. If he publishes untrue defamatory matter recklessly, without considering or caring whether it be true or not, he is in this, as in other branches of law, treated as if he knew it to be false.
Per Lord Diplock:
-    Suggests that in a situation of publication genuinely for the information of the public on a subject of sufficient public significance, it would seem that the fact that the publisher did not believe that the incidental defamatory statements were true would not necessarily destroy the privilege.

Malice:
Requirements:
1.    The D must establish the publication falls on an occasion of qualified privilege
2.    Onus shifts to the P, to defeat the defence, must show malice.

Elements of Malice
•    The fact that it was extreme tabloid journalism will not be enough to show malice. There must be ill-will, spite or improper motive. Usually recklessness will not be enough to establish malice.
•    Sometimes salacious or lurid journalism – the publication itself will be sufficient to establish malice: Barbaro
•    Usually you cannot show malice if the defendant believes the truth in the statement. If you believe the material was false, that will be enough to establish malice. If you believe the imputation to be false, then you cannot show qualified privilege.

The following is extracted from Comalco per SmithersJ)

What is an ‘honest belief’?
Honest belief requires a mere positive belief that the material was true. Honest belief does not impel the defendant to undertake a search on all the available matter. However if he or she published information recklessly without considering whether it is was true or untrue then this will be treated as if he knew the information was false

Exception to the ‘honest belief’
Will be in extreme cases of urgency such as a suspected terrorist or the distribution of contaminated drugs that inject the occasion with such urgency that the publisher need not hold an honest belief that the material was true.

Was there an honest belief in Comalco?
Where you have evidence that allegations are untrue and you have disregarded that information then that may be a basis for rejecting QP.
In the subject broadcast in Comalco there was contradictions to the defamatory material however the ABC still held the defamatory material out to the public as being true. This was sufficient to provide evidence of malice. There inference could be drawn that the motive in publishing material they knew to be suspect was motivated purely by the seld interest of entertaining viewers.
Smithers J contrasted the fact in Comalco with airing of a public debate where two opposing views are put forward and viewers understand that as a whole the publisher put forward no views of his own.

3. The Operation of the Statutory Defence

Section 30 of the Defamation Act (NSW)

Requirements of s30 of Defamation Act (and the court’s interpretations):
-    “interest”: s30(1)(a)
-    “information”: s30(1)(a)
-    “matter” in s30(1)(b) & (c)
-    reasonable conduct in the circumstances: s30(1)(c)
-    Note: impact of s30(3)

Section 30 - Defence of qualified privilege for provision of certain information
(1) There is a defence of qualified privilege for the publication of defamatory matter to a person (the "recipient") if the defendant proves that:
a.    The recipient has an interest or apparent interest in having information on some subject, and
b.    The matter is published to the recipient in the course of giving to the recipient information on that subject, and
c.    The conduct of the defendant in publishing that matter is reasonable in the circumstances.

(3) In determining for the purposes of subsection (1) whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances, a court may take into account:
a.    The extent to which the matter published is of public interest, and
b.    The extent to which the matter published relates to the performance of the public functions or activities of the person, and
c.    The seriousness of any defamatory imputation carried by the matter published, and
d.    The extent to which the matter published distinguishes between suspicions, allegations and proven facts, and
e.    Whether it was in the public interest in the circumstances for the matter published to be published expeditiously, and
f.    The nature of the business environment in which the defendant operates, and
g.    The sources of the information in the matter published and the integrity of those sources, and
h.    Whether the matter published contained the substance of the person’s side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person, and
i.    Any other steps taken to verify the information in the matter published, and
(j) Any other circumstances that the court considers relevant.

▪ The key words in s30 are: “Subject”, “matter”, and “interest”
•    Interest (30(1)(a) or s22(1)(a) of DA 1974) – Interest is a lot broader under s30. Interest here, means what we think interest means.
o    For example: In the broadest sense, not just a mere piece of news. In Barbaro, the residents of Griffith had an interest in knowing the information as to who murdered Donald McKay.
o    In Marsden, there was no dispute the public interest in the alleged paedophilic actions of Marsden.
o    In Chappell, there was no interest in knowing he had an affair. There, the interest did not go beyond curiosity or mere news.
•    Matter (s30(1)(b) or s22(1)(b) of DA 1974) –
o    Matter means the very defamatory imputation that the P has pleaded.
o    Matter is not the same as subject. Subject is broader.
o    It is not just the topic of interest, but the defamatory imputations themselves.
o    It requires that it is reasonable to publish the untruths to the recipient

HOWEVER
Note:
- Defeating the defence by malice with Section 30(4)
s30(4); For the avoidance of doubt, a defence of qualified privilege under subsection (1) is defeated if the plaintiff proves that the publication of the defamatory matter was actuated by malice.

Wright v ABC [1977]
FACTS: Case regarded elections of a president by Labor and Liberal Parties. Carleton, a political commentator, asked Senator Wright, who he voted for and Wright replied that answering such a question would be beneath him, unprofessional, etc and that it should have been clear that he, and all other members of his party would vote for their own member. The winner won with 2 extra votes (including all the members of his political party, assumed), thus 2 members of the opposing political party must have voted for him as well. Carleton telecasted that Senator Wright must have voted for the other party, implying that he was the “rat” who sold out his own party. The defence of qualified privilege under s22 of the DA was raised.
HELD: Case fell on whether the publication was ‘reasonable’. The general public undoubtedly has an interest in having information on the subject of public affairs and, in particular, the subject of the election of a president, however, the defamatory matter was not published in the course of giving the public information on that subject. Rather the subject of the publication was no more than a speculation in the nature of titillating gossip as to how Senator Wright had cast his vote in a secret ballot. This was a subject in which the public had no legitimate interest. Therefore the publication complained of was not, and could not be, reasonable within s22(1)(c). s22 defence failed.

Rogers v Nationwide News Pty Ltd [2003] HCA
FACTS: Rogers was a prominent eye surgeon who was defamed in an article published on the front page and page two of the Daily Telegraph. Mrs Whittaker, Roger’s patient, suffered sympathetic blinding in her good eye and Rogers was negligent in failing to tell her the one in a 14,000 chance she could go blind in the other eye. He sued and was awarded $250,000 in damages in the DC. However, the CoA held that the publisher had made out a defence under s24 of the DA which protects fair reports of certain proceedings, including court proceedings. A s22 defence was also raised.
Principle: s22 provides that where, in respect of matter published to any person, the recipient has an interest or apparent interest in having information on some subject, the matter is published to the recipient in the course of giving to the recipient information on that subject, and the conduct of the publisher in publishing that matter is reasonable in the circumstances, there is a defence of qualified privilege for that publication.
HELD: The Daily Telegraph article relied solely on the judgment of Hill J as a source of information, but did not include the information regarding the blinding of Mrs Whittaker – that was the journalist’s own contribution and was what gave the article its sting.
The HC held that the words that conveyed the imputation were not published in the course of giving readers information about the relevant subject. The relevant subject was in regards to what the ATO had done, and the information regarding Mrs Whittaker was additional to that. Thus the publication was not sufficiently connected with the subject that may have been of interest to fall within s22(1)(b).

4. Constitutional freedom of discussion: implied freedom of speech and comment on political and public matters

- There is an extended defence of qualified privilege covering speech and comment on government and political matters: Lange v ABC

- In 1997, the HC in Lange v ABC expanded the scope of the defence of CL qualified privilege by extending the protection to defamatory statements made to the public at large in the course of communications on government or political matters. The court made it clear that the laws of defamation, both at CL and statute, should be consistent with, and not restrictive of, the freedom of communication implied by the constitution.

Background to Lange v ABC:

Continued on page 6

Continued

Stephens v WA Newspapers Ltd and Theophanous v Herald & Weekly Times:

• Stephens: HC majority extended freedom of political expression (implicit in the Commonwealth Constitution) to discussion of State as well as federal political matters. WA State Constitution was a source of similar implications.

• Theophanous: HC majority held that the implied freedom of political communication provided a new defence to defamation, provided the defendant could establish:
(i)    It was not aware of the falsity of the material published;
(ii)    It did not publish recklessly (i.e. not caring whether the material was true or false), and
(iii)    The publication must be reasonable in the circumstances). This was, if you like, a “constitutional defence”.

• Privilege was also extended broadly to discussion of the legislative, executive and judicial powers of government at State, federal and local levels.

• The Theophanous majority also relaxed the reciprocity requirements, as far as the common law defence of qualified privilege was concerned, on the basis that the public at large had an interest in discussion of political matters. The effect of this was to create a “widened form” of qualified privilege applicable to political communication, which could be defeated only by malice. This extended qualified privilege was wider than the constitutional defence (since it did not have the 3 requirements of the latter). So defendants began to depend upon the qualified privilege defence.

• HC rejected New York Times v Sullivan, restricting the defence to matters of political discussion, rather than by restricting claims by “public figures”.

• Fresh consideration of these issues in Lange.

Lange v ABC (1995)

• The problem with Theophanous and Stephens, says the HC at p 569, was because those cases didn’t consider whether the common law and statute law of defamation was “reasonably appropriate and adapted to achieving” the legitimate end of protecting personal reputation in a way which is compatible with the system of government prescribed by the Constitution, so the HC re-considers the issue afresh in Lange.

• The reciprocity doctrine (part of the qualified privilege defence) imposes an unreasonable restraint on freedom of communication concerning political and government matters, says the HC. This is because qualified privilege – in its current form – provides no defence to a person who “mistakenly but honestly publishes government or political matter to a large audience”. So, qualified privilege must be extended where the publication in question relates to government or political matters.

• The consequence of this extension is that: everyone has an interest in disseminating and receiving “information, opinions and arguments concerning government and political matters that affect the people of Australia”.

• Are there any restrictions on the qualified privilege, re-interpreted in the light of the implied freedom?
Well, says the HC, at common law, once the occasion of qualified privilege exists, it can only be defeated by malice. But since the damage caused by widespread publication by the media to thousands of persons “is obviously so much greater than when there are only a few recipients”, a requirement of reasonableness should be imposed. This extra requirement, says the HC – which goes beyond mere honesty – is reasonably appropriate to the protection of reputation and is not inconsistent with the freedom of communication required by the Constitution.

• The reasonableness of the defendant’s conduct only becomes an issue in cases where, by virtue of the fact that the publication was made to too-wide an audience, the defence of qualified privilege would otherwise fail due to lack of reciprocity.

• What will be required to prove “reasonableness”?
Usually, “reasonable conduct” will require the defendant to have:
- Reasonable grounds for believing the imputations were true;
- Took proper and reasonable steps to verify accuracy of the material;
- Did not believe the imputation was untrue; and
- Sought a response from the person defamed and published the response (where practicable.

• In all but exceptional cases, it will be necessary for the publisher to establish that it was unaware of the falsity of the matter.

• Actuating malice – i.e. if the publication of the defamatory matter was actuated by ill will or improper motive, this will defeat the defence. But the presence of ill will or bad motives isn’t enough.

• Once developed in this way, the common law of defamation doesn’t place an undue burden on freedom of political and government communication as protected by the Constitution. And nor does s 22 DA (NSW).

Herald & Weekly Times Ltd v Popovic [2003] VSCA
ISSUE: Does the extended qualified privilege defence as set out in Lange apply to criticisms of magistrates and judges? If so, in what circumstances?
HELD: The majority held that the Lange principle of extended qualified privilege did not extend to the judiciary.
Winneke held that criticism by a newspaper (even strong criticism) of a magistrate’s performance in conducting or handling isolated proceedings in the Magistrate’s court – even to the point of inferring that he or she is unfit to hold office – is not a discussion of government or political matters of the type which is protected by the implied constitutional freedom. As Spigelman CJ pointed out in John Fairfax v AG (NSW) – the conduct of courts is not of itself, a manifestation of any of the provisions relating to representative government upon which the freedom is based.
Warren JA also held that the Lange judgment did not appear to contemplate the application of the privilege to the judiciary.

(iv)    THE DEFENCE OF FAIR COMMENT AND HONEST OPINION

1. Components of the defence of fair comment and honest opinion:

What must be proven?
Section 31 Defences of honest opinion
(1) It is a defence to the publication of defamatory matter if the defendant proves that:
(a) The matter was an expression of opinion of the defendant rather than a statement of fact, and
(b) The opinion related to a matter of public interest, and
(c) The opinion is based on proper material.

(2) It is a defence to the publication of defamatory matter if the defendant proves that:
(a) The matter was an expression of opinion of an employee or agent of the defendant rather than a statement of fact, and
(b) The opinion related to a matter of public interest, and
(c) The opinion is based on proper material.

(3) It is a defence to the publication of defamatory matter if the defendant proves that:
(a) The matter was an expression of opinion of a person (the "commentator"), other than the defendant or an employee or agent of the defendant, rather than a statement of fact, and
(b) The opinion related to a matter of public interest, and
(c) The opinion is based on proper material.

(4) A defence established under this section is defeated if, and only if, the plaintiff proves that:
(a) In the case of a defence under subsection (1)—the opinion was not honestly held by the defendant at the time the defamatory matter was published, or
(b) In the case of a defence under subsection (2)—the defendant did not believe that the opinion was honestly held by the employee or agent at the time the defamatory matter was published, or
(c) In the case of a defence under subsection (3)—the defendant had reasonable grounds to believe that the opinion was not honestly held by the commentator at the time the defamatory matter was published.

(5) For the purposes of this section, an opinion is based on "proper material" if it is based on material that:
(a) Is substantially true, or
(b) Was published on an occasion of absolute or qualified privilege (whether under this Act or at general law), or
(c) Was published on an occasion that attracted the protection of a defence under this section or section 28 or 29.

(6) An opinion does not cease to be based on proper material only because some of the material on which it is based is not proper material if the opinion might reasonably be based on such of the material as is proper material.

Common Law

•    Defamation law distinguished between statement of fact and statements of opinion

•    A statement of fact asserts some verifiable objective matter. A statement of opinion (or comment) however expresses a deduction, inference or conclusion. The defence of comment is only concerned with the latter type of statements.

Elements of the defence at common law

•    At common law three elements are required:

1.    Comment (and not fact), based on facts
2.    Matter of public interest
3.    Fair comment and Malice

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Continued

2. Comment (and not fact) based on facts stated or indicated:

(i)    Opinion and not fact

•    The statement must be purely comment to attract the defence – it cannot be intertwined with a factual assertion. The test is objective – would the ordinary reasonable person have understood the statement as an opinion? The intention of the maker is irrelevant.

•    A person exposes himself or herself to comment when they perform their work in public. As they have invited the public to look at their work they cannot say that its quality is not a matter of public interest. Gardiner

•    The persons who comment on this will not expose themselves to a defamation action as long as the comment is found to be fair (not malicious): Gardiner

O’Shaunessy v Mirror Newspapers (1980)
FACTS: A journalist from the Australian Newspaper criticised a performance of Othello in which the plaintiff directed and played the part of Othello.
The article was called ‘What a tragedy’ it read ‘stupidity and lack of talent are forgivable; brave failures deserving of praise – theses are every day human failings. But the waste and dishonesty of this production, or rather recitation make me very angry indeed….
The TJ directed that this was comment.
HELD: HCA:
-    The TJ had misdirected the jury in saying that the article was comment.
-    If there is any doubt as to whether something is a statement of fact or opinion this is a matter of opinion. Here the statement could be reasonably regarded as a statement of fact.
-    The criticism of Othello went beyond criticism of the production by attributing a dishonorable motive to the plaintiff as a statement of fact.
-    The defamatory assertion of fact was that he had dishonestly suppressed the roles of the other characters to highlight his own role.

(ii)    Opinion based on facts stated or indicated

•    The statement of opinion must be accompanied by a statement or indication of the facts on which the opinion is based. The rationale for this is that it allows readers to judge for themselves whether the opinion is well founded

•    Failure to state the factual basis for the comment will amount to a concealed assertion of fact. In these circumstances the statement cannot be excused by fair comment (FC)
For example ‘X murdered his father. He is a disgrace to human nature’.
-    The first statement is a defamatory statement of fact, the second a defamatory statement of opinion. It is possible to defence this via FC
-    But, if the statement is simply ‘X is a disgrace to human nature’ as there is no factual basis on which to bases this assertion then FC will not be available.

•    Normally the facts upon which the defamatory matter is based must be expressly set out in either the matter complained or the adjacent to the matter: (although there are exceptions see below)

Renouf v Federal Capital Press (1977)
FACTS: P was Secretary of the Dept of Foreign Affairs sued in respect of an article in the Canberra Weekly Times.
(1) The article imputed that the P would soon be removed from his Post as Sec of the Dept of Foreign Affairs. The article supplied two reasons for this:
(i)    Foreign affairs officers were disposed of more readily than in other departments – and precedents for disposing them exist and
(ii)    It was widely considered by the those within the Public Service to be inevitable
(2) The article also imputed that the P lobbied for his office. The article supplied the following evidence for this:
(i)    The opinions of ‘veteran public servants’ and
(ii)    The fact that the P had published an article on the famous member of the Labor party Dr Evatt.
HELD: None of the imputations could be defended on the basis of fair comment.
WRT (1) ‘a prophecy of future event cannot rank as comment – there were no facts to support (I) and (ii). That is, comment will not be fair if the supporting facts are absent or not fairly states; you can’t just make up facts to attract fair comment.
WRT (2) the reference to the P’s article was inaccurate (even through there was part of the article that could have supported the fairness of his comment). You must give an accurate account of facts are they to support opinions.
(NB if the defendant cited publication of the article as a fact (without indicating its substance this would amount to an invitation to the reader to read the publication in order to see if his opinions were warranted.

(iii)    Supporting Facts on which the comment is based must be true (or absolutely privileged)

•    The every aspect of the factual matters on which the opinions are based must be proven to be true if FC is be a defence.: see Renouf above
•    Do you have to prove the truth of all the facts?. Is it enough to supply the facts that are sufficient to support the comment
-    Renouf – no you must justify all the factual statements that you have chosen to make
-    Kemsley v Foot – proof of facts sufficient to support ‘objective fairness’ will be sufficient
-    Comalco –

•    If the facts are absolutely privileged then they do not need to be true: ie you can report on parliamentary proceedings without having to prove the truth of the statements

Exceptions to (ii) and (iii)

•    Where the facts are notorious, ie so well known throughout the community that the indication given is sufficient to bring them to the mind of ordinary reasonable people.
-    Here there will be no need to set out the facts in full as they will already be public knowledge

•    Where the factual basis for the matter has been submitted to the public for consideration eg a published literary work, or theatrical performance. The critic in this instance need no set out the full text of the work. Identification is sufficient.
-    There will be no need to set out the facts, as the public will usually have the ability to ascertain the info. themselves.

3. Matter of public interest:

•    FC will only be available when it related the a matter of public interest (PI) (see def. of public int. above;)
-    A persons private life will not be within the PI unless that person make that relevant (Chappel; see also Much v Sleeman

•    Majority in Bellino – a matter of public interest is ‘ the actions or omissions of a person or institution in activated that either inherently, expressly or inferentially invited public criticism.’
-    Note that this comment focuses on conduct. Hence in Bellino the subject of PI – organized crime and corruption in Qld was too broadly expressed to be a matter of PI.

•    According to this def the following matters will usually fall with in the public interest:
-    Politics and govt (Renouf)
-    Public institutions an officials (Wickford v Clark)
-    Expenditure of public money

•    Minority (Brennan and Gauldron) – whether the matter would affect the public at large. This is far broader. Gillooly favors this view (they echoes Denning in London Artists v Littler). This may support broader matters such as:
-    Public sources of information (or the media Kemsley v Foot) (note that in Alsopp v Incorporated Newspapers an incompetent editor was not deemed to be a matter in the public interest because the editor did not hold himself out for public criticism )

4. Fair comment and malice:

•    In order for the comment to be FC it must be honestly held: Gardiner v Fairfax

•    The comment does not have to be reasonable – the fact that it is severe, or exaggerated is irrelevant because the defence of fair comment may protect irrational comments as well.

•    The comment must be objectively fair: ‘ Could any fair minder person honestly express the opinion on the proved facts’: Telkinoff v Matusevick or alternatively ‘no fair minded man could honestly hold the opinion’.

Telkinoff v Matusevick
FACTS: The P wrote an article in the daily telegraph that suggested that the Russian BBC radio service was constituted of minorities of the Russian Empire.
The defendant was a Jew who wrote a letter to the editor that said ‘ Mr Telknikoff demands that in the interest of more effective broadcasts the management of the BBC should switch from professional testing to a blood test.
HELD: The D must prove that this opinion was honestly held in order to attract fair comment. This was not the case here.

•    The comment must not be actuated or distorted by malice: if it is there can be no defence of FC
•    Malice means ill will or improper motive and is not to be confused with irrationality and stupidity.
•    It must be shown that ill will motivated the comment made about the plaintiff. This onus is borne by the defendant: Telkinoff
•    Again generally honesty will be critical to determining whether the commentator honestly believed the truth of what is said
-    If a commentator believes the truth of what is said then generally this will negative malice: Horrocks v Lowe (however there may be exceptions where that opinion is made honestly but from a person with warped un reasonable views):
-    If the commentator did believe the truth of the statement then this will usually be conclusive evidence of malice: Horrocks v Lowe; Telkinsoff v Matusevich

•    Where a number of people are responsible for the publications – eg the journalist, the publisher each persons defence of fair comment is distinct: Thomas v Bradbury. For exasmple, malice on the part of the journalist will not equate to malice on the part of the publisher. The exception to this principle is when the employer makes statement in the course of his duties and therefore the employer will be vicariously responsible.

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Continued

Remedies

1. Injunctions:

In some cases, a forewarned plaintiff may seek to prevent an upcoming publication by means of an interlocutory injunction. The effect of such an injunction is to preserve the status quo until the final determination of the parties’ rights at the trial.

The plaintiff is required to show that there is a serious question to be tried between the parties and that the balance of convenience lies in the favour of the plaintiff – the injury the plaintiff is likely to suffer if the injunction is refused outweighs the injury the defendant is likely to suffer from the granting of the injunction. However, the courts approach the power to grant interlocutory injunctions for defamation with great caution, and will do so in very rare cases.

Hunt J in Church of Scientology v Reader’s Digest [1980] stated that for a court to grant an injunction, the plaintiff must establish three factors:

1)    The plaintiff must establish that a subsequent finding by a jury that the matter complained of was not defamatory of him would not be set aside as unreasonable (i.e. a jury’s verdict of no libel would be set aside as unreasonable) - this was considered as essential to a granting of an injunction by Esher MR in William Coulson and Sons v James Coulson and Co (1887); and
2)    That there is no real ground for supposing that the defendant may succeed upon any defence of justification, privilege, or comment and; Media discussion of matters of public interest or concern will not be restrained
3)    That the plaintiff is likely to recover more than merely nominal damages.

Chappell v TCN Channel Nine Pty Ltd (1988)
FACTS: Truth Newspaper in Melbourne published an article concerning the plaintiff who was the captain of the Australian cricket team. The article alleged that he had committed adultery and/or engaged in unusual sexual activities. An injunction was sought in the NSW Supreme Court against A Current Affair who intended to broadcast this story.
HELD: The three rules established above are not strict and inflexible. “In my view, the time has come in New South Wales to reject as rigid set of rules of practice those rules laid down… therefore I conclude that my inability to hold that a jury’s verdict of no libel would be set aside as unreasonable did not require me to reject the plaintiff’s application…” – Hunt J at 163. Here, the possibility of a no libel verdict was very slight but nevertheless it could not be said that the first rule was completely satisfied. While in previous cases, such a weak satisfaction of the first rule would have been insufficient, Hunt J balanced the potential injury of the plaintiff against the minimal detriment to the defendant to come to his decision to grant the injunction.
Note: Whether an injunction is appropriate will depend on the facts of each case with a balancing of the elements so that the weight of one may compensate for the lesser weigh of another.

Hanson v ABC (1998) – Unreported QLD CoA
FACTS: ABC appealed an interlocutory injunction granted to restrain the broadcast of a song made up of “cut-and-paste” of words spoken by Pauline Hanson. The appellant argued that the trial judge who had applied the Chappell test, had applied the wrong test as he had regard to whether the material was capable of being defamatory rather than actually defamatory.
HELD: The initial trial judge considered Chappell and decided that for the purpose of granting an injunction, it was unnecessary to decide whether it was actually defamatory, but rather whether it was capable of being defamatory. The appeal was dismissed as it was the found that the trial judge had indicated his view during argument that the material was clearly defamatory.  The court was satisfied that should a jury find no defamation, such a verdict would be set aside as unreasonable.

Note: Applications to injunct publications on the internet will be refused because they limit publication to any place in the world on the basis of NSW law (Macquarie Bank Ltd v Berg [1999] NSWSC 526 – Simpson J).

2. Damages:
Types of damages:

(a)    Compensatory damages, includes:
*    Pecuniary harm which may arise from –
a.    the expenses incurred by the plaintiff in mitigating loss;
b.    loss of anticipated business or profits, and;
c.    more generally from loss of business reputation and goodwill.

*    Non-pecuniary harm which may arise from –
a.    reputational damage: harm to the esteem in which one is held;
b.    emotional and physical distress.

(b)    Aggravated damages
compensatory in nature, available where the defendant’s conduct “aggravates and injury and increases the harm done to the plaintiff”: Carson, p 50.

(c)    Punitive/Exemplary damages
Special damages awarded in addition to general damages, where the court wishes to punish the defendant. Not compensatory in nature and serves a purpose beyond restoring the victim to their position before the commission of the tort.

Purposes of damages:
Consolation for the plaintiff:

1. Consolation for the personal distress and hurt which the plaintiff suffered as a result of the defendant’s publication;
2. Reparation for the harm caused to the plaintiff’s personal (and if relevant business) reputation;

Vindication in the eyes of others:
3. Vindication of the plaintiff’s reputation.

Note: Artificial persons like corporations can’t recover damages for non-pecuniary harm, but individuals can.

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Continued

Damages legislation:

In Australian jurisdictions besides SA (where civil juries have been abolished), the court has discretion to order that a trial be heard by a jury. Where the trial is heard by a jury, the assessment of damages is also the task of the jury, except for NSW where the judge determines the amount of damages to be awarded.

Random House Australia Pty Ltd v Abbott (1999)
FACTS: Random House was the publisher of a book which included a section commenting on politicians Mr. Abbott and Mr. Costello and their respective wives. This was an appeal case regarding the damages awards was granted to each of those affected by the defamatory publication. Miles J discussed some aspects of damages awards for defamation.

In most torts, there is a clear distinction between compensation for the plaintiff and punishment for the defendant but… “The tort of defamation has a quasi-criminal background and the liability of the defendant includes exposure to a monetary remedy which is supposed to express social disproval, even if the defendant’s conduct falls short of warranting the award of exemplary or punitive damages…”

It was recognised that there has been a shift in the focus of defamation cases from the loss of reputation to the hurt to feelings. In Australia there has been no attempt judicially or legislatively to restrict or isolate damages for hurt to feelings.

The law presumes harm to reputation from a libellous publication, a plaintiff does not have to prove or call evidence about actual harm.

As a matter of principle, a person is not entitled to damages by being outraged at the defamation of somebody else.

Publication of an apology may mitigate damage, thereby reducing he harm suffered by a plaintiff in a defamation case, and so reduce the damages awarded, the failure to publish an apology does not increase the plaintiff’s hurt or widen the area of publication.

Failure to apologise is never, without more, enough to warrant aggravated damages

Carson v John Fairfax & Sons Ltd (1993)
FACTS: Carson won actions in defamation for two articles published in the Sydney Morning Herald. The total damages awarded for the two articles came to $600,000. On appeal the Court of Appeal found the award to be excessive and Carson appealed to the High Court.
HELD: The issue at the centre of this case was whether past awards of general damages in personal injuries cases could be used to provide legitimate guidance on a the determination of a damages award in defamation.

The majority of Mason CJ, Deane, Dawson and Gaudron JJ found “no significant danger in permitting trial judges to provide to the jury an indication of the ordinary level of the general damages component of personal injury awards for comparative purposes, nor in counsel being permitted to make a similar reference.” They were able to come to this conclusion on the basis that the law today is not more jealous of a man’s reputation than of his life and limb, and the seeming inequity in a plaintiff in an action for defamation recovering a much larger damages award for an injury to his reputation, which may prove transient in its effect, than the damages awarded for the pain and suffering of a victim who has lost an eye or the use of one or more limbs. - Appeal dismissed.

The minority of Brennan, Toohey and McHugh JJ found that “the issue is not whether the law is more jealous of reputation than of life and limb… it would be a mistake to regard the consequences of the injury inflicted in the two classes of case as being comparable… in personal injury the law calls for compensation to be assessed by reference to the pain and suffering caused… in cases of libel, compensation is assessed by not only the pain and suffering resulting from the publication but also by the extent to which this pain and suffering is aggravated… and also considers the plaintiff’s need to receive an award which will vindicate his reputation in the eyes of the public… it is wrong for an appellate court to form a normative standard for reviewing jury assessments of damages for defamation by reference to awards in personal injury cases” – (Brennan’s judgment).

McHugh J: The mixture of inextricable considerations which ultimately governs an award of damages for defamation means, “The elements of an award of damages in a defamation action are so intangible and the criterion of value so vague that no two persons are likely to agree, even approximately, on what is a proper award for defamation. This is so even in a case where exemplary damages cannot be awarded.”

The award of damages is not likely to be set aside as excessive by a court of appeal. An appeal court will only intervene where the award is manifestly excessive or inadequate although the reasons for doing so are not clearly identifiable.

Note: After this case, the Defamation Act 1974 (NSW) was amended in 1994 to include s46A: “the court is to take into consideration the general range of damages for non-economic loss in personal injury awards”.

Rogers v Nationwide News Pty Ltd [2003]
FACTS: The appellant was a prominent eye surgeon who was defamed in a front page article published by the respondent in the Daily Telegraph. The article contained implications that the surgeon was negligent and had caused the blindness of both eyes in one of his patients, Mrs. Whitaker. In an earlier trial, the appellant had been granted damages of $250,000. The issue that Miles J examined was the application of s46A of the Defamation Act and the extent to which comparisons may be made with personal injury damages awards.
HELD:The purpose of s46A is to ensure that a person’s reputation is not valued higher than life or limb. “If an award of damages for defamation is greater than the amount allowed for the most serious physical injuries with permanently disabling consequences, it may be evident that the amount awarded for defamation is manifestly excessive” – per Hayne J at 72. What s46A does is merely determine the outer limits of a defamation damages award.

s46A requires the investigation of personal injury awards to determine the maximum possible award and sets that as the maximum possible for defamation, but so long as the defamation award stays within that limit, it will be difficult to state

“The general range, those statutory limits imposed in cases of motor or workplace accidents are not to be taken as being indirectly imposed as limits on the amount to be allowed in defamation. But the reference to the general range of damages does identify the highest sums awarded for the non-economic consequence of personal injury as what might be called a presumptive outer limit to awards for defamation.” – per Hayne J at 76.

The award of $250,000 was held to be properly awarded with the trial judge having the right to conclude that the effect of the publication on Rogers was very large.

Fleming , “Retraction and Reply: Alternatives to Defamation” (1978)
A defamed plaintiff has a legitimate claim to vindication in order to restore his damaged reputation, but a settlement for, or even a court award of, damages is hardly the most efficient way to attain that objective. In either case, the refutation of the libel is not attended with much publicity, if any, and, if resisted by the defendant, occurs long after the libel has spread its poison.

So far as the plaintiff is concerned, damages offer him a pot of gold which he may not even desire, but since this is all that the law provides him as a token of vindication, it is still widely regarded as necessary for honourable men to demand a large sum of damages lest it be misinterpreted as a tacit admission that one’s reputation was not worth more.