AustLit

DEFAMATION

Defamation in Australia departed from its English heritage in 1847. Only four years after the creation of its first representative legislature, New South Wales reformed the law in ways that had recently been rejected in England. The change meant that the defence of justification required proof that the publication would benefit the public as well as being true. After 1847, true but private matters could not be defended from defamation claims in New South Wales. This early legal method of protecting privacy is often linked to the colony’s convict origins. Parliamentary debates also suggest that it had the more general aim of countering attempts at extortion by some newspapers that threatened to publish embarrassing private facts and speculation about a convict past.

The requirement to prove both truth and public benefit did not survive in all colonies, with each developing its own defamation law. This lack of uniformity continued until largely uniform defamation laws came into force throughout Australia in 2006. Among modest changes, the uniform laws removed any requirement to prove public benefit or public interest in the defence of truth.

The absence of uniform laws posed challenges for the media, particularly with the growth of national distribution and broadcasting during the 20th century. In practice, the media had to meet the requirements of whichever jurisdiction was least protective of the publication in question. An even greater difficulty for the media was the law’s general substance. Defamation plaintiffs need to establish far less than in most civil actions, and plaintiffs with the resources to sue can do much to limit critical media coverage. (A criminal offence of defamation exists, but has become very rare and is not significant for media publications.) Political, business and legal figures, sports and entertainment stars, restaurateurs, artists and performers all successfully sue the media. Plaintiffs could also issue ‘stop writs’, in which defamation actions were brought but left to languish in the court system; the action was brought solely to stop further publication on the issues in question. Between the 1960s and 1980s, law reform bodies raised serious concerns about the use of such writs against Australian media.

Major defences to civil defamation involve proving publications to be true; to be honest opinion or comment based on material proven to be true; to have been published on an occasion of absolute privilege, such as statements made in legal proceedings and parliament; or to be protected by qualified privilege. None of the defences works very well for the media. Qualified privilege traditionally included media reports of statements made in courts or parliament but not wider commentary about those statements. It was often unavailable to media defendants—for example, it did not protect media publications about suspected corruption: the matter had to be reported to authorities rather than to the general public. Historically, a minority of Australian jurisdictions provided other forms of qualified privilege that could better protect media publications on matters of public interest. However, the defences were sometimes difficult to apply at trial and were abolished by the uniform laws.

Truth is more challenging to prove in court than one might suspect, making new forms of privilege important if public-interest speech is to be better protected. Reflecting such arguments, a new qualified privilege developed in the 1990s as the High Court recognised a protection for political communication implied in the Australian Constitution. The defence protects publications concerning political matters where the circumstances of publication were reasonable. The uniform laws have extended the defence to reasonable publication on matters of public (and not just political) interest. However, the term ‘reasonable’ in an earlier, similar defence in New South Wales was interpreted so restrictively by courts that it became almost impossible for media defendants to use. The net result of all these rules is that where defendants cannot prove material true by evidence admissible in court, they may well be liable for damages because harm to the plaintiff is assumed in defamation.

The risks exist for classic forms of media investigation and commentary, but extend to all media genres. The law appears to focus more on protecting reputation than promoting wide debate about matters of public interest. Several examples illustrate the complexities and challenges of defamation.

In O’Shaughnessy v Mirror Newspapers (1970), a theatre review caused years of litigation. Katharine Brisbane had criticised a production of Othello under the headline ‘What a Tragedy’. Peter O’Shaughnessy both directed the production and played Othello. Brisbane commented: ‘Stupidity and lack of talent are forgivable; brave failures are deserving of praise—these are every-day human failings. But the waste and dishonesty of this production ... make me very angry indeed.’ One might think, like the jury, that this was an honest opinion about the production and so protected by the defence of fair comment. But that defence can- not protect bare statements of fact, and more than three years after the review’s publication in the Australian, the High Court held that it might have meant the plaintiff promoted his own performance at the expense of other actors. The law would treat that as a factual matter, which could not be defended by fair comment. The jury had not been asked to consider that possibility and, to avoid a second trial, the case finally settled.

In Meskenas v Capon (1993), the director of the Art Gallery of New South Wales was sued after the Sun-Herald published his criticism of a portrait of business identity, Rene Rivkin. Edmund Capon said: ‘It’s simply a rotten picture. It’s no good at all ... It looks like it’s been painted with chewing gum.’ In his opinion, this was a poor painting. But the statement could not be defended, because it was taken to convey a broader meaning that Vladas Meskenas was an inferior painter. While only $100 in damages was awarded, the defence had to pay the plain- tiff’s legal costs, which reportedly amounted to $80,000 for a short and simple defamation trial in the District Court in Sydney.

As well as such artistic criticism, media reports of issues of public debate can easily give rise to defamation actions. For example, multiple defamation cases arose during the 1990s in connection with the Hindmarsh Island bridge development in South Australia, media reporting of it and the Royal Commission that was held into the government planning process for the bridge. The plaintiff developers reportedly won damages totalling $800,000.

Influential investigative journalism has also long been at legal risk. A famous example involved serious allegations about governance in Queensland. The 1980s Four Corners report, ‘The Moonlight State’, is commonly seen as a catalyst for an official inquiry into police corruption in Queensland and substantial efforts to reform the police force. Among more than 100 convictions, Queensland’s most senior police officer was subsequently imprisoned. Even so, the journalist involved, Chris Masters, and ABC legal staff had to defend the program in a series of hearings over more than 12 years. The main defence was an earlier form of qualified privilege. At almost every stage, the media succeeded in the defence, yet the litigation continued, in part due to the highly technical appeals allowed by defamation law’s complexity. The publication was of undoubted public importance and the journalism outstanding, but its defence involved huge resources.

There have also been notable cases involving politicians who historically were among the most common defamation plaintiffs faced by the media. It is a matter of folklore that some won sufficient damages to pay for a ‘Fairfax (or Murdoch) swimming pool’. Equally, particular business figures and organisations have formidable reputations for suing. It is hard to avoid the conclusion that some litigants who have the resources for legal action have used defamation in managing their public image and limiting reporting and commentary.

Media publications are not all at equal risk of suit. Journalists and legal advisers’ knowledge of potential plaintiffs can be significant in deciding what material to publish and who can be defamed with relative safety. Research shows many more men than women sue in defamation, with wider socio-economic differences also evident. Suits most often involve allegations about business, professional or political activities. It is not only media publications that are subject to suit, but media organisations are very prominent defamation defendants. Historically, newspapers have been most likely to be sued.

Comparative research has found defamation law to have a ‘chilling effect’ on speech, with Australia comparing poorly to the United States, where public speech is far more protected under the first amendment to the US Constitution. Defamatory allegations against political and corporate actors appear be published in the US media more frequently than in Australia—as much as three times more often in mainstream newspapers during the early 2000s. Australian media appeared to be far less comfortable making allegations about business wrongdoing than US media, although Australian media also appeared more constrained in relation to political criticism. Under Australia’s uniform defamation laws, most corporations can no longer sue in defamation. However, individuals associated with a company can still sue if they are identifiable from media publications about the company.

Despite calls for more substantial alteration of defamation law, legislative changes have been incremental. In part, this has been due to complex relations between politicians and media. Internet communications may alter those relations over time, promoting larger reform.

REFs: C. Masters, Inside Story (1992); M. Pearson and M. Polden, The Journalist’s Guide to Media Law (4th ed., 2011).

ANDREW T. KENYON